PEOPLE OF MI V WILLIE C JENKINSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 19, 2000
Saginaw Circuit Court
LC No. 98-015030-FH
WILLIE C. JENKINS, SR.,
February 16, 2001
Before: Wilder, P.J., and McDonald and Doctoroff, JJ.
Following a jury trial, defendant was convicted of common-law obstruction of justice for
the fabricating of false, inaccurate, or misleading evidence that was material to a grand jury
investigation, MCL 750.505; MSA 28.773, conspiracy to obstruct justice, MCL 750.157a; MSA
28.354(1), and two Election Law violations by appointing as an assistant to accept delivery of
absentee voter ballots one who was a candidate on the ballot and a member of a candidate's
immediate family, MCL 168.764b(3); MSA 6.1764(2)(3), MCL 168.931; MSA 6.1931, and
willful failure to perform a duty imposed by MCL 168.760; MSA 6.1760 by refusing to allow
public inspection of absentee voter ballot applications or lists, MCL 168.931(1)(h); MSA
6.1931(1)(h). On his convictions for obstruction of justice and conspiracy to obstruct justice, the
trial court sentenced defendant to concurrent terms of fifteen months to five years in prison. The
convictions for violations of the Election Law and for failure to perform a duty resulted in
sentences of ninety days in prison. Defendant appeals as of right. We affirm.
I. Facts and Procedural Background
Defendant was a resident of Buena Vista Township in Saginaw County, where he held the
office of Buena Vista Township Clerk. Defendant's convictions arose out of a grand jury
investigation into alleged Election Law violations involving the August 6, 1996, primary election
in Saginaw County and defendant's appointment of Robert Woods, Jr. (Woods), a Saginaw
County commissioner, to the position of election assistant despite the fact that Woods and his
brother, James Woods, a township trustee for Buena Vista Township, both faced reelection and
appeared on the ballot for their respective positions. Woods' candidacy for reelection was
unopposed; however, James Woods was opposed by another candidate.
On August 1, 1996, the Michigan State Police received a number of complaints about
possible voter tampering in certain communities in Saginaw County, including Buena Vista
Township. These complaints arose after more than two hundred envelopes and absentee voter
applications had been mailed from Lansing and received by the Saginaw City Clerk. The police
department began a prompt investigation of the complaints because the primary election was to
be held on August 6, 1996.
Detective Michael Hosh, Lieutenant Mark Dougovito, and Lieutenant Charles Bush
arrived at the Buena Vista Township Clerk's Office on August 5, 1996, to investigate the
complaints, but defendant refused to permit the officers to review voting records for the township
involving absentee ballot applications and the absentee poll book containing the records of
applications that had been mailed for the current primary election.1 Detective Hosh subsequently
produced a search warrant for the records, and Lieutenant Dougovito produced a subpoena for
election documents and records pertaining to absentee voting. This search, however, did not
reveal any documentation regarding who was appointed to accept, deliver, or return absentee
voter applications and ballots.
A second search warrant of the absentee ballots was executed on August 6, 1996, after the
election polls closed, and a third search warrant seeking all records pertaining to absentee voting
was executed on August 28, 1996. Neither an oath certificate nor any other document in the
name of Robert Woods was discovered during any of the three searches.2 When the police asked
defendant who was authorized to collect and receive absentee voter applications and ballots,
defendant replied himself, Maxine King, who was the deputy clerk, and Meatha Winbush, who
was an administrative services clerk.
A one-man grand jury proceeding commenced on September 19, 1996, before the
Honorable Leopold Borrello, at which defendant testified, among other things, that he appointed
Woods as an assistant in the election process.3 In response to this testimony, which was the first
time the officers became aware that an additional person had been appointed to collect absentee
voter applications and ballots, Investigator Charles Brown of the Saginaw County Prosecutor's
Office asked Woods, who was sequestered in the jury room, whether he had an election card
authorizing him to receive ballots. Woods produced an election card, which Brown presented to
the grand jury.
Defendant then continued his grand jury testimony, indicating that he
administered the oath appointing Woods to collect absentee ballots on July 9, 1996, and that an
oath certificate was filed in the clerk's office verifying the event.
