PEOPLE v GREENE
Docket No. 239074
Michigan Court of Appeals
February 21, 2003
255 MICH APP 426
Submitted November 6, 2002, at Lansing.
The Court of Appeals held:
1. A violation of
2. At the preliminary examination, the prosecution need not prove beyond a reasonable doubt that the defendant committed the crime charged. If the evidence introduced at the preliminary examination conflicts or raises a doubt about the defendant‘s guilt, the examining magistrate must let the fact-finder at trial resolve those questions of fact. In this case, the district court did not abuse its discretion in binding the defendant over for trial because the evidence adduced at the preliminary examination presented a factual
Reversed and remanded for further proceedings.
Kelly, J., dissenting, would affirm the circuit court‘s ruling that the district court abused its discretion in binding the defendant over for trial. Although the evidence showed that the defendant did not want his girlfriend to attend the preliminary examination and stated this desire along with some reasons designed to persuade her not to obey the subpoena, it did not demonstrate that the defendant attempted to impair her ability to appear. The defendant‘s attempt to interfere with his girlfriend‘s intention to attend cannot be equated with an attempt to impair her ability to attend. A plain reading of
Criminal Law — Interfering With a Witness.
The offense of willfully impeding, interfering with, preventing, or obstructing or attempting to willfully impede, interfere with, prevent, or obstruct the ability of a witness to attend, testify, or provide information in or for a present or future official proceeding is established with proof that the defendant committed or attempted to commit an act that did not consist of bribery, threats or intimidation, or retaliation, but was any act or attempt that was done willfully to impede, interfere with, prevent, or obstruct a witness‘s ability to attend, testify, or provide information in or for a present or future official proceeding having the knowledge or the reason to know that the person subjected to the interference could be a witness at any official proceeding (
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Pros-
Lynn B. D‘Orio for the defendant.
Before: WHITBECK, C.J., and HOOD and KELLY, JJ.
WHITBECK, C.J. This is a case of first impression in which we must construe and apply
I. BASIC FACTS AND PROCEDURAL HISTORY
The prosecutor originally charged defendant Jimmy Eric Greene, Jr., with manslaughter for the willful killing of an unborn quick child1 after he allegedly physically assaulted his pregnant girlfriend, Christa Hughbanks. At his arraignment, the district court ordered Greene not to have any contact with Hughbanks.
Greene moved to adjourn the preliminary examination so his attorney could study medical records regarding the death. During the discussion of the motion, the prosecutor expressed concern that Hughbanks, who was present and available to testify, might not return to court for future proceedings. The prosecutor revealed that Greene had contacted Hughbanks from jail and told her not to come to court, and that those conversations had been recorded. The district court ruled that the preliminary examination would commence that day with
A few days later, the prosecutor filed a new criminal information charging Greene with witness intimidation and reciting the language of
The district court received in evidence the taped conversation and a transcript of the conversation. Greene did not challenge that evidence. The transcript reflected many inaudible parts, evidently because Greene called an acquaintance from the jail, and the acquaintance used three-way calling on the telephone to bring Hughbanks into the conversation.
In the telephone call, Greene asked Hughbanks about what her sister, who had witnessed the altercation at the center of the prosecution, planned to testify. There was some difficulty hearing all three callers, so sometimes Greene told his acquaintance to pass messages to Hughbanks rather than attempt to speak directly with her. When informed that Hughbanks’ sister planned to testify that she saw Greene hit Hughbanks, Greene said:
J [defendant Jimmy Greene]: Tell her if her sister‘s gonna say that tell her on the 13th don‘t even show up.
F [unknown female]: Okay—hold on.
F: Christie—Christie—Christie . . .
Inaudible discussion
J: Krisha—No—tell her not to come.
F: Christa?
J: Yeah
F: Christa—you don‘t come on the 13th.
C [Christa Hughbanks]: Me—I‘ll get a warrant for my arrest.
F: She said she subpoenaead [sic], too.
J: Tell her it‘s only a $150 fine.
F: He said it‘s only a $150 fine.
C: That it?
F: Yeah
J: Tell her that‘s the only way I‘m gonna get up off of it.
* * *
J: Tell her if her sister gonna say—I ain‘t touch it tell her don‘t even show up.
F: He said if your sister do show up—don‘t show up on the 13th.
C: But they gonna have a warrant for my arrest.
J: No they won‘t.
C: No they won‘t—he says—
J: I already talked to my lawyer.
F: He already talked to his lawyer.
C: I don‘t know what to do—I was subpoenaed to come to court on Wednesday.
