People v. Glass

464 Mich 266 (AFTER REMAND) v GLASS PEOPLE 14, (Calendar 1). Argued No. Decided November Docket No. 114795. June 2001. by multicounty conspir- grand indicted Willie Glass Jr. was defendant, acy grams or more of cocaine. The who is to deliver 650 composition grand jury, black, challenge claim- of the seeks process systematically ing excluded blacks. The that the selection Court, prelimi- appeared waived had in the 56th District nary indictment, to the examination on the and was bound over Court, arraignment. The circuit where he also waived Eaton Circuit Osterhaven, J., court, motion to dis- Calvin E. denied defendant’s discrimination in selection of the miss on the basis of racial P.J., Young, JJ., Appeals, jury. Court of and and Reilly The Hood, appeal unpublished (Docket in an order No. denied leave to Supreme 203592). Court remanded the case to the Court of The Appeals granted. (1997). as on leave 456 Mich 870 for consideration P.J., remand, Appeals, the Court of J. On Markey, Jansen, J., dissenting), had concluded that the defendant (O’Connell, prima under either established a facie case racial discrimination provided Sixth or Fourteenth Amendment because he had not composition grand jury venire, regarding evidence the racial underrepresentation sys- was due to had not shown that of blacks process, during the selection and had not shown tematic exclusion racially that the selection biased or sus- ceptible agreed defendant, however, The Court with the to abuse. might records should be unsealed so that he support App (1999) obtain evidence to his claim. 235 Mich remand, appeal. (Docket 206426). people No. After by joined opinion In Justice Chief Justice an Weaver, Young Supreme and Justices Corrigan, Marrman, held: Supreme procedure rulemaking Court exceeded its criminal authority Duncan, People (1972), creating 388 Mich 489 right to a examination for indict- substantive authority, that Duncan exceeded this it is over- ees. To the extent rejected. Further, implementing court ruled and its rules are prima defendant has not established and cannot establish a facie v Glass (After Remand) case of discrimination under either the Sixth or the Fourteenth was, therefore, Amendment. It an abuse of discretion for the Court inspection to order an in-camera record. prosecutions may having 1. Criminal be initiated in the court

jurisdiction upon charge filing over the the of an An information. predicated upon signed complaint information is a and warrant. A complaint must state the substance of the accusation and reason- person able cause to believe that the accused committed the preliminary right offense. The accused has a to a examination prosecutor having juris- before the files an information in the court primary preliminary diction to hear the cause. The function of a and, examination is to determine if a crime has been committed if so, probable if there is cause to believe that the defendant commit- filed, prosecutor may ted it. Once an information has been the prosequi any way enter a nolle or in other discontinue or abandon case, stating the without on the record the reasons for the aban- having jurisdiction try donment and without leave of the court charged. the offense prosecutions may by grand jury 2. Criminal also be initiated juries may indictment. Grand be convened over two or more coun- upon petition Appeals by ties Attorney filed with the Court of the by prosecuting attorneys county or General from each named in petition upon Appeals. and an order of the Court of The Court Appeals may requested grand jury petition convene the if the probable crime, portion establishes cause to believe that a or thereof, has been committed in two or more of the named counties petition grand jury if and establishes that a could more effec- tively alleged activity. address that criminal There is no state con- right by grand jury; rather, by stitutional to indictment indictment charging procedure by is an alternative created Legislature. juror 3. Grand names are drawn in the same manner and from petit jurors. the same source as Indictment estab- probable lishes cause that a crime has been committed. If an indict- found, foreperson presents ment is the indictment to the court. presiding judge The having then returns the indictment to the court jurisdiction offense, prosecutor pro- over the where it is filed. A is entering prosequi upon hibited from a nolle an indictment or dis- continuing abandoning stating or an indictment without reasons on having jurisdiction the record and without leave of the court over charge. presented may The court to which the indictment is person issue warrant for the arrest of the indicted. 464 Mich 266 preliminary granted right indictees the to a examina- 4. Duncan Duncan, provides prelimi- with tion. In accordance MCR 6.110 jury. nary by grand for a defendant Consis- examination indicted 767.2, except 6.112(A) provides, tent with MCL MCR as otherwise provided by elsewhere, rules or the law and rules that the court prosecutions apply apply informations, and on informations prosecutions 6.112(B) indictments and on indictments. MCR also provides when indictment and filed before a an is returned may preliminary examination, the indictment substitute defendant’s complaint judicial proceedings. and commence for the Supreme rulemaking authority Court’s constitutional 5. only practice procedure. extends to matters of Duncan and the authority implementing rulemaking court rules exceed this Court’s preliminary The establishment of the to a examination is beyond powers more than a matter of vested in 6, public policy art § the Court Const it is a matter of legislative 6.112(B) for the branch. Duncan and MCR are also 767.2, provides equivalency with MCL which inconsistent Thus, law between indictments and informations. Duncan must be reversed insofar as it afforded indictees the Additionally, examination. the information filed in this is null case pursuant and void it was filed invalid because to the scheme set purported 6.112(B) forth in MCR to allow an indictment to complaint. complaint stating substitute a There was no the sub- stance of the accusation or reasonable cause to believe the by required 764.1d, accused committed the offense as MCL nor was preliminary complaint required by there a a examination on as Finally, prosecution sought MCL 767.42. never discontinue the indictment under MCL 767.29. particular jury grand 6. There is no to have a reflect the

