PEOPLE OF MI V MICHAEL JOSEPH GLOWICKI
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 28, 2000
Plaintiff-Appellee,
v
No. 219230
Bay Circuit Court
LC No. 98-001341-FH
MICHAEL JOSEPH GLOWICKI,
Defendant-Appellant.
Before: Murphy, P.J., and Griffin and Wilder, JJ.
PER CURIAM.
Defendant appeals as of right his conviction, following a jury trial, of false report of a
felony, MCL 750.411a(1)(b); MSA 28.643(1)(1)(b). Defendant was sentenced to three years'
probation, with included terms requiring him to serve 270 days in jail, with 180 days deferred,
pay $800 in fines and costs, complete forty hours of community service and attend anger
management classes. We affirm.
Defendant's conviction stems from his call to 911 and his subsequent statement to police
that as he saw two women, Brenda Swanson and her daughter Sherri, drive by his home, one of
the women waved a handgun in the window. Defendant indicated that he considered the
women's action harassment. The record demonstrates that earlier in the day of the alleged driveby defendant had been convicted of assault and battery charges relating to an incident involving
Brenda and her husband. Defendant asserted the truthfulness of his report as a defense. On
appeal, defendant challenges the validity of his bindover, certain of the circuit court's evidentiary
rulings, and the circuit court's refusal to provide requested jury instructions. We find no merit in
defendant's various challenges.
We first address defendant's contention that the circuit court lacked jurisdiction due to an
invalid bindover. Defendant states that the assignment of this case to the district court judge who
presided over the preliminary examination was not by lot as required by MCR 8.111(B).
Therefore, defendant argues, the district court lacked jurisdiction to bind him over on the charge
and, the bindover void, the circuit court was without jurisdiction and its judgment of conviction
void.
Apparently, because defendant already had an assault charge pending before one of the
three district judges, his preliminary exam on this charge was assigned to the same judge. It is
-1-
possible for local jurisdictions to implement such practices through administrative rules. MCR
8.112. However, no such local rule existed. Defendant discovered and raised this issue on the
third and final day of his preliminary exam, seeking dismissal of the case. Declining to take any
such action at that late stage, the district judge found probable cause for defendant's bindover and
deferred any ruling on the assignment issue to the circuit court.
At the circuit court, defendant brought a motion to dismiss in which he reiterated the
argument that violation of MCR 8.111(B) rendered his bindover void. Defendant requested
remand to the district court for proper assignment. The prosecutor responded that such action
would nevertheless end with assignment to the same judge because the two remaining district
judges had disqualified themselves in another matter involving defendant and would likely do the
same for this case. Issuing its decision, the circuit court acknowledged that the rule requires
assignment by lot, but noted that nowhere does the rule provide a remedy for violation of the
procedures detailed therein. The circuit court found that regardless of the propriety of the
assignment, the district judge did have jurisdiction to preside over the case because it had been
assigned to him. The court then noted that defendant's requested remedy would be futile because
due to disqualifications the case would wind up back with the same judge. The court denied
defendant's motion.
Whether a court has jurisdiction is a question of law that this Court reviews de novo.
People v Laws, 218 Mich App 447, 451; 554 NW2d 586 (1996). Similarly, the interpretation
and application of court rules presents a question of law reviewed de novo. Cardinal Mooney
High School v Michigan High School Athletic Ass'n, 437 Mich 75, 80; 467 NW2d 21 (1991);
Szymanski v Brown, 221 Mich App 423, 433; 562 NW2d 212 (1997).
"[A] court's subject matter jurisdiction is established when the proceeding is of a class the
court is authorized to adjudicate." In re Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993).
District courts have jurisdiction over, among other things, preliminary examinations in all felony
cases. MCL 600.8311(d); MSA 27A.8311(d); Laws, supra at 451. The circuit court, meanwhile,
is a court of general jurisdiction that has original jurisdiction in all matters not prohibited by law
so that subject matter jurisdiction is presumed unless expressly denied by constitution or statute.
