People v. Duncan

Decision Date31 October 1972
Docket NumberJ,M,No. 11,Nos. 11,12,11,s. 11
Citation388 Mich. 489,201 N.W.2d 629
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pat DUNCAN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James J. HARRIS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin O. BROWN, Jr., et al., Defendants-Appellants. ay Term;une Term.
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Patricia J. Boyle, Asst. Pros. Atty., Detroit, for plaintiff-appellee in No. 11 May Term 1972.

Thomas G. Plunkett, Pros. Atty., Oakland County, by Dennis Donohue, Chief Appellate Counsel, Pontiac, for plaintiff-appellee in No. 11 June Term, 1972.

Paul G. Miller, Jr., Chief Asst. Pros. Atty., Robert F. Leonard, Pros. Atty., Genesee

County, Flint, for plaintiff-appellee in No. 12 June Term 1972.

Ernest Goodman, Neal Bush, Thomas M. Meyer, Elliott S. Hall, Detroit, for appellant Pat Duncan; David R. Hood, Detroit, of counsel; Sandra Kabboush, Gregory Snow, Law Students, on brief.

John N. O'Brien, Royal Oak, for appellant, James J. Harris.

Jerome F. O'Rourke, Flint, for appellants, Alvin O. Brown, Jr., and others.

Before the Entire Bench, except BLACK, J.

ADAMS, Justice.

I. Facts and Proceedings
A. People of the State of Michigan v. Pat Duncan

On October 25, 1970, Pat Duncan, along with 14 other persons, was arrested and charged with first degree murder and conspiracy to commit first degree murder. On October 28, 1970, over defense counsel's objection, a motion by the prosecutor was granted in Recorder's Court to adjourn the preliminary examination until November 5, 1970.

On November 4, 1970, a Wayne County citizens' grand jury issued an indictment charging the same crimes as were charged in the previous complaint and warrant. The complaint and warrant were dismissed. There was no preliminary examination.

Defendants filed a motion to quash the indictment or for a preliminary examination. It was denied. Defendants filed a motion for discovery, including a request for the grand jury testimony. Judge John R. Murphy granted the motion, allowing defense counsel to inspect the grand jury minutes one week prior to trial, and further ordering an In camera inspection of the minutes by the court for 'an independent determination on the question of probable cause.' The prosecutor was granted an emergency leave to appeal from this order by the Court of Appeals. That court affirmed the part of the discovery order which did not relate to the grand jury testimony but stayed the order as to both uses of the grand jury minutes 'pending formal decision on that point.'

The trial court entered a formal order allowing defense counsel to view the grand jury minutes and ordering an In camera inspection by the court to determine whether there was 'some legal basis in law and fact' for the indictments. Another appeal was taken and, on the basis of M.C.L.A. § 767.19g; M.S.A. § 28.959(7) (added by 1970 P.A. 9); and People v. Thompson, 122 Mich. 411, 81 N.W. 344 (1899), the Court of Appeals held that neither defendants nor the trial judge could see the grand jury transcript prior to trial. People v. DeSaussure, 33 Mich.App. 241, 189 N.W.2d 813 (1971).

Pat Duncan's case was severed from the trial of the other defendants on April 30, 1971 because of her physical condition. She was the only defendant to challenge the decision of the Court of Appeals. Her application for leave to appeal was granted by this Court (385 Mich. 786).

B. People of the State of Michigan v. James J. Harris

On May 26, 1971, a citizens' grand jury in Oakland County filed an indictment charging defendant with the sale of heroin. Defendant's motion for preliminary examination was granted by the trial court. Upon emergency appeal by the People to the Court of Appeals, that court reversed. (37 Mich.App. 179, 194 N.W.2d 414). We granted defendant's application for leave to appeal. (386 Mich. 778).

C. People of the State of Michigan v. Alvin O. Brown, Jr., et al.

On May 14, 1970, a Genesee County citizens' grand jury returned a true bill charging Alvin O. Brown, Jr., and others, with the crime of conspiracy to violate various Michigan gambling laws. The cause was assigned to a circuit judge for trial. Several defendants filed motions seeking a preliminary examination. On November 5, 1970, the circuit court filed a written opinion holding section 19g of 1970 P.A. 9 unconstitutional and dismissed the indictment. On appeal to the Court of Appeals, 37 Mich.App. 292, 194 N.W.2d 563, that court reversed and remanded for trial. We granted leave to appeal. (386 Mich. 788).