precise composition community. Furthermore, racial of a discrimi- natory effect is insufficient to establish a violation of the Four- Amendment; discriminatory teenth a defendant must show intent. prima In a order to establish facie case of racial discrimination in jury grand Amendment, the selection of a under the Fourteenth a defendant, showing discriminatory purpose, in addition to must grand jury show that the selection in a resulted substan- underrepresentation tial of his race. Once defendant establishes a prima case, facie the burden shifts to the state to rebut the infer- case, ence of intentional discrimination. In the defendant this has presented prima not facie case of under the discrimination Four- addition, teenth Amendment. In will be unable to prima upon jury grand establish a facie case further review of the People v Glass (After Remand) proceedings discriminatory because he will be unable to establish a purpose. prima impartial 7. To establish a facie violation of the to an jury community, drawn from a fair cross section of the a defendant underrepresented group must show that a distinctive in his jury pool, underrepresentation or venire and that the was the result systematic group jury pro- exclusion of the from the selection However, cess. while the Sixth fair Amendment cross section requirement applies petit jury venires, to state the Fifth Amend- require grand juries prosecutions, ment does not in state and the Supreme imposed United States Court has not the fair cross sec- requirement by jury. grand tion on states that allow indictment Thus, necessary Michigan apply it is not to decide whether should requirement case; the fair cross section venires in this allege cognizable the defendant has failed to fair cross section claim. by ordering 8. The Court of abused its discretion in- bearing camera review of the record on the claim of racial discrimi- composition nation in the selection and of the and lifted part suppression initially regarding order entered permit testimony by county records so as to additional offi- employees. cannot, upon cials or Because the defendant further discovery, prima establish a facie case under either the Fourteenth Amendment, secrecy grand jury or pro- Sixth the reasons for ceedings outweigh desirability discovery. of further Reversed and remanded. part concurring dissenting part, Justice stated Taylor, filing subsequent

that the of the information and the defendant’s preliminary purged any waiver of a examination on the information Thus, proceedings. unnecessary taint in the it is to reach by majority part the constitutional issues decided m of its opinion. implementing Duncan and its court rules should be over- prospectively. prosecution rely upon ruled was entitled to case and the rules. This case does stand in circuit court on the Having indictment rather than the information. waived a preliminary effectively examination the defendant conceded circuit jurisdiction court to hold him for trial information. joined Kelly, dissenting, Justice Cavanagh, Justice stated that Supreme completely Court was within its constitutional rulemaking authority in Duncan when it established that indictees addition, are entitled to a examination. In the Court of ordering did not abuse its discretion an in-camera inspection grand jury Although record. the defendant did not prove prima case, facie he is entitled to remand to unseal the 464 Mich any may support it contain to record to obtain evidence his claims. constitutional By overruling part of Duncan that affords indictees the majority stripped preliminary examination, to a has criminal necessary procedure Michigan’s pro- defendants of a criminal cess. It that the examination is sub- reasons policy based, and stantive and should be decided on the basis of clearly Legislature. However, 6, § the will of the Const art principle recognized by Duncan, Supreme states the power procedure. Contrary has the exclusive to establish rules of majority’s conclusion, just Supreme to the because the Court used power procedure Michigan’s its constitutional to establish a justice process assuring criminal that has the effect of substantive magically change does not the nature of the of a right. substantive majority also denied the defendant to the access that, only record because it claims did the defendant fail to prove prima discrimination, facie case of but he would be unable prove discrimination even with access to the record. Whatever may investigate the result be if the defendant could the record can- predicted Supreme not be when the Court itself has not reviewed the record. M. Granholm, Attorney General, Thomas Jennifer Casey, Jeffrey L. Sauter, L. General, Solicitor Pros- Hope ecuting Attorney, and William M. Worden and E. Freeman, Sr. Assistant Prosecuting Attorneys, for people. Litigation

Constitutional Associates, P.C. (by Hugh Edwards'), M. Davis, Jr. and Patrick M. for the defendant-appellee.

Amici Curiae: M. Granholm, Attorney General, Thomas Jennifer Casey, L. Molner, and William E. Solicitor General, Attorney Assistant General, Attorney for the General. John O’Hair, D. Prosecuting Attorney, Timothy Baughman, A. Chief, Research, Training 271 People v Glass (After Remand)

Opinion of the Court Appeals, Prosecuting Attorneys for the Association of Michigan.

(AFTER REMAND) Following preliminary J. his waiver of Weaver, examination, the defendant was bound over to Eaton conspiracy charge Circuit Court on the of to deliver grams Defendant, or more of cocaine. who is challenge composition black, seeks the of the mul- ticounty grand claiming him, that indicted process systematically the selection excluded blacks multicounty jury. prosecution from the The responds that the information it filed after defendant preliminary any purged waived examination taint in process. selection Appeals Court, On remand from this the Court rejected prosecution’s argument and directed fur- proceedings including ther on the issue, selection inspection unsealing and of certain docu- might ments that be relevant to claim of racial composition discrimination grand selection of jury. pro-

We hold that this Court exceeded its criminal authority rulemaking cedure Duncan, (1972), creating Mich 201 NW2d 629 a sub- stantive examination for To indictees. the extent that Duncan exceeded rulemaking authority, this Court’s it is overruled and implementing rejected. its court rules are claims,

