PEOPLE v DUNBAR
Docket No. 116976
Supreme Court of Michigan
Decided April 3, 2001
463 MICH 606
Charles M. Dunbar was charged in the 60th Judicial District Court with possession of less than 50 grams of cocaine with intent to deliver and with possession of marijuana with intent to deliver. Faced with an adverse evidentiary ruling that would have required a police officer to provide information that likely would have allowed the defendant to determine the identity of the informant, the assistant prosecuting attorney moved to dismiss during the preliminary examination. At a second examination, a different judge ruled in the prosecution‘s favor on the disputed point and bound the defendant over for trial. The Muskegon Circuit Court, Timothy G. Hicks, J., dismissed the prosecution on the ground that the defendant was denied due process of law. The Court of Appeals, WILDER, P.J., and SAWYER and MARKEY, JJ., affirmed in an unpublished opinion per curiam (Docket No. 221978). The people sеek leave to appeal.
In an opinion per curiam, signed by Chief Justice CORRIGAN, and Justices WEAVER, TAYLOR, YOUNG, and MARKMAN, the Supreme Court held:
Reversed and remanded.
Justice KELLY, joined by Justice CAVANAGH, dissenting, stated that the prosecution at the second preliminary examination, in not presenting additional evidence, not citing any new legal authority, and presenting the same case, engaged in judge-shopping. The
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Danielle DeJong, Assistant Prosecuting Attorney, for the people.
Gerald W. Gibbs for the defendant-appellee.
PER CURIAM. Faced with an adverse ruling that would have required a police officer to provide information that likely would have allowed the accused to determine the identity of the confidential informant in his case, the assistant prosecuting attorney moved to dismiss during the preliminary examination. At a second examination, a different judge ruled in the prosecution‘s favor on the disputed point and bound the defendant over for trial. The circuit court dismissed this criminal prosecution on the ground that the dеfendant was denied due process of law. The Court of Appeals affirmed. We reverse.
I
A confidential informant told a Muskegon police officer that the defendant possessed cocaine.1 Later that day, the officer found the defendant walking along a local street. The officer approached the defendant, telling him to remove his hands from his pock-
A visiting judge convened a preliminary examination,3 at which the officer testified regarding the facts set forth above. On cross-examination, as defense counsel asked the officer about the informant, the following occurred:
Q. . . . On this particular day, on January 27th, 1999, [the day the officer arrested defendant] did you personally have contact with this person [the confidential informant]?
A. Yes I did.
Q. And what time did the informant indicate to you the information that he conveyed.
[Assistant Prosecutor]: Your Honor, I‘d object to that. Time isn‘t relevant in this matter. There is case law that protects the cоnfidentiality of a confidential informant by not requiring the specifics of time and location to be divulged. And, again, if, obviously, the Defendant was charged with—with the actions that occurred when the CI was present, then that would become relevant, but that‘s not the case at this point.
The Court: Well, I find the contrary to be true. The proximity of the time that he was informed that we have an alleged felon running around here, I think, is important as
to whether he acted fortuitously and propitiously at the time. [Assistant Prosecutor]: Your Honor, again, I‘d ask the Court to allow me to supply case law, becаuse, again, that could jeopardize . . .
The Court: Let‘s just go. Let‘s just proceed.
[Defense Counsel]: Your Honor, I . . .
[Assistant Prosecutor]: Your Honor, the People are moving to dismiss the case, then, your Honor, if you‘re going to force our hand on that. We will move to dismiss.
The Court: I‘m not forcing your hand on anything.
[Assistant Prosecutor]: Maybe I misunderstood the Court, then. Is the Court . . .
The Court: No. Im just saying there is a matter—Does he have probable cause to make contact with him—Proximity of time. That is an element.
[Assistant Prosecutor]: He‘s indicated it was that day, your Honor. I don‘t think he has to get to within the hour.
The Court: Well, he didn‘t say that.4 We never got around to his answering that question.
[Assistant Prosecutor]: He did say on direct, your Honor.
The Court: No. He never got around to answering [defense counsel‘s] question. [Defense counsel] is interested in knowing, first, it was on that day what time that day, “How long before you made the arrest.” I think he has a right to know that.