At approximately 11:30 a.m., defendant requested a bathroom break, which lasted about
fifteen minutes. After the grand jury proceeding resumed, the grand juror asked defendant to
contact defendant's office to determine whether the oath certificate was available for police
officers to retrieve. The proceeding was then adjourned for lunch and to allow defendant to call
During the lunch recess of the grand jury proceeding on October 31, 1996, Lieutenant
Dougovito obtained a subpoena for the Woods oath certificate and went to the clerk's office to
obtain the document. He arrived between 12:15 and 12:20 p.m. and was met by King and
Winbush. King informed the officer that the document was available and pointed to the top tray
of an in-out basket that contained only one document, the oath certificate. The unsigned oath
certificate was dated July 9, 1996. When the officer asked King when the document was
prepared, King looked to a typewriter and then responded "whatever date is on the document is
when it was produced." King also indicated that there were no other documents showing that
Woods was a registrar, but that she was present when defendant gave Woods the oath.
Lieutenant Dougovito retrieved the oath certificate from the basket, returned to the court with
King and Winbush, and presented the grand jury with the document. The grand jury proceeding
reconvened at approximately 1:30 p.m., and defendant continued to testify until about 2:15 p.m.
King also testified at the grand jury proceeding that the first time she saw the Woods oath
certificate was in July 1996, when she prepared it on the typewriter in the township offices.
According to King, the oath certificate was the only document relating to the appointment of
Woods as deputy registrar and election officer.
King testified that she prepared the oath
certificate pursuant to defendant's instructions in July, that she was not present when the oath was
administered and did not know what day Woods appeared for the oath, that she only inserted the
information defendant told her to type, and that she gave the oath certificate to defendant. King
denied preparing the oath certificate after July 9, 1996, or on October 31, 1996, and could not
explain how the document was overlooked during the execution of three separate search
warrants. King further acknowledged having seen the election card before, but could not recall
when she typed it (it was not typed at the same time as the oath certificate) and did not know why
defendant would have signed the election card but not the oath certificate. King further denied
receiving a telephone call from defendant during lunch on October 31, 1996, and denied having
any discussions with defendant about the oath certificate on that day.
Defendant was indicted by the grand jury and subsequently was charged by information.4
Following a preliminary examination, defendant was bound over as charged. Defendant moved
to quash the charges, arguing that Michigan does not recognize a general common-law
obstruction of justice offense and that a common-law obstruction of justice offense must be
accomplished by a recognized means of obstruction, citing People v Thomas, 438 Mich 448, 457458; 475 NW2d 288 (1991), and People v Vallance, 216 Mich App 415, 419; 548 NW2d 718
(1996). Defendant contended that the offenses with which he was charged were not recognized
at common law and, thus, must be dismissed.
The prosecutor responded that although there was no case law establishing such a crime
in Michigan, the requirement that the offense charged must have been recognized at common law
was met because the offenses of falsifying proceedings in a court of record, perjury, and
negligence of public officers were recognized offenses within the category of obstruction
offenses. Alternatively, the prosecutor argued that the common-law offenses within the category
of obstruction of justice were not limited to those enumerated by Blackstone5 and, therefore,
whether defendant's conduct falls within one of those recognized offenses is not dispositive.
The trial court denied defendant's motion to quash the obstruction of justice and
conspiracy charges, stating as follows:
In the instant case, Defendant is charged with obstructing justice by
fabricating false, inaccurate or misleading evidence material to a grand jury
investigation. The Court finds that obstruction of justice is not limited to the
twenty-two offenses as cited by Blackstone. Obstruction of justice is a commonlaw offense, but the ways one can obstruct justice are not limited to committing
Blackstone's enumerated common-law offenses. For instance, the Court notes that
in [United States] v Mullins, 22 F3d 1365 (CA 6, 1994), the Sixth Circuit affirmed
defendant's convictions for conspiracy to obstruct justice and for obstruction of
justice based upon defendant's alteration of police flight logs subpoenaed by a
grand jury. In [United States] v Siegel, 263 F2d 530 (CA 2, 1959), the Second
Circuit affirmed defendant's conviction for obstructing justice based upon
defendant's fabrication of witness interview memoranda requested by a grand jury.
