Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 3, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 116976
CHARLES M. DUNBAR,
Defendant-Appellee.
________________________________
PER CURIAM
Faced with an adverse ruling that would have required a
police officer to provide information that likely would have
allowed the accused to determine the identity of the
confidential informant in his case, the assistant prosecuting
attorney moved to dismiss during the preliminary examination.
At a second examination, a different judge ruled in the
prosecution’s favor on the disputed point and bound the
defendant over for trial. The circuit court dismissed this
criminal prosecution on the ground that the defendant was
denied due process of law. The Court of Appeals affirmed. We
reverse. MCR 7.302(F)(1).
I
A confidential informant told a Muskegon police officer
that the defendant possessed cocaine.1 Later that day, the
officer found the defendant walking along a local street. The
officer approached the defendant, telling him to remove his
hands from his pockets. At first, the defendant removed only
one hand. Told to remove his other hand, the defendant did
so, grasping plastic bags that later were found to contain
drugs. The defendant was arrested and charged with two drug
offenses.2
A visiting judge convened a preliminary examination,3 at
which the officer testified regarding the facts set forth
1
This case has not been tried. These introductory
facts, which we offer to explain the context of later rulings,
are taken from the preliminary examination transcripts.
2
The defendant is charged with possession of less than
50 grams of cocaine with intent to deliver, and with
possession of marijuana with intent to deliver. MCL
333.7401(2)(a)(iv), (d)(iii); MSA 14.15(7401)(2)(a)(iv),
(d)(iii). On the basis of a 1993 conviction for attempted
delivery of less than 50 grams, the prosecuting attorney also
gave notice that the defendant is subject to an enhanced
sentence. MCL 769.10; MSA 28.1082.
3
On the date initially set for examination, the
defendant asked for appointment of counsel, which led to an
adjournment. On the date to which the examination was
adjourned, the assigned judge was in another state. Thus, the
visiting judge presided.
2
above. On cross-examination, as defense counsel asked the
officer about the informant, the following occurred:
Q. . . . On this particular day, on January
27th, 1999, [the day the officer arrested
defendant] did you personally have contact with
this person [the confidential informant]?
A. Yes I did.
Q. And what time did the informant indicate
to you the information that he conveyed.
[Assistant Prosecutor]: Your Honor, I’d
object to that. Time isn’t relevant in this
matter. There is case law that protects the
confidentiality of a confidential informant by not
requiring the specifics of time and location to be
divulged. And, again, if, obviously, the Defendant
was charged with--
--with the actions that occurred
when the CI was present, then that would become
relevant, but that’s not the case at this point.
The Court: Well, I find the contrary to be
true. The proximity of the time that he was
informed that we have an alleged felon running
around here, I think, is important as to whether he
acted fortuitously and propitiously at the time.
[Assistant Prosecutor]: Your Honor, again,
I’d ask the Court to allow me to supply case law,
because, again, that could jeopardize . . .
The Court: Let’s just go. Let’s just
proceed.
[Defense Counsel]: Your Honor, I . . .
[Assistant Prosecutor]: Your Honor, the
People are moving to dismiss the case, then, your
Honor, if you’re going to force our hand on that.
We will move to dismiss.
The Court: I’m not forcing your hand on
anything.
[Assistant Prosecutor]: Maybe I misunderstood
the Court, then. Is the Court . . .
3
The Court: No. Im just saying there is a
matter--
--Does he have probable cause to make contact
with him--
--Proximity of time. That is an element.
[Assistant Prosecutor]: He’s indicated it was
that day, your Honor. I don’t think he has to get
to within the hour.
The Court: Well, he didn’t say that.[4] We
never got around to his answering that question.
[Assistant Prosecutor]: He did say on direct,
your Honor.
The Court: No. He never got around to
answering [defense counsel’s] question. [Defense
counsel] is interested in knowing, first, it was on
that day what time that day, “How long before you
made the arrest.” I think he has a right to know
that.
[Assistant Prosecutor]: I am going to move to
dismiss the case, your Honor. I am not going to
force this officer to do that.
