Order Supreme Court
Lansing, Michigan
September 29, 2005 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
128250 Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman,
Plaintiff-Appellant, Justices
v SC: 128250
COA: 251163
Isabella CC: 03-002188-AR
DAVID JOHN CULHANE, 76th DC: 02-1918-FY
Defendant-Appellee.
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On order of the Court, the application for leave to appeal the February 3, 2005
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
KELLY, J., concurs and states as follows:
I concur in denying leave. This Court has consistently held that the credibility of a
witness may be considered at a preliminary examination. The magistrate has not only the
right but the duty to pass judgment on the credibility of the witness. People v Paille #2,
383 Mich 621 (1970).
In this case, defendant indicated that he never had the intent to permanently
deprive his girlfriend of the money, and he actually returned the entire sum. The district
court judged defendant’s credibility and found him credible. The prosecution did not
offer evidence to rebut defendant’s claimed lack of intent to permanently deprive beyond
noting the taking itself. This raises only the inference of guilt and amounts to little more
than a scintilla of evidence. Therefore, the trial court based its decision on the only
evidence it had, and it did not abuse its discretion in refusing to bind defendant over.
CORRIGAN, J., dissents and states as follows:
I dissent from this denial of leave. I would grant leave to consider Judge Zahra’s
dissent. The complainant agreed to lend $200 to her boyfriend, defendant. Instead,
defendant helped himself to $500, without the complainant’s consent for the additional
$300. Defendant returned the money about two weeks later, but only after the
complainant had notified the police about defendant’s behavior. Defendant told her that
he took the money so that she would call him.
2
The district court apparently abused its discretion by refusing to bind over
defendant for trial on the charge of larceny in a building under MCL 750.360. While a
magistrate may “consider the credibility of witnesses, we have also instructed examining
magistrates to not refuse to bind a defendant over for trial when the evidence conflicts or
raises reasonable doubt of the defendant’s guilt.” People v Yost, 468 Mich 122, 128
(2003) (citations omitted). See also the very helpful article by Randon and Gardner,
Evaluating witness credibility in preliminary examinations, 84 Mich Bar J 35, 36 (2005)
(“[F]or the purpose of the preliminary examination, testimony should be credited unless it
is incredible or implausible as a matter of law.”).
Here, a factual question remained regarding whether defendant intended to
permanently deprive the complainant of her money. Instead of sending this question to a
jury and limiting the inquiry only to the existence of probable cause, the district court
apparently abused its discretion by resolving all inferences in favor of defendant.
Accordingly, I would grant leave to consider whether to reverse the circuit court order
and remand the case to the district court for entry of an order binding defendant over on
the charge of larceny in a building, as well as to consider the well-taken points made by
Judge Mark A. Randon and Mr. Timothy Gardner, Jr., supra, regarding the applicable
legal standards.
YOUNG, J., joins the statement of CORRIGAN, J.
I, CORBIN R. DAVIS, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 29, 2005
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d0926 Clerk