As defendant’s constitutional hold we that he has not established prima cannot establish a case

facie of discrimination under either the was, Sixth or Fourteenth Amendment. It there- 464 Mich Appeals the Court of an of discretion for fore, abuse inspection order an in-camera record. judgment is reversed the Court of

part, to the circuit court and this case remanded opinion. proceedings with this consistent further i Upon petition Ingham Eaton, Clinton, filed Appeals County prosecutors, Janu- the Court of on ary multicounty grand jury 13, under 1995, formed seq. grand jury given jurisdic- 767.7b was MCL et Appeals over The Court of tion the three counties. provided grand jury the would consist of order jurors: County, Ingham from six from six seventeen County. from The court’s Eaton, and five Clinton suppress granted prosecutors’ motion to the order the jury proceedings. April the the 27, 1995, On indicted charge conspiracy on a of to deliver 650 defendant alleged grams or more of cocaine.1 The indictment place County. conspiracy in Eaton A fel- that the took ony judge on warrant was issued the circuit Appeals assignment Court of to the mul- the ticounty grand jury. apparently was Defendant May arraigned 12, 1995, on indictment the on $150,000.2 bond was set September appeared in 8, 1995, On defendant 56th exami- District Court and waived on was over nation the indictment. Defendant bound District MCL Court of 333.7401(2)(a)(i), Appeals for further order proceedings. 750.157a. setting bond and remanding case to the 56-2 (After Glass Remand) papers to the Court, Eaton Circuit and his were filed September on 11, with that court 1995. Defendant arraignment Septem- waived the circuit court September 27, ber 1995or 1995.3 County September pros- 29, 1995, On the Eaton filed an ecutor information circuit court. The infor- again alleging indictment, was mation identical conspiracy grams to deliver 650 or more of cocaine. Attached the information a list of witnesses. complaint is There no record of a and warrant aor separate preliminary examination or waiver the dis- filing trict court before the information. adjourned Trial was scheduled and several times. February On 21, 1996, the defendant moved to dis- alleging, among things, composi- miss, other that the process rights, tion of the violated his due his Sixth Amendment selected from a community, fair cross section of the and his Four- equal protection. teenth Amendment theAs allegations: Court of summarized his Specifically, population indicated that County percent is Clinton 3.85 African-American and 13.8 percent population total counties, of the three population County percent of Eaton is 3.56 African- percent population American and 21.47 of the total of the counties, population Ingham County three and the of is 9.87 percent percent African-American and 65.16 of the total population of the three counties.3a Defendant thus con jurors grand tended this Court’s order that five be from County, County, six Ing Clinton from six Eaton and from County systematic overrepresentation ham amounted to a popula of the with counties the smallest African-American systematic underrepresentation county tion and a of the the record with these dates ^[3] Two copies of what appear stamped by to be one waiver the Eaton County arraignment appear Clerk. 266 Mich population. largest Defendant African-American

with the used, proper percentages that if had been further contended jurors, grand County had Eaton Clinton would have two County grand jurors, Ingham and would have had four jurors.4 County grand would had eleven In addition to have dismissal, requested that the trial arguing for produce copy peti prosecution to of the court order the multicounty grand jury. the of the tion for establishment African-Americans on nesses These Defendant also attached to at the population figures are grand jury the proceedings seventeen-person his based on motion who stated that there were no the 1990 two affidavits jury. census. from wit 455, 459-460; App (1999).] Mich 597 NW2d 876 [235 2, the circuit court April On March 12 and held motion to evidentiary hearings defendant’s the dismiss. summarized testi- mony the hearing at as follows: testify light

Those who shed little on how witnesses did jury the was selected and whether African-Americans County jury.5 dep were excluded from The Eaton uty County deputy Ingham clerk and clerk indicated that juror questionnaire questions pertain their did not contain County County Ingham dep ing to race. the Eaton Both uty they did clerks indicated that not know how mul- ticounty was selected. A member of the Clinton County panels potential board indicated two petit jurors County assigned from Clinton were mul- ticounty grand jury pool. panels These were formed use Secretary list of of State’s licensed drivers Clinton drivers, County, mailing questionnaires to the licensed questionnaires board’s review of the returned jury panels. sit on Persons determine who could appropriate excluded were those who did not have citizen ship, physical disability, over had documented were currently age seventy, competency, were lacked under felony; past conviction of a or served on a within 275 Glass (After Remand) Opinion of the Court County juror questionnaire twelve months. The Clinton also questions did include about race.

jurors source as We note that the shall petit be jurors. drawn Legislature requires MCL 600.1326. the same manner and from the same names of grand at [Id. 460461.]

The circuit court denied defendant’s motion to dis- onmiss the basis of racial discrimination in selection grand jury, concluding of the that the had systematically failed to establish that blacks were excluded. application appeal an

Defendant filed for leave to Appeals from decision, which the Court of application denied.4 The defendant filed an for leave appeal September Court, to this 25, 1997, remanding we an issued order the case to the Court Appeals granted. for consideration as on leave Appeals remand, On the Court of concluded that prima defendant had not established facie case of racial discrimination under either or the Sixth Four provided teenth Amendment because he had not evi regarding composition grand dence the racial of the underrepresentation had not venire, shown that systematic during of blacks was due to exclusion process, selection and had not shown that the racially selection biased or sus ceptible Appeals Nevertheless, to abuse. the Court of agreed with defendant that the records might be should unsealed so that he obtain evidence support that claim.5aThe Court of dissent record from the chief 4 Unpublished order, The Court said that judge entered the defendant July 21, Court of should Appeals, (Docket request who was No. 203592). to conduct 464 Mich 266 jury selection errors in the any concluded that prosecutor harmless because the proceedings or were in the circuit court. proceeded by information

n prosecutions law that criminal provides Michigan may jurisdiction in the court having be initiated information. hear cause either indictment or the case, in this seq. Throughout MCL et the record 767.1 is whether regarding there is confusion the n.6 in on indictment or the informatio circuit court the prosecution filed an does reveal that the record in after the grand information the circuit court already had been returned and the defen indictment prosecutor’s of the deci dant bound over. The effect sion an after defendant’s to file information the on has raised bindover the indictment questions interplay statutes, the of the case involving law, governing and court rules informations requested In order we granting leave, indictments. our parties three to grant- the brief issues addition “certify inspection and, parts bearing of an in-camera the the record on the of in the issue of defendant’s claim racial discrimination selection composition App . . . 235 Mich 473. The Court evidentiary hearing directed on a further in the circuit court defendant’s initially part suppression of claims. The Court also lifted the order entered testimony by permit regarding so the records as to additional county (some employees previously or of whom had officials refused testify). Court, prosecution argument At oral before this the indicated that no complaint yet argue and warrant had been filed and seemed to any validly court, mooting thus taint in the information grand jury filed circuit During July 17, hearing pros proceeding. on the witnesses, prosecutor certain stated that ecution’s motion endorse moving hearing she was ever, At how “not to amend indictment.” that same procedural in a of defense counsel included brief outline this case’s history “arraignment an the information.” on People v (After Glass Remand) Opinion ing parties.7 leave the issues raised A brief Michigan’s proce- charging overview of two criminal provides dures context for the discussion and conclu- sions that follow.