[Assistant Prosecutor]: I am going to move to dismiss the case, your Honor. I am not going to force this officer to do that.
The Court: Well . . .
[Assistant Prosecutor]: Again, in this situation—I would ask the Court, your Honor, to allow me to supply case law. This is a serious felon. We‘ve also got a situation where a confidential informant could be jeopardized—their safety. Individuals that are involved in drug trade often, your Honor, will intimidate and even physically injure confiden-
The Court: Well, why don‘t you come prepared with it.
[Defense Counsel]: Well, your Honor, I guess in response, the Prosecutor . . .
[Assistant Prosecutor]: Five minutes is all I need, your Honor.
[Defense Counsel]: . . . the Prosecutor has indiсated that—and I think the Court is aware that his particular information—and I don‘t question that there is case law that suggests that there are limits on Defense‘s ability to probe into who and where and when and what a confidential informant is. My problem is is that that is the sole basis for the officer‘s contact with Mr. Dunbar in this case, and if the Prosecutor, as the Court has just indicated, knowing that long ago, chooses not to disclose, then he certainly is free to dismiss, and we don‘t object.
[Assistant Prosecutor]: Judge, I‘m asking for five minutes to supply the Court with the case law.
The Court: I‘m not interested. Dismiss it, then.
[Assistant Prosecutor]: Your Honor, the People in this matter will move to dismiss.
The Court: All right. Dismiss it and start it all over again.
Later that day, the prosecuting attorney issued a new complaint and obtained a new warrant. Thirteen days later, a second preliminary examination was conducted by a different judge.5
The court eventually ruled that defense counsel could inquire whether the conversation had occurred within the preceding eight hours, but the court would not allow the questioning to be more specific than that. At the conclusion of the preliminary examination, the defendant was bound over for trial.
In circuit court, the defendant filed a motion to suppress and to quash. He argued that evidence taken at the time of the arrest should be suppressed because there was insufficient cause for the stop, that he should not have been bound over for trial because there was insufficient admissible evidence, and that the second examination, following the dismissal during the first, was a denial of due process.
The circuit court granted the motion to quash, agreeing that the defendant had been denied due process. The court‘s oral opinion is well summarized in its ensuing order:
Defendant‘s motion to quash the bindover is granted for the reason that the defendant‘s United States Fourth [sic] Amendment right to due process of law was violated when the prosecutor dismissed the case during a preliminary examination and immediately reauthorized the same complaint causing the case to be assigned to a different judge. The court finds that the prosecutor did so to avoid an
adverse ruling and did no further investigation. Further the court finds the prosecutor presented the same evidence at the second preliminary examination, this time obtaining a favorable result. The court finds the prosecutor‘s actions to be inappropriate harassment or forum shopping pursuant to People v George, 114 Mich App 204; 318 NW2d 666 (1982), lv den 414 Mich 931 (1982), and other, later, cases noted in the transcript of the 8/4/99 hearing. Therefore the case is dismissed and the defendant discharged.
The prosecuting attorney appealed, but the Court of Appeals affirmed.7
In the wake of that affirmance, the prosecuting attorney has applied to this Court for leave to appeal.
II
If, after considering the evidence, the court determines that probable cause does not exist to believe either that an offense has been committed or that the defendant committed it, the court must discharge the defendant without prejudice to the prosecutor initiating a subsequent prosecution for the same offense. Except as provided in
MCR 8.111(C) ,8 the subsequent preliminary examination must be
Plainly,
In the present case, the Court of Appeals noted the inapplicability of the rule, and then based its decision on principles drawn from its own prior decisions:
In addition to the provisions of the court rule, subjecting а defendant to repeated preliminary examinations violates due process if the prosecutor attempts to harass the defendant or engage in judge-shopping. People v Robbins, 223 Mich App 355; 566 NW2d 49 (1997). Among the factors to be considered in determining whether a due process violation has occurred are the reinstitution of charges without additional, noncumulative evidence not introduced at the first preliminary examination, the reinstitution of charges to harass, and judge-shopping to obtain a favorable ruling. People v Vargo, 139 Mich App 573, 578; 362 NW2d 840 (1984).