F: She said she was—I was subpoenaed today—to come on Wednesday.
J: That don‘t matter, that subpoena ain‘t shit.
F: He said it don‘t matter that subpoena ain‘t nothing.
* * *
J: Tell her all she gotta do is lay low until after 5:00.
F: All you gotta do is lay low until after 5:00.
C: They‘re gonna know where to find me. Tell him that they know—I got an appointment at The Corner [medical clinic] at 3:45.
F: They know she‘s got an appointment at The Corner at 3:45.
J: But the court is at 1:00—tell them fucked up on the appointment.
F: She said she don‘t care about her health now.
J: Just tell her go over to Pigeon‘s house and chill out until after 5:00 when the court close.
F: Inaudible
J: Hello?
F: Whose house?
J: Tell her to go to Pigeon Toe‘s house and chill out until after 5:00.2
Greene twice repeated that Hughbanks should stay away from court until after 5:00, when the court would close, and that Hughbanks only had to say “she forgot.” Greene also said that, wherever Hughbanks went, she could not be in her car.
In another conversation, Greene repeated his desire that Hughbanks stay away from court:
J: You gotta wait—I gotta get my probation transferred and shit . . . but look, when the time comes, you gotta just leave early that morning and stay gone until after 5:00—straight up.
C: Okay.
J: Just say your people—
C: She told me herself.
J: What?
C: _______________ _______________ Inaudible . . . and I was tellin’ people _______________ grabbed her and _______________ pulled her _______________ it‘s in her statement
J: They even—got it out that I beat her up.
C: Yeah, they tried to ask me that, I said “No—”
J: They gotta say she called cryin‘, and I beat her up.
C: _______________
J: You know ol’ girl not black—
C: Who?
J: My peeps—all you gotta do is walk over there early—and just stay gone until the court closes about 5:00—
Greene also said that his lawyer visited and “he said they‘re gonna try to break you in court so it‘s best that you just lay low.”
At the preliminary examination, Hughbanks testified that she did not feel intimidated by Greene, she did not think he was going to harm her, and she was not afraid to come to court. She confirmed that she still wanted to have contact with him.
At the close of proofs, the prosecutor moved to amend the information to conform to the proofs and charge Greene under a different subsection of the witness intimidation statute,
A person shall not willfully impede, interfere with, prevent, or obstruct or attempt to willfully impede, interfere with, prevent, or obstruct the ability of a witness to attend, testify, or provide information in or for a present or future official proceeding
The district court granted the motion to amend and bound Greene over for trial, explaining:
In terms of the witness intimidation, looking at the statute and the amended provision, subsection 6 and the language therein, I do find based on Exhibit 14 [the telephone transcript] and the stipulation as to where and when that
occurred, that the defendant did willfully interfere or attempt to interfere with the ability of Christa Hughbanks to attend and or testify at the preliminary examination in clear violation of a no contact provision. The testimony convinces me that on June 6th, from the jail, the defendant took elaborate steps, according to the transcript, he knew he couldn‘t directly so he worked through third parties to call her and convince her that she shouldn‘t attend, even tell her where she should go and how long to stay and despite her questions about being under subpoena told her that was worthless, in clearer terms, and tried to in fact convince her and interfere with her ability to attend and testify at the preliminary examination.
The prosecutor subsequently filed a new information alleging that Greene had violated
In the circuit court, Greene moved to quash the information, arguing that the prosecution‘s evidence at the preliminary examination, if true, did not demonstrate that he violated the statute. The circuit court heard arguments and granted the motion, reasoning:
[T]he Court grants a great deal of leeway to Magistrates in reviewing the evidence and making decisions as to bind over, however, in this case, I believe that accepting all of the evidence as asserted by the prosecution, there was not evidence from which the Magistrate could have found probable cause to believe that the contact of the defendant on the date alleged falls within the provisions of this narrowly drawn statute, so I‘m going to grant the motion to quash . . . .
