People v. George

• Decision Date: 04 May 1982
• Docket Number: Docket No. 52491
• Citation: 114 Mich.App. 204,318 N.W.2d 666
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George Henry GEORGE, et al., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 666

318 N.W.2d 666

114 Mich.App. 204

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George Henry GEORGE, et al., Defendants-Appellees.

Docket No. 52491.

Court of Appeals of Michigan.

Submitted Jan. 6, 1982.

Decided March 17, 1982.

Released for Publication May 4, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Frank J. Bernacki, Asst. Pros. Atty., for the People.

Sommers, Schwartz, Silver & Schwartz, P. C., Southfield (by Lawrence Warren, Southfield), for defendant-appellee George.

Barris, Golob & DuMouchel, P. C., Detroit (by Ivan E. Barris, Detroit, and Howard I. Wallach, Southfield), for defendant-appellee Paluzzi.

Cartsos, Simon & Korachis, Detroit, for defendant-appellee Hatsios.

Before BASHARA, P. J., and T. M. BURNS and ALLEN, JJ.

ALLEN, Judge.

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 believe that, on the facts of this case, this procedure violates a defendant's right to due process of law.

On January 25, 1979, defendants George Henry George, John W. Paluzzi and Demetrios Hatsios were charged with one count of conspiring to obtain money under false pretenses, and with three counts of obtaining money under false pretenses, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), M.C.L. Sec. 750.218; M.S.A. Sec. 28.415.

All the charges arose from an alleged scheme to inflate repair bills for automobiles insured by Detroit Automobile Inter-Insurance Exchange and repaired at New Center Collision, a garage in Detroit. Paluzzi and Hatsios are the officers of New Center; George is a claims adjuster for the insurer, whose duty it was to approve estimates from garages, including those from New Center.

Defendants were bound over for trial after a preliminary examination before Visiting Judge Robert P. VanWiermeersch of Detroit Recorder's Court. All filed motions to quash. On April 27, 1979, Judge Donald Hobson of Detroit Recorder's Court granted the motions.

On May 15, 1979, the prosecution filed a claim of appeal in this Court, but moved to dismiss the appeal on November 30, 1979, stating that the claim was not supported by the record. This Court granted the motion after Paluzzi and Hatsios stipulated to the dismissal.

On January 10, 1980, the three defendants were charged again with the identical crimes alleged in the first complaint and warrant. They filed motions to quash, arguing that to permit the initiation of a second prosecution on the same charges would deprive them of due process of law. At the hearing, the prosecution admitted that it had no newly discovered evidence to present. On May 8, 1980, Judge Warfield Moore, the examining magistrate, quashed the second warrant and complaint, finding a violation of due process. The prosecutor has appealed.

On appeal, the prosecutor argues that Judge Moore erred in finding a due process violation. He maintains, correctly, that neither the double jeopardy clause nor the doctrines of collateral estoppel and res judicata bar a prosecutor from proceeding against an accused by bringing a second complaint and warrant after the first has been dismissed. The defendants argue that although double jeopardy, res judicata and collateral estoppel do not bar subsequent proceedings, due process does. They assert that the continued exposure to prosecution results in the unfair harassment of an accused, that bringing a second prosecution without having offered any new evidence in effect asks a magistrate to review the decision of a coequal judge, and that the law of the case bars reconsideration of the probable cause determination. While we decline to adopt the broad rule suggested by the defendants, we believe that the initiation of a second prosecution was improper in this case and affirm Judge Moore's order to quash. Our decision in this regard is limited to the narrow facts of this case.

In Michigan, a defendant has a right to a preliminary examination at which the examining magistrate must make a determination of whether a crime has been committed and whether there is probable cause to believe the accused has committed it. M.C.L. Sec. 766.13; M.S.A. Sec. 28.931. One of the purposes of the preliminary examination is to weed out groundless or unsupported charges and to relieve the accused of the degradation and expense of a criminal trial and deprivation of his liberty if there is no probable cause to believe he committed the offense. People v. Duncan, 388 Mich. 489, 501, 201 N.W.2d 629 (1972).