In Robbins, the first preliminary examination went through to conclusiоn, with the magistrate ruling that the evidence was insufficient for a bindover. Additional evidence was presented at a second examination, and the defendant was then bound over for trial.
Our holding should not be construed to encourage a prosecutor to subject a defendant to repeated preliminary examinations. We reaffirm this Court‘s holding that subjecting a defendant to repeаted preliminary examinations violates due process if the prosecutor attempts to harass the defendant or engage in “judge-shopping.” People v Stafford, 168 Mich App 247, 251; 423 NW2d 634 (1988);10 People v Vargo, 139 Mich App 573, 578; 362 NW2d 840 (1984).11 [223 Mich App 363.]
Stating its reliance on those principles, the instant Court of Appeals panel reached the following conclusion regarding the case before us today:
III
The issue in this case is whether the circuit court erred in quashing the information on the legal ground that defendant‘s due process rights were violated as a result of prosecutorial misconduct. Thus, this case presents a constitutional question which we review de novo. People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998).
IV
The circuit court and the Court of Appeals have premised their rulings on the assumption that the assistant prosecutor was еngaged in impermissible judge-shopping. A careful review of the record, how-
We note that the prosecutor did not immediately seek to dismiss the case when the judge indicated that he thought defense counsel was entitled to have the police officer specifically indicate when he had spoken to the confidential informant. Faced with this preliminary ruling, the assistant prosecutor merely asked the court for a five-minute recess so he could locate authority in support of his position. This does not suggest that the assistant prosecutor intended to engage in judge-shopping. Moreover, the reaction of the judge to the assistant prosecutor‘s statement that he would dismiss if he could not have five minutes to locate the authority, does not suggest that the judge believed the matter was being set up for judge-shopping to occur. Indeed, the judge specifically indicated that the prosecutor could dismiss the case and “start it all over again.” Finally, as the circuit judge recognized, there is no evidence that thе assistant prosecutor knew the identity of the second judge. Given the fact that the visiting judge had visited with some regularity, it was by no means certain that a dis-
Accordingly, there is no record evidence to support the circuit court‘s determination that the assistant prosecutor sought a dismissal of the charges in hope of obtaining a more favorable substantive result before a different judge. Nor is there any reason to assume the assistant prosecutor, an officer of the court, was not telling the truth when he explained his reasons for the dismissal.13 Because the assistant prosecutor‘s apparent objective was to prevent the disclosure of the confidential informant‘s identity, the cases relied on by the circuit court and Court of Appeals do not support the decision to dismiss this prosecution. A prosecutor who seeks dismissal, under
For these reasons, we reverse the judgments of the Court of Appeals and the circuit court, and reinstate the bindover decision of the district сourt. We remand this case to circuit court for further proceedings, including a decision on the defendant‘s motion to suppress.
CORRIGAN, C.J., and WEAVER, TAYLOR, YOUNG, and MARKMAN, JJ., concurred.
KELLY, J. (dissenting). I would affirm the decisions of both the Court of Appeals and the circuit court. The prosecution‘s initiation of a second preliminary examination, without introducing new evidence, violated defendant‘s due process right to a fair proceeding.
A
The prosecution brings an issue of first impression to this Court, although the Court of Appeals has addressed it several times.1
The prosecution filed a сriminal action against defendant Dunbar a second
Among the factors to be considered in determining whether a due process violation has occurred are the reinstitution of charges without additional, noncumulative evidence not introduced at the first preliminary examination, the reinstitution of charges to harass and judge shopping to obtain a favorable ruling.2
This case is factually similar to People v Walls, supra. In Walls, the prosecution wished to present a mother‘s testimony reciting statements that her three-year-old daughter had made to her. Id. at 693. At the first preliminary examination, the magistrate admitted the statements. However, the circuit judge, after ruling the statements inadmissible, granted defendant‘s motion to quash the testimony and remanded the case to the magistrate. Id.
A second preliminary examination was held. The prosecution, apparently assessing that it wоuld be unable to gain admission of the mother‘s testimony, secured a dismissal of the case. Id.
