Correct venue for a prosecution under an aiding & abetting theory; MCL 767.39; People v Robinson; People v McBurrows

Holding that the county where the principal’s criminal act occurred is a proper venue for a prosecution under an aiding and abetting theory, the court affirmed the Court of Appeals’ ruling that venue here was proper in Livingston County. Defendant was charged with delivery of a controlled substance causing death. It was not alleged that he directly delivered anything to the decedent, W; rather, the prosecution alleged that he aided and abetted another man’s (H) delivery of the drugs to W. He moved to dismiss based on improper venue. The trial court denied the motion but stayed the proceedings pending appeal. “The Court of Appeals granted defendant’s application for an interlocutory appeal, but” affirmed the trial court’s decision. The court previously peremptorily reversed its determination that MCL 762.8 was an adequate basis for establishing venue here, and remanded for the Court of Appeals to assess an issue it had not reached. On remand, the Court of Appeals again affirmed the trial court, after “a careful, thorough, and accurate review of” the court’s decision in McBurrows. In concluding that the Court of Appeals was correct that venue was proper in Livingston County, the court began the analysis with the text of MCL 767.39, the aiding and abetting statute. The prosecution alleged that H delivered a controlled substance to W “in Livingston County which he consumed, causing his death. Therefore, it would be proper to prosecute [H] for that offense in Livingston County. . . . And because defendant can ‘be prosecuted, indicted, [and] tried . . . as if he had directly committed’ [H’s] offense, Livingston County is also a proper venue for prosecuting defendant.” The court noted that its ruling went “no further than to say that, when accepting as true the allegations against defendant, venue is proper in Livingston County.” To the extent he challenged “whether there was probable cause to support the bindover to circuit court on” the aiding and abetting theory, “the Court of Appeals was correct to hold that this is properly presented as a motion to quash in the circuit court.”

Dissenting, Justice Bernstein concluded that Macomb County, where defendant’s actions occurred, was “the proper county for the prosecution of this offense under the general venue rule.” He did not believe that MCL 767.39 directed the outcome here, and disagreed “with the Court of Appeals’ conclusion that MCL 762.8 applied[.]” Thus, he would reverse the Court of Appeals’ judgment.