*1 People v 417 Turmon PEOPLE TURMON 24, 1983, No. Submitted March at Docket 61923. Detroit.—Decided 31, August 1983. carrying charged Turmon with Jonathon was a concealed weapon. preliminary hearing A was in held Recorder’s Detroit, ground which case dismissed on the that the was illegal as the result of an search. A evidence was obtained charging was issued and a second warrant the same offense preliminary a different resulted in examination before trial, being bound for information the defendant’s over quashed to second warrant was found be was later because the proceedings a third time. defective. The instituted judge, preliminary before a third defen- At the subsequently pled again trial. He dant bound over for Detroit, offense, charged Recorder’s Court of Jobes, alleging repeated appeals, that the J. Defendant Clarice charges bringing offense constituted harassment for same right judge shopping of defendant’s violation process of law. Held: grounded on of a due 1. A the violation defense plea. by guilty is not waived attempt by 2. was an The second judge. argue time a different issues a second before the same Therefore, prosecu- presented. the second No evidence was new and, consequently, were a denial of tion third process of law. quashing entry order an Reversed and remanded information. J., Mackenzie, would find She dissented. examina- new evidence at did necessary examination tion and [1] [4] [3] [2] [5] 21 Am Jur 21 21 Am Am Jur Am Jur Am Jur Jur 2d, 2d, Criminal Law 481§ 2d, 2d, 2d, References Criminal Law Criminal Criminal Criminal Law 266. Law 261. Law §§ for Points §§ § § 473, 527, 489. in Headnotes remedy in order a technical defect in the second warrant process. would issued. She not find violation of due issues, defendant’s other she would find no error in the potential cutor’s use of offender to induce habitual *2 plea, resentencing but she would remand for be- sentencing presentence updated court not use cause did an report.
Opinion of Multiple — — 1. Law Due Criminal Process Prosecutions. upon right A criminal defense based violation of the to due law, allegation process repeated filing such as an that the charging warrants the same offense constituted harassment shopping, judge plea and is not waived a defendant’s guilty. — Multiple — 2. Law Due Criminal Process Prosecutions. Repeated prosecutions of a for the same offense vio- process where, lated the defendant’s to due of law after prosecution illegally first was dismissed on the basis of evidence, proceedings again, obtained initiated arguing offering the issue before a different no new evidence. J. — Multiple — 3. Due Criminal Law Process Prosecutions. Subjecting multiple preliminary a defendant to examinations for the same offense violates his of law if the attempting engaged is to harrass the or is shopping; where, in forum no due violation occurs after dismissed, the first is at a subse- quent preliminary presents examination new evidence or the proceeding remedy new is intended to led defect which earlier dismissal. — Bargain Negotiations — Plea Criminal Law Habitual Of- fenders. prosecutor may potential A use a habitual offender as a plea bargain negotiations long tool in so as the fact, not, precluded bringing in an habitual offender charge. — Sentencing Report. — 5. Criminal Law Presentence resentencing sentencing A defendant is entitled to a where the updated presentence report. court use did not an People v Turmon Opinion of the Court Kelley, Attorney Louis J. General, Frank Caruso, Cabalan, L. General, William Solicitor Wilson, Edward Reilly Prosecuting Attorney, Dep- and Janice M. Joyce Chief, Appeals, and Civil uty Bartee, Prosecuting for Attorney, Assistant people. Nelson, Margaret A. C. Nelson
Oliver appeal. defendant on Maher, P.J., R. M. and Mackenzie
Before: Breighner,* JJ. M. B. pled guilty carrying Defendant
Per Curiam. 750.227; MSA 28.424. Sen- weapon, MCL concealed prison, from one to five he years tenced to right. as of appeals 30, 1980, Quinn Officers and McNa-
On June Department of the Detroit Police arrested mara *3 person after a search of his revealed defendant that defendant had charging A warrant revolver. of a concealed carrying committed the offense 1, preliminary 1980. A weapon July was filed on A. Judge Dalton by examination was conducted At the con- in Detroit Recorder’s Court. Roberson dismissed hearing, Judge Roberson clusion illegal. ground on the the search the case ruling. August appeal The did not this On people 29, 1980, against a second warrant was issued A alleging defendant the same offense. W. George Judge held before
examination was defen- Crockett, over the Judge Jr. Crockett bound Subsequently, was filed. dant and an information or, in information quash moved to defendant Defen- hearing. alternative, evidentiary for an shop- was "forum argued dant was defective warrant ping” and * assignment. by sitting Appeals judge, on the Court of Circuit Opinion op the Court Roberson, Judge signed by not it was The original warrant. who dismissed judge ground. the latter on quash granted motion January ruling. this appeal did not people The a third warrant 1981, sought 28, Judge the same offense. alleging defendant against after a Gillis, Jr., over defendant bound H. John 6, 1981, de- On March examination. a concealed carrying pled guilty fendant charge. weapon on argues
The defendant defen- charging filings of warrants repeated cutor’s harassment constituted the same offense dant with of defendant’s shopping in violation of law. process to due right the defendant decide whether must first We plea guilty. this claim his by waived 424, 444; 240 Johnson, 396 Mich NW2d Alvin that a de- recognized Supreme is not process in the due clause” "grounded fense in the defendant guilty plea. by waived The. right. particular case asserts such has the effect alleged violation trial proceeding people preventing second or people’s If the the defendant. against for the same defendant attempt prosecute law, infringed offense his from further forever foreclosed people then the are and, offense for that of the defendant prosecution, to trial. result, bring not as a could asserted, not Thus, guilty plea: aby waived *4 it found that the result "Whenever taking place prevent the trial from would be to asserted Supreme the United States we follow the lead of right.” plea does not waive and hold a People v Turmon op Opinion the Court of defendant’s the merits proceed nowWe repeated recognized has This Court claim. for the same offense of a defendant prosecutions process. defendant’s the violate may 257; 259 NW2d Laslo, v In dis- magistrate twice examining (1977), the the the defendant. On charges against the missed however, occasion, he was bound over aby jury. convicted eventually and court circuit he had been argued that the appeal, On shop- of judge the victim had been and harassed claim, Court, recognizing while This ping. The Court noted argument. rejected had over the magistrate presided the same examinations, three the third examina- evidence at additional adduced was more a tion, procedure prosecutor’s attempt to harass the than an ineptness product defendant. 204; 318 George, (1982), den 414 Mich Iv
