PEOPLE OF MI V LARRY EDWIN SCHWARTZ JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 6, 2009
Plaintiff-Appellant,
v
No. 282028
Wayne Circuit Court
LC No. 07-011155-FH
LARRY EDWIN SCHWARTZ, JR.,
Defendant-Appellee.
Before: Zahra, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
Following a preliminary examination, defendant was bound over to circuit court on a
charge of misconduct in office, MCL 750.505, but four additional counts of perjury in a citation,
MCL 257.744a, were dismissed. The circuit court subsequently denied the prosecutor’s motion
to reinstate the perjury charges, and granted defendant’s motion to quash the information relative
to the misconduct charge. The prosecutor appeals as of right. We reverse the circuit court’s
order and remand for further proceedings. This appeal has been decided without oral argument
pursuant to MCR 7.214(E).
Defendant, a police officer, issued four undated speeding tickets to truck drivers while
working overtime. The prosecution introduced testimony to show that defendant’s overtime
eligibility would be jeopardized if he received two warnings for failing to issue a certain number
of tickets during an overtime shift. In a daily traffic detail log, defendant listed the requisite
number of tickets for the dates on which the subject tickets were actually issued. He then dated
the subject tickets for the following day, and listed them in a daily log for the following day.
The district court concluded that, “[a]mendments regarding dates of alleged offenses are
freely given,” and that the failure to initially include the dates was therefore not material, as
required by the perjury statute at issue, MCL 257.744a. The circuit court concluded that the
dates were not material because MCL 257.743, which outlined the requirements for citations, did
not require that the date of an offense be included.
In People v Lively, 470 Mich 248; 680 NW2d 878 (2004), our Supreme Court held that
materiality was not an element of the perjury statute at issue, MCL 750.422 (perjury in a court
proceeding). However, it referenced a number of perjury statutes that did have a materiality
requirement. Id. at 254. It also referenced a number of cases that did not differentiate between a
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common law and statutory materiality requirement; it stated that “these cases are overruled to the
extent that they are inconsistent with our opinion today.” Id. at 256. Thus, when materiality is
an element of a perjury statute, the meaning assigned to the term in these cases applies.
One such case was People v Kert, 304 Mich 148, 153-154; 7 NW2d 251 (1943), in which
a tavern owner (Kert) testified untruthfully that he did not know a police inspector, that the
inspector had never frequented his tavern, and that patrons did not use his tavern to enter an
adjoining gambling establishment. The Kert Court held:
There would be nothing criminal or extraordinary in police officers or other
officials going to a tavern for food and drink, but when it is considered that the
building was laid out with a connection between the tavern and the adjoining part
of the building used for a gambling house, through a back door from one to the
back door of the other, or through the tunnel or aisle at the rear of the building on
the basement level, that the frequenters of the gambling house visited the tavern,
and that officers of the law, defendants in the case, frequented the place, the
inference is irresistible that these officers countenanced gambling and that Kert’s
cafe was a place where officers met and must have known that gambling was
going on next door. This would become very competent and material, though not
at all conclusive, in a case where police and officers of the law were also charged
with complicity in a conspiracy to permit gambling. It thus became material to
show in the chain of evidence whether Inspector Watkins was a frequenter of
Kert’s tavern. In view of the testimony in the case, the jury were [sic] fully
justified in finding that the questions asked Kert were material and that Kert had
committed perjury.
See also People v Fox, 25 Mich 492, 497 (1872) (materiality was “an issue or cause to which
facts were material, and a false statement regarding such facts upon such issue, or in such
cause”); People v Hoag, 113 Mich App 789, 798-799; 318 NW2d 579 (1982) (statement may be
material where it discredits other testimony or has bearing on credibility issues); Anno:
Materiality of testimony forming basis of perjury charge as question for court or jury in state
trial, 37 ALR4th 948, § 2[a](footnotes omitted) (false statement is material “if it directly or
circumstantially had a reasonable and natural tendency to influence a pertinent determination”).
In Kert, the inspector’s patronage of the tavern was not wrongful, just as the failure to
date a ticket might not be wrongful. However, together with other evidence, the patronage
provided circumstantial proof of a conspiracy and was therefore material. Similarly, omitting
and then misrepresenting the date on a ticket, together with other evidence, was circumstantial
proof of misconduct and therefore material. Accordingly, the perjury charges should have been
reinstated.
The prosecutor next argues that the circuit erred in quashing the misconduct in office
charge. This was a common law offense charged pursuant to MCL 750.505. In People v
Perkins, 468 Mich 448, 456; 662 NW2d 727 (2003), quoting People v Coutu, 459 Mich 348,
354; 589 NW2d 458 (1999) (Coutu I), quoting Perkins & Boyce, Criminal Law (3d ed), p 543,
our Supreme Court stated that this offense requires “corrupt behavior by an officer in the
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exercise of the duties of his office or while acting under color of his office.” An offender acts
with a corrupt intent if the act is with a “sense of depravity, perversion or taint.” See Perkins, p
542. Although defendant’s failure to insert the dates on the citations and properly record them
might not have been a sign of depravity or perversion, if it was done for the purpose of
improperly securing overtime it could not be regarded as a legitimate act. At a minimum,
probable cause existed to find that it had a “sense of taint” and was therefore corrupt.1
Accordingly, it was error to grant the defendant’s motion to quash.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Brian K. Zahra
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
1
We find it irrelevant that MCL 257.750 precluded a quota system. There is no indication that
defendant manipulated the quota system out of regard for the statutory prohibition on quotas.
The circumstantial evidence suggests that he did so impermissibly to secure his entitlement to
overtime when he might not otherwise have been given overtime.
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