People v. Phillips

• Decision Date: 01 October 1981
• Docket Number: Docket No. 67285
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Vincent Edward PHILLIPS, Defendant-Appellee. ,
• Court: Michigan Supreme Court

Page 366

330 N.W.2d 366

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Vincent Edward PHILLIPS, Defendant-Appellee.

Docket No. 67285, Oct. Term, 1981.

Calendar No. 5.

416 Mich. 63, 330 N.W.2d 366

Supreme Court of Michigan.

Argued Oct. 13, 1981.

Decided Dec. 23, 1982.

James J. Gregart, Pros. Atty., James A. Christopherson, Asst. Pros. Atty., Kalamazoo, for plaintiff-appellant.

Wickett, Bartl, Haslett, Baugh & Laudenslager, P.C. by Mary E. Delehanty, Kalamazoo, for defendant-appellee.

RYAN, Justice.

In 1979, the defendant, then a 16-year-old juvenile, was charged in the Kalamazoo County Probate Court with the offenses of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e), and armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. The prosecuting attorney petitioned the probate court for a waiver of jurisdiction to the circuit court in order to have the defendant prosecuted as an adult. In November of 1979 and January of 1980, the two-phase waiver hearing, as required by JCR 1969, 11.1, ¹ was conducted and on February 15, 1980, the probate court entered its order waiving jurisdiction of the defendant to the Ninth Judicial Circuit Court (Kalamazoo County).

On May 2, 1980, the defendant, who had been represented by the same appointed counsel from the outset of the juvenile proceedings, moved for an order remanding the case to the district court for the purpose of holding a preliminary examination on the offenses charged. The circuit court denied the motion. The defendant then proceeded to trial and was found guilty of the offenses charged and was sentenced to life imprisonment on each charge.

On September 12, 1980, the defendant moved for a new trial on the ground inter alia that he had been denied the right to a preliminary examination. It was not until May 11, 1981, that a hearing was held on this motion, at which time the circuit judge granted the motion, declaring that he based his decision upon this Court's decision in People v. Dunigan, 409 Mich. 765, 298 N.W.2d 430 (1980).

In Dunigan, we held that when jurisdiction of a juvenile offender is waived to the circuit court, the defendant is entitled to a preliminary examination before he may be charged in a criminal information unless examination is waived by the defendant or he is a fugitive from justice. We recounted in Dunigan the statutory basis for entitlement to a preliminary examination in this state and observed that both the statute, M.C.L. Sec. 767.42; M.S.A. Sec. 28.982, and our opinion in People v. Duncan, 388 Mich. 489, 201 N.W.2d 629 (1972), provide that no information charging a felony may be filed against any person unless he is first afforded the opportunity for a preliminary examination, and that such examination must be held unless the "examination is waived by the defendant or unless defendant is a fugitive from justice". ²

While acknowledging our decision in Dunigan, supra, the prosecuting attorney argues that Dunigan announced a new rule of law and, since it was promulgated after the denial of the defendant's request for a preliminary examination in this case, it is not controlling of this case unless it is to be given retroactive effect.

Proceeding on that assumption, the prosecuting attorney's brief and oral argument were directed principally to an analysis of the familiar test for retroactivity of a new rule of law as first announced in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and applied in Michigan in People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971).

We think the prosecuting attorney's assumption that Dunigan announced a "new rule of law" has led him to misapprehend the real issue in this case.

Dunigan neither announced a departure from clear precedent nor decided an issue of first impression whose resolution was not clearly foreshadowed. Thus, it is not a "new rule of law" and, as a result, no question of retroactive application arises. We find, therefore, that the circuit court correctly ordered a new trial because this juvenile defendant was not given the examination he timely demanded.

Before any question of the retroactive application of an appellate decision arises, it must be clear that the decision announces a new principle of law. A rule of law is new for purposes of resolving the question of its retroactive application in the sense addressed in Linkletter and Hampton and asserted by the plaintiff, either when an established precedent is overruled or when an issue of first impression is decided which was not adumbrated by any earlier appellate decision. In Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971), the United States Supreme Court stated:

"[T]he decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, * * * or by deciding an issue of first impression whose resolution was not clearly foreshadowed."