These cases are analogous to the type of obstruction alleged in the instant case.
* * *
Therefore, based on the foregoing, Defendant's first Motion to Quash and
Dismiss Count I is denied.
Defendant's application for leave to appeal the trial court's ruling was denied by this
Court for failure to persuade this Court that the questions presented warranted review. People v
Jenkins, unpublished order of the Court of Appeals, entered May 27, 1998 (Docket No. 211647).
At trial, in addition to the information revealed above, the prosecution presented
testimony from Winbush that King received a telephone call from defendant on October 31,
1996, at around 11:30 a.m., which lasted about five minutes. Winbush indicated that King
usually took her lunch break out of the office between 11:00 a.m. and 12:20 p.m., but on that day,
she was taking her lunch break in the office. After the call, King left her office, went to a drawer
by the typewriter, removed a document, began typing on the document, and then entered
defendant's office when she finished. Winbush did not notice what King did with the document,
but noted that King's behavior was out of character, because King usually did not do any work
during her lunch break.
Winbush further testified that, about five or ten minutes later, defendant called the office
again and asked to speak with King. King spoke briefly with defendant and then went into the
storage room. Winbush testified that no one other than King used the typewriter that day and that
she did not recall seeing a document appointing Woods to the office of deputy registrar/elections
officer before that day. She further stated that the only persons authorized to work with absentee
voter materials were herself, defendant, and King. Winbush denied that defendant asked her to
type an oath of office document for Woods on October 31, 1996, or any other day.
Michelle Dunkerley, a forensic document examiner with the Michigan State Police,
testified that she examined the typewriter, cartridge, and ribbons as well as photocopies and
originals of the oath certificate and the election card. Dunkerley determined that the last text on
the ribbon was text from the oath certificate and that the certificate was typed using the
typewriter between August and October 1996, but that the ribbon did not contain text from the
election card, which was dated July 9, 1996.
Finally, defendant testified that in August 1996, only he and Woods actually collected
absentee ballots, although he did not see Woods bring in any ballots. Defendant acknowledged
that he spoke with Woods about assisting with absentee voters in the spring of 1996 and that he
was aware Woods was on the ballot for Saginaw County commissioner, but thought it was not a
problem, because Woods was running unopposed. Defendant testified that he did not consider
that Woods' brother was also on the ballot. Defendant testified that Woods came to the clerk's
office in July 1996, took an oral oath of office, and received an election card from him after
defendant signed it. When handed the oath certificate at trial, defendant indicated that it was the
first time he saw that document, but that it looked like the form used by his office. Defendant
acknowledged that he gave King instructions to prepare Woods' oath certificate in early July after
he administered the oath to Woods, but he did not recall whether it was in fact prepared and did
not recall signing the document.
Regarding the failure to perform duty charge, defendant testified that the officers
requested to have the absentee voter ballots, applications, and poll book, not to view or inspect
them, and that he declined their request absent a court order on the basis of advice he received
from his attorney. Defendant further testified that he was only asked by the police who was
authorized from his office to handle absentee voter materials and that he did not mention Woods
because his attorney advised him not to volunteer any additional information. Defendant denied
asking King to type an oath certificate during the telephone call he made to her during the grand
jury proceeding. Defendant also denied asking King to recreate the document after she indicated
it was lost, and denied that he did anything to hinder or obstruct the grand jury investigation.
Following deliberations, defendant was convicted as charged. His subsequent motion for
bond and to stay further execution of the sentence pending appeal was denied by the trial court,
as was his motion for bond pending appeal and for stay in this Court. People v Jenkins,
unpublished order of the Court of Appeals, entered November 4, 1998 (Docket No. 213311).
A. Obstruction of Justice
Defendant first argues that the district court erred in ordering him bound over for trial on
the charges of obstruction of justice and conspiracy to commit obstruction of justice and that the
circuit court erred in denying his motion to quash the charges. We disagree.
A circuit court's decision to grant or deny a motion to quash charges is reviewed de novo
to determine if the district court abused its discretion in binding over a defendant for trial.
