People v. Pinkney

316 Mich.App. 450

891 N.W.2d 891

PEOPLE

v.PINKNEY.

Docket No. 325856.

Court of Appeals of Michigan.

Submitted May 11, 2016, at Grand Rapids.

Resubmitted after abeyance July 1, 2016.

Decided July 26, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Michael J. Sepic, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

Timothy M. Holloway, Taylor, for defendant.

Amici Curiae: Mark P. Fancher, Detroit, Michael J. Steinberg, Ann Arbor, and Kary L. Moss, for American Civil Liberties Union of Michigan.

Kathy H. Murphy, for the Detroit/Michigan Chapter of the National Lawyers Guild.

Before: O'BRIEN, P.J., and K.F. KELLY and FORT HOOD, JJ.

O'BRIEN, P.J.

Defendant, Edward Pinkney, was convicted by a jury of five counts of election forgery, MCL 168.937, but acquitted of six counts of making a false statement in a certificate-of-recall petition, MCL 168.957. He was sentenced as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 30 to 120 months. He appeals as of right his December 15, 2014 judgment of sentence. We affirm.

I. BACKGROUND

Defendant's convictions arise out of the unsuccessful recall efforts against the mayor of Benton Harbor, James Hightower. Hightower was elected mayor in 2011. Approximately two years after his election, several members of the Benton Harbor City Commission proposed a city income tax. According to Hightower, the primary target of the proposed tax was Whirlpool Corporation. Hightower opposed the proposed tax, but, because enough members of the city commission supported it, the tax was placed on the ballot for the November 2013 election. It did not pass.

On October 23, 2013, James Cornelius filed a petition seeking the recall of Hightower as the mayor of Benton Harbor. According to the petition, Hightower was to be recalled "for voting no to not allow the city income tax to be placed on the 11.5.13 ballot." Carolyn Toliver, the elections administrator for the Berrien County Clerk's Office, testified that the recall petition was accepted, and "a clarity factual hearing" on the petition was scheduled for November 6, 2013. At that hearing, the Berrien County Election Commission approved the recall petition's language.

Defendant and Cornelius had met several years earlier at a Black Autonomy Network Community Organization (BANCO) meeting, and defendant was with Cornelius when he filed the recall petition. While Cornelius testified that he did not write the language that appeared on the recall petition, he could not recall who had written it. According to Cornelius, he sponsored the petition because he was a resident of Benton Harbor. Defendant, on the other hand, was a resident of Benton Township. After the recall petition's language was approved, Cornelius, defendant, and several other individuals circulated recall petitions in hopes of obtaining the statutorily required amount of signatures, which was determined to be 393. See MCL 168.955.

On January 8, 2014, defendant returned to the Berrien County Clerk's Office with a stack of signed recall petitions, but Toliver was unable to accept the recall petitions from anyone but the sponsor, i.e., Cornelius. Consequently, defendant contacted Cornelius, who came to the clerk's office and submitted the signed recall petitions to Toliver that same day. In total, there were 62 signed petitions containing 728 signatures submitted on January 8. While more than 300 of the submitted signatures were disqualified for various reasons, 402 signatures were certified by Toliver. Therefore, the recall petitions were accepted, and a recall election was scheduled for May 6, 2014.

However, the recall election was never held. After Toliver called for the recall election, Hightower raised concerns with her regarding the authenticity of the dates on the recall petitions that were submitted. Detective–Sergeant David Zizkovsky with the Berrien County Sheriff's Department took possession of the 62 recall petitions and studied them for irregularities.

Specifically, Zizkovsky identified several dates next to corresponding signatures that appeared to have been altered. Consequently, he took the 62 petitions to the Michigan State Police Crime Laboratory, and he and Detective–Sergeant Mark Goff, a forensic document examiner with the laboratory, who was admitted "as an expert regarding opinions in the area of forensic document examination" at trial, decided to examine 10 recall petitions in detail.

