PEOPLE v. NORTHEY

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Court of Appeals of Michigan.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Arthur NORTHEY, Defendant-Appellee.

Docket No. 203878.

Decided: September 18, 1998

Before SAAD, P.J., and JANSEN and HOEKSTRA, JJ. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stuart L. Fenton, Assistant Prosecuting Attorney, for the people. Ford, Kriekard, Domeny & Byrne (by Richard D. Stroba ), Portage, for the defendant.

Defendant was charged with failure to stop at the scene of a serious personal injury accident, M.C.L. § 257.617;  MSA 9.2317.   After a preliminary examination, the district court bound defendant over to stand trial.   Defendant moved in the circuit court to quash the information and dismiss the case on the ground that the prosecutor lacked probable cause to charge defendant with the offense.   Despite substantial evidence linking defendant to the crime, Kalamazoo Circuit Judge William G. Schma granted the motion, and the prosecutor appeals.   We reverse and remand.

FACTS AND PROCEEDINGS

Kurt Hudson was struck and killed by a motorist while riding his bicycle on Pitcher Street in Kalamazoo between 12:00 midnight and 12:25 a.m. on February 18, 1995.   After several weeks of investigating the incident, Kalamazoo police officers concluded that defendant was the perpetrator.   The prosecutor charged defendant with leaving the scene of an accident.   At the preliminary examination, the prosecutor presented the following evidence in support of the charge.

Around 12:25 a.m., February 18, 1995, Kurt Hudson was found lying unconscious aside Pitcher Street in Kalamazoo.   Police Officer Robert Christiensen observed that he was still breathing despite his blood loss and obvious skull fracture.   On the basis of this observation, Christiensen estimated that the accident had taken place between midnight and 12:25 a.m. Investigators inferred that a motorist struck the victim from behind as he was riding his bike north along Pitcher Street.   The individual responsible for the accident was not present at the scene when the police arrived and did not return anytime thereafter.

Shortly after Hudson was found, Officer Gerald Luedecking of the Kalamazoo Department of Public Safety Crime Lab collected trace evidence from the accident scene:  fragments of broken mirror, several paint chips, a car radio antenna, and nine shards of broken amber-colored plastic from a parking light lens.   Officer Luedecking opined that this evidence could not have been present long or car traffic would have destroyed it before investigators arrived.   Investigators studying this evidence determined, on the basis of research and consultation with an automotive parts manager, that the pieces probably came from a full-sized Dodge Ram conversion van, 1986-1993 model year.

Sometime before March 30, 1995, police received information suggesting that defendant's van was the van involved in the accident.   A computer check revealed that defendant and his wife owned a 1987 Dodge Ram conversion van.   Lieutenant VerHage and Officer Fall of the Kalamazoo Police Department visited defendant's home for further investigation.   At the home, they observed that someone had covered the garage windows with towels and plastic bags, blocking the view from outside.   Defendant, however, permitted Lieutenant VerHage and Officer Fall to enter and search the garage.

Once inside defendant's garage, Lieutenant VerHage determined that defendant's van could have been the van involved in the accident.   He testified that (1) paint on the van matched the paint chips found at the scene, (2) the right front corner of the van showed signs of repair, (3) the parking light/headlight assembly hung loose, (4) the parking light lens appeared to have been replaced, (5) the right mirror looked cleaner than the rest of the van, except for fresh fingerprints, and (6) the antenna looked new.

Defendant maintained that his wife caused the damage to the van in a store parking lot and that the parking light lens had not been broken.   He further denied that his van was the van involved in the accident.   Finally, he stated that no one, other than he and his wife, drove the van.   With defendant's consent, Lieutenant VerHage seized the van, along with other evidence, including a broken piece of amber-colored plastic and paint chips found in the garage.   After comparing the accident scene evidence with the garage evidence, he determined that the paint chips from both sources matched.   He further determined that the plastic fragments from both sources probably came from the same piece.   He also determined that the damage to the bicycle frame had been caused by a vehicle with the same height and style of bumper as defendant's van and that the damage to the bicycle aligned with the damage to the right front corner of defendant's van.   Finally, Officer Luedecking testified that the color of a smudge on defendant's bumper matched the color of the paint on the bike.   He was unable, however, to obtain a sample of the smudge for further analysis.