A prosecutions may Criminal be initiated the court jurisdiction having upon charge filing over the seq.; an information. MCL 767.1 et Simon, (1949). 450, 456; 324 Mich 36 NW2d 734 An informa- predicated upon signed complaint tion is and war- complaint rant. A must state the substance accusation and reasonable cause to believe that the person accused committed the offense. MCL Id. 764. preliminary right

The accused has a a examina- to. prosecutor tion before the files an in information the jurisdiction having court to hear the cause. MCL The 767.42. accused the and state are entitled to a “prompt” primary examination. 766.1. MCL The func- preliminary tion of a to examination is determine if prob- crime has been so, committed if if and, there is able cause to believe that the defendant committed it. People v Bellanca, 712; 386 Mich 194 NW2d 863 (1972). timing preliminary As to the the examina- provides 6.112(B) pertinent part tion, MCR in with MCL the removed MCR 6.112 after NW2d 243 authority defendants indicted ^[7] We asked: the taint over criminal 767.29, (1973), (1) that indicted whether the the defendant waived the as construed in by grand juries and procedure (3) alleged defendant, whether filing prosecutor’s racial discrimination the People Duncan, this Court (2) v whether MCR 6.112 conflicts Curtis, preliminary anof properly information under the selection of supra, Mich exercised its examination. examination grant 464 Mich pros- justice, the fugitive is a from the defendant [u]nless may has information until not file an ecutor preliminary examination.

had or waives prosecutor filed, has information been Once an way any may prosequi other enter nolle “or stating on same, or without discontinue abandon leave of therefore and without the record the reasons try jurisdiction having the offense the court charged, Pros- into its minutes.” Genesee entered Judge, 115, 120; 391 Mich v Genesee Circuit ecutor (1974).8 215 NW2d 145 may by prosecutions initiated

Criminal also be seq.; MCL 767.1 et MCR indictment. may juries 6.112(B). over two or Grand be convened upon petition Court of filed with the more counties Attorney by Appeals by prosecuting or General county petition attorneys named in the from each upon Appeals. the Court of MCL 767.7b. an order of requested may convene the Court of probable petition if cause establishes portion crime, thereof, or has been that a believe committed in or more of the named counties two petition if establishes that could effectively alleged criminal activ- “more address” that ity. 767.7d. MCL is no constitutional to indictment

There state by grand jury; is an rather, indictment Legisla- charging alternative created vides information shall in ment’ includes information.” ecuting Genesee general attorney upon any all noted pursuant provisions apply to MCL prosecutions of law MCL indictment, 767.29, Further, 750.10, applicable which discusses by Genesee which also information. to provides applies prosecutions by noted that MCL 767.2 obligations to “the word ‘indict prosecutions indictment aof pros pro by v (After Remand) Glass (1931). Palm, 632; ture. In re 255 Mich 238 NW 732 juror Grand names are “drawn the same manner jurors.” petit and from the same source as MCL by prob- 600.1326.Indictment establishes Vasquez able cause that a crime has been committed. Hillery, 617; 474 US 106 S Ct 88 L Ed 2d 598 (1986). foreperson If found, an indictment is presents 767.25(1). indictment to court. MCL presiding judge The then returns the indictment to jurisdiction having the court over the offense, where prosecutor 767.25(3), (4). prohib- it is filed. MCL A is prosequi upon entering ited a from nolle an indict- discontinuing abandoning ment or or an indictment stating without on the reasons record and without jurisdiction having charge. leave of the court over the MCL 767.29. The court to which the indictment is presented may a issue warrant for the arrest of the

person indicted. MCL767.30. supra granted

Duncan, at indictees the preliminary examination. In accordance with provides preliminary Duncan, MCR 6.110 examina by grand jury. tion for a defendant indicted Consis 6.112(A)provides, except 767.2; tent with MCL MCR provided by as otherwise the court or else rules apply where, “the law and rules that to informations prosecutions apply on informations to indict prosecutions ments and MCR indictments.” 6.112(B) provides also that when an is indictment returned and filed before a defendant’s may examination, “the indictment substitute complaint judicial proceedings.” and commence Michigan. allow This prosecutions procedure, While our research reveals that established information or indictment and four court rule and case twenty-eight law, states is other unique generally states 464 Mich 266 provision of (B) requirement subsection reflects the of Duncan, supra, that grand indictees be af- preliminary forded a examination.