The Court: Well . . .
[Assistant Prosecutor]: Again, in this
situation--
--I would ask the Court, your Honor, to
allow me to supply case law. This is a serious
felon. We’ve also got a situation where a
confidential informant could be jeopardized--
--their
safety. Individuals that are involved in drug
trade often, your Honor, will intimidate and even
physically injure confidential informants. I would
think it would be appropriate for the Court to at
least look at our case law. I think it supports
the position . . .
The Court: Well, why don’t you come prepared
with it.
[Defense Counsel]: Well, your Honor, I guess
in response, the Prosecutor . . .
4
This was in error, as the officer had testified that he
had spoken with the informant earlier in the day that he
arrested the defendant.
4
[Assistant Prosecutor]: Five minutes is all I
need, your Honor.
[Defense Counsel]: . . . the Prosecutor has
indicated that--
--and I think the Court is aware that
his particular information----and I don’t question
that there is case law that suggests that there are
limits on Defense’s ability to probe into who and
where and when and what a confidential informant
is. My problem is is that that is the sole basis
for the officer’s contact with Mr. Dunbar in this
case, and if the Prosecutor, as the Court has just
indicated, knowing that long ago, chooses not to
disclose, then he certainly is free to dismiss, and
we don’t object.
[Assistant Prosecutor]: Judge, I’m asking for
five minutes to supply the Court with the case law.
The Court: I’m not interested. Dismiss it,
then.
[Assistant Prosecutor]: Your Honor, the
People in this matter will move to dismiss.
The Court: All right. Dismiss it and start
it all over again.
Later that day, the prosecuting attorney issued a new
complaint and obtained a new warrant. Thirteen days later, a
second preliminary examination was conducted by a different
judge.5
5
It is not clear how the case came to the courtroom of
the second district judge. When the parties discussed the
matter, the second judge offered to transfer the case back to
the assigned judge. Defense counsel observed, however, that
the assigned judge had not presided at the first examination,
so the second examination would be conducted by a new judge in
either event (apparently there was no thought of bringing back
the visiting judge to hear this matter again). In response to
the offer to move the case back to the assigned judge, defense
counsel said, “If we’re going to get a new judge, hopefully it
shouldn’t matter which one.” Asked what he wanted to do,
defense counsel replied, “Let’s go.” The matter was then
heard by the second judge.
5
The second examination proceeded in nearly identical
fashion to the point where defense counsel6 again asked when
the officer had met with the confidential informant. When the
assistant prosecutor interposed the same objection, a similar
argument ensued.
The court eventually ruled that defense counsel could
inquire whether the conversation had occurred within the
preceding eight hours, but the court would not allow the
questioning to be more specific than that. At the conclusion
of the preliminary examination, the defendant was bound over
for trial.
In circuit court, the defendant filed a motion to
suppress and to quash. He argued that evidence taken at the
time of the arrest should be suppressed because there was
insufficient cause for the stop, that he should not have been
bound over for trial because there was insufficient admissible
evidence, and that the second examination, following the
dismissal during the first, was a denial of due process.
The circuit court granted the motion to quash, agreeing
that the defendant had been denied due process. The court’s
oral opinion is well summarized in its ensuing order:
6
At the second examination, the defendant was
represented by a partner of the lawyer who represented him at
the first. The assistant prosecuting attorney was also new.
Both lawyers, however, were familiar with what had occurred at
the first examination.
6
Defendant’s motion to quash the bindover is
granted for the reason that the defendant’s United
States Fourth [sic] Amendment right to due process
of law was violated when the prosecutor dismissed
the case during a preliminary examination and
immediately reauthorized the same complaint causing
the case to be assigned to a different judge. The
court finds that the prosecutor did so to avoid an
adverse ruling and did no further investigation.
Further the court finds the prosecutor presented
the same evidence at the second preliminary
examination, this time obtaining a favorable
result.