II. STANDARD OF REVIEW
The prosecutor has presented us with a single issue to decide in this case, but this appeal really exists at two levels. At the procedural level, the prosecutor
III. WITNESS TAMPERING
The rules governing statutory construction that we apply to the witness tampering statute are well known:
The lodestar principle of statutory construction is that courts must ascertain and give effect to the Legislature‘s intent in enacting a statute. “The task of discerning our Legislature‘s intent begins by examining the language of the statute itself.” Using a dictionary if necessary, we construe “[a]ll words and phrases” “according to the common and approved usage of the language,” but give terms of art and “technical words and phrases” any “peculiar and appropriate meaning” ascribed by the Legislature or acquired in common usage in the absence of legislative definition. If “the language of the statute is unambiguous, the plain meaning reflects the Legislature‘s intent and this Court applies the statute as written.” Yet, “[w]hen reasonable minds may differ regarding the meaning of a statute, the
courts must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute.”5
To be clear, we do not intend to define the entire universe of actions that constitute the criminal conduct prohibited by
(1) A person shall not give, offer to give, or promise anything of value to an individual for any of the following purposes:
(a) To discourage any individual from attending a present or future official proceeding as a witness, testifying at a present or future official proceeding, or giving information at a present or future official proceeding.
(b) To influence any individual‘s testimony at a present or future official proceeding.
(c) To encourage any individual to avoid legal process, to withhold testimony, or to testify falsely in a present or future official proceeding.
(2) Subsection (1) does not apply to the reimbursement or payment of reasonable costs for any witness to provide a statement to testify truthfully or provide truthful information in an official proceeding as provided for under section 16 of the uniform condemnation procedures act, 1980 PA 87,
MCL 213.66 , or section 2164 of the revised judicature act of 1961, 1961 PA 236,MCL 600.2164 , or court rule.(3) A person shall not do any of the following by threat or intimidation:
(a) Discourage or attempt to discourage any individual from attending a present or future official proceeding as a witness, testifying at a present or future official proceeding,
or giving information at a present or future official proceeding.
(b) Influence or attempt to influence testimony at a present or future official proceeding.
(c) Encourage or attempt to encourage any individual to avoid legal process, to withhold testimony, or to testify falsely in a present or future official proceeding.
(4) It is an affirmative defense under subsections (1) and (3), for which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant‘s sole intention was to encourage, induce, or cause the other person to testify or provide evidence truthfully.
(5) Subsections (1) and (3) do not apply to any of the following:
(a) The lawful conduct of an attorney in the performance of his or her duties, such as advising a client.
(b) The lawful conduct or communications of a person as permitted by statute or other lawful privilege.
(6) A person shall not willfully impede, interfere with, prevent, or obstruct or attempt to willfully impede, interfere with, prevent, or obstruct the ability of a witness to attend, testify, or provide information in or for a present or future official proceeding.
(7) A person who violates this section is guilty of a crime as follows:
(a) Except as provided in subdivisions (b) and (c), the person is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000.00, or both.
(b) If the violation is committed in a criminal case for which the maximum term of imprisonment for the violation is more than 10 years, or the violation is punishable by imprisonment for life or any term of years, the person is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $20,000.00, or both.
(c) If the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage, the person is guilty of a felony pun-
ishable by imprisonment for not more than 15 years or a fine of not more than $25,000.00, or both.
(8) A person who retaliates, attempts to retaliate, or threatens to retaliate against another person for having been a witness in an official proceeding is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $20,000.00, or both. As used in this subsection, “retaliate” means to do any of the following:
(a) Commit or attempt to commit a crime against any person.
(b) Threaten to kill or injure any person or threaten to cause property damage.
(9) This section applies regardless of whether an official proceeding actually takes place or is pending or whether the individual has been subpoenaed or otherwise ordered to appear at the official proceeding if the person knows or has reason to know the other person could be a witness at any official proceeding.
(10) This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law arising out of the same transaction as the violation of this section.
(11) The court may order a term of imprisonment imposed for violating this section to be served consecutively to a term of imprisonment imposed for the commission of any other crime including any other violation of law arising out of the same transaction as the violation of this section.
(12) As used in this section:
(a) “Official proceeding” means a proceeding heard before a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath, including a referee, prosecuting attorney, hearing examiner, commissioner, notary, or other person taking testimony or deposition in that proceeding.
(b) “Threaten or intimidate” does not mean a communication regarding the otherwise lawful access to courts or other branches of government, such as the otherwise lawful filing of any civil action or police report of which the pur-
pose is not to harass the other person in violation of section 2907 of the revised judicature act of 1961, 1961 PA 236,
MCL 600.2907 .
