Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v SUNG WOOK KIM, Defendant-Appellee.

FOR PUBLICATION May 4, 2001 9:15 a.m. No. 222523 Washtenaw Circuit Court LC No. 98-010598-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v MICHAEL RAY FUQUA, Defendant-Appellee. No. 222526 Washtenaw Circuit Court LC No. 98-010587-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v ADAM H. LERMAN, Defendant-Appellee. No. 222527 Washtenaw Circuit Court LC No. 98-010540-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v No. 222528 Washtenaw Circuit Court -1-

PHILIP JAMES VANDEVOORDE, Defendant-Appellee.

LC No. 98-010580-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v JONATHAN M. HUGHES, Defendant-Appellee. No. 222530 Washtenaw Circuit Court LC No. 98-010586-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v ZACHARY ROY THOMAS, No. 222531 Washtenaw Circuit Court LC No. 98-010581-FH Updated Copy June 22, 2001

Defendant-Appellee.

Before: Holbrook, Jr., P.J., and McDonald and Saad, JJ. SAAD, J. In these consolidated cases, the prosecutor appeals as of right the circuit court's order granting defendants' motions to quash the informations. The prosecutor charged the six defendants with the crime of riot, MCL 752.541, arising out of their conduct during a demonstration in opposition to a Ku Klux Klan rally in Ann Arbor. The Michigan chapter of the National Conference of Black Lawyers (NCBL) filed an amicus curiae brief in support of defendants. I. Facts and Proceedings On May 9, 1998, the Ku Klux Klan staged a rally at the Ann Arbor City Hall. To counter the rally, the city of Ann Arbor sponsored a gathering at a park a few blocks from the city hall and various organizations and citizens sponsored another rally in the public areas surrounding the city hall. Hundreds of people protested the KKK rally near the city hall building, many of whom

-2-

lifted and pulled down temporary fences erected to keep the crowd from reaching the building, in which the KKK members were assembled. Police used pepper spray to prevent the crowd from advancing toward the building on the south side of the city hall. Several protesters approached the northeast corner of the city hall, where police officers were stationed on a promenade on the second floor of the building. Some protesters threw rocks at the police and pulled down the portion of fencing near the stairs to the promenade. Numerous demonstrators, including defendants Adam H. Lerman, Philip J. Vandevoorde, Zachary R. Thomas, Jonathan M. Hughes, Michael R. Fuqua and Sung W. Kim, ran up the stairs toward the police, throwing asphalt rocks and other projectiles at the officers and at the city hall building. The rocks and other objects hit officers and broke approximately sixteen windows of the city hall building. Twice the protesters temporarily forced the police to retreat. Thereafter, however, the police returned with shields and sprayed the promenade area with tear gas, and the demonstrators dispersed. The district court bound defendants over for trial following two separate preliminary examinations. District Judge Timothy P. Connors presided over the preliminary examination for defendants Hughes, Kim, and Lerman.1 District Judge Elizabeth P. Hines presided over the preliminary examination for defendants Fuqua, Thomas, and Vandevoorde.2 After Judges Connor and Hines bound defendants over for trial on riot charges, the cases were assigned to Washtenaw Circuit Judge Donald E. Shelton. Thereafter, defendants filed motions to quash the informations, arguing that the prosecutor "mischarged and overcharged" them and that the riot statute was unconstitutional both on its face and as applied in their cases. On September 13, 1999, the circuit court issued an opinion and order quashing the informations. Judge Shelton concluded that, although throwing rocks may constitute violent conduct under the riot statute, the prosecutor failed to present evidence that "the defendant[s'] violent conduct caused, or created a serious risk of causing public terror and alarm" as required by MCL 752.541. Judge Shelton specifically ruled that the police were not the "public" within the meaning of the statute and observed that no members of the general public, other than the protesters themselves, were on the promenade and that no evidence showed that the general public saw the violent conduct or were alarmed or terrorized by that conduct.

The preliminary examination for Jessica Marley Curtin also occurred at the same time. However, she is not a party to this appeal. The preliminary examination also included Robin Alvarez and Thomas Doxey, Jr., who are not parties to this appeal.
2

1

-3-

II. Analysis3

3

This Court recently set forth the applicable standard of review in People v Hudson, 241 Mich App 268, 276; 615 NW2d 784 (2000): We review for an abuse of discretion a district court's decision to bind over a defendant. People v Hamblin, 224 Mich App 87, 91; 568 NW2d 339 (1997). "The standard for reviewing a decision for an abuse of discretion is narrow; the result must have been 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 Torres (On Remand), 222 Mich App 411, 415; 564 NW2d 149 (1997). A circuit court's decision with respect to a motion to quash a bindover order is not entitled to deference because this Court applies the same standard of review to this issue as the circuit court. This Court therefore essentially sits in the same position as the circuit court when determining whether the district court abused its discretion. See, generally, People v Reigle, 223 Mich App 34, 36; 566 NW2d 21 (1997); People v Neal, 201 Mich App 650, 654; 506 NW2d 618 (1993). In other words, this Court reviews the circuit court's decision regarding the motion to quash a bindover only to the extent that it is consistent with the district court's exercise of discretion. The circuit court may only affirm a proper exercise of discretion and reverse an abuse of that discretion. Thus, in simple terms, we review the district court's original exercise of discretion.

Whether

Download PEOPLE OF MI V JONATHAN M HUGHES.pdf

Michigan Law