B procedural posture The confused of this case raises fundamental questions regarding Michigan’s current dual charging procedures. noted above, As the indict- ment had been returned to circuit court and the defendant had preliminary waived examination in dis- trict court prosecutor before the filed the information in Eaton Circuit Court. There was no complaint and support warrant filed to the information. Nor did the prosecutor seek to abandon or discontinue the indict- ment.10 Consistent with prosecutor MCR 6.112(B), the the grand jury treated indictment as more nothing than complaint initiating criminal proceedings, despite MCR 6.112(A) and MCL 767.2, which treat require by grand jury only indictment involving in cases the most serious felonies, only Michigan Oklahoma, Stat, Okla tit § see also Hope, (Okla App, 1971), Stone v grant 488 P2d 616 Crim following a defendant a preliminary to a LaFave, examination indictment. Israel & King, (2d ed), pp 15.1(e), (g), 239-240, Criminal Procedure § 250-252. Although probable Oklahoma cause, allows for a second determination of charging the indictment Oklahoma, remains the document. In copy returns the indictment to the trial court. A of the indictment is magistrate preliminary filed with purposes. Any examination resulting prosecutor may replace bindover is on the indictment. The Cunningham the indictment with an Court, information. v Tulsa Co Dist (Okla App, 1965). Michigan 399 P2d 57 Crim treating thus stands in alone pleading the indictment aas mere proceedings. that initiates criminal prosecutor MCL 767.29 states that the shall not discontinue or aban stating don the indictment “without on the record the reasons for the dis continuance or having abandonment and without the leave of the court jurisdiction try charged, the offense entered its minutes.” We asked parties to brief 767.29, “whether MCR 6.112 conflicts with MCL as con People Curtis, strued v (1973).” 389 Mich 698 NW2d [209 Because 243] case, necessary indictment was not abandoned in this it is not or appropriate explore interplay of Curtis and MCR 6.112. People v Glass (After Remand) Opinion ti-ie equivalent

indictments as to informations. As a result of this confusion, parties we asked the to brief properly authority

whether this Court exercised its over Duncan, criminal 388 Mich 489 (1972), grant juries defendants indicted examination. Mich [461 1005.] As above, provided noted Duncan indictees preliminaiy with the to a right examination after indictment. The Court then adopted implement- court ing rules, MCR 6.110 and MCR 6.112. Pursuant to Const 1963, 5, art this § Court has exclusive authority to determine the rules of practice pro- and cedure. McDougall Schanz, 15, 26; Mich NW2d 148 (1999). However, this Court’s constitutional rulemaking authority only extends to matters of prac- procedure: and tice Court is not authorized to enact court that [T]his rules

establish, modify abrogate, or law. at substantive [Id. 27.][11]

nowWe address implement- whether Duncan and the court ing proper rules were a exercise of the Court’s authority. rulemaking

Despite that acknowledging indicted defendants historically did not receive a preliminary examination, and no statute so provided, Duncan declared such a right policy. the basis of Regarding sig- nificance of preliminaiy examination opined Duncan 11 Contrary assertion, McDougall way to the dissent’s in no limits this authority prescribe procedural Court’s constitutional to rules that vindi rather, McDougall only precludes rights; promulga cate constitutional procedural contrary legislative tion rules enactments involve policies. nonconstitutional substantive 464 Mich may questions equal “[t]here that protection well be serious process present and due involved in the procedure Michigan . . . since it denies to an multiple-man grand accused indicted what recognized right has become a fundamental as right criminal most cases—the exam- expressly rely ination.” Id. at 502.Duncan declined to process principles creating on due to a preliminary examination for indictees. than Rather addressing questions, those constitutional this Court upon power” seized its “inherent to deal with the situ- granted ation aas matter of criminal felony pre- all defendants accused of a liminary following examination, even in those cases Id,.12 by grand jury. following indictment Rather than statutory prosecutions pertaining scheme per- indictment, Duncan instead rewrote it. We are implementing suaded that Duncan and the court rules rulemaking authority. exceed this Court’s As this previously recognized: The measure of control exercised in connection with the prevention prosecution pun and detection of crime and ishment of criminals is set forth in the statutes of the State pertaining thereto, particularly penal code and the code procedure. powers of criminal of the courts with refer [People ence to such matters are derived from statutes. Piasecki, 122, 143; (1952).[1 333 Mich 52 NW 626 3] preliminary The establishment of the to a procedure examination is more than a matter of 12Therefore, suggestion pro the dissent’s that Duncan relied on due principles cess is incorrect. 13Obviously, authority regarding practice this Court’s the mies of 1963, 6, 5, derives from § Const art and is not subservient McDougall, supra, pp the Code of Criminal Procedure. 26-27. People v Glass (After Remand) beyond powers vested the Court Const public policy § legisla- 6, 5; art it is a matter of for the Judge, tive branch. Shannon v Ottawa Circuit (1928); 220, 222; Mich 222 NW 168 v Piasecki, supra; Glancy v Roseville, 457 Mich 580, 590; 577 (1998). 6.112(B) NW2d 897 Duncan and MCR are also provides inconsistent with 767.2, MCL which equivalency in the law between indictments and in- formations.

We overrule Duncan, insofar as it afforded indict- preliminary ees the examination. Addition- ally, we hold that the information filed in this case is pursuant null and void because it was filed to the 6.112(B) pur- invalid scheme set forth in MCR ported to allow an indictment to substitute for a com- plaint. complaint stating There was no the substance of the accusation or reasonable cause to believe required by accused committed the offense as MCL preliminary 764.Id, nor was there a examination on a complaint required by Finally, as MCL 767.42. prosecution sought never to discontinue the indict- ment under MCL 767.29. Because the information is properly null and void, we do not address the effect a might previously filed information have on a returned indictment.14This case stands filed in the circuit court on the indictment. We next address 14Further, parties we asked the to brief: prosecutor’s filing of an [WJhether information under MCR 6.112 after defendant waived the examination removed alleged the taint of the racial discrimination in the selection of the grand jury that indicted defendant .... Mich [461 1005.] void, Because we hold the information is null and this harmless error longer issue is no relevant. 266 Mich Opinion of the Court challenges grand to the defendant’s constitutional proceedings.

hi composed people, of seventeen Ingham County, County, six from five from Clinton County. alleges from and six Eaton Defendant composition equal protection right violated his this under the Fourteenth Amendment and his Sixth right Amendment to a fair cross section on the jury venire.