Of the 10 recall petitions that were examined, 5 are of significance, and they are numbered in the record as Petitions 1, 6, 18, 19, and 38. Each of these petitions was circulated and signed by defendant. Goff testified that each petition was examined using photomicroscopy, which he described as "tak[ing] pictures through microscopes," and a "Video Spectral Comparator," which he described as "a flashlight with a group of colored lenses and then some more filters that filer out that light." Using this equipment, Goff was able to look for differences in ink color and variations in the type of pen used. Goff also used an electrostatic detection device, which he testified "detects impression in paper." As it relates to Petition 1, Goff expressed concerns over the authenticity of the dates on lines 2 through 6. Specifically, it appeared as though the dates were originally written as November 8, 2013, but subsequently changed to November 9, 2013. This determination was based on a change in ink color—i.e., from a black ink with a reddish hue to a dark black ink—and a difference in the burr striations. As it relates to Petition 6, Goff expressed concerns over the authenticity of the dates on lines 1 and 2. Specifically, it appeared as though the dates were originally written as November 7, 2013, but subsequently changed to November 9, 2013. Again, this was determined based on a change in ink color, i.e., from one red ink to a different red ink. As it relates to Petition 18, Goff expressed concerns over the authenticity of the dates on lines 5 and 6. Specifically, it appeared as though the dates were originally written as November 8, 2013, but subsequently changed to November 18, 2013. According to Goff, the "1" in "18" was written with a different ink than the remaining numbers in "11–18–2013." As it relates to Petition 19, Goff expressed concerns over the authenticity of the dates on lines 5 through 10. Specifically, it appeared as though the dates were originally written as November 8, 2013, but subsequently changed to November 18, 2013, in the same fashion as those on Petition 18. Finally, as it relates to Petition 38, Goff expressed concerns over the authenticity of the dates on lines 1 through 12. Specifically, it appeared as though the dates were originally written as November 8, 2013, for lines 1 through 4, but subsequently changed to November 18, 2013, and as though the dates were originally written as November 8, 2013, for lines 5 through 12, but subsequently changed to November 28, 2013. Again, the "1" in "18" and the "2" in "28" were written with a different ink than the remaining numbers in the dates. Goff also testified that he was able to find impressions from lines 6 through 10 on Petition 19—i.e., five of the six lines that were altered—on Petition 38, which he described as an indication that Petition 38 was underneath Petition 19 when the alterations at issue were made. Additionally, Zizkovsky testified that between March 29, 2013, and April 13, 2014, he watched a news story that included still photographs of the recall petitions, including Petition 38. In the still photographs of Petition 38, Zizkovsky noticed that the dates were written as November 8, 2013; however, the dates on Petition 38 were written as November 18, 2013, when they were examined.

As it turns out, these alterations to the dates proved crucial. The signatures on these recall petitions remained valid for only 60 days. See MCL 168.961(2)(d). That is, if the signers signed the recall petitions more than 60 days before they were filed, their signatures would be deemed invalid. The parties agree that the 60–day period commenced in this case on November 9, 2013. Therefore, it appeared that the alterations were made in an attempt to validate otherwise invalid, untimely signatures. Numerous individuals who signed the recall petitions were called to testify, but they largely testified that they did not recall whether they were responsible or whether someone else was responsible for the alterations to the dates.

The record reflects that defendant was familiar with the recall-petition procedures, including the applicable time limitations such as the 60–day rule. According to Toliver, defendant had sponsored recall petitions for three members of the Benton Harbor School Board in September 2013, had received multiple information packets outlining the applicable time limitations such as the 60–day rule, and had the applicable time limitations such as the 60–day rule explained to him when he received the information packet on each occasion. The prosecution also presented the testimony of Sharon Tyler, the Berrien County Clerk, who oversees Toliver. According to Tyler, between August and October 2014, defendant submitted 12 recall petitions against her in connection with what she described as the "recall petition drive" against Hightower.

Defendant was eventually charged with five counts of election forgery, MCL 168.937, and six counts of making a false statement in a certificate-of-recall petition, MCL 168.957. At trial, the prosecution presented evidence largely consistent with the testimony described earlier. After his motion for a directed verdict was denied, defendant presented the testimony of Marquette Coates, Tamara Jude, and Quacy Roberts. Coates, Jude, and Roberts each testified that a woman by the name of Venita Campbell altered the dates on the recall petitions in their presence. Each explained that they did not disclose this...