People v. Turmon

• Citation: 340 N.W.2d 110,128 Mich.App. 417
• Decision Date: 16 November 1983
• Docket Number: Docket No. 61923
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jonathon TURMON, Defendant-Appellant. 128 Mich.App. 417, 340 N.W.2d 110
• Court: Court of Appeal of Michigan — District of US

Page 110

340 N.W.2d 110

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jonathon TURMON, Defendant-Appellant.

Docket No. 61923.

128 Mich.App. 417, 340 N.W.2d 110

Court of Appeals of Michigan.

Submitted March 24, 1983.

Decided Aug. 31, 1983.

Rehearing Denied Oct. 14, 1983.

Released for Publication Nov. 16, 1983.

[128 MICHAPP 419] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Janice M. Joyce Bartee, Asst. Pros. Atty., for the People.

Oliver C. Nelson, Detroit, and Margaret A. Nelson, Lansing, for defendant-appellant.

Before MAHER, P.J., and MacKENZIE and BREIGHNER, ^* JJ.

PER CURIAM.

Defendant pled guilty to carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. Sentenced to from one to five years in prison, he appeals as of right.

On June 30, 1980, Officers Quinn and McNamara of the Detroit Police Department arrested defendant after a search of his person revealed a revolver. A warrant charging that defendant had committed the offense of carrying a concealed weapon was filed on July 1, 1980. A preliminary examination was conducted by Judge Dalton A. Roberson in Detroit Recorder's Court. At the conclusion of the hearing, Judge Roberson dismissed the case on the ground that the search was illegal. The people did not appeal this ruling. On August 29, 1980, a second warrant was issued against defendant alleging the same offense. A preliminary examination was held before Judge George W. Crockett, Jr. Judge Crockett bound over the defendant and an information was filed. Subsequently, defendant moved to quash the information or, in the alternative, for an evidentiary hearing. Defendant argued that the prosecutor was "forum shopping" and that the second warrant was defective [128 MICHAPP 420] because it was not signed by Judge Roberson, the judge who dismissed the original warrant. The motion to quash was granted on the latter ground. The people did not appeal this ruling. On January 28, 1981, the prosecutor sought a third warrant against defendant alleging the same offense. Judge John H. Gillis, Jr. bound over defendant after a preliminary examination. On March 6, 1981, defendant pled guilty to the carrying a concealed weapon charge.

The defendant argues on appeal that the prosecutor's repeated filings of warrants charging defendant with the same offense constituted harassment and judge shopping in violation of defendant's right to due process of law.

We must first decide whether the defendant waived this claim by his plea of guilty. In People v. Alvin Johnson, 396 Mich. 424, 444, 240 N.W.2d 729 (1976), the Supreme Court recognized that a defense "grounded in the due process clause" is not waived by a guilty plea. The defendant in the present case asserts such a right. The particular due process violation alleged has the effect of preventing the people from proceeding to trial against the defendant. If the people's second or third attempt to prosecute defendant for the same offense infringed his right to due process of law, then the people are forever foreclosed from further prosecution of the defendant for that offense and, as a result, could not bring defendant to trial. Thus, the right asserted by defendant is not waived by a guilty plea:

"Whenever it is found that the result of the right asserted would be to prevent the trial from taking place we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right." 396 Mich. 444, 240 N.W.2d 729.

[128 MICHAPP 421] We now proceed to the merits of defendant's claim. This Court has recognized that repeated prosecutions of a defendant for the same offense may violate the defendant's right to due process. In People v. Laslo, 78 Mich.App. 257, 259 N.W.2d 448 (1977), the examining magistrate twice dismissed the charges against the defendant. On the third occasion, however, he was bound over to circuit court and eventually convicted by a jury. On appeal, the defendant argued that he had been harassed and had been the victim of judge shopping. This Court, while recognizing the claim, rejected defendant's argument. The Court noted that the same magistrate had presided over the three preliminary examinations, the prosecutor adduced additional evidence at the third examination and the prosecutor's procedure was more a product of ineptness than an attempt to harass the defendant.

In People v. George, 114 Mich.App. 204, 318 N.W.2d 666 (1982), lv. den. 414 Mich. 931 (1982), however, this Court found that the repeated prosecutions of the defendant constituted harassment. The defendant and two codefendants were bound over for trial on four charges. Subsequently, they moved to quash. The motion was granted by the circuit court and the people appealed to this Court. The prosecutor then filed a motion to dismiss the appeal which this Court granted after defendant's two codefendants stipulated to the dismissal. About seven months later, the people charged the defendants again with the same crimes as originally alleged. They moved to quash and the court granted the motion. On review, this Court upheld the order quashing the information. It concluded that the second prosecution constituted harassment because at the later proceeding the people [128 MICHAPP 422] had "no evidence that was unavailable at the time of the first proceeding * * * ". 114 Mich.App. 214, 318 N.W.2d 666.

In People v. Walls, 117 Mich.App. 691, 324 N.W.2d 136 (1982), this Court agreed with the defendant's argument that the prosecutor, in repeatedly proceeding against the defendant, had been "judge shopping". After receiving an unfavorable evidentiary ruling on the defendant's motion to quash, the prosecutor requested dismissal of the case. The request was granted and the prosecutor reinitiated proceedings against the defendant. This Court remarked that a "clearer case of judge shopping does not come to mind". 117 Mich.App. 697, 324 N.W.2d 136. By starting over again, the evidentiary issue "could be reargued before a different judge with the chance that this new judge might be persuaded by the prosecutor's argument". Id. The Court also found that the defendant had been harassed. When the prosecutor started over, he raised the charge from second-degree to first-degree criminal sexual conduct. However, "[n]o new or additional evidence was proffered to suggest that the crime occurred in a manner other than as originally thought". Id.

In the present case, the defendant was clearly the victim of judge shopping. After Judge Roberson ruled that the search which produced the weapon was illegal, the prosecutor, rather than appealing the ruling, initiated proceedings again. In this manner, the prosecutor could reargue the search issue before a different judge. He succeeded in doing so and obtained a ruling favorable to his case. Furthermore, although Officer Quinn, who testified at the first examination, was replaced by Officer McNamara at the second, it is undisputed that no new evidence was offered at the second proceeding. As in George and Walls, that fact suggests that the second prosecution served only to harass the defendant.

[128 MICHAPP 423] For the above reasons, we hold that the second and, consequently, the third prosecution of defendant for the same crime denied the defendant due process of law. We reverse his conviction and remand to the circuit court for entry of an order quashing the information.

In light of our disposition of this case, we need not decide defendant's remaining issues.

Reversed and remanded.

MacKENZIE, Judge (dissenting).

While I agree with the majority that defendant's guilty plea did not waive his due process claim, I find that the record on appeal does not support the majority's conclusion that defendant was a victim of judge shopping by the prosecutor. The majority relies on People v. George, 114 Mich.App. 204, 318 N.W.2d 666 (1982), lv. den. 414 Mich. 931 (1982), and People v. Walls, 117 Mich.App. 691, 324 N.W.2d 136 (1982), where this Court found subsequent...