People v Goecke, 457 Mich 442, 458; 579 NW2d 868 (1998), citing Const 1963, art 6, § 13 and
MCL 600.151; MSA 27A.151. In personam jurisdiction and subject matter jurisdiction are
vested in the circuit court on the filing of a return binding a defendant over for trial. Goecke,
supra at 459. Because defendant's preliminary examination and subsequent trial fall within the
class of proceedings the district and circuit courts are respectively authorized to adjudicate, we
agree with the determination of the circuit judge that the district judge had jurisdiction to preside
over the case irrespective of the manner of assignment. We also find, as the circuit judge
presumably determined, that jurisdiction over defendant's trial was properly vested in the circuit
court.
The question then is what impact on the proceedings, if any, runs from the failure to
comply with the mandate of MCR 8.111(B) that assignment of defendant's preliminary
examination to the district judge be by lot. It is intuitive that court rules providing for the
random assignment and/or reassignment of cases are intended to prevent judge shopping and to
avoid the appearance of impropriety. See People v Montrose (After Remand), 201 Mich App
-2-
378, 380 n 1; 506 NW2d 565 (1993); Armco Steel Corp v Dep't of Treasury, 111 Mich App 426,
438; 315 NW2d 158 (1981) (decided with reference to GCR 1963, 926, the predecessor of MCR
8.111). It has also been noted by this Court, in interpreting the correlative Wayne County Circuit
Court Rule, that "[t]he fact that the system has a potential for abuse" is not grounds for reversing
a defendant's conviction where no prejudice is shown and where it is apparent from the record
that, whether by lot or direct assignment, the presiding judge was the only judge who could have
heard the defendant's case. People v Simonds, 135 Mich App 214, 224-225; 353 NW2d 483
(1984).
In the instant case defendant has never asserted prejudice stemming from either the
manner of assignment or the manner in which the district and circuit courts conducted the
proceedings. Nor, prudently, has defendant ever suggested that the presiding district judge could
or should have been disqualified pursuant to MCR 2.003. Our review of the record leads us to
the conclusion that disqualification would not have been warranted. Defendant has simply
maintained that the procedural misstep should afford him a second crack at preliminary
examination proceedings. As the circuit court found, however, had defendant's case been
remanded it would necessarily have been heard by the same district judge because the remaining
two judges in the district had reasons to recuse themselves from matters involving defendant.
It has been noted at each stage of these proceedings that MCR 8.111, an administrative
rule, includes no remedy for violation of its provisions. This is no deficiency, however, in light
of rules such as MCR 2.003 that provide for the disqualification of judges where circumstances
could adversely affect defendants. Here, like Simonds, no such circumstances exist and absent
any showing of negative consequences we find no basis to fashion a remedy for noncompliance
with MCR 8.111. Our conclusion is supported by those cases holding that evidentiary errors in a
preliminary examination are to be considered harmless when a defendant is convicted following
a fair, error-free trial in the circuit court. See, e.g., People v Hall, 435 Mich 599, 600-601; 460
NW2d 520 (1990). As our resolution, infra, of defendant's additional claims illustrates, his
conviction resulted from an error-free trial. Remedy for any error related to the preliminary
examination, available if at all through interlocutory appeal, was foreclosed when defendant
elected to pursue the claim in a collateral attack.
Defendant next argues that the circuit court erred in denying his motion to quash the
indictment. Defendant claims that his report of the Swanson women's actions to a 911 operator
cannot sustain the charge of making a false report to a peace officer. In lieu of determining
whether a 911 operator qualifies as a peace officer for the purpose of conviction under MCL
750.411a(1)(b); MSA 28.643(1)(1)(b), on the basis of defendant's report of the same facts to a
county sheriff deputy and a state trooper we find no error in the circuit court's denial of
defendant's motion.