A alleges Defendant the seventeen member tricounty jury makeup Eaton, 6-6-5 from Ingham, respectively and Clinton Counties violated equal protection his under the Fourteenth particular Amendment. There is no to have a precise composition reflect the racial of a community. Texas, 398; Akins v 325 US 65 Ct 1276; S discriminatory (1945). 89 L Ed 1692 Furthermore, effect is insufficient to establish a violation of the Fourteenth Amendment; defendant must show dis- criminatory People intent. Ford, 103; v 417 Mich 66, (1982);Arlington Hgts 331 NW2d 878 v Metro Hous- ing Corp, 252, 265; Dev 429 US 97 S 555; Ct 50 L Ed (1977); Washington 2d 450 Davis, 426 US 242- (1976). 2040; 96 S Ct 48 L Ed 2d “Such an may permit pur- effect an inference of an unlawful pose, standing but, alone, it is not conclusive on the question activity governmental racially whether is dis- criminatory.” supra at Ford, 103. v Glass (After Remand) prima

In order to establish a facie case of racial grand jury in a discrimination the selection of under showing Amendment, the Fourteenth in addition to discriminatory purpose, defendant must show that the grand procedure in “substan- selection resulted a underrepresentation tial of his race.” Castaneda 430 L Partida, 1272; US 97 S Ct 51 Ed 2d steps (1977). Castaneda articulated three underrepresentation. establish substantial defen- The 1) belongs recognizable, dant must show that he singled distinct class out for different treatment under applied; 2) the laws as written or as that there was significant underrepresentation of that distinct class significant period 3) over a time; of that the susceptible selection was or of abuse racially it was not neutral. Id. at 494. a defen- Once prima case, dant establishes a facie the burden shifts to the state to of rebut inference intentional dis- Id. crimination. at 495. agree judgment

We with the of Court of Appeals presented prima that defendant has not a facie of case discrimination under the Fourteenth go Amendment.15We further and hold that defendant prima upon will be unable to establish a facie case proceedings further review of the because discriminatory pur- he will be unable to establish a pose. challenge Defendant not does the manner implemented. impaneling which the Defen- premised solely upon allegedly dant’s claim is dis- parate composition jurors effect of the 6-6-5 of tion argued We grounds, notwithstanding precluded agree with the selection such challenges. process MCL Appeals Fourteenth Amendment 767.13, 767.14, defendant can which the equal protec prosecutor challenge 464 Mich

Opinion the Court chosen the Court three counties from the present any Appeals. evidence Defendant does discriminatory purpose, nothing suggesting conceivably aid defen- records could prove Court of that the in his effort to dant discriminatory purpose establishing with acted split. 6-6-5 repre- possibility on the of an adverse effect composi- resulting from the 6-6-5 of blacks

sentation discriminatory purpose, but is tion is relevant to purposeful it was establish that insufficient alone to jury. Wash- device to exclude blacks from supra ington, at 239. We therefore conclude that prima will to establish a facie be unable discriminatory purpose in violation of the case of a Fourteenth Amendment.

B composition alleges of also that the 6-6-5 Defendant jury him his Sixth Amendment denied impartial jury an drawn from a fair cross section of community. prima To establish a facie violation of requirement, “a must the fair cross section underrepresented group that a distinctive show jury pool, or and that the under- in his venire representation systematic exclusion was the result of process.” People group from the selection (2000), citing 199, NW2d 1 Smith, 203; v 463 Mich 615 664; US 99 S Ct 58 L Ed Missouri, 357; Duren v 439 (1979).16 2d 579 16 People Smith, measuring v we held that no method for whether In exclusively,

representation be used but was fair and reasonable should adopted approach. stated, “[pjrovided rather we a case case We People v Glass (After Remand)

A is fair cross issue whether the sec- requirement applies tion state venires. did, The assumed it but this is the may state to hold first decision that a defendant chal- lenge grand jury process selection on the basis of requirement. App fair cross 235 Mich 465- section It is 466. well established that the Sixth Amendment requirement applies petit cross fair section to state Taylor venires. v Louisiana, 522; 419 US 95 S Ct (1975).17 692; 42 L However, Ed 2d the Fifth require juries Amendment does in state prosecutions, v California, 516; Hurtado US 4 S (1884), Ct 28 L Ed 232 United States Supreme imposed Court has not fair cross section requirement by grand that allow states indictment jury. supra (Powell, Castaneda, See at J., 509-510 dis- senting). process Circuit Sixth has that due held purposes grand jury for the of state selection does requirement. not include the fair cross section Ford (CA 1988). Seabold, 6, F2d 687-688 Michigan apply We need not whether decide should requirement the fair cross section venires in this case because defendant has failed to allege cognizable fair cross section claim. Defen- County Ingham dant contends that residents were underrepresented on the basis 1990 census figures. argues County Ingham He should have positions had eleven on the rather than argues underrepresentation six. Defendant that the fair ative of all parties proffer and The of the the tests in reasonable.” Id. at 204. Fifth Amendment and 28 USC 1861. Id. at 528-529. to a fair determining sufficient cross section in evidence, whether representation courts should federal grand jury consider the [on venires is deriv venire] results Mich

Opinion the Court of systemati- County Ingham the effect of residents had cally underrepresenting However, the fair blacks. requirement guarantee that does not section cross any particular jury literally mirror the will

chosen pools “jury community; names, wheels, rather, juries panels, must which are drawn or venires from groups systematically . . . distinctive exclude reasonably representative thereby fail to be and supra (opinion at 214 Smith, . . . .” thereof challenge J.). is rele- defendant’s Because Cavanagh, jury, up particular grand he to the make of his vant succeed on his claim. cannot

c Appeals the Court of we address whether Next inspection in-camera of the when it ordered an erred bearing of racial discrimination on the claim record composition grand and of the the selection initially part suppression order entered of the lifted regarding permit grand so as to addi- records testimony county employees. officials or tional Appeals “in order to establish The Court of reasoned: any, if of his claim of racial discrimination evidence, there Amendments, the Sixth or Fourteenth under the record or other evidence must be some access to composition regarding of the the selection Appeals jury.” App The Court of con- 235 Mich 472. compelling sup- reason to cluded that there was no composition press relating information to “the racial multicounty venire and the produced jury, procedures used that and the selection him.” Id. at that indicted 473. previous suppression vacated its . . . extent defendant’s claim can order “to the People (After v Glass 289 Remand) by Opinion J. Taylor, by explored county be and testified about officials or employees (such previously those would as who testify).” Id. at 474.