The unifying theme among these subsections is an attempt to identify and criminalize the many ways individuals can prevent or attempt to prevent a witness from appearing and providing truthful information in some sort of official proceeding, as defined in subsection 12(a). In the most general sense, the Legislature identified four different categories of witness tampering: bribery (subsection 1), threats or intimidation (subsection 3), interference (subsection 6), and retaliation (subsection 8). That the Legislature chose not to place all these different types of tampering in the same subsection suggests that the Legislature considered them to be distinct. Conduct that violates one subsection in
Truth be told, subsection 6 is easily understandable. The Legislature used simple, but comprehensive, language in describing this crime. More in-depth scrutiny bears out this observation. The most eye-catching language in
According to the dictionary, to “impede” means “to retard in movement or progress by means of obstacles or hindrances.”8 The dictionary uses “obstruct” and “hinder” as alternative definitions, and refers to the word “prevent” as a synonym for “impede.”9 In relevant part, to “interfere” means “to come into opposition or collision so as to hamper, hinder, or obstruct someone or something,” or “to take part in
If there are significantly distinct meanings to these words, which even the dictionary uses as synonyms for each other, they are not the least apparent. At most, the definitions of these words present only degrees of difference in the same conduct. For example, someone who impedes a witness may not actually prevent the witness from testifying, but may only delay the testimony. Note, however, that the language in subsection 6 that criminalizes both a completed and attempted offense makes these extremely subtle shades of difference irrelevant in determining whether a defendant committed this crime. Consequently, we infer that, in using these four terms to describe what is effectively the same conduct, the Legislature intended to bar the tampering conduct, no matter how it is described, including in degrees of success.
Unlike some other crimes that a person can commit without involving anyone else, such as crimes against property, witness tampering self-evidently involves at least two people: the witness and the person committing the tampering. The words describing the prohibited conduct—impeding, interfering with,
The only logical exceptions from these otherwise unlimited ways in which to achieve or attempt to achieve this interference are identified in subsections 1, 3, and 8. In other words, as long as the interference at issue does not consist of bribery, threats or intimidation, or retaliation as defined in
We cannot, of course, ignore that the Legislature included the word “willfully” in subsection 6. Willfulness, though having been defined in a number of ways over the years, essentially “implies knowledge and a purpose to do wrong.”17 This definition of willfulness incorporating knowledge is particularly appropriate for the way that term is used in subsection 6 because subsection 9, which applies to
In summary, to prove that a defendant has violated
IV. BINDOVER
If it shall appear to the magistrate at the conclusion of the preliminary examination either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate at the conclusion of the preliminary examination that a felony has been committed and there is probable cause for charging the defendant therewith, the magistrate shall forthwith bind the defendant to appear before the circuit court of such county, or other court having jurisdiction of the cause, for trial.
As the prosecutor correctly emphasizes, at the preliminary examination, the prosecution need not prove beyond a reasonable doubt that the defendant committed the crime charged.19 The threshold for the evidence necessary to bind over a defendant for trial is
If the evidence introduced at the preliminary examination conflicts or raises a reasonable doubt about the defendant‘s guilt, the magistrate must let the factfinder at trial resolve those questions of fact. This requires binding the defendant over for trial. In other words, the magistrate may not weigh the evidence to determine the likelihood of conviction, but must restrict his or her attention to whether there is evidence regarding each of the elements of the offense, after examining the whole matter.21
” ‘Circumstantial evidence and reasonable inferences arising from the evidence are sufficient to support the bindover of the defendant if such evidence establishes probable cause.’ ”22 The evidence satisfies “the ‘probable cause’ standard when, ‘by a reasonable ground of suspicion, [it is] supported by circumstances sufficiently strong to warrant a cautious person in the belief that the accused is guilty of the offense charged.’ ”23
The prosecutor advances two arguments concerning the evidence presented in the preliminary examination and why it met the bindover standard. First, the prosecutor contends that
The prosecutor‘s second argument is that interference can be inferred from the fact that Greene made an “end run around the system” by engaging in an complicated plan to speak with Hughbanks in violation of the no contact order by calling a third-party. That third-party then helped Greene and Hughbanks communicate. In other words, the prosecutor claims that evidence clearly existed that Greene attempted to interfere with Hughbanks’ appearance at the pre-
We agree that the evidence adduced at the preliminary examination presented a factual question concerning whether Greene‘s appeals to Hughbanks not to attend the preliminary examination constituted interference. As we noted, the dictionary includes among the definitions of the word “ability” the “capacity” to act “morally.”24 The transcripts of the telephone conversations include several statements from Hughbanks indicating that she had received a subpoena to appear at a hearing (presumably the preliminary examination) that she knew she was supposed to appear at the hearing, and she was concerned about the consequences of failing to appear as ordered. Greene, however, dismissed Hughbanks’ fear that the district court would issue an arrest warrant if she failed to appear at the hearing, saying that failing to appear would only result in a $150 fine. This comment arguably had an effect on Hughbanks at the moment; despite her early hesitation to comply with Greene‘s request not to appear at the hearing, after Greene minimized the potential consequence of disobeying the subpoena, she replied, “That‘s it?” This suggested that the result of failing to appear would be sufficiently insignificant for her to comply with Greene‘s directive and disobey the subpoena. When, later in the telephone conversation, Hughbanks appeared to be unconvinced that not showing up at the preliminary examination was what she should do, Greene resorted to a different tactic. He told her that he had consulted his attorney and that the subpoena
We do not hold that a request, alone, not to attend a hearing or a stated desire that a witness not attend a hearing would be unlawful under
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
HOOD, J., concurred.