The court finds the prosecutor’s actions to be
inappropriate harassment or forum shopping pursuant
to People v George, 114 Mich App 204; 318 NW2d 666
(1982), lv den 414 Mich 931 (1982), and other,
later, cases noted in the transcript of the 8/4/99
hearing. Therefore the case is dismissed and the
defendant discharged.
The prosecuting attorney appealed, but the Court of
Appeals affirmed.7
In the wake of that affirmance, the prosecuting attorney
has applied to this Court for leave to appeal.
II
MCR 6.110 governs preliminary examinations. Subrule (F)
provides:
If, after considering the evidence, the court
determines that probable cause does not exist to
believe either that an offense has been committed
or that the defendant committed it, the court must
discharge the defendant without prejudice to the
prosecutor initiating a subsequent prosecution for
the same offense. Except as provided in MCR
7
Unpublished opinion per curiam, issued May 9, 2000
(Docket No. 221978).
7
8.111(C),[8] the subsequent preliminary examination
must be held before the same judicial officer and
the prosecutor must present additional evidence to
support the charge.
Plainly, MCR 6.110(F) is silent on the question whether
it is permissible to conduct a subsequent preliminary
examination where an initial examination has resulted in a
dismissal that occurs before the district court makes a
determination whether there is probable cause.9
In the present case, the Court of Appeals noted the
inapplicability of the rule, and then based its decision on
principles drawn from its own prior decisions:
In addition to the provisions of the court
rule, subjecting a defendant to repeated
preliminary examinations violates due process if
the prosecutor attempts to harass the defendant or
engage in judge-shopping. People v Robbins, 223
Mich App 355; 566 NW2d 49 (1997). Among the
factors to be considered in determining whether a
8
If a judge is disqualified or for other good
cause cannot undertake an assigned case, the chief
judge may reassign it to another judge by a written
order stating the reason. To the extent feasible,
the alternate judge should be selected by lot. The
chief judge shall file the order with the trial
court clerk and have the clerk notify the attorneys
of record. The chief judge may also designate a
judge to act temporarily until a case is reassigned
or during a temporary absence of a judge to whom a
case has been assigned. [MCR 8.111(C).]
9
Because the court rule does not address the situation
at hand, the dissent’s claim that we are undermining the court
rule by indirection is without merit. However, concomitant
with issuance of this opinion, we are opening an
administrative file to consider whether to revise MCR 6.110(F)
to include situations where a dismissal occurs during a
preliminary examination.
8
due process violation has occurred are the
reinstitution of charges without additional,
noncumulative evidence not introduced at the first
preliminary examination, the reinstitution of
charges to harass, and judge-shopping to obtain a
favorable ruling. People v Vargo, 139 Mich App
573, 578; 362 NW2d 840 (1984).
In Robbins, the first preliminary examination went
through to conclusion, with the magistrate ruling that the
evidence was insufficient for a bindover. Additional evidence
was presented at a second examination, and the defendant was
then bound over for trial. On appeal, the Court of Appeals
explained that MCR 6.110(F) allows a second preliminary
examination if “additional” evidence—which need not be newly
discovered—is presented at the second examination. The
Robbins panel added:
Our holding should not be construed to
encourage a prosecutor to subject a defendant to
repeated preliminary examinations. We reaffirm
this Court’s holding that subjecting a defendant to
repeated preliminary examinations violates due
process if the prosecutor attempts to harass the
defendant or engage in “judge-shopping.” People v
Stafford, 168 Mich App 247, 251; 423 NW2d 634
(1988);[10] People v Vargo, 139 Mich App 573, 578;