People v Northey, 231 Mich App 568, 574; 591 NW2d 227 (1998); People v Tower, 215 Mich
App 318, 320; 544 NW2d 752 (1996). A district court must bind over a defendant for trial when
the prosecutor presents competent evidence constituting probable cause to believe that a felony
was committed and that the defendant committed the offense. MCL 766.13; MSA 28.931; MCR
6.110(E); Northey, supra at 574.
A district court's finding of probable cause will not be
disturbed unless the determination is wholly unjustified by the record. Id. Further, whether
alleged conduct falls within the scope of a criminal law is a question of law subject to review de
novo. Thomas, supra at 452.
MCL 750.505; MSA 27.773 provides:
Any person who shall commit any indictable offense at the common law,
for the punishment of which no provision is expressly made by any statute of this
state, shall be guilty of a felony, punishable by imprisonment in the state prison
not more than 5 years or by a fine of not more than $10,000.00, or both in the
discretion of the court.
Obstruction of justice has been defined as "an interference with the orderly administration of
justice." Thomas, supra at 455; Tower, supra at 320. Obstruction of justice, however, is not a
single offense, but a category of crimes that interfere with the public administration of justice.
Thomas, supra at 457; Vallance, supra at 419. Thus, in order to sustain a charge of common-law
obstruction of justice, common-law precedence for the specific offense charged as obstruction of
justice must exist. Thomas, supra at 458.
In Thomas, supra at 451, the defendant allegedly made a false statement in a police report
in support of an arrest warrant and was charged with obstruction of justice and conspiracy to
commit obstruction of justice, among other offenses. The Supreme Court found, in relevant part,
that the obstruction of justice charge was not sustainable because there was no recognized
obstruction of justice crime at common law encompassing the defendant's conduct. The Court
stated that "[t]o warrant the charge of common-law obstruction of justice, defendant's conduct
must have been recognized as one of the offenses falling within the category 'obstruction of
justice.'" listed by Blackstone.6 Id. at 457-458. The Court noted that although the defendant's
conduct was a substantial impediment to the administration of justice, there was no basis in
common law for an obstruction of justice charge against the defendant for his conduct. Id. at
In Vallance, supra at 416, decided after Thomas, the defendant was convicted of
obstruction of justice for the intimidation of a witness in a criminal proceeding. On appeal, this
Court questioned whether the Thomas opinion limited the scope of offenses constituting
"obstruction of justice" to the twenty-two offenses listed by Blackstone or whether the Court
merely referred to Blackstone's list to illustrate the point that, at common law, "obstruction of
justice" was not a single offense but rather a category of offenses. Id. at 418-419. This Court
ultimately concluded that obstruction of justice is a category of offenses not limited to the
twenty-two offenses listed by Blackstone:
We find nothing in the Thomas analysis to suggest that offenses
recognized at common law as obstruction of justice are, nonetheless, not to be so
considered if they are not included in the Blackstone list. . . . Accordingly, we
conclude that the Supreme Court's reference in Thomas to Blackstone was merely
to illustrate the point that at common law, "obstruction of justice" is not a single
offense, but a category of offenses that interfere with public justice. . . . A charge
of obstruction of justice was warranted if defendant's conduct would have been
recognized as one of the many offenses falling within the rubric "obstruction of
justice" at common law. [Id. at 419 (citations omitted).]
Accord People v Davis, 408 Mich 255, 286, n 7; 290 NW2d 366 (1980) (Levin, J., concurring)
("Blackstone's compilation did not purport to be comprehensive . . . ."). Therefore, this Court
found that intimidation of a witness in a judicial proceeding was an indictable offense at common
law, associated with the concept of obstruction of justice, and affirmed the defendant's
conviction. Vallance, supra at 419.
Applying these principles to the instant case, the dispositive inquiry is whether
defendant's conduct, the fabricating of false, inaccurate, or misleading evidence that is material to
a grand jury proceeding, constitutes an offense indictable at common law. Although our research
reveals no Michigan case law holding that the specific conduct with which defendant was
charged was recognized at common law as obstruction of justice, we reiterate this Court's
observation in Vallance that we are not limited to the enumerated activities in Blackstone in
resolving this question.
The evidence in this case showed that defendant created or assisted in the creation of a
false, inaccurate, and misleading document that was material to a grand jury investigation.