II. Grand Jury Records--Discovery

In People v. Bellanca, 386 Mich. 708, 715, 716, 194 N.W.2d 863, 865, 866 (1972), a majority of this Court held that:

'* * * a person accused of a crime by any grand jury has the right to a transcript of his testimony and such parts of the record, including the testimony of other witnesses before the grand jury touching on the issue of his guilt or innocence of the crime charged. To obtain it he must petition the circuit court of the county wherein the grand jury was impaneled therefor.

'In order to implement the procedure for obtaining custody of the material requested, we are today publishing a court rule. * * *.

'The bench and bar are hereby advised that the provisions of M.C.L.A. § 767.19g, Stat.Ann.1971 § 28.959(7) are hereby superceded (See Perin v. Peuler (on rehearing) (1964) 373 Mich. 531, 541, 130 N.W.2d 4).'

The decision in Bellanca and the adoption of GCR 1963, 787, Discovery of Grand Jury Proceedings, cover the issues with regard to discovery of grand jury testimony and the validity of section 19g of 1970 P.A. 9 raised in these cases.

III. Right to Preliminary Examination

The remaining critical issue in all three cases is whether a defendant indicted by a citizens' grand jury is entitled to a preliminary examination. The Federal Constitution does not require the states to initiate criminal prosecutions by grand jury indictment, Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), nor does it require a preliminary examination as a condition precedent to prosecution by the filing of an information, Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913).

The Michigan Constitution of 1835 provided that criminal felony prosecutions should be initiated exclusively on a presentment or indictment by a grand jury. 1 Sections 13 and 14 of R.S.1846, ch. 163, provided for preliminary examinations in connection with such grand jury proceedings. 2

If the original procedure in Michigan had been to have the preliminary examination After a grand jury indictment, the statutory history would be a persuasive reason to hold in favor of such a preliminary examination; but, historically, the purpose of the preliminary examination was to provide a means for proceeding against an accused Before presentation of the charge to a grand jury, not afterward. Turner v. People, 33 Mich. 363, 370 (1876). It is to be remembered that grand juries were not in continuous session and there was often a lapse of time between an arrest and an indictment. Thus, section 18 of 1846 R.S. ch. 163, provides for holding the prisoner until indictment or allowing him to be out on bail. 3

The Michigan Constitution of 1850 omitted the requirement of a presentment or indictment by a grand jury, and by section 28, art. 6, Judicial Department, set forth the rights of an accused. 4 In 1859, the legislature enacted 1859 P.A. 138, which provided for prosecutions by information preceded by a preliminary examination. The new procedure was initiated to speed up the criminal process. It had the effect, in a large measure, of eliminating the grand jury since, although it was not abolished, prosecution by information replaced prosecution by a grand jury as a standard practice. Annis v. People, 13 Mich. 511, 514 (1865); Yaner v. People, 34 Mich. 286, 287 (1876). Grand jury proceedings continued to follow the former pattern of having no preliminary examination after presentment or indictment. Special Committee to Study and Report upon the One-Man Grand Jury Law, 26 MSBJ, September 1947, pp. 55, 59; 8 Michigan Law & Practice, Criminal Law, § 91, p. 114; Miller, Informations or Indictments in Felony Cases, 8 Minn.L.Rev. 379, 381--382 (1924). The only significant change was the statutory recognition of the increased importance of the preliminary examination. 5

During the late 1920's, there was much public concern about the slowness of the administration of justice. Report of the Committee on Legislation and Law Reform, 6 MSBJ 105, January 1927; Webster, The Courts and Procedural Reform, 6 MSBJ 191, March 1927. Prosecution by information was seen as speedier, more economical and efficient than prosecution by indictment. Moley, The Initiation of Criminal Prosecutions by Indictment or Information, 29 Mich.L.Rev. 403 (1931); Moley, The Use of the Information in Criminal Cases, 17 ABAJ 292 (1931). Michigan already had provided for prosecutions by information but reform was still felt to be necessary. A Committee of Inquiry into Criminal Procedure published a report and schedule of revisions of the Code of Criminal Procedure in 1927. Their recommendations were incorporated in 1927 P.A. 175. Section 1 of chapter VI of 1927 P.A. 175 read:

'The state and accused shall be entitled to a prompt examination and determination by the examining magistrate In all criminal causes and it is hereby made the duty of all courts and public officers having duties to perform in connection with such examination, to bring them to a final determination without delay except as it may be necessary to secure to the accused a fair and impartial examination.' 6 (Emphasis added.)

The Committee gave as their summary to this amendment:

'Sec. 1. Both state and accused entitled to speedy examination. (new) This section...

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