10
In Stafford, the defendant was charged with open murder
and bound over on a charge of involuntary manslaughter. The
prosecuting attorney moved the circuit court to remand the
case to district court for further examination. The motion
was granted and, after the second examination, the defendant
was bound over on a charge of second-degree murder. After a
jury found her guilty of manslaughter, she appealed. The
Court of Appeals found the remand erroneous and further held
that the evidence was insufficient for the second-degree
murder bindover. This Court agreed that it was error to bind
the defendant over on the second-degree murder charge, and
thus did not reach the question whether the remand had been
proper. People v Stafford, 434 Mich 125, 132; 450 NW2d 559
9
362 NW2d 840 (1984).[11] [223 Mich App 363.]
Stating its reliance on those principles, the instant
Court of Appeals panel reached the following conclusion
regarding the case before us today:
The circuit court did not clearly err in
finding that defendant’s due process rights were
violated in this case. Where the prosecutor did
not present any additional evidence, and did not
cite any legal authority for his argument, he
presented exactly the same case to two different
judges. The circuit court could reasonably
conclude that the prosecutor engaged in
impermissible judge-shopping. Id.; People v
George, 114 Mich App 204; 318 NW2d 666 (1982).[12]
(1990).
11
The magistrate in Vargo dismissed the charge after a
preliminary examination. The prosecutor issued a new
complaint and reinstituted the charge. Additional evidence
was presented at the second examination, which took place
before the same judge. The Court of Appeals found no denial
of due process, saying that, “[w]hile the new evidence could
have been introduced at the first preliminary examination, the
failure to do so was more a product of neglect than a
deliberate attempt to harass defendant.” 139 Mich App 578.
12
The opening paragraph of George summarizes the case:
When a trial judge has found no probable cause
to hold a defendant for trial and the prosecutor
has appealed that decision, may the prosecutor seek
to dismiss the appeal and bring new charges against
the defendant when he has discovered no new
evidence? We believe that, on the facts of this
case, this procedure violates a defendant’s right
to due process of law. 114 Mich App 206.
The Court of Appeals said in George that a second preliminary
examination was not double jeopardy, and did not violate
principles of res judicata or collateral estoppel. In finding
a due process violation, however, the Court of Appeals
observed that “these defendants were subjected to judge
shopping.” 114 Mich App 211.
10
III
The issue in this case is whether the circuit court erred
in quashing the information on the legal ground that
defendant’s due process rights were violated as a result of
prosecutorial misconduct. Thus, this case presents a
constitutional question which we review de novo. People v
Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998).
IV
The circuit court and the Court of Appeals have premised
their rulings on the assumption that the assistant prosecutor
was engaged in impermissible judge-shopping. A careful review
of the record, however, does not support that conclusion. The
assistant prosecutor’s stated intent was to avoid divulging
the identity of a confidential informant, lest the informant
come to harm. When the court overruled the prosecutor’s
objection, the prosecutor had no choice but to dismiss the
charges or to require the officer to provide information that
likely would allow the defendant to determine the identity of
the confidential informant. Absent evidence of pretext, or an
underlying contrary motive, nothing in the record suggests
that the dismissal was designed to accomplish anything other
than the prosecutor’s stated intent.
We note that the prosecutor did not immediately seek to
dismiss the case when the judge indicated that he thought
defense counsel was entitled to have the police officer
11
specifically indicate when he had spoken to the confidential
informant. Faced with this preliminary ruling, the assistant
prosecutor merely asked the court for a five-minute recess so
he could locate authority in support of his position. This
does not suggest that the assistant prosecutor intended to
engage in judge-shopping. Moreover, the reaction of the judge
to the assistant prosecutor’s statement that he would dismiss
if he could not have five minutes to locate the authority,
does not suggest that the judge believed the matter was being
set up for judge-shopping to occur. Indeed, the judge
specifically indicated that the prosecutor could dismiss the
case and “start it all over again.” Finally, as the circuit
judge recognized, there is no evidence that the assistant
prosecutor knew the identity of the second judge. Given the
fact that the visiting judge had visited with some regularity,
it was by no means certain that a dismissal would result in
the case being heard by a different judge.