Defendant testified before the grand jury that an oath certificate in Woods' name dated July 9,
1996, existed at the clerk's office. When forced to produce the document, he enlisted the
assistance of King to create the document and substantiate his falsity, knowing that the document
did not exist at the time he made the statement to the grand jury. Further, the lab report and
testimony from Dunkerley verified that the last document typed on October 31, 1996, in the
Buena Vista Township Clerk's Office was an oath certificate made out in Woods' name.
Testimony from Winbush verified that King typed this document after receiving a telephone call
from defendant around 11:30 a.m. on October 31, 1996, during a recess of the grand jury.
Further, the oath certificate bearing Woods' name was found by the police that same afternoon in
a box in the clerk's office, although it had not been discovered during the execution of three prior
search warrants for the office. We conclude that the knowing assistance in fabricating false and
fraudulent documents for presentation to a grand jury, with the intent to impede, thwart, or
interfere with the administration of justice, constitutes obstruction of justice. Likewise, one who
agrees, understands, plans, designs, or schemes to commit acts that obstructed or were intended
to obstruct the administration of law engages in conspiracy to commit obstruction of justice. See
People v Ormsby, 310 Mich 291, 300; 17 NW2d 187 (1945). See also United States v Mullins,
supra (obstruction of justice was proved by evidence that defendant induced certain police
officers to alter other officers' flight log, creating false and fraudulent entries, and then producing
the altered flight logs in response to a grand jury subpoena issued in connection with a federal
grand jury investigation); United States v Siegel, supra at 531-532 (fabrication of false
memoranda and swearing that the documents provided were complete records constituted
obstruction of justice and perjury).
Accordingly, we conclude that defendant's conduct in this case falls within the category
of offenses that comprise common-law obstruction of justice, and the circuit court did not err in
denying defendant's motion to quash the charges of obstruction of justice and conspiracy.
B. Failure to Perform a Duty
Defendant next contends that the trial court erred in denying his motion to quash the
charge of failure to perform a duty brought under MCL 168.931(1)(h); MSA 6.1931(1)(h) and
MCL 168.760; MSA 6.1760. We disagree.
Defendant was charged with failure to perform a duty under MCL 168.931(1)(h); MSA
6.1931(1)(h), which provides that "a person shall not willfully fail to perform a duty imposed
upon that person by this act . . . ." The duty that defendant allegedly failed to perform under the
act is set forth in MCL 168.760; MSA 6.1760, which provides in relevant part that absentee voter
"[a]pplications and lists shall be open to public inspection at all reasonable hours." Failure to
perform the requisite duty is a misdemeanor. MCL 168.931(2); MSA 6.1931(2). The record is
clear that defendant denied the officers' request to review the voter applications and lists, and the
denial was contrary to the statute. The trial court did not err in finding that probable cause
existed to believe that defendant committed the charged offense. Defendant's motion to quash
was properly denied.8
C. Evidentiary Issues
Defendant argues that the trial court abused its discretion by permitting grand jury
testimony of alleged coconspirator King into evidence because there was insufficient proof of a
conspiracy, independent of her testimony. We disagree.
This Court reviews a trial court's evidentiary ruling for an abuse of discretion. People v
Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). An abuse of discretion is found only if an
unprejudiced person, considering the facts on which the court acted, would say there was no
justification or excuse for the ruling made. People v Ullah, 216 Mich App 669, 673; 550 NW2d
King's grand jury testimony was introduced as evidence at trial pursuant to MRE
801(d)(2)(E), which provides that a statement is not hearsay if
[t]he statement is offered against a party and is . . . (E) a statement by a
coconspirator of a party during the course and in furtherance of the conspiracy on
independent proof of the conspiracy.
King's testimony was introduced through the testimony of Detective Hosh near the end of the
prosecution's case after sufficient evidence of the conspiracy to commit obstruction of justice had
been admitted. Before King's testimony was presented, Lieutenant Dougovito testified that the
police executed three search warrants at the township clerk's office and, on each occasion,
defendant reported that the only individuals authorized to accept absentee voter ballots and
related documents were himself, King, and Winbush.
