People of Michigan v. Leo Kennedy

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 8, 2015
Plaintiff-Appellee,
v No. 322873
Wayne Circuit Court
LEO KENNEDY, LC No. 00-010568-FC
Defendant-Appellant.
Before: MURRAY, P.J., and METER and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of first-degree premeditated
murder, MCL 750.316(1)(a), and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. Defendant was sentenced to life in prison without the
possibility of parole for the first-degree murder conviction and to two years’ imprisonment for
the felony-firearm conviction. We affirm.
Defendant first argues that he was deprived of due process because, following the
dismissal of the charges at the first preliminary examination, the prosecutor filed a second
complaint charging the same offenses, the case was assigned to a different judge at the second
preliminary examination, and no new evidence was discovered. We conclude that there was no
due process violation and that the unpreserved error in the assignment of the case to a different
judge at the second preliminary examination did not affect the outcome of the proceedings.
“For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich. App. 376, 382; 741
NW2d 61 (2007). This issue is unpreserved because defendant failed to raise it below.
Defendant did not object to the assignment of the case to a different judge at the second
preliminary examination or request that the case be transferred back to the judge who presided
over the first preliminary examination.
Issues of constitutional law are reviewed de novo. People v Vaughn, 491 Mich. 642, 650;
821 NW2d 288 (2012). “The proper interpretation and application of a court rule is a question of
law that is reviewed de novo.” People v Cole, 491 Mich. 325, 330; 817 NW2d 497 (2012).
Unpreserved issues are reviewed for plain error affecting substantial rights. People v Carines,
460 Mich. 750, 763-764; 597 NW2d 130 (1999). To avoid forfeiture of an unpreserved issue, a
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defendant must show that a clear or obvious error occurred that caused prejudice by affecting the
outcome of the lower court proceedings. Id. at 763. If a defendant satisfies these requirements,
an appellate court should exercise its discretion to reverse only if the plain error resulted in the
conviction of an actually innocent defendant or seriously affected the fairness, integrity, or
public reputation of the proceedings. Id. at 763-764.
MCR 6.110(F) provides, with respect to a preliminary examination:
If, after considering the evidence, the court determines that probable cause
does not exist to believe either that an offense has been committed or that the
defendant committed it, the court must discharge the defendant without prejudice
to the prosecutor initiating a subsequent prosecution for the same offense or
reduce the charge to an offense that is not a felony. Except as provided in MCR
8.111(C), the subsequent preliminary examination must be held before the same
judicial officer and the prosecutor must present additional evidence to support the
charge.
MCR 8.111(C)(1) provides that the chief judge may reassign a case if a judge is disqualified or
for other good cause cannot undertake an assigned case.
This Court has held “that subjecting a defendant to repeated preliminary examinations
violates due process if the prosecutor attempts to harass the defendant or engage in ‘judge-
shopping.’ ” People v Robbins, 223 Mich. App. 355, 363; 566 NW2d 49 (1997). “Among the
factors to be considered in determining whether a due process violation has occurred are the
reinstitution of charges without additional, noncumulative evidence not introduced at the first
preliminary examination, the reinstitution of charges to harass and judge-shopping to obtain a
favorable ruling.” People v Vargo, 139 Mich. App. 573, 578; 362 NW2d 840 (1984). Although
additional evidence must be presented at the second preliminary examination, the additional
evidence need not be newly discovered. Robbins, 223 Mich. App. at 361. For example, in Vargo,
139 Mich. App. at 578, this Court found that there was no due process violation where, although
“the new evidence could have been introduced at the first preliminary examination, the failure to
do so was more a product of neglect than a deliberate attempt to harass defendant.”
Defendant has not established a due process violation. Additional evidence was
presented at the second preliminary examination. Dawon Grier, who did not testify at the first
preliminary examination, testified at the second preliminary examination that he saw defendant
shoot the victim, Anthony Mercer. The prosecutor presented Grier at the second preliminary
examination after the witnesses at the first preliminary examination failed to testify in
accordance with their earlier statements. There is no indication that the prosecutor was seeking
to harass defendant by refiling the charges and holding the second preliminary examination.