KELLY, J. (dissenting.) I respectfully dissent from the majority‘s conclusion that the evidence presented at the preliminary examination would allow a reasonable person to infer that defendant violated
Although the evidence showed that defendant did not want Hughbanks to attend the preliminary examination and stated this desire along with some reasons designed to persuade Hughbanks not to obey the subpoena, it did not demonstrate that defendant attempted to impair her ability to appear.
A person shall not willfully impede, interfere with, prevent, or obstruct or attempt to willfully impede, interfere with, prevent, or obstruct the ability of a witness to attend, testify, or provide information in or for a present or future official proceeding.
The majority held:
We do not hold that a request, alone, not to attend a hearing or a stated desire that a witness not attend a hearing would be unlawful under
MCL 750.122(6) . Neither act
would necessarily affect a witness‘s ability to attend a hearing. Nor do we intend to imply that Greene would be convicted of this offense. Rather, in sum, the evidence presented at the preliminary examination would allow a reasonable person to infer that Greene knew Hughbanks would be attending the preliminary examination to provide testimony against him; Greene did not want Hughbanks to attend the hearing; Greene chose not to use bribery, threats or intimidation, or retaliation to dissuade Hughbanks from attending the hearing; Greene then willfully attempted to interfere with Hughbanks’ intention to attend that hearing by telling her explicitly not the attend, playing to her feelings for him, and assuring her that the consequences would be minor or nonexistent; and this interference attempted to affect her ability to attend the hearing by impairing her ability to choose to do the right thing, which was to obey the subpoena. [Ante at 447 (emphasis in original).]
I find the majority‘s analysis somewhat strained and erroneous. The error is most evident in the majority‘s sentence: “Greene then willfully attempted to interfere with Hughbanks’ intention to attend . . . this interference attempted to affect her ability to attend the hearing by impairing her ability to choose to do the right thing.” Paring this sentence down, as I have here,1 it becomes apparent that the majority essentially equates intention with ability. Thus, defendant‘s attempt to interfere with Hughbanks’ intention to attend is erroneously equated with an attempt to impair her ability to attend.
As set forth by the majority, “ability” is defined as the ”power or capacity to do or act physically, mentally, legally, morally, or financially.” Random House Webster‘s College Dictionary (2d ed, 1997) (emphasis added). “Moral” is defined as “of, pertaining to, or
Likewise, an attempt to impair ability would require an attempt to place a barrier between the witness and the system. An “attempt” has been defined as an overt act done with the intent to commit the crime, and which, except for the interference of some cause preventing the carrying out of the intent, would have resulted in the commission of the crime. People v Konrad, 449 Mich 263, 291; 536 NW2d 517 (1995) (BRICKLEY, C.J., dissenting). Here, there was no overt act that, except for interference, would have impaired Hughbanks’ ability to appear in court. Rather, defendant spoke persuasively with the intent to persuade, but his persuasion fell short of his desired goal.
The majority‘s interpretation of subsection 6 also renders other portions of the statute nugatory. When construing a statute, we presume that every word has meaning; our interpretation should not render any part of the statute nugatory. People v Randolph, 466 Mich 532, 558; 648 NW2d 164 (2002). Provisions must
In further support of this conclusion is the fact that the Legislature provided affirmative defenses to and exceptions from subsections 1 and 3, but did not apply them to subsection 6.
(4) It is an affirmative defense under subsections (1) and (3), for which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant‘s sole intention was to encourage, induce, or cause the other person to testify or provide evidence truthfully.
(5) Subsections (1) and (3) do not apply to any of the following:
(a) The lawful conduct of an attorney in the performance of his or her duties, such as advising a client.
(b) The lawful conduct or communications of a person as permitted by statute or other lawful privilege.
Aside from disagreeing with the majority‘s statutory interpretation, I also find that subsection 6, as interpreted, raises the specter of a First Amendment violation.
In conclusion, a plain reading of