People v. Harris, Docket No. 13647

• Decision Date: 26 June 1973
• Docket Number: Docket No. 13647,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles HARRIS a/k/a Charlie Riley, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 793

209 N.W.2d 793

47 Mich.App. 757

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles HARRIS a/k/a Charlie Riley, Defendant-Appellant.

Docket No. 13647.

Court of Appeals of Michigan, Division No. 2.

June 26, 1973.

Released for Publication Aug. 24, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and McGREGOR and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

This is an appeal as of right from defendant's jury conviction for selling heroin without a license, M.C.L.A. § 335.152; M.S.A. § 18.1122, and from a sentence of 20 to 25 years imprisonment imposed pursuant to said conviction.

A Genesee County citizens' grand jury on January 29, 1971, handed down a two-count indictment charging defendant in Count 1 with illegal sale of narcotics contrary to M.C.L.A. § 335.152; M.S.A. § 18.1122 and in Count 2 with unlawful possession of narcotics in contravention of M.C.L.A. § 335.153; M.S.A. § 18.1123. A warrant for the defendant's arrest was issued on the same date and a return on the arrest warrant was made on January 30, 1971. At defendant's arraignment on February 8, 1971, the true bill was read, defendant stood mute, and a plea of not guilty was entered. Defendant was held for later trial.

At the trial date on October 19, 1971, objection was made to the absence of a preliminary examination subsequent to defendant's grand jury indictment. The trial judge described himself as disturbed by the lack of a right to preliminary examination subsequent to indictment but rejected defendant's argument based upon the clear Michigan authority contravening defendant's position.

Nine allegations of error are made by the defendant on appeal. One of those nine reasons is the court's denial of a right to preliminary examination subsequent to grand jury indictment. We will proceed through an analysis of the defendant's contention on this score.

The defendant, prior to trial, originally asserted his right to a preliminary examination, reasserted his demand via a motion to dismiss at the close of the evidence, and now presents the same issue on appeal. Defendant's closing arguments in his appellate brief on this point have been vindicated by the recent Michigan Supreme Court cases deciding the combined appeals of People v. Duncan, People v. Harris, and People v. Brown, 388 Mich. 489, 201 N.W.2d 629 (1972).

In deciding that a defendant indicted by a citizens' grand jury must be afforded a preliminary examination, the Court stated:

'There may well be serious questions of equal protection and due process involved in the present Michigan procedure, as counsel in these cases ably argue, since it denies to an accused indicted by a multiple-man grand jury what has become recognized as a fundamental right in most criminal cases--the...