People v. Walls, Docket No. 58082

• Decision Date: 22 September 1982
• Docket Number: Docket No. 58082
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Eric Dale WALLS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 136

324 N.W.2d 136

117 Mich.App. 691

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Eric Dale WALLS, Defendant-Appellee.

Docket No. 58082.

Court of Appeals of Michigan.

Submitted March 15, 1982.

Decided July 12, 1982.

Released for Publication Sept. 22, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Calahan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and A. George Best, II, Asst. Pros. Atty., for the people.

Allen, James & Witthoff, P.C., Taylor, for defendant-appellee.

Before J. H. GILLIS, P. J., and KAUFMAN and LAMBROS, ^* JJ.

J. H. GILLIS, Presiding Judge.

The prosecutor appeals, by leave granted, a February 20, 1981, order remanding this criminal prosecution to the district court for a new preliminary examination.

Defendant herein was originally charged in Wayne County Circuit Court No. 80-003-906-FY with one count of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c; M.S.A. Sec. 28.788(3). A preliminary examination was held in district court before Judge Thomas Smith. At the hearing the three-year-old victim of the alleged crime did not testify. Instead, the victim's mother, Candice Nimens, testified to statements made to her by the victim two days after the incident. Defendant was bound over for trial.

The case was assigned to be heard in circuit court before Judge William Leo Cahalan. Defendant brought a motion to quash, challenging the use of Candice Nimens's hearsay testimony at the preliminary examination. The prosecution argued that the testimony was admissible under the tender-years exception to the hearsay rule. The defense argued that with the adoption of the new Michigan Rules of Evidence the tender-years exception no longer existed and, even if it did, was not applicable.

On May 5, 1980, Judge Cahalan ruled in favor of defendant. He ordered the case remanded to district court for the reason that there was insufficient evidence to bind defendant over for trial. He further ordered that the hearsay testimony of Candice Nimens be admitted only to corroborate the victim's testimony.

On June 9, 1980, a second preliminary examination was held in district court. The three-year-old victim took the stand and answered questions posed by the judge and prosecutor. The prosecutor then moved to nolle prosequi the case.

No appeal of Judge Cahalan's order ever issued from the prosecutor's office. Instead, on July 8, 1980, defendant was rearrested and rearraigned on an increased charge of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). The charge arose from the same incident as was alleged in the earlier charge. The same witnesses were endorsed by the prosecution.

On July 14, 1980, another preliminary examination was held, this time before District Court Judge Evan H. Callanan. Candice Nimen's hearsay testimony was admitted, contrary to Judge Cahalan's earlier order. The defense objected and argued that Judge Cahalan's order was binding on the district court; that the case was not new but was the old one with a purpose to engage in judge-shopping. Defendant argued that to permit the prosecutor to continually refile the case until a favorable evidentiary ruling on Ms. Nimen's testimony was obtained would destroy defendant's due process right to a fair proceeding. Judge Callanan ruled against defendant and once again defendant was bound over for trial.

Defendant moved in the circuit court to dismiss the case for defective bindover. On February 20, 1981, Judge John R. Kirwan ordered the case remanded to the district court. He held that the bindover was improper in that the district court had admitted the hearsay testimony of Candice Nimens in violation of Judge Cahalan's May 5, 1980, order. He held that principles of due process of law and collateral estoppel prohibit the avoidance of such order by refiling the criminal action under the pretext of a new case. The court ordered that any further preliminary examinations in this matter be held within the framework of Judge Cahalan's order. The prosecution appeals.

In People v. Nevitt, 76 Mich.App. 402, 403, 256 N.W.2d 612 (1977), this writer served on a panel which criticized the procedure employed by the prosecutor herein. However, we could find no grounds upon which to prevent it. We stated:

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

The opinion does not reveal whether a due process violation was specifically argued by the defendant in that case. Rather, we cited a Michigan Supreme Court case which broadly states that because jeopardy has not attached there is no bar to the prosecutor's recharging the defendant on the same evidence. People v. Miklovich, 375 Mich. 536, 539, 134 N.W.2d 720 (1965).

A recent opinion by this Court closely examined, from a due process perspective, a course of action similar to that taken by the prosecutor in the instant case. The Court found that such practice violates a defendant's right to due process of law if the repeated prosecution clearly constitutes harassment. People v. George, 114 Mich.App. 204, 214, 318 N.W.2d 666 (1982). The Court stated:

"We believe that this Court in People v. Laslo, 78 Mich.App. 257, 259 N.W.2d 448 (1977), first acknowledged the power recognized in Jones v. Oklahoma, 481 P.2d 169 (Okl. Cr. App. 1971), and many other jurisdictions, to curtail the state's right to repeatedly proceed against the individual in those limited instances when the repeated prosecution clearly constitutes harassment."

In George, the defendants were bound over for trial after a preliminary examination. Their subsequent motions to quash were granted. The prosecutor initiated an appeal but later asked that it be dismissed because it was not supported by the record. The prosecutor then recharged the defendants for the identical crimes alleged in the first complaint and warrant. At a hearing held on the defendants' motions to quash, the prosecution admitted it had no new evidence.

After holding that repeated prosecutions may be violative of due process rights where harassment is clearly indicated, the George Court concluded that the facts before it presented...