An error did occur under MCR 6.110(F) because the second preliminary examination was
held before a different judge. However, there is no basis to conclude that the prosecutor had any
control or influence on the assignment of the case to a different judge, and defendant did not
request a transfer of the case when the judge at the second preliminary examination noted that
the case should have been assigned to the original judge. The prosecutor never argued for
having the case remain before the second judge. On this record, there is no evidence that the
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prosecutor was engaged in judge-shopping. Rather, the charges were refiled and the second
preliminary examination was held because the witnesses at the first preliminary examination
failed to testify as expected. Finally, the error in assigning the case to a different judge did not
affect the outcome. Defendant does not contest that the testimony at the second preliminary
examination provided probable cause to bind him over.
Defendant next argues that he was unlawfully arrested and detained following the
dismissal of the charges at the first preliminary examination. We disagree. This issue is
unpreserved because defendant failed to raise it below. Metamora Water Serv, Inc, 276 Mich
App at 382. Therefore, our review is for plain error affecting substantial rights. Carines, 460
Mich. at 763-764.
Defendant’s contention that he was held pursuant to a so-called “reverse writ” is devoid
of merit. A “reverse writ” was a colloquial term used in Detroit to describe a procedure in which
the police or the prosecutor sought judicial approval for detaining a citizen when no warrant had
been issued due to lack of probable cause. People v Cipriano, 431 Mich. 315, 337-338; 429
NW2d 781 (1988); People v Casey, 411 Mich. 179, 180; 305 NW2d 247 (1981). “[R]everse writ
proceedings are without legal effect and may not be employed to justify the detention of a
citizen.” Casey, 411 Mich. at 180. That is because a reverse writ has no constitutional or
statutory basis. Id. at 181. “A detention which is otherwise illegal is not cleansed of its illegality
by the issuance of a reverse writ or by the pendency of such proceedings.” Id. at 182. A reverse
writ has no effect on the legality of a detention. Cipriano, 431 Mich. at 338. The holding in
Casey barring the use of a reverse writ to justify an otherwise illegal arrest and detention is
inapplicable if the police had probable cause to arrest the defendant. Id.
In the present case, the police had probable cause to arrest and detain defendant following
the dismissal without prejudice of the charges at the first preliminary examination. On August
31, 2000, the same date as the first preliminary examination in this case, defendant was charged
with resisting and obstructing a police officer. He was bound over for trial on the resisting and
obstructing charge on September 15, 2000. Defendant fails to address this charge or to argue
that the police lacked probable cause to arrest and detain him on this charge. The police also had
probable cause to rearrest defendant on the first-degree murder and felony-firearm charges in this
case on the basis of information obtained from witnesses who did not testify at the first
preliminary examination. Defendant was recharged with murder and felony-firearm on
September 3, 2000.
Even if the police lacked probable cause to rearrest and detain defendant, defendant has
failed to establish that he is entitled to the vacation of his convictions as a remedy. The United
States Supreme Court has recognized that it is an “established rule that [an] illegal arrest or
detention does not void a subsequent conviction.” Gerstein v Pugh, 420 U.S. 103, 119; 95 S. Ct.
854; 43 L. Ed. 2d 54 (1975); see also People v Burrill, 391 Mich. 124, 133-134; 214 NW2d 823
(1974) (the invalidity of an arrest warrant does not affect the court’s jurisdiction to try the
defendant), and People v Carroll, 49 Mich. App. 44, 46; 211 NW2d 233 (1973) (“The rule, in
fact, is that an unlawful arrest does not prevent the prosecution of a defendant.”). “[T]he sole
remedy for an illegal arrest is suppression of the evidence, not dismissal of the charges.” City of
Lansing v Hartsuff, 213 Mich. App. 338, 352; 539 NW2d 781 (1995); see also, generally, People
v Harrison, 163 Mich. App. 409, 421; 413 NW2d 813 (1987) (“While an improper delay in
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arraignment may necessitate the suppression of evidence obtained as a result of that delay, the
delay does not entitle a defendant to dismissal of the prosecution.”). Defendant identifies no
evidence that he claims was obtained as a result of his purportedly illegal arrest or detention that
must be suppressed. In addition, the dismissal of the charges without prejudice at the first
preliminary examination did not prohibit rearresting and recharging defendant for the same
offenses. People v Miklovich, 375 Mich. 536, 539; 134 NW2d 720 (1965) (“The discharge by an
examining magistrate upon examination of a person accused of a crime is not a bar to his
subsequent arrest, examination, and trial for the same offense because he has not been placed in
jeopardy.”); People v Hayden, 205 Mich. App. 412, 414; 522 NW2d 336 (1994) (“[D]ismissal of a
prosecution at preliminary examination raises no bar under res judicata or collateral estoppel to a
subsequent prosecution.”). Accordingly, defendant has failed to establish a plain error affecting
his substantial rights.
