PEOPLE OF MI V JIMMY ERIC GREENE JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
February 21, 2003
Plaintiff-Appellant,
v
No. 239074
Washtenaw Circuit Court
LC No. 01-001007-FH
JIMMY ERIC GREENE, JR.,
Defendant-Appellee.
Updated Copy
April 25, 2003
Before: Whitbeck, C.J., and Hood and Kelly, JJ.
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 MCL
750.122(6). Instead, I would affirm the circuit court's ruling that the district court abused its
discretion in binding defendant over for trial.
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.
MCL 750.122(6) provides:
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
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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 ___ (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
concerned with the principles of right conduct or the distinction between right and wrong." Id.
On the basis of these definitions, to render someone morally unable would render them
powerless to choose between right and wrong. Contrary to the majority's belief, if a witness
chooses to do wrong, she is not powerless or unable to choose. Rather, in exercising the ability
to choose, she makes the wrong choice. Accordingly, in order to impair a witness's moral ability
under subsection 6, a person would have to do something more than merely utter words of
persuasion. In other words, subsection 6 is not directed to the result, i.e., that a witness chose not
to fulfill her civic duty, but to the act of placing a barrier between the witness and the system.
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 be read in the context of the entire statute so
as to produce a harmonious whole. People v Williams, 236 Mich App 610, 613; 601 NW2d 138
(1999). As the majority notes, the fact that "the Legislature chose not to place all these different
1
Compare with full quote above.
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types of tampering in the same subsection suggests that the Legislature considered them to be
distinct." Ante at ___ (emphasis in original). It is incongruous that acts that do not satisfy the
requirements of subsection 3, i.e., encouraged, influenced, or discouraged, but not by threats or
intimidation, nonetheless satisfy the requirements of subsection 6. Had the Legislature intended
to bar nonthreatening or nonintimidating encouragement, influence, or discouragement, it
obviously would have excluded the threat or intimidation requirement from section 3.
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.
MCL 750.122(4) and 750.122(5) provide:
(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.
It does not stand to reason that the Legislature intended to protect lawful conduct under
subsections 1 and 3, but, under subsection 6, prohibit lawful conduct that was not intimidating or
threatening, but constituted encouragement, discouragement, or influence. It is more likely that
the Legislature understood the acts prohibited in subsection 6 to be so egregious that they could
not be considered lawful in any circumstances. Clearly, mere influence, encouragement, or
discouragement, without more, would not rise to this level.
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. US Const, Am I;
Const 1963, art 1, ยง 5. For example, an otherwise legal political protest may willfully influence
or encourage a listener to choose not to attend or give information at an official proceeding
involving the protested political issue. Although the protester did not place a barrier between the
witness and the system, he could nonetheless be punished for his expression because it
influenced a person to make the "wrong" choice. Obviously, I do not condone disobeying
subpoenas. However, I believe that the judicial interpretation of subsection 6 should avoid the
risk of unconstitutional application by limiting it to cases where a defendant's attempt to interfere
with a witness's ability is more than merely uttering persuasive words with the hope or desire
that the persuasion be effective.
In conclusion, a plain reading of MCL 750.122(6) clearly establishes that it is limited to
prohibiting conduct that places, or attempts to place, a barrier between the witness and the
system. After reviewing the record, it is readily apparent that the evidence establishes nothing
more than defendant's stated desire that Hughbanks not attend the preliminary examination. As
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the majority concedes, a "stated desire" standing alone is insufficient for the district court to find
probable cause to believe that defendant violated MCL 750.122(6). I would affirm the circuit
court's decision to quash the information.
/s/ Kirsten Frank Kelly
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