If a defendant believes that he was wrongly bound over for trial, he may seek leave to appeal, or may raise the issue in a subsequent appeal as of right if he is convicted. On review, an appellate court examines the evidence to determine whether the magistrate abused his discretion in making the bind-over decision. People v. Doss, 406 Mich. 90, 101, 276 N.W.2d 9 (1979). If a prosecutor is dissatisfied with a finding that no crime has been committed, or that there is not probable cause to believe the accused committed it, the proper procedure is for a prosecutor to appeal to circuit court. People v. Nevitt, 76 Mich.App. 402, 404, 256 N.W.2d 612 (1977), Oakland County Prosecutor v. 46th District Judge, 72 Mich.App. 564, 250 N.W.2d 127 (1976), M.C.L. Sec. 600.308; M.S.A. Sec. 27A.308; M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109.

There is no provision in statute or court rule that directly addresses whether a prosecutor may initiate new proceedings against a defendant who has been dismissed after a preliminary examination. The issue has been considered, however, in a series of cases in Michigan courts.

In Missaukee Prosecuting Attorney, Gaffney v. Missaukee Circuit Judge, 85 Mich. 138, 139, 48 N.W. 478 (1891), the Supreme Court, limiting its holding to double jeopardy grounds, found no bar to a prosecutor's instigation of a second proceeding after a defendant had been discharged upon a finding of no probable cause. The Court recognized that a defendant had not been placed in jeopardy at the preliminary examination, so further proceedings were possible. The Court observed, however:

"The law presumes that prosecuting attorneys, in bringing and conducting such examinations, will act in good faith towards both the people and the accused, and that they will not subject an accused person to a second examination without good reason." Missaukee Prosecuting Attorney, supra, 139, 48 N.W. 478.

Similarly, double jeopardy was found not to bar a subsequent arrest, examination and trial in People v. Miklovich, 375 Mich. 536, 539, 134 N.W.2d 720 (1965), People v. Kennedy, 384 Mich. 339, 183 N.W.2d 297 (1971), and People v. Panknin, 4 Mich.App. 19, 23, 143 N.W.2d 806 (1966).

As defendants recognize, double jeopardy considerations come into play only when a defendant has been placed in jeopardy, and that does not occur until a jury has been sworn, or, in a bench trial, until the first prosecution witness has been called. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975).

There likewise is no bar under the principle of res judicata to a subsequent prosecution. That principle applies only where there has been an adjudication on the merits. Bray v. Dep't of State, 97 Mich.App. 33, 38, 294 N.W.2d 236 (1980), lv. gtd. 411 Mich. 972 (1981). As the preliminary examination does not finally determine guilt or innocence, People v. Zaleski, 375 Mich. 71, 82-83, 133 N.W.2d 175 (1965), the doctrine of res judicata does not bar a repeated attempt to bind a defendant over for trial. People v. Riley, 72 Mich.App. 299, 302, 249 N.W.2d 397 (1976).

Collateral estoppel, the corollary of res judicata, also is ineffective in preventing the prosecutor from taking a second "bite at the apple". People v. Price, 69 Mich.App. 363, 369, 244 N.W.2d 363 (1976).

An accusation that the bringing of a second warrant and complaint constituted improper judge shopping was made in People v. Nevitt, supra. While the Court did not directly consider whether the second complaint violated the accused's due process rights, the Court soundly criticized the procedure but considered itself bound by the Supreme Court's holding in Miklovich, supra, and found no error.

"In its opinion the circuit judge characterized the prosecutor's methods as 'judge shopping' and stated that such procedure was improper.

We likewise find the prosecutor's methodology to be in actuality 'judge shopping' and find such tactics to be offensive. However, because we can find no law preventing this course of action, we feel constrained to reverse the circuit judge in this case." Nevitt, supra, 76 Mich.App. 403, 256 N.W.2d 612.

However, just three months later, this Court in People v. Laslo, 78 Mich.App. 257, 259 N.W.2d 448 (1977), suggested that if the facts of the case disclosed "shopping" or harassment, defendant's due process rights would be violated. The Court rejected the argument that the facts of the case showed harassment amounting to a due process violation and termed the prosecutor's reimposition of charges "ineptness". Laslo was not, however, the victim of suspect judge shopping and, at the second preliminary examination, the prosecutor was able to produce new information. The Court also observed in a footnote that Laslo was represented by court-appointed counsel and received credit for time served on each charge, so was not actually prejudiced.

This case, like Laslo, presents squarely the issue of whether defendants' due process rights were violated. Unlike the defendant in Laslo, however, these defendants were subjected to judge shopping, were told that no newly discovered evidence would be presented at the second preliminary examination, and were compelled to retain counsel at...