Michigan State Police Trooper Robert Birr, an expert in the comparison of trace evidence, further studied the evidence and confirmed Luedecking's conclusions.   Birr's scientific analysis of the paint chips revealed that the layering of the various paint samples was sufficiently distinctive to suggest that they all came from the same source.   Microscopic analysis of the various pieces of the amber-colored plastic revealed that many of the pieces found at the scene of the accident conclusively matched the piece of plastic found in defendant's garage.   Lieutenant VerHage determined that those pieces of plastic that failed to match the piece of plastic from defendant's garage could have come from a different location on the parking light lens.   Consequently, investigators concluded that defendant's van was the van they sought in connection with the accident.

The prosecution also presented evidence to establish that defendant was driving the vehicle at the time of the accident.   Barbara and Bernard DeHeus testified that they were with defendant at a local tavern known as the “Home Bar,” on the night of the accident, approximately three to five blocks from the accident scene.   According to Mrs. DeHeus, she arrived at the Home Bar about 6:00 p.m. to meet her husband.   On arriving, she found that defendant had joined her husband for a few beers.   Although she was familiar with defendant's van from prior trips to the bar, she did not recall seeing it in the parking lot on that particular evening.   She testified, however, that she had never seen him drive any other vehicle to the bar.   Moreover, defendant was alone for the duration of the evening.

At approximately 8:30 to 9:00 p.m., Mr. DeHeus left the bar to return home.   Before going to his car, however, he walked to his wife's car to retrieve her cigarettes.   Mr. DeHeus testified that he believed he saw defendant's van in the parking lot and that he was sufficiently familiar with the van to identify it.   Mrs. DeHeus remained at the Home Bar with defendant, who continued to drink beer throughout the remainder of the evening.   Defendant escorted her to her car before she drove home.   Mrs. DeHeus estimated that she left the Home Bar around midnight;  however, her husband estimated, on the basis of the time she returned home, that she left between 9:30 and 10:00 p.m. Mrs. DeHeus did not see defendant return to the bar after he escorted her to her car.   If Mrs. DeHeus' testimony is accurate, she placed defendant near the accident scene around the time the accident occurred.   The scene of the accident lies along one of the three logical routes from the Home Bar to defendant's home.

The district court concluded that this evidence established probable cause and bound defendant over for trial.   The circuit court thereafter quashed the information and dismissed the case.   The prosecutor appeals as of right, claiming that the circuit court erred in granting defendant's motion to quash the felony information.

ANALYSIS

 We review a circuit court's decision to grant or deny a motion to quash a felony information de novo to determine if the district court abused its discretion in ordering bindover.  People v. Orzame, 224 Mich.App. 551, 557, 570 N.W.2d 118 (1997).   Here, there was no abuse of discretion by the district court.   Rather, the district court had good reason to bind defendant over for trial.   The serious error here was the circuit court's erroneous granting of defendant's motion to quash the information.

 A district court must bind a defendant over for trial when the prosecutor presents competent evidence constituting probable cause to believe that (1) a felony was committed and (2) the defendant committed that felony.   MCL 766.13;  MSA 28.913;  MCR 6.110(E);  People v. Reigle, 223 Mich.App. 34, 37, 566 N.W.2d 21 (1997).   A district court's determination that sufficient probable cause exists will not be disturbed unless the determination is wholly unjustified by the record.  Id. Here, the district court's determination was far from “wholly unjustified”:  to the contrary, it was wholly justified.

