PEOPLE OF MI V KEVIN JAMES LINDKE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 6, 2005
Plaintiff-Appellee,
v
No. 256498
St. Clair Circuit Court
LC No. K-03-2451-FH
KEVIN JAMES LINDKE,
Defendant-Appellant.
Before: Smolenski, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions for felonious assault, MCL
750.82, and assaulting a police officer, MCL 750.81D(1). We affirm.
I. FACTS
In the early morning hours of May 25, 2003, a St. Clair County Sheriff’s Deputy
observed defendant and 3 other males walking along M-29. The officer observed defendant
throw himself against a car. When pursued, defendant fled the scene on foot. Some time later
defendant was spotted and the officer again approached and again defendant fled on foot. Two
additional officers arrived and the three officers pursued defendant on foot. When searching the
area, someone threw a “PVC like lawn ornament” at one of the officers. When one of the
officers was patrolling the area in a continued search of the neighborhood, defendant threw a
brick in front of the patrol car. In testimony, the officer stated that if he had not “slammed on the
brakes he would have hit me right in the windshield”. Defendant stated that he threw the brick
over the police car in an attempt to distract the driver. Defendant was apprehended and arrested
shortly thereafter.
Defendant was charged with two counts of felonious assault, one count of resisting and
obstructing a police officer, and one count of malicious destruction of property greater than $200
but less than $1,000, MCL 750.377a(1)(c)(i). Apparently, a preliminary examination scheduled
for June 4, 2003 was adjourned because none of the officers appeared. Defendant appeared in
court again for a second preliminary examination on June 11, 2003, when the charges were
dismissed without prejudice because the officers had again failed to appear. Defendant was not
represented by counsel at the June 11 hearing.
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The court was later informed that the officers failed to appear on June 11 because of an
error in the witness line, which plaintiff represents on appeal is the “phone number they were to
call the night before to see if they were needed to testify that day”. On June 12, 2003, the
charges were reauthorized and a third preliminary examination was scheduled for August 20,
2003. However, the charges were once again dismissed without prejudice at this third scheduled
preliminary examination because one of the officers was unable to appear due to having injured
his shoulder. Defendant was not represented by counsel during this hearing.
Charges were reauthorized on August 29, 2003. A preliminary examination was held on
September 24, 2003, with defendant now represented by counsel. At the conclusion of the
hearing, defendant was bound over for trial on two counts of felonious assault, one count of
resisting and obstructing a police officer, and one count of malicious destruction of property
greater than $200 but less than $1,000.
II. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor violated his due process rights by twice dismissing
charges at a scheduled preliminary examination and then reauthorizing the charges. We
disagree.
A. Standard of Review
To properly preserve a claim of prosecutorial misconduct, defendant must make a timely,
contemporaneous objection. People v Callon, 256 Mich App 312, 329; 662 NW2d 501.
Defendant failed to properly preserve this issue for appellate review. Therefore, we review for
plain error affecting substantial rights. People v Ackerman, 257 Mich App 434, 448; 669 NW2d
818 (2003). Reversal is warranted only when plain error resulted in the conviction of an actually
innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial
proceedings. People v Carines, 460 Mich 750, 763, 774; 597 NW2d 130 (1999).
B. Analysis
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 ‘judgeshopping.’” People v Robbins, 223 Mich App 355, 363; 566 NW2d 49 (1997); citing People v
Stafford, 168 Mich App 247, 251; 423 NW2d 634 (1988), aff’d in part rev’d in part on other
grounds 434 Mich 125 (1990); People v Vargo, 139 Mich App 573, 578; 362 NW2d 840 (1984).
This Court examined a defendant’s claim of harassment in People v George, 114 Mich App 204,
211-214; 318 NW2d 666 (1982) and Vargo, supra. In George, the defendants were bound over
for trial after preliminary examinations and the circuit court granted their motions to dismiss the
action. Id. at 207. The prosecutor initially appealed the decision to this Court but moved to
dismiss the appeal stating that the claim was not supported by the record. Id. After the appeal
was dismissed, the prosecution brought identical charges against the defendants. Id. The
magistrate dismissed the charges concluding that a second preliminary examination without new
evidence would violate the defendants due process rights. Id. This Court agreed. Id. at 214-215.
After canvassing the decisions of other jurisdictions and Michigan precedents, this Court
concluded that subjecting the defendant to repeated preliminary examinations was a violation of
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due process if the facts disclosed harassment or judge shopping. Id. at 211-215. This Court
concluded that the actions of the prosecution clearly constituted harassment, noting that during
the second examination the prosecution merely offered evidence that was properly characterized
as cumulative. Id. at 214-215. In Vargo, this Court refused to find harassment where the
defendant’s charges were dismissed after a preliminary examination and then reissued sometime
later. Vargo, supra at 578. The Vargo panel concluded that a second preliminary examination
was not harassment because the prosecution’s failure to introduce all available evidence during
the first exam was “more a product of neglect than a deliberate attempt to harass defendant.” Id.
at 578.
Here, a review of the record reveals no evidence of judge shopping or harassment on the
part of the plaintiff. On all occasions, the charges were dismissed after defendant appeared in
court, but prior to the commencement of the preliminary examination or the introduction of any
evidence. Accordingly, defendant was not required to “withstand further examination,”
Stafford, supra at 249, or be subjected to a second examination with cumulative evidence after
the trial court refused to bind the case over, George, supra at 207. It appears that the officers did
not appear for the June 11th examination because of a mistake in the prosecutor’s witness
notifications system. The case was again dismissed prior to the preliminary exam on August
20th because a critical witness had a torn rotator cuff. These are not circumstances that indicate
deliberate harassment on the part of the prosecutor. Vargo, supra at 578. Moreover, this Court
has found good cause to adjourn a preliminary examination under MCL 766.7 where the police
officer witnesses were unavailable do to a conflicting court appearance and a scheduled vacation.
People v Horne, 147 Mich App 375; 383 NW2d 208 (1985). Because the prosecutor was not
engaged in judge shopping or harassment, defendant’s claim of prosecutorial misconduct must
fail.
III. EFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues that defense counsel was ineffective for failing to move to dismiss
the charges based on prosecutorial misconduct. We disagree.
A. Standard of Review
The determination whether a defendant has been deprived of the effective assistance of
counsel presents a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich
575, 579; 640 NW2d 246 (2002). The trial court’s factual findings are reviewed for clear error,
while its constitutional determinations are reviewed de novo. Id.
B. Analysis
In light of the above conclusion that the prosecutor did not commit misconduct by
subjecting defendant to repeated preliminary examinations, defense counsel’s failure move for
dismissal is not error. Counsel cannot be faulted for failing to make a meritless request. See
People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001).
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Affirmed.
/s/ Michael R. Smolenski
/s/ Bill Schuette
/s/ Stephen L. Borrello
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