It then refiled the same charges against the defendant. Id. at 694. A third preliminary examination was held, this time before a different magistrate who, notwithstanding the circuit judge‘s earlier ruling, admitted the hearsay statements. Id. A second circuit judge
A clearer case of judge shopping does not come to mind. Rather than appeal the unfavorable evidentiary ruling, a remedy available to the prosecutor,
MCL 770.12(1)(c) ; MSA 28.1109(1)(c) [see 1977 PA 34], the prosecutor here requested dismissal and stаrted all over again. He thereby freed the proceedings of the unfavorable ruling. The issue of the tender-years exception to the hearsay rule could be reargued before a different judge with the chance that this new judge might be persuaded by the prosecutor‘s argument. [Id. at 697.]
Similarly, the prosecution in the instant case dismissed the case after the magistrate ruled against it on an evidentiary matter. When the magistrate denied the prosecution a recess to research case law supporting its position, it moved to dismiss, and the motion was granted.
The prosecution immediately refiled the charges. At the second preliminary examination, another prosecuting attorney presented the same case and the same witness. Notably, he did not come prepared with the case law his colleague needed during the first preliminary examination. In fact, he requested a short break during the proceedings to find the case law. This time, however, the magistrate ruled in his favor, admitting the testimony.
Like the prosecutor in Walls, the prosecutor in this case “freed the proceedings of the unfavorable ruling,” then reаrgued it before a new judge. Walls, supra at 697. In granting defendant Dunbar‘s motion to quash the bindover, the circuit judge determined that “the prosecutor felt he couldn‘t do any worse” than at the first preliminary examination and “it was
The prosecution asserts that it was motivated by a desire to protect the identity of a confidential informant. Although the end is laudable, without dispute, the prosecution was not entitled to judge-shop to accomplish it.
If the prosecution assessed that dismissal of the case was necessary to protect the confidential informant, then refiling it was not a good option. If its concern was simply that the evidentiary ruling was erroneous, it should have taken an appeal from it. A fair reading of the record supports the conclusion that what the prosecution hoped to do in refiling was to convince a different judge to rule in its favor.
B
I agree with the circuit court and the Court of Appeals that
If, after considering the evidence, the court determines that probable cause does not exist to believe either that an offense has been committed or that the defendant committed it, the court must discharge the defendant without prejudice to the prosecutor initiating a subsequent prosecution for the same offense. Except as provided in
MCR 8.111(C) , the subsequent preliminary examination must be held before the same judicial officer and the prosecutor must present additional evidence to support the charge.
CONCLUSION
The prosecution in this case engaged in judge-shopping, violating defendant‘s due process rights. The circuit judge properly granted defendant‘s motion to quash the bindover.
CAVANAGH, J., concurred with KELLY, J.
Notes
The Court of Appeals said in George that a second preliminary examination was not double jeopardy, and did not violate principles of res judicata or collateral estoppel. In finding a due process violation, however, the Court of Appeals observed that “these defendants were subjected to judge shopping.” 114 Mich App 211.When a trial judge has found no probable cause to hold a defendant for trial and the prosecutor has appealed that decision, may the prosecutor seek to dismiss the appeal and bring new charges against the defendant when he has discovered no new evidence? We believе that, on the facts of this case, this procedure violates a defendant‘s right to due process of law. [114 Mich App 206.]
- this state‘s licensure of attorneys,
MCL 600.901 ; MSA 27A.901, provides thаt the members of the State Bar of Michigan are officers of the courts of this state, and in order to obtain a license to practice law one must prove to the satisfaction of the Board of Law Examiners that one is “a person of good moral character,”MCL 600.934(1) ; MSA 27A.934(1), which is defined to mean “the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner,”MCL 338.41 ; MSA 18.1208(1); - the solemn oath, as prescribed by this Court pursuant to
MCL 600.913 ; MSA 27A.913, taken by a lawyer before a Michigan judge upon admission to the bar, wherein the applicant solemnly swеars never to mislead the judge or jury by any artifice or false statement of fact or law; MRPC 3.3 , which provides that “[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal“; andMCR 9.103(A) , which provides that a license to practice law “is a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court.”