People v. Glass

O’ConnelL, J.

(dissenting). I respectfully dissent. Defendant was charged by information with conspiracy to deliver 650 grams or more of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i) and MCL 750.157a; MSA 28.354(1). Defendant filed a motion in the circuit court to dismiss the information, claiming racial discrimination in the selection and composition of the multicounty grand jury that indicted him. The trial court denied the motion to dismiss. I would affirm the decision of the trial court.

*475This case arises from an alleged delivery of cocaine in Eaton County. On January 13, 1995, this Court granted a petition to convene a multicounty grand jury pursuant to MCL 767.7b; MSA 28.947(2). In re Petition for Multicounty Citizens’ Grand Jury, unpublished order of the Court of Appeals (Docket No. 181751). Subsequently grand jurors from Clinton, Eaton, and Ingham Counties indicted defendant on a charge of conspiracy to deliver 650 grams or more of cocaine. On the strength of the indictment, an Eaton County magistrate issued a warrant for defendant’s arrest. Thereafter, defendant waived his preliminary examination and an Eaton County prosecutor filed a felony information charging defendant with conspiracy to deliver 650 grams or more of cocaine.

On appeal defendant contends that the trial court erred in refusing to quash the felony information, arguing that he established a prima facie case of racial discrimination under the Sixth and Fourteenth Amendments, US Const, Ams VI, XIV, and that therefore this Court must dismiss the charges.1 Without considering the merits of defendant’s claims,2 I con-*476elude that any alleged errors in the grand jury proceedings were harmless.

In Michigan, criminal charges may be filed by either information or indictment. MCR 6.112(B). Either mechanism provides the circuit court with jurisdiction over felony charges. Id. See also MCL 767.1; MSA 28.941. The only substantive difference between these two procedures is that an information is predicated on a signed complaint whereas an indictment results from grand jury deliberation. Whether allegations are set forth in a document entitled “complaint” or one entitled “indictment,” the process that follows is identical. In either case, the allegations are tested by a preliminary examination before charges may be filed in the circuit court. Once the defendant is bound over for trial, the information governs the charges and the document stating the original allegations becomes irrelevant. People v Lauer, 41 Mich App 4, 7; 199 NW2d 534 (1972). See also People v Hunt, 442 Mich 359, 363; 501 NW2d 151 (1993). The information is presumptively drafted with reference to the facts disclosed at the preliminary examination. Id., citing People v Kahler, 93 Mich 625, 627; 53 NW 826 (1892).

Where, as here, the defendant waives the preliminary examination, the information may charge the defendant with any offense alleged in the document initiating proceedings in the district court. See People v McDonald, 233 Mich 98, 101; 206 NW 516 (1925). Accordingly, that the allegations against defendant were initially set forth by an indictment instead of a complaint resulted in no deprivation of defendant’s rights.

In the present case, the prosecution proceeded under both charging mechanisms. However, in lieu of *477using the indictment, the prosecutor charged defendant by way of a sufficiently detailed felony information. See MCL 767.45; MSA 28.985. Thus, under Michigan’s system of charging by information or indictment, the valid information independently sustained the filing of charges against defendant in the Eaton Circuit Court. Because the information in the present case is valid, the alleged errors in the grand jury process did not undermine the circuit court’s jurisdiction. Accordingly, if the alleged errors occurred, they were nonetheless harmless. For these reasons, I would affirm the trial court’s decision to deny defendant’s motion to dismiss.

I agree with the majority that defendant has failed to establish a prima facie case of discrimination under either the Sixth or Fourteenth Amendments.

If I were to consider the substance of defendant’s claims, I would find them to be without merit. Defendant cannot maintain his equal protection claim because he has not alleged purposeful discrimination in this Court’s order of January 13, 1995, that instituted the multicounty grand jury or in the execution of that order. Harville v State Plumbing & Heating, Inc, 218 Mich App 302, 309; 553 NW2d 377 (1996). Defendant’s claim under the Sixth Amendment of disparate impact must also fail because, at best, defendant established only an isolated instance where African-Americans were substantially underrepresented on a grand jury. People v Hubbard (After Remand), 217 Mich App 459, 481; 552 NW2d 493 (1996). Defendant has produced no evidence establishing that the selection process has systematically resulted in statistically significant underrepresentations in other similar multicounty grand juries.