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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GUY McKENZIE, Defendant-Appellant.

UNPUBLISHED February 20, 2001

No. 214095 Wayne Circuit Court Criminal Division LC No. 97-001353

Before: Whitbeck, P.J., and Murphy and Cooper, JJ. PER CURIAM. Defendant was convicted by a jury of voluntary manslaughter, MCL 750.321; MSA 28.553, and sentenced on May 29, 1998, to ten to fifteen years' imprisonment. He appeals as of right. We affirm. Defendant was initially bound over for trial in 1995 on first-degree murder, however that charge was dismissed without prejudice when a prosecution witness was unavailable for trial. After a second preliminary examination, the district court concluded that there was no evidence of premeditation and bound defendant over on a reduced charge of manslaughter. The prosecutor filed a delayed application for leave to appeal in the trial court from the district court's reduced bindover. The trial court ultimately granted the application and reinstated the murder charge. Defendant argues that the trial court lacked jurisdiction because the prosecutor failed to file a timely application for leave to appeal or a timely motion to amend the information. In People v Goecke, 215 Mich App 623, 626-627; 547 NW2d 338 (1996), this Court held that a prosecutor was required to file an application for leave to appeal in order to challenge a reduced bindover. However, the Supreme Court in its reversal of Goecke, held that an application for leave to appeal was not required and that a simple motion to amend the information was sufficient. People v Goecke, 457 Mich 442, 458, 473; 579 NW2d 868 (1998). In this case, the prosecutor was not required to file an application for leave to appeal, but did so anyway. The trial court had jurisdiction over the matter. Defendant's contention that the delayed nature of the application prevented the trial court from exercising jurisdiction is without merit. A delayed application for leave to appeal is specifically authorized by court rule. See, e.g., MCR 7.103(B)(6); MCR 7.205(F)(1).

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Defendant next argues that the trial court erred by reinstating the charge of first degree murder. We disagree. First-degree, premeditated murder requires proof "that the defendant intentionally killed the victim and that the act of killing was premeditated and deliberate." People v Kelly, 231 Mich App 627, 642; 588 NW2d 480 (1998). At the first preliminary examination, defendant's girlfriend testified that she saw defendant stab the victim in the back as the victim was leaving the house that she shared with defendant and their three children. However, at the second preliminary examination, she recanted that testimony and claimed only that the stabbing occurred during a fight between defendant and the victim. The district court considered her testimony from the first preliminary examination for the limited purpose of impeachment. However, since it was sworn testimony under oath it was admissible as substantive evidence. MRE 801(d)(1)(A). Thus, a factual dispute existed regarding whether defendant stabbed the victim in the back as the victim was leaving the house. Where evidence conflicts, the district court must bind the defendant over to allow the trier of fact to resolve the factual conflict. Goecke, supra at 469-470. Moreover, the parties stipulated that the victim suffered twenty-six stab wounds. Given the extensive injuries to the victim, and the initial testimony that defendant stabbed the victim in the back, the district court should have bound defendant over as charged. Accordingly, the trial court did not err in reinstating the original charge of first degree murder. Defendant also contends that the trial court should not have granted a stay of the proceedings while it decided whether to grant the delayed application for leave to appeal the bindover. Defendant failed to raise this issue in his statement of questions presented, as required by MCR 7.212(C)(5). People v Brown, 239 Mich App 735, 748; 610 NW2d 234 (2000). We decline to reach this unpreserved issue. Next, defendant argues that the trial court abused its discretion by failing to grant defense counsel's motion to withdraw and failing to appoint substitute counsel. In re Withdrawal of Attorney, 234 Mich App 421, 431; 594 NW2d 514 (1999). Counsel moved to withdraw because defendant had filed grievances against him and had allegedly threatened him. However, defendant denied threatening counsel, indicated he did not wish to represent himself, and claimed he would allow counsel to try the case. The trial court, noting the experience and competence of counsel, denied the motion to withdraw. Defendant was not denied the effective assistance of counsel by the court's failure to appoint substitute counsel, as good cause for substitution was not shown. A defendant may not threaten appointed counsel in order to obtain substitute counsel. See, e.g, People v Staffney, 187 Mich App 660, 664, 667; 468 NW2d 238 (1991); People v Meyers (On Remand), 124 Mich App 148, 165; 335 NW2d 189 (1983); People v Harlan, 129 Mich App 769, 778; 344 NW2d 300 (1983). In this case, defendant even denied threatening counsel. Defendant has not demonstrated that the trial court abused its discretion. Defendant also claims that the prosecutor improperly impeached a witness' testimony with extrinsic evidence on a collateral matter. MRE 613(a); People v Teague, 411 Mich 562, 566; 309 NW2d 530 (1981). A matter is collateral where it is unrelated to any issue in the case. Legalo v Allied Corp (on Remand), 233 Mich App 514, 518; 592 NW2d 786 (1999). Testimony contradicting defendant's girlfriend's account of the stabbing incident was certainly not a collateral matter. Further, although testimony contradicting defendant's girlfriend's account of a

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telephone call she made to a friend shortly before the stabbing was collateral, defendant has not shown how the admission of that testimony affected the outcome of the proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999); see also People v Reed, 172 Mich App 182, 187-188; 431 NW2d 431 (1988) (harmless error). Defendant raises a number of issues in propria persona. After reviewing each claim of error, we find them to be without merit. The prosecutor presented testimony that defendant, while chasing away the victim's fianc

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