Accordingly, there is no record evidence to support the
circuit court’s determination that the assistant prosecutor
sought a dismissal of the charges in hope of obtaining a more
favorable substantive result before a different judge. Nor is
there any reason to assume the assistant prosecutor, an
officer of the court, was not telling the truth when he
12
explained his reasons for the dismissal.13 Because the
assistant prosecutor’s apparent objective was to prevent the
disclosure of the confidential informant’s identity, the cases
relied on by the circuit court and Court of Appeals do not
support the decision to dismiss this prosecution. A
prosecutor who seeks dismissal, under circumstances such as
these, is simply not “judge-shopping.”14
13
All licensed attorneys in Michigan are subject to the
following provisions intended to ensure candor:
(1) this state’s licensure of attorneys, MCL 600.901; MSA
27A.901, provides that the members of the State Bar of
Michigan are officers of the courts of this state, and in
order to obtain a license to practice law one must prove to
the satisfaction of the Board of Law Examiners that one is “a
person of good moral character,” MCL 600.934(1); MSA
27A.934(1), which is defined to mean “the propensity on the
part of the person to serve the public in the licensed area in
a fair, honest, and open manner,” MCL 338.41; MSA 18.1208(1);
(2) the solemn oath, as prescribed by this Court pursuant
to MCL 600.913; MSA 27A.913, taken by a lawyer before a
Michigan judge upon admission to the bar, wherein the
applicant solemnly swears never to mislead the judge or jury
by any artifice or false statement of fact or law;
(3) MRPC 3.3, which provides that “[a] lawyer shall not
knowingly make a false statement of material fact or law to a
tribunal”; and
(4) MCR 9.103(A), which provides that a license to
practice law “is a continuing proclamation by the Supreme
Court that the holder is fit to be entrusted with professional
and judicial matters and to aid in the administration of
justice as an attorney and counselor and as an officer of the
court.”
Therefore, in the absence of evidence to the contrary, we
will accept a licensed attorney’s assertion to a court.
14
The dissent, believing defendant’s due process rights
were violated, would affirm a dismissal of all charges against
13
For these reasons, we reverse the judgments of the Court
of Appeals and the circuit court, and reinstate the bindover
decision of the district court. We remand this case to
circuit court for further proceedings, including a decision on
the defendant’s motion to suppress.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
defendant. We question that this remedy would be appropriate
even if we were persuaded that the assistant prosecutor had
engaged in judge-shopping. In such a situation, we likely
would remand to the Court of Appeals to determine whether the
proper remedy would be continuation of the original
examination before the original judge, rather than a dismissal
with prejudice, inasmuch as jeopardy had not attached.
14
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 116976
CHARLES M. DUNBAR,
Defendant-Appellee.
___________________________________
KELLY, J. (dissenting).
I would affirm the decisions of both the Court of Appeals
and the circuit court. The prosecution's initiation of a
second preliminary examination, without introducing new
evidence, violated defendant's due process right to a fair
proceeding.
A
The prosecution brings an issue of first impression to
this Court, although the Court of Appeals has addressed it
several times.1 The prosecution filed a criminal action
against defendant Dunbar a second time with no new evidence
after having obtained dismissal of an identical action during
the preliminary examination. When presented with a similar
factual situation, the Court of Appeals has held consistently
that it constitutes judge-shopping in violation of the
accused's right to due process.
Among the factors to be considered in
determining whether a due process violation has
occurred are the reinstitution of charges without
additional, noncumulative evidence not introduced
at the first preliminary examination, the
reinstitution of charges to harass and judge
shopping to obtain a favorable ruling.[2]
This case is factually similar to People v Walls, supra.
In Walls, the prosecution wished to present a mother's
testimony reciting statements that her three-year-old daughter
had made to her. Id. at 693. At the first preliminary
examination, the magistrate admitted the statements. However,
the circuit judge, after ruling the statements inadmissible,
granted defendant's motion to quash the testimony and remanded
the case to the magistrate. Id.
1
People v George, 114 Mich App 204; 318 NW2d 666
(1982); People v Walls, 117 Mich App 691; 324 NW2d 136 (1982);
People v Vargo, 139 Mich App 573; 362 NW2d 840 (1984); People
v Turmon, 128 Mich App 417; 340 NW2d 110 (1983); People v
Starlard, 153 Mich App 151; 395 NW2d 41 (1986); People v
Stafford, 168 Mich App 247; 423 NW2d 634 (1988).