"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
Northey, 231 Mich App 568, 574; 591 NW2d 227 (1998). This Court reviews de novo a circuit
court’s decision to grant or deny a motion to quash charges against a defendant to determine if
the district court abused its discretion in ordering bindover. Id. An abuse of discretion exists
-3-
when the result is so violative of fact and logic that it evidences a perversity of will, a defiance of
judgment, or an exercise of passion or bias, People v Woods, 200 Mich App 283, 288; 504
NW2d 24 (1993), or when an unprejudiced person, considering the facts on which the court
acted, would say there was no justification or excuse for the ruling. People v Reigle, 223 Mich
App 34, 37; 566 NW2d 21 (1997).
Although the bulk of the evidence presented at defendant's preliminary examination
centered on his call to 911, wherein he initially reported observing the women drive past his
home displaying a handgun, other evidence showed that defendant reiterated his statements to
both a county sheriff deputy and a state trooper who each immediately responded to the
subsequent 911 dispatch. Accordingly, and notwithstanding that the information charged
defendant only with making the false report to the 911 operator, the evidence presented clearly
showed that defendant also made the report to a peace officer. Further evidence, including
testimony indicating the Swansons' whereabouts at specific times and relevant drive times,
supported their blanket denial that they had driven past defendant's home around the time in
question.
It would exalt form over substance to in this case hold, as defendant seemingly requests,
that the language and content of the information must control the validity of the bindover.
Defendant was on notice that he was charged with making a false report to a peace officer, and he
does not contest that he made his report to not only the 911 operator but also the responding
officers. We find no abuse of discretion in the district court’s determination that there existed
sufficient probable cause that defendant committed the charged felony. Because it is not wholly
unjustified by the record, we will not now disturb that determination. Northey, supra at 574.
Next, defendant challenges three of the circuit court's evidentiary rulings. Defendant
initially asserts that the circuit court erred in refusing to admit the preliminary examination
testimony of the 911 supervisor. The supervisor failed to appear at trial, but had testified during
the preliminary examination regarding the timing of defendant's call to 911. Defendant contends
that recitation of the supervisor's prior testimony was necessary because this testimony conflicted
with call times presented at trial through the testimony of the 911 operators. Defendant argues
that this testimony concerning the time of his call was critical to his case because it would show
that the Swansons could feasibly have driven past his house between the times of their
appearance at other locations.
The decision whether to admit evidence is within the discretion of the trial court and will
not be disturbed on appeal absent a clear abuse of discretion. People v Starr, 457 Mich 490, 494;
577 NW2d 673 (1998); People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000).
Generally, relevant evidence is admissible and irrelevant evidence is not admissible. MRE 402.
Relevant evidence is evidence that has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence. MRE 401. However, even though evidence may be relevant, it may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence. MRE 403. Additionally, under MRE
611(a), a court shall exercise reasonable control over the mode and order of interrogating
-4-
witnesses and presenting evidence so as to (1) make the interrogation and presentation effective
for the ascertainment of the truth, and (2) avoid needless consumption of time.
Here, defendant sought to introduce the supervisor's prior testimony establishing the
accurate time of the 911 call for the purpose of showing that the women allegedly drove by
defendant’s home shortly before the call. However, the time of the call itself would not serve to
establish the precise time of the alleged drive-by, and there was a variety of evidence already
admitted establishing the approximate time of the alleged drive-by, including defendant’s own
statements to officers, and both his and his sister's testimony. Combined with defense counsel's
cross-examination of the 911 operators, which effectively raised the possibility that defendant's
first call occurred at 6:05 p.m., a few minutes earlier than the time of 6:11 p.m. to which the
operators testified, the question whether the women had driven past defendant's home a few
minutes earlier than suggested by the prosecution was well developed by the stage of trial at
which defendant sought to introduce the supervisor's testimony.
