People v. Hall, 85050

Citation435 Mich. 599,460 N.W.2d 520
Decision Date11 September 1990
Docket NumberNo. 85050,85050
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lisa Ann HALL, Defendant-Appellee.
CourtSupreme Court of Michigan

[435 Mich. 600] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., County of Wayne, Timothy A. Baughman, Chief of Research, Training and Appeals, Thomas M. Chambers, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Jonathan B.D. Simon, Detroit, for defendant-appellee.


GRIFFIN, Justice.

Defendant was bound over for trial to face felony charges on the basis of hearsay testimony erroneously admitted at the preliminary examination. Although it appears that the ensuing trial was fair and error free, the Court of Appeals determined that this error compelled automatic reversal of defendant's conviction. We disagree. Concluding that a harmless error analysis is applicable, 1[435 Mich. 601] ] we hold that such an evidentiary deficiency at the preliminary examination is not ground for vacating a subsequent conviction where the defendant received a fair trial and was not otherwise prejudiced by the error.


Following a preliminary examination, defendant was bound over on charges of delivery and conspiracy to deliver cocaine upon the basis of hearsay statements made to police by two alleged coconspirators. 2 Defendant made timely objection to admission of the hearsay evidence. Subsequently, the coconspirators pleaded guilty and then testified at the trial of defendant, who was convicted of the conspiracy to deliver charge. On appeal, the prosecutor conceded that the hearsay statements at the preliminary examination were not admissible under MRE 801(d)(2)(E). 3 The Court of Appeals reversed the conviction on the authority of People v. Walker, 385 Mich. 565, 189 N.W.2d 234 (1971). 4

In Walker, the defendant's car was stopped, and the car and his person were searched by police officers on the basis of a

"tip" they received from an informant. The defendant was arrested and [435 Mich. 602] subsequently convicted of unlawful possession of narcotics. On appeal, the defendant complained that at the preliminary examination probable cause for the search and seizure of the defendant's person and automobile had not been established. Motions to quash the information, made by the defendant at the preliminary examination and again prior to trial, were denied. Subsequently, at a preliminary stage of the trial, testimony by a police officer clearly established that in fact there had been probable cause. Nevertheless, the Walker Court set aside the conviction, and stated

"From both the Michigan and Federal cases, it is clear that while police officers may proceed upon the basis of information received from an informer and need not disclose the identity of the informer, in order to establish probable cause there must be a showing that the information was something more than a mere suspicion, a tip, or anonymous telephone call, and that it came from a source upon which the officers had a right to rely. This is the showing which should have been made at the preliminary examination in this case, but was not. Unless we require such a showing, the preliminary examination becomes meaningless, and a defendant is forced to stand trial in violation of a proper determination from legally admissible evidence at the preliminary examination stage that a crime has been committed and that there is probable cause to believe he is guilty of it." Id., at pp. 575-576, 189 N.W.2d 234. (Emphasis in original). See also People v. White, 276 Mich. 29, 31, 267 N.W. 777 (1936); People v. Kennedy, 384 Mich. 339, 183 N.W.2d 297 (1971).

In this appeal we are urged to reconsider Walker and to hold that error at the preliminary examination stage should be examined under a harmless error analysis. We agree and hold that the evidentiary error committed at the preliminary[435 Mich. 603] examination stage of this case does not require automatic reversal of the subsequent conviction absent a showing that defendant was prejudiced at trial.


Initially, it should be recognized that the preliminary examination is not a procedure that is constitutionally based. While it has been determined that a judicial determination of probable cause is a prerequisite to extended restraint of liberty following arrest, the federal constitution does not require that an adversary hearing, such as a preliminary examination, be held prior to prosecution by information. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). "In Michigan, the preliminary examination is solely a creation of the Legislature--it is a statutory right." 5 People v. Johnson, 427 Mich. 98, 103, 398 N.W.2d 219 (1986) (opinion of Boyle, J.). See also People v. Dunigan, 409 Mich. 765, 770, 298 N.W.2d 430 (1980); People v. Duncan, 388 Mich. 489, 495, 201 N.W.2d 629 (1972).

The Legislature, which created the preliminary examination procedure, has also mandated by statute that a conviction shall not be reversed where error is harmless:

"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage [435 Mich. 604] of justice." M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096. (Emphasis added.)

M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096 parallels F.R.Crim.P. 52(a), which provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Although the United States Supreme Court has held that certain constitutional violations do require automatic reversal, see, e.g., Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (denial of counsel at trial), "[I]t is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations...." United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). See also People v. Johnson, supra, 427 Mich. at p. 103, n. 1, 398 N.W.2d 219

Under the federal system, it is well established that a defendant's conviction will not be set aside even though only hearsay evidence was presented to the grand jury which indicted him, Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956), 6 or for other evidentiary errors at the indictment stage, Holt v. United States, 218 U.S. 245, 247, 31 S.Ct. 2, 4, 54 L.Ed. 1021 (1910). See also United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (the fact that the grand jury was presented with self-incriminating evidence obtained from the defendant in violation of the Fifth Amendment does not bar prosecution).

In its review of Florida court proceedings against a criminal defendant charged under Florida law, the United States Supreme Court made clear that while a defendant presently detained [435 Mich. 605] may challenge the probable cause for his confinement, once he has been tried and convicted, there is no requirement under the federal constitution that the conviction be vacated because the defendant was detained pending trial without a determination of probable cause. The Gerstein Court explained:

"In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 US 541, 545 [82 S Ct 955, 957; 8 L Ed 2d 98] (1962); Lem Woon v. Oregon, 229 US 586 [33 S Ct 783; 57 L Ed 1340] (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 US 519 [72 S Ct 509; 96 L Ed 541] (1952); Ker v. Illinois, 119 US 436 [7 S Ct 225; 30 L Ed 421] (1886). Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. [Pugh v. Rainwater ] 483 F2d, at 786-787." [5th Cir. (1973) ] Id., 420 U.S. at pp. 118-119, 95 S.Ct. at pp. 865-866. (Emphasis added.)

See also Murphy v. Beto, 416 F.2d 98 (CA 5, 1969); McCoy v. Wainwright, 396 F.2d 818 (CA 5, 1968); Scarbrough v. Dutton, 393 F.2d 6 (CA 5, 1968); cf. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).

The Supreme Court has recognized the viability of the harmless error principle even where fundamental constitutional rights of a defendant are involved at the preliminary examination. In Coleman[435 Mich. 606] v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387 (1970), the Court held that because the preliminary hearing prior to indictment is a " 'critical stage' " in the course of prosecution under Alabama law, the Sixth Amendment right to counsel attaches. However, instead of reversing the defendant's conviction, after finding that the right to counsel had been unconstitutionally denied, the Court remanded the case to the state courts for a determination of whether denial of counsel at the preliminary hearing was harmless error.

More recently, the Supreme Court reaffirmed its commitment to the harmless error doctrine in a context that is close to this case. In United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), two government agents appeared together and testified in sequence before a...

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