Upon our of review defendants’ constitutional Appeals we claims, are resolved that the Court of by ordering its re- abused discretion in-camera suppression. People lifting view and of in the order As Wimberly, (1970), v 62; 384 Mich 179 NW2d 623 we are faced with a rea- conflict between traditional secrecy grand jury proceedings sons desirability and the for of discovery. cannot, Because defendant upon discovery, prima further establish facie case under Amendment, either the Fourteenth or Sixth we secrecy pro- hold that the for reasons desirability ceedings outweigh the of further dis- covery.

rv judgment Appeals reversed, of the Court of is pro- and case this is remanded to the circuit for court ceedings opinion. consistent with this

Corrigan, C.J., and and JJ., con- Young Markman, curred with J. Weaver, (concurring part dissenting J. in Taylor,

part). agree majority’s I with the that conclusion ordering proceed- erred further ings regarding agree records. I also majority with the this Court exceeded its crimi- procedure rulemaking authority nal (1972), Duncan, Mich NW2d 629 cre- ating a substantive examination imple- indictees and that Duncan’s 464 Mich

Dissenting Opinion Cavanagh, J. rejected. menting The fact be court rules should 6.112(B) with MCL are inconsistent and MCR Duncan rejecting supports overruling Duncan 767.29 implementing court rules. majority, I would overrule

However, unlike the prospec- implementing rules court and its Duncan my prosecution tively. judgment, was entitled In rely upon 6.112(B), file the information. MCR to preliminary subsequent exam- of a waiver Defendant’s any purged in the taint on the information ination alleged jury proceedings. was the taint Because unnecessary purged,1 reach the constitu- I it to find opin- majority part in of the issues decided tional reject 6.112(B) and over- I would MCR ion. Because prospectively, agree I with the cannot rule Duncan majority in circuit court on the that this case stands indictment rather than the information. Having examination, waived jurisdiction effectively to hold conceded circuit court trial information. him for yet (dissenting). This case is another J. Cavanagh, process example a favored of of what has become By precedent. overruling overruling the established part 489; 201 NW2d629 Duncan, of v 388 Mich prelimi- (1972), the that affords indictees majority stripped nary examination, the has criminal necessary procedure Michigan’s of a defendants the stand Supp 1228, as Court Hillery I filing S Ct empaneled believe trial, notwithstanding a affirmed a lower court was, i.e., facing of a “new this 88 Ed 2d 598 in a (ED Cal, 1983). L holding discriminatory charging is consistent with charge discriminatorily empaneled grand jury, (1986), ruling document.” Thus, under fashion, because the United States that even a new Vasquez allowed defendant if defendant Glass’ See Glass is Hillery charging v Hillery, 474 US the same document. Pulley, Hillery Supreme position 563 F upon 254; to People v (After Glass Remand) Dissenting Opinion Cavanagh, J. process. disregard In criminal addition its Mich- predicts igan precedent, majority defen- protection prove equal dant “will be unable” to his given records, claim if access to the when majority has not read content those I records. Because would overrule Duncan and would affirm the Court of to unseal decision might records so that defendant obtain support claims, evidence his constitutional I respectfully dissent.

i majority states that in this Duncan, authority rulemaking exceeded its under Const majority pre- §6, art 5. The reasons that the liminary policy examination is substantive and based. majority Therefore, believes this case procedure, involves more than a matter of and should Legislature. be decided the basis the will of majority lightly Thus, the claims that be Duncan can usurpation legislative power. cast as an aside How- clearly § ever, of 1963, 6, the text Const art 5 states principle by recognized the Duncan, that this Court power has the exclusive to establish rules of procedure.

Quoting the section from Duncan that discussed possible equal protection Michigan’s in violations procedure affording criminal without an indictee the preliminary majority examination, sum- “policy” expressed marizes the concerns this Court right. disagree when it established the Ante I at 281. process “policy” that due considerations are concerns may invoking that we not address when constitu- our authority tional that must establish 464 Mich Opinion by

Dissenting Cavanagh, J. process Legislature. Due considerations be left to the play aspects procedural in and substantive a role both balancing making it difficult to avoid law, of the thus proce- implement when we substantive concerns majority, expands however, its abdication dures. judicial authority McDougall Mich Schanz, in process (1999), defining the due 15; 597 NW2d 148 policy in sub- considerations we discussed Duncan as strictly province stantive law and within effectively expansion McDougall Legislature. This ability process weigh eradicates our due concerns authority using when our constitutional to establish boundary procedure and shrinks the constitutional separates powers rulemaking our from those of Legislature. Thus, I raise the concerns I articu- my McDougall: procedures, in lated dissent from what may then, 1963, this Court establish under Const art majority’s § case, 5? Under the view this “the appear any aspect Legislature would to control free judicial perhaps wishes, function it save scheduling McDougall 59, of dockets.” at n 26. Moreo- majority’s ver, the view raises the issue whether we previous must revisit all established court rules to “improper” policy whether determine there were con- siderations made behind them.1