At minimum, therefore, we would find no abuse of discretion because the circuit court's
intent to effectively manage the case justified its ruling to exclude the testimony pursuant to
MRE 611. Reigle, supra at 37. In addition, however, we note that defense counsel stated early
in trial that in establishing the Swansons' presence at various locations, both sides would be
relying on the recollections of various witnesses for all relevant times. Defense counsel also
conceded that these recollections were only somewhat reliable. Thus, while the precise time of
defendant's 911 call may have been ascertainable, its probative value was not particularly high in
light of the uncertainty of all the other evidence of times. We consequently hold that this
minimal probative value was substantially outweighed by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence. MRE 403. Notwithstanding the circuit
court's omission of this rule as an explicit basis for exclusion of the supervisor's prior testimony,
we find no reason to disturb the circuit court's ruling. See People v Vandelinder, 192 Mich App
447, 454; 481 NW2d 787 (1992).
Second, defendant argues that the circuit court erred in barring evidence that Brenda
Swanson had previously threatened defendant. A few hours before his call to 911, defendant had
been convicted of assault and battery charges relating to an incident involving Brenda and her
husband. It is clear from this and other references in the record that there existed a history of
acrimony between defendant and the Swansons, especially Brenda. Defendant asserts that
testimony concerning three specific instances wherein Brenda verbalized threats, had he not been
prohibited from eliciting such information during her cross-examination, would have presented
the jury with evidence from which it could have drawn an inference that Brenda possessed a
motive for driving past his home waving a gun. Defendant claims that because he was defending
himself by asserting the truthfulness of his report, the evidence regarding Brenda's character and
other acts would have filled a conceptual void and bolstered his credibility before the jury.
Like decisions concerning the general admission of evidence, whether a trial court has
properly limited cross-examination is also reviewed for an abuse of discretion. People v Minor,
213 Mich App 682, 684; 541 NW2d 576 (1995). In this case, Brenda testified on crossexamination that she may have told a trooper earlier in the year that she was upset with defendant
and if things were not done she would take matters into her own hands. She also admitted that
-5-
she once yelled to defendant from a vehicle “you’re going to get it.” Defendant sought to elicit
further testimony concerning three additional instances wherein Brenda exhibited prejudice
against him. The circuit court, however, concerned that this trial focus on the events of the day
in question, rather than on incidents some of which were the subject of other court proceedings,
ruled that defendant could establish Brenda's bias with the testimony already elicited and opined
that further evidence in that vein would confuse the issues, cause undue delay and be a waste of
time.
We again find no abuse of discretion on the ground that the circuit court was justified in
refusing to permit further cross-examination in this area pursuant to MRE 403 and MRE 611(a).
To the extent there was any error in excluding testimony concerning any of the three specific
instances, we note that such preserved nonconstitutional error is not a ground for reversal unless,
after an examination of the entire cause, it shall affirmatively appear that it is more probable than
not that the error was outcome determinative. People v Lukity, 460 Mich 484, 495-496; 596
NW2d 607 (1999). Here, jurors had before them the testimony of defendant and his sister, the
only eyewitnesses to the alleged drive-by. Countering this evidence were the testimonial denials
of Brenda and her daughter that they had driven by defendant's home, as well as the testimony of
various employees who placed Brenda and Sherri at their respective businesses at pertinent times.
The contested potential testimony would merely have supplemented those admissions, already on
the record, that indicated Brenda's bias and undermined her credibility. On this record, it does
not affirmatively appear more probable than not that the exclusion of this evidence was outcome
determinative.
Lastly, defendant argues that the circuit court erred in admitting both a portion of the 911
recording that included reference to a personal protection order obtained by Brenda Swanson
against defendant, and evidence of defendant's convictions for assault and battery on the day in
question. The comments regarding the PPO were made during a return call by a 911 operator
seeking background information with which to advise the responding officers. The circuit court
allowed the playback of the 911 recording, without excise of references to the PPO, finding that
the contested portion of the recording was relevant as part of the res gestae of the offense or the
transactional events of the day. On the same basis the court also permitted reference to
defendant's convictions, limited to identification that the convictions were part of the
transactional events of the day. The court ruled, pursuant to MRE 403, that the probative value
of this background information was not substantially outweighed by any possible prejudice.