In addition, Winbush testified that
defendant called King at the clerk's office around 11:30 a.m. on October 31, 1996, during a break
in the grand jury proceeding. After the telephone call concluded, King immediately typed a
document that resembled the Woods oath of office. Winbush stated that King never interrupted
her lunch for any reason, but on October 31, 1996, in response to the call from defendant, she
typed this document during her lunch break.
Winbush further testified that she had no
knowledge that Woods was authorized to collect absentee voter ballots.
Further, defendant testified during the grand jury proceeding, before King testified, that
King witnessed Woods sign the oath certificate and that the document could be found in
defendant's office. When asked to produce the document for the court's review, defendant said
he could comply. The record shows that a few minutes later, defendant requested a bathroom
break, during which time he called King at the township office. When defendant returned from
the break, he was informed that police officers were going to the clerk's office to retrieve Woods'
oath certificate. Defendant was then asked to contact his office and inform his staff to locate the
document because the police were coming for it. The police arrived at the township offices and
located Woods' oath certificate in a basket on King's desk, despite the fact that during three prior
searches of the township offices by the police, this document was nowhere to be found. Finally,
forensic evidence was introduced establishing that the last text typed on the typewriter retrieved
from the township offices on October 31, 1996, was the text from Woods' oath of office.
On this record, we conclude that the prosecutor proved the existence of a conspiracy by a
preponderance of the evidence before King's grand jury testimony was introduced. Having
established independent proof of the conspiracy, King's statements made during the course and in
furtherance of the conspiracy were properly admitted under MRE 801(d)(2)(E). See People v
Rockwell, 188 Mich App 405, 407-408; 470 NW2d 673 (1991). We find no abuse of discretion.
Defendant next argues that the trial court abused its discretion by denying defendant's
request to admit into evidence a copy of MCL 750.492; MSA 28.760 in defense of the charge of
willful failure to perform a duty required by the Election Law. We disagree.
MCL 750.492; MSA 28.760 provides:
Any officer having the custody of any county, city or township records in
this state who shall when requested fail or neglect to furnish proper and
reasonable facilities for the inspection and examination of the records and files in
his office and for making memoranda of transcripts therefrom during the usual
business hours, which shall not be less than 4 hours per day, to any person having
occasion to make examination of them for any lawful purpose shall be guilty of a
misdemeanor, punishable by imprisonment in the county jail not more than 1 year,
or by a fine of not more than $500.00 The custodian of said records and files may
make such reasonable rules with reference to the inspection and examination of
them as shall be necessary for the protection of said records and files, and to
prevent interference with the regular discharge of the duties of such officer. The
officer shall prohibit the use of pen and ink in making copies or notes of records
and files in his office. No books, records and files shall be removed from the
office of the custodian thereof, except by the order of the judge of any court of
competent jurisdiction, or in response to a subpoena duces tecum issued therefrom
Contrary to defendant's contention, this statute is not applicable to the instant case.
Defendant was initially asked by the officers to inspect the absentee voter records, not to remove
them from the office. Indeed, the officers did not reference a search warrant or a seizure of the
records until after defendant denied their request. Defendant denied the request to inspect the
records in violation of MCL 168.760; MSA 6.1760. The trial court properly noted that the only
issue before the jury was whether defendant violated the specific provisions in the Election Law
under which he was charged, and reference to any other criminal statute was simply not relevant
and would have unnecessarily confused the jury. See MRE 403. The trial court properly
excluded evidence of MCL 750.492; MSA 28.760.9
Defendant argues that his concurrent sentences of fifteen months to five years for the
obstruction of justice and conspiracy convictions are grossly disproportionate under the
circumstances. We disagree.
A trial court's imposition of sentence is reviewed for an abuse of discretion. An abuse of
discretion occurs if the sentence violates the principle of proportionality, which requires that a
sentence imposed by the trial court be proportionate to the seriousness of the circumstances
surrounding the offense and the offender. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
(1990); People v Parrish, 216 Mich App 178, 184; 549 NW2d 32 (1996).