The valid concerns that we addressed in Duncan consequences describe the substantive that follow from the absence of examination after As I stated my dissenting opinion McDougall at 59: exactly many So we must wonder how of our court rules deal might judicial with items that evoke considerations other than dis- subject patch, and thus be to alteration on the basis of those con- siderations, evidencing decisions of “substantive” law Legislature. People (After Remand) v Glass 293 Dissenting Opinion Cavanagh, J. Thus, it establish- indictment seems the right preliminary ment of the examination after a justice indictment effectuates substantive by dismissing equal protection assuring concerns process majority due for criminal defendants. The separate preliminary fails to examination’s basic procedural Michigan’s process nature in criminal from procedure’s substantive effects and concludes that the establishment of a examination is procedure. more than matter of trary at 282. Ante Con- majority’s just to the conclusion, however, power because this Court its used constitutional procedure Michigan’s process establish a criminal assuring justice that has the effect of substantive magically change proce- does not the nature of the right. dure to of a substantive In Mich Bellanca, 194 NW2d 863 (1972), this Court addressed whether criminal perjury charges defendant faced with before one- grand jury transcripts man was entitled to the of wit- testimony grand jury. ness before that one-man Although Legislature had allowed access to such transcripts grand in a traditional situation, no right such in a established one-man regardless Legis- situation. This Court held that of lature’s failure to add the tran- scripts governing grand juries, in the statute one-man types grand juries equal importance, both are of reasoning allowing and the behind grand jury setting applied traditional in the one-man grand jury setting. proceeded This then to dis- majority likely cuss what the in this case would label “policy” as mere concerns behind establishment of right: this because a criminal defendant is entitled to Mich Cavanagh, J.

Dissenting Opinion stage, be at this of counsel assistance effective properly prepared truly be must effective, “counsel prosecution’s witnesses of the for cross-examination testimony of the have access to thus he must jury touching grand before the witnesses such 714. Bellanca at in issue at the examination.” matters Accordingly, that “a defendant this Court held jury’ perjury grand charged before a ‘one-man with testimony transcripts of the the must have access to against given him before the for or of all witnesses juror’ grand order to be accorded due in ‘one-man implement holding, process.” this 712. To this Id. at grand right of the treated the establishment and created MCR6.107.2 as a records pro- concerns of due Thus, Bellanca, substantive pushed its constitutional this Court to use cess authority procedure Michigan’s crimi-

to establish a transcripts process, right grand from the nal juror proceeding, had the substantive effect which process. given assuring that, due I do doubt majority jump proper at would scenario, factual strip yet opportunity to another afforded an claiming Bellanca, overrule criminal defendants and authority by rulemaking creating our we exceeded policy until However, that is based. substantive primary authority day, for the Bellanca remains may validly pro- proposition establish that this Court MCE 6.107(A) states: or a Whenever an indictment is returned part juror, person accused in the indictment is entitled to part testimony record, including transcript all of the of the juror, appearing before the or witnesses guilt charge con- or of the accused of the touches on innocence tained in the indictment. v Glass (After Remand) Dissenting Opinion by Cavanagh, J. considering cedures, while the substantive effects of procedures, § 6, 5.1, such under Const art there- completely fore, would hold that this Court was authority rulemaking within its constitutional Duncan when it established that indictees are entitled examination.

n majority’s holding I also dissent from the that it an abuse was of discretion for the Court of inspection to order an in-camera purpose inspection record. The of the in-camera any possible to allow defendant access to evidence proving majority race discrimination. The denies grand jury defendant access to the record because it only prove prima claims not did defendant fail to a case discrimination, facie but defendant will be prove to unable discrimination even with access to making majority the record. In conclusion, this the correctly requirements proving states the a Four- agree teenth Amendment violation, which I defendant majority met. However, has not takes its conclu- step projects sion one further and that defendant will prove prima “upon be unable to a facie case because jury grand proceedings further review of the ... he discriminatory purpose.” will be unable to establish a support prediction Ante at 285. To its of defendant’s inability prove discriminatory purpose, future majority currently pre- states that defendant’s claim is disparate impact jury grand mised on the of the 6-6-5 composition, prove which is insufficient alone to dis- criminatory purpose. Ante at 285-286. majority’s support reliance on this reason to its

prediction misplaced solely is because it is based lacking attempt prove what was in defendant’s first Mich

Dissenting Opinion by Cavanagh, J. prima facie case. The evidence defendant has why presented prove prima thus far and it fails to facie case of discrimination is irrelevant to what the may provide prove records in the future to the same claim. any reading

Without the benefit of additional infor- might provide, mation the record majority hangs again its hat on evidence that has already presented. majority, been I Unlike the refuse speculate to may on what evidence the records Perhaps majority

contain. is correct and the absolutely nothing record would reveal to aid defen- major- dant in his constitutional claims. However, ity wrong, could also be as the record would show how the venire was selected and thus discriminatory proving could aid defendant in intent behind the manner in which the composed. may selected or Whatever the result be if investigate defendant could record, however, can- predicted not be when we have not reviewed the record ourselves.

Contrary majority’s position, recognize to the I justly, although time-consuming our mission to rule easily occasions, on certain should not be cast aside simply journey may because the such result up come fruitless. We should not shut down the ave- just seeking nues available to a result, especially prediction on the basis anof unfounded prevail. that defendant will not I, therefore, would although affirm the that, Court of conclusion prove prima defendant did not case, facie he is enti- tled to a remand to unseal the record to any may support obtain evidence it contain to his constitutional claims. J.

Kelly, J., concurred with Cavanagh,

Case Details

Case Name: People v. Glass

Court Name: Michigan Supreme Court

Date Published: Jun 12, 2001

Citation: 627 N.W.2d 261

Docket Number: Docket 114795

Court Abbreviation: Mich.