Defendant contends that the admission of this evidence was more prejudicial than
probative because it implied bad character and potentially allowed the jury to decide defendant's
guilt on that basis rather than on the relevant facts. We agree with the circuit court, however, that
the contested evidence was relevant under MRE 401 in that it constituted background
circumstances surrounding the charged offense. We also note that throughout the proceedings
the court appropriately handled objections to questioning about and references to the evidence
which could otherwise have potentially generated unnecessary prejudice against defendant. We
conclude that the circuit court did not abuse its discretion, but again note that in the context of
the entire proceedings, it does not affirmatively appear that any error on this evidentiary issue
was outcome determinative. Lukity, supra at 495-496.
-6-
Finally, defendant argues that the circuit court erred in refusing to provide lesser included
offense instructions. We disagree. This Court reviews the failure to give an appropriate
instruction for an abuse of discretion. People v Malach, 202 Mich App 266, 276; 507 NW2d 834
(1993). An abuse of discretion exists if a reasonable person would find no justification or excuse
for the ruling made. Id.
Defendant was charged with making a false report of a felony in violation of MCL
750.411a(1)(b); MSA 28.643(1)(1)(b). The felony defendant was alleged to have falsely reported
was carrying a pistol in a vehicle, contrary to MCL 750.227; MSA 28.424. Defendant requested
that the jurors be instructed on the offenses of knowingly brandishing a firearm in public, a
misdemeanor contrary to MCL 750.234e; MSA 28.431(5), and careless, reckless or negligent use
of a firearm, a misdemeanor contrary to MCL 752.862; MSA 28.436(22), arguing that these were
lesser included misdemeanors. The circuit court refused defendant's request, ruling both that the
crime of false report of a misdemeanor, MCL 750.411a(1)(a); MSA 28.643(1)(1)(a), was not a
lesser included offense of the crime of false report of a felony, and that the firearm misdemeanors
urged by defendant were not lesser included offenses of carrying a pistol in a motor vehicle.
Defendant contends that because the charged offense turns on the nature of the crime
reported, the jury should have been given the opportunity to conclude that defendant reported a
misdemeanor rather than a felony. However, before an instruction on a lesser misdemeanor
offense is given, five factors must be met: (1) a proper request must be made, (2) an appropriate
relationship must exist between the charged offense and the requested misdemeanor, (3) the
requested misdemeanor instruction must be supported by a rational view of the evidence at trial,
(4) if the prosecution requests the instruction, the defendant must be given adequate notice, and
(5) the requested instruction must not result in undue confusion or injustice. People v Steele, 429
Mich 13, 18-21; 412 NW2d 206 (1987); People v Stephens, 416 Mich 252, 255; 330 NW2d 675
(1982). The Supreme Court declined to set forth a mechanistic guideline for determining when
justice would be served by giving an instruction on a lesser included misdemeanor, instead
vesting the trial court with “substantial discretion” to determine such matters. Steele, supra at
21-22; Stephens, supra at 265.
We find that the circuit court appropriately exercised its discretion in declining to provide
the additional instructions requested by defendant. The third factor of the Steele test requires that
the element distinguishing the charged offense from the lesser misdemeanor is factually disputed
and that the factual dispute is great enough for a jury to rationally reject the existence of the
greater offense and accept the existence of the lesser misdemeanor offense. Id. at 21. We first
conclude that no rational view of the evidence supports the existence of careless or reckless use
of a firearm because conviction on that offense requires a showing that a firearm was discharged.
Next, we find that on these facts no jury could conclude that a firearm was brandished in public,
but that such action did not occur in a vehicle. Defendant's report to the police indicated that as
Brenda Swanson and her daughter drove past his home, one of the women waved a gun in the
window. The undisputed involvement of a vehicle compels the determination that the circuit
court correctly rejected defendant's request for instruction on brandishing a firearm in public.
-7-
The requested instructions, if provided, would only have served to unduly confuse the jury.
There was no abuse of the circuit court's substantial discretion in this matter.
Affirmed.
/s/ William B. Murphy
/s/ Richard Allen Griffin
/s/ Kurtis T. Wilder
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.