MCL 750.505; MSA 28.773 states that common-law felonies are punishable by
imprisonment of not more than five years or by a fine of not more than $10,000, or both in the
discretion of the court. Under MCL 750.157a(a); MSA 28.354(1)(a), conspiracy is punishable by
a penalty equal to that which could be imposed if the defendant had been convicted of
committing the crime he conspired to commit and, in the discretion of the court, an additional
penalty of a $10,000 fine may be imposed. As the trial court noted, the law does not provide any
sentencing guidelines for the obstruction of justice and conspiracy offenses of which defendant
The trial court reviewed defendant's education, work history, community service, health,
family circumstances, and financial situation. The trial court further considered the nature and
seriousness of the offenses, noting that defendant was reelected by as few as twenty-two votes, he
was found to have fabricated documentary evidence in a grand jury proceeding, he represented
fabricated evidence as valid to the grand jury, and the fabrication was accomplished through
conspiracy. The trial court then made the following remarks before imposing sentence:
The Court will say that this is a difficult case, because this is a defendant
standing before the Court, Mr. Jenkins, who has a very good background, and who
has, at times, served as a model to not only the youth of the community, but many
adults, and who was entrusted with a significant amount of responsibility and
trust, both as a teacher, coach, and ultimately an elected public official, and a clerk
of Buena Vista Township, and who has, for whatever reason, violated that trust in
a significant way.
The lesson to be imparted today is that the law will not tolerate tampering
with the ballot box, including how people get their absentee ballots into that ballot
box or otherwise, or obstructing the justice system. Our right to vote and our
justice system are two of the cornerstones of our democracy and our precious
freedom, and they so importantly distinguish and characterize our form of
To punish the defendant and to deter others from similar conduct, the
Court imposes the following sentence. On Counts I and II, obstruction of justice
and conspiracy, it is the sentence of the Court that the defendant be committed to
the jurisdiction of the Michigan Department of Corrections and thereafter placed
in an appropriate state penal institution. The Court fixes the minimum terms in
Counts I and II, in my discretion, at 15 months, the maximum is set by law at five
years, and I fix it in each count at five years.
We conclude that there was ample justification for the sentence imposed. The trial court
properly considered defendant's background, his service to the community, and his position as an
elected township official who was granted the trust of his community, but violated that trust by
committing the instant offenses.
Defendant's fifteen-month minimum sentences were
proportionate to the offense and the offender and did not constitute an abuse of discretion.
/s/ Kurtis T. Wilder
/s/ Gary R. McDonald
/s/ Martin M. Doctoroff
Defendant's refusal to allow inspection of the records was the basis for the failure to perform
duty charge in count IV.
The two relevant election documents in this case are (1) a certificate of oath and affirmation
(oath certificate) purportedly issued to Robert Woods, Jr., on July 9, 1996, that should have been
on file in the clerk's office, and (2) a wallet-sized election card (election card) that would serve as
Woods' authorization to assist in official election-related activities.
Defendant's testimony at the grand jury proceeding did not commence until the morning of
October 31, 1996.
Woods and King were also indicted by the grand jury after it became apparent that King
prepared an oath of office certificate on October 31, 1996 (the date defendant testified before the
grand jury), but falsely dated it July 9, 1996 (the date Woods was appointed election assistant).
Woods was indicted on charges of receiving absentee ballots when he was ineligible to do so
because of his own candidacy and the candidacy of his brother, of tampering with absentee
ballots, and of possession of absentee ballots. Woods was subsequently charged by information
and bound over for trial on election fraud charges. In a pretrial motion, Woods argued the
defense of "entrapment by estoppel," allegedly having relied in good faith on defendant's
representation that Woods was eligible to act as an election assistant. Woods subsequently
requested a jury instruction regarding that defense. The trial court denied Woods' request for the
jury instruction, but stayed proceedings to allow Woods to file an interlocutory appeal in this
Court. This Court granted leave and, on June 27, 2000, issued a published opinion, holding that
the trial court erred in relying on Woods' grand jury testimony to deny the instruction rather than
conducting an evidentiary hearing regarding the issue of entrapment by estoppel. The matter was
remanded for an evidentiary hearing, with guidance to the trial court, the bench, and the bar
concerning how to analyze the defense of entrapment by estoppel, an issue of first impression in
Michigan. People v Woods, 241 Mich App 545; 616 NW2d 211 (2000).
