PEOPLE
v.
HATT
No. 21 October Term 1970, Docket No. 52,258-1/2.
Supreme Court of Michigan.
Decided December 30, 1970.*304 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.
Gary W. Brasseur, for defendant.
ADAMS, J.
I
FACTS AND PROCEEDINGS
A warrant issued March 19, 1962, charging defendant with the offense of breaking and entering in the nighttime and continued in these words: "And the said offense hereinbefore charged is hereby charged as a second offense felony for that the said Ronald C. Hatt was heretofore, on to-wit: the 11th day of October, 1954, at the City of Flint, County of Genesee, and State of Michigan, in the Circuit Court for the County of Genesee before the Honorable Paul V. Gadola, Circuit Judge, duly convicted of the crime of Breaking and Entering in the Nighttime, * * *."
Preliminary examination was held before a magistrate on March 28, 1962. Defendant, without benefit of counsel, waived proof of the prior offense and was bound over to circuit court. The information filed in circuit court charged that Ronald C. Hatt on February 23, 1961, committed the offense of a breaking and entering in the nighttime and that the said offense was a second offense.
*305 Counsel was appointed for defendant by the circuit court prior to arraignment. No motion was made before trial to separate the offenses charged in the information, nor was objection made thereto. No motion was made to remand for a new preliminary examination. Defendant stood mute at arraignment. A plea of not guilty was entered for him. He was tried and convicted by a jury on the information as originally filed.
During the trial, a deputy county clerk was called by the assistant prosecutor to identify the record of a previous conviction of defendant in 1954 of the crime of breaking and entering in the nighttime. Defendant took the stand and admitted committing the prior offense.
Defendant was sentenced on November 5, 1962, for a term of 7-1/2 to 22-1/2 years. On that date, the offense of breaking and entering a building in the nighttime with intent to commit a felony or larceny was punishable by imprisonment for not more than 15 years. CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305). Punishment upon a second conviction for commission of a felony within this state was related to the nature of the second offense, the statute providing: "If the subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person may be placed on probation or sentenced to imprisonment for a term not more than 1-1/2 times the longest term prescribed for a first conviction of such offense or for any lesser term in the discretion of the court; * * *." CL 1948, § 769.10, as amended by PA 1949, No 56 (Stat Ann 1954 Rev § 28.1082).
Defendant filed application for leave to appeal in this Court on August 12, 1964. The appeal was dismissed *306 without prejudice. Defendant filed a motion in circuit court for a new trial. It was denied on April 25, 1966. Application for delayed appeal was denied by the Court of Appeals on December 22, 1966. On September 16, 1968, a delayed application in propria persona for leave to appeal and for counsel was filed in the Court of Appeals. It was denied on November 29, 1968, for lack of merit. We granted leave to appeal. 381 Mich. 817.
II
IS DEFENDANT ENTITLED TO REVERSAL OF HIS CONVICTION BECAUSE HE WAS NOT REPRESENTED BY COUNSEL AT HIS PRELIMINARY EXAMINATION?
Defendant contends that the preliminary examination is a critical stage of a criminal proceeding and that, on the authority of Hamilton v. Alabama (1961), 368 U.S. 52 (82 S. Ct. 157, 7 L. Ed. 2d 114), White v. Maryland (1963), 373 U.S. 59 (83 S. Ct. 1050, 10 L. Ed. 2d 193), and Coleman v. Alabama (1970), 399 U.S. 1 (90 S. Ct. 1999, 26 L. Ed. 2d 387), he is entitled to a reversal of his conviction.
The preliminary examination in Michigan serves the limited purpose of a factual presentation from which the magistrate determines whether the stated crime has been committed and if it is reasonable to believe the accused committed it. People v. McLean (1925), 230 Mich. 423; People v. Zaleski (1965), 375 Mich. 71, 81, 82. Accordingly, it is improper at the preliminary examination to offer proof, as was done in this case, of convictions based on prior offenses since, under Michigan's habitual criminal act, the accused is not charged with the commission of a crime. The only purpose of that act is to impose a longer sentence because of the apparent persistence by the defendant in the commission of acts of a criminal *307 nature. People v. Palm (1929), 245 Mich. 396. Under that act, it is the previous convictions that are controlling. People v. Funk (1948), 321 Mich. 617.
