People v. Dunbar - Case Law

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).

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.

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 . . .

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.

[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.

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:

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.

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.

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

Unpublished opinion per curiam, issued May 9, 2000

(Docket No. 221978).

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

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.

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

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.

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).

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

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

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

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.

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.

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.

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).

Vargo, supra at 578, citing George, supra; Turmon,

supra; and Walls, supra.

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

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

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.

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.

Unpublished opinion per curiam (Docket No. 221978), p

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.