 Probable cause requires a reasonable belief that the evidence presented during the preliminary examination is consistent with the defendant's guilt.  People v. Justice (After Remand), 454 Mich. 334, 343-344, 562 N.W.2d 652 (1997).   Circumstantial evidence, coupled with those inferences arising therefrom, is sufficient to establish probable cause to believe that the defendant committed a felony.  People v. Terry, 224 Mich.App. 447, 451, 569 N.W.2d 641 (1997).   Although the district court should consider the weight of the evidence and the credibility of the witnesses in determining whether to bind the defendant over for trial, People v. Neal, 201 Mich.App. 650, 655, 506 N.W.2d 618 (1993), it may not usurp the role of the jury.  People v. Laws, 218 Mich.App. 447, 452, 554 N.W.2d 586 (1996).   Competent evidence that both supports and negates an inference that the defendant committed the crime charged raises a factual question that the district court must leave to the jury.  Neal, supra at 655, 506 N.W.2d 618.

 To establish a charge of failure to stop at the scene of a serious personal injury accident, the prosecutor must present evidence identifying the defendant as the driver of the vehicle involved.  MCL 257.617(1);  MSA 9.2317(1).   This may be accomplished through either direct or circumstantial evidence.  Terry, supra at 451, 569 N.W.2d 641.   Here, defendant does not deny that the crime charged was committed.   Rather, he argues that the prosecutor failed to present competent evidence constituting probable cause that he committed it.   The record reveals, however, that the prosecutor presented substantial evidence from which it is possible to identify defendant as the driver of the vehicle that struck and killed Kurt Hudson.   The investigators' testimony established that defendant's van struck Hudson, and Mrs. DeHeus' testimony established defendant's presence near the accident scene at the appropriate time.   Given the abundant evidence linking defendant's van to the scene of the accident, it is reasonable to infer that, after escorting Mrs. DeHeus to her car, defendant got in his van, drove north on Pitcher to return home, hit Mr. Hudson, and left the scene.   Consequently, the district court's determination that sufficient probable cause existed linking defendant to the accident is supported by the record.

The circuit court erroneously quashed the information on the ground that the district court found, as a matter of fact, that defendant was last seen at the Home Bar around 9:00 or 10:00-too  early to infer that he was at the accident scene during the midnight to 12:30 window.   This ruling misconstrues both the lower court record and the legal standard for bindover decisions.   The district court made no such finding of fact;  it commented that defendant “was in that area at least until 9:00 or 10:00.”   The district court noted that there was a conflict in the evidence with respect to the time Mrs. DeHeus left defendant in the parking lot of the Home Bar. In accordance with the law, the district court stated that this was a matter for the finder of fact and bound defendant over for trial.   See Neal, supra at 655, 506 N.W.2d 618 (conflicting evidence should be left for resolution by the jury).   The circuit court's decision was thus based on a factual misreading of the district court's statements and the legally wrong assumption that a district court may refuse bindover because of a conflict in evidence establishing the defendant's guilt.

 Defendant further argues that the evidence placing him near the scene of the accident and at the approximate time of the accident is not credible because Mrs. DeHeus is an unreliable witness.   The credibility of a witness is a question for the factfinder to resolve at trial, not for the circuit court reviewing the district court's decision.  People v. Harris, 110 Mich.App. 636, 652, 313 N.W.2d 354 (1981).   Even if Mrs. DeHeus' testimony were incredible, the questionable credibility of a witness does not affect the competency of the witness' testimony.   See Harris, (holding that the fact that a witness admitted lying in a prior proceeding was irrelevant to determining whether there was sufficient evidence to uphold the defendant's conviction).   The credibility of Mrs. DeHeus is irrelevant for purposes of this appeal.   In sum, the district court did not abuse its discretion when it bound defendant over to stand trial on a charge of failing to stop at the scene of a serious personal injury accident.   Indeed, it acted quite properly and consistent with substantial evidence.

We reverse the circuit court's erroneous order quashing the information and dismissing the case, and we remand for further proceedings.   We do not retain jurisdiction.

SAAD, P.J.