Defendant did not have the benefit of counsel at his preliminary examination. Any disclosure by defendant at the preliminary examination without the benefit of counsel may not be used against him if he is later tried. White v. Maryland (1963), 373 U.S. 59 (83 S. Ct. 1050, 10 L. Ed. 2d 193), and Pointer v. Texas (1965), 380 U.S. 400 (85 S. Ct. 1065, 13 L. Ed. 2d 923).
Since we reverse defendant's conviction for reasons which will hereafter appear, we do not decide if the preliminary examination is a critical stage in Michigan criminal procedure.
III
WAS IT A PREJUDICIAL ERROR TO PERMIT THE JURY TO DECIDE THE ISSUE OF DEFENDANT'S GUILT ON THE CURRENT OFFENSE IN A UNITARY TRIAL ALONG WITH HIS GUILT AS A SECOND FELONY OFFENDER BASED ON AN ALLEGED PRIOR CONVICTION?
As a general rule, in the trial of a criminal case, no reference may be made to the fact that defendant has committed other offenses. In the early case of Lightfoot v. The People (1868), 16 Mich. 507, Justice CAMPBELL said (p 511):
"There was no connection between the two crimes, and proving one had no tendency to prove the other. It is very manifest that the admission of such testimony must prejudice the jury strongly against the prisoner while he can not be expected to have made any preparation to meet such irrelevant charges."
In People v. Judge of Recorder's Court (1930), 251 Mich. 626, we said:
*308 "Prior to the criminal code, Act No. 175, Pub. Acts 1927, there was no provision in the law for an independent trial to determine the fact of a prior conviction. It was tried out in the trial for the subsequent offense. It was necessary to charge it in the complaint and warrant and prove it on the examination and trial unless examination was waived. Otherwise the court was without jurisdiction to consider it in imposing sentence. But section 13, chapter 9, of the code, authorizes an independent trial of that question on the filing of a supplemental information after conviction and sentence for the subsequent offense. It makes no provision for a preliminary examination or for other proceedings applicable to the trial of one charged with crime. It merely provides a procedure after conviction for the determination of a fact which the court is required to consider in imposing sentence. The purpose of an examination is to determine if a crime has been committed and if there is probable cause for believing the accused party committed it. If no crime is charged, an examination is not required. In People v. Palm [1929], 245 Mich. 396, it was held that a supplemental information, filed after conviction, alleging a prior conviction, does not charge any crime."
The practice of charging other offenses in a single information in accordance with statute has been approved by this Court. In re Brazel (1940), 293 Mich. 632. However, in People v. Smith (1941), 296 Mich. 176, this Court acknowledged that there was "some justification for the claim that reading to the jury the allegations of the information charging previous convictions might poison the minds of the jury at the outset of the trial."
In the case of People v. Burd (1965), 1 Mich. App. 178, a panel of the Court of Appeals held that, upon proper motion being made, an "information should be amended so as to insure that it will not place before *309 the jury the accused's past criminal record prior to the jury's finding of guilt or innocence on the charge of escaping prison."
In People v. Cairns (1966), 4 Mich. App. 633, that Court was again presented with the question and stated (p 644):
"It appears to this court that the better procedure to follow in such cases in the future would be to proceed after conviction as CLS 1961, § 769.13 (Stat Ann 1954 Rev § 28.1085) clearly provides and by filing a separate information charging the previous convictions." (Emphasis by Court.)
Finally, in People v. Stratton (1968), 13 Mich. App. 350, Judge LEVIN carefully analyzed the procedures to be followed by a prosecutor (1) where it appears to him before conviction of the current charge that the accused was a prior felon and (2) where such information does not come to the attention of the prosecutor until after conviction of the current charge.
In this case, the prosecuting attorney for Genesee County, with commendable candor, has stated in his brief:
"It may well be that the procedure suggested in People v. Burd, and People v. Stratton, supra, as well as MSA 28.1085 is the better means of determining and punishing a second offender. Most assuredly it has the effect of eliminating possible prejudice created by an allegation of previous convictions coupled with an allegation of the commission of a current offense."
The constitutional prohibition against self-incrimination will not permit a man's past record of offenses to be used in such a manner as to imply guilt of the offense charged or to unfairly prejudice the jury against him. The procedures for dealing with a recidivistic charge, as delineated by Judge LEVIN in People v. Stratton, are approved.
*310 This cause is remanded for new trial in accordance with this opinion.
T.E. BRENNAN, C.J., and T.M. KAVANAGH, and T.G. KAVANAGH, JJ., concurred with ADAMS, J.
BLACK, J. concurred in remand for new trial only.
DETHMERS and KELLY, JJ., did not sit in this case.