There are two apparent bases for the prosecuting attorney's claim that Dunigan announced a new rule of law: 1) that this Court's holding in Dunigan effectively "overruled" the alleged widespread practice of not holding preliminary examinations in juvenile waiver cases, and 2) that our decision in Dunigan reversing the Court of Appeals determination that "it was not mandatory that defendant be provided a preliminary examination in district court prior to arraignment" amounted to an overruling of the "old rule" upon which the trial court relied in denying the defendant's request for a preliminary examination.

The prosecutor argues, both expressly and by implication, that until our Dunigan decision there existed a widespread practice of denying a preliminary examination to juveniles whose cases were waived to the circuit court. That claim appears in the prosecutor's application for leave to appeal:

"This issue involves legal principles of major significance to the jurisprudence of this state because the practice of not holding a preliminary examination after a juvenile waiver hearing was widely followed prior to the decision of Dunigan in December of 1980. This issue should immediately be decided to avoid widespread confusion in the Michigan circuit courts and in the Michigan Court of Appeals."

And, in the prosecutor's brief:

"If the new rule requiring a preliminary examination after a juvenile waiver hearing is given retroactive application, this will mean that many convicted juveniles will have to be retried or released. As in [People v. Auer, 393 Mich. 667, 227 N.W.2d 528 (1975) ] this will require many new trials. Prosecutors will have the burden of putting together old evidence. Needless expenditures of labor, time and money will be used to retry already convicted felons. This will have an adverse impact on the criminal justice." (Emphasis added.)

We had not thought that any such widespread practice existed. Because the record before us contains no statistics on the matter, we are unable to verify the plaintiff's claim that denial of preliminary examination to juveniles, jurisdiction of whom has been waived to the circuit court was a practice "widely followed" prior to Dunigan. In point of fact, the "practice" may have been confined to Kalamazoo County. Both Dunigan and this case are appeals from the refusal of the Kalamazoo Circuit Court to grant requested preliminary examinations in juvenile waiver cases.

Upon close questioning of the assistant prosecuting attorney by this Court during oral argument, it was made to appear that the prosecutor's claim of an established "widespread" practice of denying preliminary examinations in cases such as this is unsupportable:

"Justice Levin: Okay. Now had it been the practice before Dunigan to hold preliminary examination in waiver cases?

"Mr. Christopherson [Assistant Prosecuting Attorney]: I believe Dunigan was the first case which really dealt with this issue.

"Justice Levin: I know, but had it been the practice in Kalamazoo County to hold preliminary examinations in waiver cases, when you stop doing it when you heard that Dunigan came down.

"Mr. Christopherson: Well first of all, there are very few waiver cases that come through, and I don't believe it was a practice, no, preliminary examinations were given. Dunigan was perhaps a test case. And between--(emphasis added)

"Justice Levin: There were preliminary examination in waiver cases?

"Mr. Christopherson: I can't cite you to specific cases and say there were or weren't, were or were not.

"Justice Levin: You don't know?

"Mr. Christopherson: No. And as far as I know, between the time that Dunigan came down, between the Court of Appeals and the Supreme Court decisions, Vincent Phillips is the only waiver case we had.

* * *

"Justice Levin: So there wasn't--before Dunigan was decided by the Court of Appeals, the practice in Kalamazoo County was that the circuit judge had ruled that it wasn't necessary to hold preliminary examinations.

"Mr. Christopherson: That's right, in Phillips we were going to follow that circuit judge's decision.

"Justice Levin: What was that?

"Mr. Christopherson: In Phillips we were going to follow that circuit judge's decision.

"Justice Levin: And Dunigan was also a Kalamazoo case?

"Mr. Christopherson: That's correct.

"Justice Levin: Another circuit judge in Kalamazoo County?

"Mr. Christopherson: That's correct.

"Justice Levin: And you don't know what the practice is in other counties as far as preliminary examinations?

"Mr. Christopherson: I can't testify to that, no, your Honor.

"Justice Levin: You just don't know.

"Mr. Christopherson: I don't know, that's correct." ³

While there are no properly cognizable facts before us indicating whether a preliminary examination is generally accorded juvenile defendants after waiver in this state, it is clear that there is no evidence to the contrary and that the assistant prosecuting...