People v. Perry
317 Mich. App. 589
| Mich. Ct. App. | 2016Background
- Victim Montay Lee had a wallet and an $1,100 city paycheck stolen; defendant cashed that stolen check at a Grand Rapids store, presenting Lee’s ID and leaving a thumbprint on the check.
- Seller Michael Bourdon sold a Pontiac via Craigslist to defendant (and an associate) for $2,500; defendant presented Lee’s driver’s license and handed over about 40 bills, most of which were counterfeit.
- Bourdon and a witness noticed the bills looked counterfeit; police confirmed all but one bill were counterfeit and the car was recorded as stolen; Bourdon completed title paperwork listing the buyer as “Montay Lee.”
- Defendant admitted cashing a check in Grand Rapids but denied knowledge of the car sale or passing counterfeit bills; no physical evidence linked him to the counterfeit notes.
- A photographic lineup identification occurred while defendant was in custody on an unrelated Kent County matter before adversarial proceedings were initiated for the Muskegon case.
- A jury convicted defendant of two counts of uttering counterfeit notes (MCL 750.253), one count of false pretenses, and one count of identity theft (MCL 445.65); court sentenced him as a second-offense habitual offender.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by permitting amendment of the information to add identity theft mid-trial | Amendment was timely, based on facts already presented, and was disclosed before trial | Amendment unfairly surprised and prejudiced defendant; constituted prosecutorial vindictiveness for going to trial | Court affirmed amendment: no unfair surprise (prosecution announced intent pretrial) and no evidence of actual vindictiveness |
| Whether photographic lineup should have been suppressed because defendant was in custody and entitled to counsel | Identification was admissible because adversarial proceedings on the instant charge had not yet begun | Defendant entitled to counsel at photographic lineup because he was in custody; identification should be suppressed | Denied suppression: Hickman controls; right to counsel attaches only at or after initiation of adversarial proceedings, so no right to counsel for pre‑charging photographic ID |
| Sufficiency of the evidence for identity theft conviction (MCL 445.65) | Evidence showed defendant used Lee’s name and license while passing counterfeit money to obtain property | Defendant argues no proof of intent to defraud or that victim relied on ID | Affirmed: circumstantial evidence (presentation of Lee’s ID while tendering counterfeit money) permitted a rational jury to find intent to defraud |
| Whether multiple convictions for uttering counterfeit notes violate double jeopardy (unit of prosecution) | (Prosecution conceded error on appeal but trial court argues) statute’s wording permits convictions per counterfeit note | Defendant: unit of prosecution is the transaction, not each bill; multiple convictions constitute multiple punishments for same offense | Affirmed convictions: plain statutory text ("any such ... note") and legislative intent allow separate convictions for each counterfeit note; no double jeopardy violation |
Key Cases Cited
- People v. Hickman, 470 Mich 602 (Mich. 2004) (right to counsel for identification attaches only at or after initiation of adversarial judicial proceedings)
- Moore v. Illinois, 434 U.S. 220 (U.S. 1977) (federal guidance on counsel and identification procedures)
- People v. Wakeford, 418 Mich 95 (Mich. 1983) (unit-of-prosecution analysis and deference to legislative determination of single offense)
- People v. Jones, 252 Mich App 1 (Mich. Ct. App. 2002) (prosecutorial charging discretion and vindictiveness standards)
- People v. Kurylczyk, 443 Mich 289 (Mich. 1993) (pre‑Hickman authority on identification and custody principles)
- People v. McGee, 258 Mich App 683 (Mich. Ct. App. 2003) (trial-court discretion to amend information; unfair surprise standard)