2
Vargo, supra at 578, citing George, supra; Turmon,
supra; and Walls, supra.
2
A second preliminary examination was held. The
prosecution, apparently assessing that it would be unable to
gain admission of the mother's testimony, secured a dismissal
of the case. Id.
It then refiled the same charges against the defendant.
Id. at 694. A third preliminary examination was held, this
time before a different magistrate who, notwithstanding the
circuit judge's earlier ruling, admitted the hearsay
statements. Id. A second circuit judge found a violation of
due process. The Court of Appeals agreed:
A clearer case of judge shopping does not come
to mind. Rather than appeal the unfavorable
evidentiary ruling, a remedy available to the
prosecutor, MCL 770.12(1)(c); MSA 28.1109(1)(c)
[see 1977 PA 34], the prosecutor here requested
dismissal and started all over again. He thereby
freed the proceedings of the unfavorable ruling.
The issue of the tender-years exception to the
hearsay rule could be reargued before a different
judge with the chance that this new judge might be
persuaded by the prosecutor's argument. [Id. at
697.]
Similarly, the prosecution in the instant case dismissed
the case after the magistrate ruled against it on an
evidentiary matter. When the magistrate denied the prosecution
a recess to research case law supporting its position, it
moved to dismiss, and the motion was granted.
The prosecution immediately refiled the charges. At the
second preliminary examination, another prosecuting attorney
presented the same case and the same witness. Notably, he did
3
not come prepared with the case law his colleague needed
during the first preliminary examination. In fact, he
requested a short break during the proceedings to find the
case law. This time, however, the magistrate ruled in his
favor, admitting the testimony.
Like the prosecutor in Walls, the prosecutor in this case
"freed the proceedings of the unfavorable ruling," then
reargued it before a new judge. Walls, supra at 697. In
granting defendant Dunbar's motion to quash the bindover, the
circuit judge determined that "the prosecutor felt he couldn't
do any worse" than at the first preliminary examination and
"it was best to take his chances with . . . a different judge
. . . ." Also, the magistrate found it persuasive that the
prosecutor had not appeared with any new case law. "He was in
the exactly the same spot, uttering almost the same words" as
had the first prosecutor.
The prosecution asserts that it was motivated by a desire
to protect the identity of a confidential informant. Although
the end is laudable, without dispute, the prosecution was not
entitled to judge-shop to accomplish it.
If the prosecution assessed that dismissal of the case
was necessary to protect the confidential informant, then
refiling it was not a good option. If its concern was simply
that the evidentiary ruling was erroneous, it should have
4
taken an appeal from it. A fair reading of the record
supports the conclusion that what the prosecution hoped to do
in refiling was to convince a different judge to rule in its
favor.
B
I agree with the circuit court and the Court of Appeals
that MCR 6.110(F) does not apply directly to this case.3 It
states:
If, after considering the evidence, the court
determines that probable cause does not exist to
believe either that an offense has been committed
or that the defendant committed it, the court must
discharge the defendant without prejudice to the
prosecutor initiating a subsequent prosecution for
the same offense. Except as provided in MCR
8.111(C), the subsequent preliminary examination
must be held before the same judicial officer and
the prosecutor must present additional evidence to
support the charge.
In its decision here, the majority by indirection undermines
MCR 6.110(F). It invites a prosecutor who senses an imminent
unfavorable ruling at a preliminary examination to avoid the
requirements of MCR 6.110(F) merely by moving to dismiss.
Having obtained a dismissal, the prosecutor can then refile
the charges, draw a different judge, and present the same case
without introducing new evidence.
3
Unpublished opinion per curiam (Docket No. 221978), p
2.
5
Conclusion
The prosecution in this case engaged in judge-shopping,
violating defendant's due process rights. The circuit judge
properly granted defendant's motion to quash the bindover.
CAVANAGH , J., concurred with KELLY , J.
6