King was also indicted on charges of obstruction of justice and conspiracy to commit
obstruction of justice, as well as for perjury before the grand jury arising out of her role in
fabricating the oath certificate, but the record is unclear with respect to the outcome of the
charges against her.
4 Blackstone, Commentaries, pp *127-*141.
The twenty-two offenses listed by Blackstone are:
1. Imbezzling or vacating records, or falsifying certain other proceedings
in a court of judicature . . . . 2. [induce a prisoner] to accuse and turn evidence
against [another] . . . . 3. . . . obstructing the execution of lawful process. . . . 4. An
escape of a person arrested upon criminal process, by eluding the vigilance of his
keepers before he is put in hold . . . . 5. Breach of prison by the offender himself,
when committed for any cause . . . . 6. Rescue is the forcibly and knowingly
freeing another from an arrest or imprisonment . . . . 7. . . . returning from
transportation . . . before the expiration of the term for which the offender was
ordered to be transported . . . . 8. . . . taking a reward, under pretence of helping
the owner to his stolen goods. . . . 9. Receiving of stolen goods, knowing them to
be stolen . . . . 10. . . . the party robbed not only knows the felon, but also takes his
goods again, or other amends, upon agreement not to prosecute . . . . 11. Common
barretry is the offence of frequently exciting and stirring up suits and quarrels . . . .
12. . . . officious intermeddling in a suit that no way belongs to one, by
maintaining or assisting either party with money or otherwise . . . . 13. Champerty
. . . being a bargain with a plaintiff or defendant . . . to divide the land or other
matter sued for between them . . . . 14. . . . compounding of informations upon
penal statutes . . . . 15. . . . conspiracy . . . to indict an innocent man . . . . 16. . . .
perjury . . . . 17. Bribery . . . . 18. Embracery is an attempt to influence a jury
corruptly to one side . . . . 19. The false verdict of jurors, whether occasioned by
embracery or not . . . . 20. . . . negligence of public officers . . . . 21. . . .
oppression and tyrannical partiality of judges, justices, and other magistrates, in
the administration and under the colour of their office. . . . 22. . . . extortion . . . .
[Blackstone, supra at *127-*141.]
The obstruction of justice charge against the defendant was initially dismissed by the trial court
and affirmed by this Court on the ground that the obstruction of justice charge was precluded by
the statutory offense of willful failure to uphold the law, MCL 752.11; MSA 28.746(101).
Thomas, supra at 452. On appeal, however, the Supreme Court agreed that a conviction under
MCL 750.505; MSA 28.773 cannot be sustained when a charge sets forth all elements of a
statutory offense, but then concluded that the common-law charge of obstruction of justice was
not precluded by the statute making it an offense to wilfully fail to uphold the law, because the
offenses have different elements. Thomas, supra at 453-455.
Defendant's additional argument that his refusal to allow inspection of the documents was
protected under Michigan's Freedom of Information Act (FOIA), MCL 15.231 et seq.; MSA
4.1801(1) et seq., which requires a person desiring to inspect or receive public records to make
an oral or written request for the public record to the public body, is misplaced. Defendant was
charged with failure to perform a duty under § 931 of the Michigan Election Law, MCL
168.931(1)(h); MSA 6.1931(1)(h), for his failure to comply with MCL 168.760; MSA 6.1760,
that requires that voter applications and lists be open for public inspection at all reasonable hours.
At no time did the police officers submit a FOIA request for the voter information, and defendant
was not charged with violating provisions in the FOIA. As the trial court properly noted, the jury
was asked to consider the appropriate laws under the Election Law, and introducing rules under
the FOIA pertaining to the general maintenance of public records would only confuse the jury
and inject laws not germane to the issues to be decided. Therefore, the trial court did not err in
denying defendant's motion to quash the charge and did not abuse its discretion in denying
defendant's request to introduce evidence regarding the FOIA as a defense to the failure to
perform a duty charge.
We also reject defendant's argument that he did not release the absentee voter records to the
police because, pursuant to the advice of his attorney, he believed it was a crime to do so without
a court order. That defendant's attorney purportedly advised defendant not to release the
information is not a defense to a charge of willful failure to perform a duty, MCL 168.931(1)(h);
MSA 6.1931(1)(h); MCL 168.760; MSA 6.1760.