NW2d however, repeated found that this Court harassment. of the defendant constituted cutions bound The and two codefendants were charges. Subsequently, they over for trial on four granted quash. moved to The motion this Court. people appealed circuit court and the then filed a motion to dismiss granted which this Court after defendant’s stipulated two codefendants dismissal. later, charged About people seven months origi- as again defendants with the same crimes the court nally alleged. quash moved to They review, granted upheld the motion. this Court quashing the order the information. It concluded constituted harass- proceeding people ment because at later *5 App Mich op Opinion the Court the time unavailable at that was had "no evidence 214. App proceeding”. the first Walls, 691; 324 NW2d In the defendant’s agreed with this Court pro- in repeatedly the prosecutor, that argument defendant, "judge the had been ceeding against an unfavorable eviden- receiving After shopping”. quash, to the defendant’s motion ruling on tiary of the case. requested dismissal reinitiated and the granted was request Court re- the defendant. This against proceedings shopping does judge that a "clearer case marked By starting to mind”. not come rear- issue "could be again, evidentiary over that with the chance judge before a different gued persuaded prose- might this new be Id. The Court also found that argument”. cutor’s harassed. When the the defendant had been over, he raised the cutor started sexual con- first-degree criminal second-degree However, additional evidence new or duct. "[n]o the crime occurred in suggest proffered was Id. thought”. than originally a manner other as case, clearly In the the defendant was Judge After Rober- judge shopping. the victim of produced the search which son ruled rather than weapon illegal, prosecutor, again. appealing proceedings initiated ruling, manner, reargue In this could He succeeded judge. search issue before a different to his doing ruling in so and obtained a favorable Furthermore, who although Quinn, case. Officer replaced by testified at the first second, undisputed it is Officer McNamara at the second that no new evidence was offered Walls, George fact proceeding. As suggests only the second served harass defendant. v Turmon reasons, hold that we
For the above
of defen-
the third
and, consequently,
denied the
crime
for the same
dant
his conviction
reverse
of law. We
of an order
entry
court
to the circuit
remand
the information.
quashing
case,
need
of this
we
disposition
of our
light
*6
remaining issues.
not decide
remanded.
and
Reversed
agree
I
with
(dissenting).
While
Mackenzie,
J.
not
plea did
that defendant’s
majority
the
claim,
the record
I find
his due
waive
conclu-
majority’s
the
support
not
does
appeal
on
shopping
of judge
a victim
that defendant
sion
v
relies on
The majority
prosecutor.
the
by
(1982),
666
204; 318 NW2d
Mich App
George,
Walls,
(1982),
Iv den
where
691; 324 NW2d
violative
prosecutions
subsequent
this Court found
since at
of the defendants’
the
examinations
subsequent
those
evidence
new additional
no
introduced
original prelimi-
at
the
not available
which was
to rear-
examination,
sought only
rather
but
nary
before
the same evidence
the
issue on
gue
same
Walls,
George, supra,
I find
judge.
different
case.
present
the
supra,
distinguishable
exam-
original preliminary
transcript
included
not
Roberson was
Judge
ination before
However,
the portions
appeal.
on
the record sent
on
brief
in defendant’s
transcript
quoted
of that
dismissed
were
charges
the
indicate
at
who testified
arresting
officer
personal
no
he had
examination
admitted
for defen-
outstanding warrant
knowledge of an
found
Judge Roberson
Consequently,
dant’s arrest.
Ápp
this officer’s testimony inadequate
to justify defen-
dant’s arrest
and concluded that
subsequent
search of
illegal. However,
defendant was
second and third preliminary
examinations
did
evidence,
new additional
testimony
arresting
the other
officer who
did
personal knowledge
have
of the outstanding
warrant
Thus,
defendant’s arrest.
at the second
was not
merely attempting
to reargue
the issue of the
legality of defendant’s
arrest
and search on the
different,
same evidence before a
and hopefully
more receptive
judge,
supplied
rather
new
evidence in support of its case. Similarly, when the
again
case was
dismissed on defendant’s motion to
quash on
ground
the second warrant
issued after
the second preliminary
examination
signed
was not
proper
judge,
prosecu-
tion’s institution of the third preliminary examina-
tion was intended to remedy this defect and not
simply
relitigate
before a different
judge the
*7
same issues
probable
of
cause to bind over or the
legality
the arrest and search of defendant.
Subjecting a defendant
to multiple preliminary
examinations
violates
his
if
prosecution
is attempting
to harass the defen-
dant or
engaged
is
in forum shopping. People v
Walls, supra; People
George,
v
supra. Although
subsequent preliminary
examinations
do not con-
stitute double jeopardy,
prosecutor
must act in
good faith and should not
subject
person to
multiple preliminary
examinations without good
v
reason.
Gaffney Missaukee
Judge,
Circuit
138,
(1891).
Mich
139;
sented
Laslo,
People
v
examination,
257,
App
Mich
260;
prelimi-
Defendant also and the agrees, resentencing required report. court did updated presentence not use an Anderson, 62; 308 NW2d (1981). Thus, resentencing. I would remand for