Defendant next argues that defense counsel was ineffective for failing to object to the
admission of statements that defendant alleges constituted inadmissible hearsay.
We conclude that review of this issue is barred by the law of the case doctrine. “Whether
the law of the case doctrine applies is a question of law that we review de novo.” Duncan v
Michigan, 300 Mich. App. 176, 188; 832 NW2d 761 (2013). “Generally, the law of the case
doctrine provides that an appellate court’s decision will bind a trial court on remand and the
appellate court in subsequent appeals.” Id. at 188-189 (citation and quotation marks omitted).
“The law of the case doctrine has been described as discretionary—as a general practice by the
courts to avoid inconsistent judgments—as opposed to a limit on the power of the courts.” Id.
Nonetheless, this Court must apply the law of the case doctrine if there has been no material
change in the facts or intervening change in the law. Id. “Even if the prior decision was
erroneous, that alone is insufficient to avoid application of the law of the case doctrine.” Id.
In his delayed application for leave to appeal from the judgment of sentence in this case,
which defendant filed in a prior appeal,1 defendant argued that defense counsel was ineffective
for failing to move before trial to suppress alleged hearsay statements admitted through the
testimony of numerous witnesses, including the same four witnesses whose testimony defendant
now argues that defense counsel should have objected to on hearsay grounds. This Court denied
the delayed application for leave to appeal “for lack of merit in the grounds presented.” People v
Kennedy, unpublished order of the Court of Appeals, entered April 5, 2002 (Docket No.
239127). Because this Court’s prior order denying leave to appeal resolved on the merits the
issue regarding the testimony of these four witnesses, that order has preclusive effect. See
People v Hayden, 132 Mich. App. 273, 297; 348 NW2d 672 (1984) (concluding that the law of
the case doctrine precluded reaching the merits of an issue because this Court had previously
denied the defendant’s motion to remand on the same issue “for lack of merit in the grounds
1
Following the resolution of that prior appeal, the trial court reissued the judgment of sentence
for the reason that defendant’s previous appellate counsel had failed to perfect defendant’s
otherwise timely appeal of right. Hence, the present appeal arises from the same judgment of
sentence from which defendant had previously filed a delayed application for leave to appeal.
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presented”). There has been no material change in the facts or intervening change in the law.
Accordingly, the law of the case doctrine precludes review of this issue.2
Defendant next argues that his Sixth Amendment right of confrontation was violated
because witness Michael Dixon’s statement referenced remarks by Darnell Parham implicating
defendant in the crime, and Parham was not available for cross-examination. Even assuming,
without deciding, that an error occurred, it was harmless beyond a reasonable doubt. “Harmless
error analysis applies to claims concerning Confrontation Clause errors[.]” People v Shepherd,
472 Mich. 343, 348; 697 NW2d 144 (2005). A reviewing court must thoroughly examine the
record to determine whether it is clear beyond a reasonable doubt that the verdict would have
been the same without the error. Id. There was significant evidence of defendant’s guilt. Two
eyewitnesses testified that they saw defendant shoot Mercer. Two other witnesses testified that
they heard defendant make statements acknowledging that he shot Mercer. Defendant admitted
to the police that he was at the murder scene with Parham when the shooting occurred.
Defendant’s flight from the police following a traffic stop suggested his consciousness of guilt.
People v Coleman, 210 Mich. App. 1, 4; 532 NW2d 885 (1995). We conclude that it is clear
beyond a reasonable doubt that defendant would have been found guilty even if the statement at
issue had not been used.
Affirmed.
/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Michael J. Riordan
2
The fact that review of this issue is precluded does not mean that the trial court’s order
reissuing the judgment of sentence lacks meaningful effect, given that defendant has raised new
issues on appeal for which review is not precluded by the law of the case doctrine. We further
note that we have briefly reassessed defendant’s claims regarding the testimony at issue and have
found that, even if review were applicable, the claims would not merit appellate relief.
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