People v. Crawford

429 Mich. 151 (1987) 414 N.W.2d 360

PEOPLE
v.
CRAWFORD
PEOPLE
v.
HARRIS
PEOPLE
v.
WILLIAMS

Docket Nos. 76715, 78743, 78744, (Calendar Nos. 5-6).

Supreme Court of Michigan.

Argued March 3, 1987. Decided October 6, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Thomas C. Johnson, Assistant Attorney General, and Joseph P. Kwiatkowski, Prosecuting Attorney, for the people in Crawford.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people in Harris and Williams.

State Appellate Defender (by F. Michael Schuck) for defendant Crawford.

Barney R. Whitesman for defendants Harris and Williams.

Decided October 6, 1987. Rehearing denied in Crawford, post, 1213.

LEVIN, J.

A statute requires that the magistrate set a day for a preliminary examination not exceeding twelve days after the arraignment before him of a person charged with having committed a felony.^[1]

In People v Weston, 413 Mich 371, 372; 319 NW2d 537 (1982), this Court reviewed the statutory language and said that there was "no question in this case that the date set was more than 12 days after the defendant appeared in the district court," and ruled that "[t]he magistrate was therefore required to discharge the defendant without prejudice to the prosecutor's right to later initiate an action against him."

In these cases, consolidated on appeal, dates were set for the preliminary examinations exceeding twelve days after the dates on which the defendants were arraigned.

A

In Crawford, seven days after arraignment, the defendant posted a money bond and was released from jail.^[2] At the time set for the preliminary examination, twenty-seven days after the arraignment, Crawford moved to dismiss on the ground that the twelve-day rule was violated. The motion was denied, and Crawford was bound over. He renewed his motion to dismiss in the circuit court; the motion was denied. He was convicted at a bench trial of delivering a controlled substance.^[3] The Court of Appeals affirmed.

The people claim that Weston is distinguishable because the defendant in Weston was incarcerated at all times between the arraignment and the preliminary examination, while Crawford was incarcerated for only seven days, and thus was not incarcerated for more than twelve days after the arraignment.

B

In Harris and Williams, the defendants were incarcerated from the time of their arraignment through the date on which the preliminary examination was held.^[4] The preliminary examination was held twenty-two days after Harris and Williams were arraigned. Harris and Williams did not raise the twelve-day issue before their trial. They were convicted by a jury of breaking and entering a building.^[5] The Court of Appeals reversed on the basis of Weston.

The people claim that Weston is distinguishable because Harris and Williams did not move to dismiss for failure to comply with the twelve-day rule. In Weston, the defendant's lawyer stated at the beginning of the preliminary examination that the examination was originally scheduled for fourteen days after the arraignment, that the examination had been adjourned for an additional fourteen days, and that his client "would have preferred to proceed under the 12-day rule."

C

We agree with the people that the Weston remedy must be invoked by the defendant, if at all, before the trial. It would be disproportionate to dismiss the charge and discharge the defendant after trial and conviction because of a failure timely to hold the preliminary examination, where the defendant does not raise the issue before trial.

We hold that the Weston remedy of dismissal without prejudice may be invoked only by a defendant who raises the twelve-day issue before the preliminary examination is held, but that a defendant may raise the issue without regard to whether he was in custody throughout the twelve-day period between arraignment and the preliminary examination.

The issues whether the preliminary examination was timely held or the requisite record showing for delay was made, must be raised, if at all, no later than immediately before the commencement of the preliminary examination. These issues may be raised by oral motion at that time. If the defendant fails to raise these issues before the commencement of the preliminary examination, the Weston remedy of dismissal without prejudice may not be invoked.

To obtain appellate review, the defendant must, before the trial, timely file an application for leave to appeal from the denial of such a motion. If leave to appeal is denied by the Court of Appeals, a timely application may be filed with this Court. By requiring that the issue be raised by application for leave to appeal before the trial, the possibility of reversal after conviction on this basis should be avoided both where the defendant has been and where he has not been incarcerated between the arraignment and the preliminary examination.

D

Although Crawford duly raised the issue in the circuit court, a majority of the Court is of the opinion that Crawford's conviction should not on this basis be reversed, and the Court of Appeals is affirmed.

Because Harris and Williams did not move to dismiss, we reverse the Court of Appeals in Harris and Williams and remand to the Court of Appeals for consideration of the other issues the defendants raised on appeal that were not reached by the Court of Appeals.

I

The statute makes no distinction between defendants who are, and those who are not, in custody. It requires, without regard to whether the defendant is in custody, that a preliminary examination be held within twelve days of the arraignment.^[6] The statute further provides, again without regard to whether the defendant is in custody, that the preliminary examination may be adjourned, continued, or delayed by the magistrate only for "good cause shown."^[7]

Thus, where there is good cause for delay,^[8] the statute does not require that the examination be held within twelve days. It does require, however, that there be no delay in holding the examination beyond twelve days without good cause, and that a showing, and a finding by the magistrate of good cause, be made on the record.

While the Legislature might have provided a remedy, it is not uncommon for the Legislature to leave the task of devising a remedy to the judiciary. This Court provided a remedy in Weston. The Court considered the decisions of the Court of Appeals requiring the defendant to show prejudice and stated that "none of the cases provide a reasoned basis for the ``no prejudice/no reversible error' rule."^[9] The Court said that it was unable to apply the miscarriage of justice statute^[10] "in the face of an unqualified statutory command that the examination be held within 12 days."^[11] Weston's conviction was reversed, and he was ordered discharged without prejudice to the prosecutor's right to reinstate a prosecution against him.^[12]

II

It is argued that the statutory purpose is to require a preliminary examination within twelve days for the benefit of the presumptively innocent defendant where he is in custody. This statutory purpose is derived, not from language of the statute, but from language in Weston that speaks, in the second and third sentences of the following paragraph, of the importance of holding the preliminary examination where the defendant is in custody:

A preliminary examination functions, in part, as a screening device to insure that there is a basis for holding a defendant to face a criminal charge. A defendant against whom there is insufficient evidence to proceed should be cleared and released as soon as possible. The notion that a presumptively innocent defendant should remain in custody until a convenient time arrives for the magistrate to conduct the preliminary examination is exactly what the Legislature precluded in MCL 766.1; MSA 28.919.[^[13]]

Weston sought to implement and enforce the twelve-day rule, not to modify or vitiate it. The statute clearly requires that a preliminary examination be held within twelve days, without regard to whether the defendant is in custody, and it permits a delay only where the requisite showing has been made on the record. If the statutory purpose were limited to protecting defendants in custody from delay in holding the examination, then there could be unlimited delay when the defendant is not in custody.

Construing the statutory purpose as limited to protecting defendants in custody would be inconsistent with the clear statutory directive requiring a preliminary examination without regard to whether the defendant is in custody.^[14] If, as is clearly the case, the statute requires that a preliminary examination be held within twelve days without regard to whether the defendant is in custody, then it cannot properly be said that the statutory purpose is limited to protecting defendants who are in custody.

III

In sum:

(A) The preliminary examination shall be held, as required by the statute, within twelve days of the arraignment by the magistrate unless a delay beyond twelve days is supported by a showing, and a finding by the magistrate on the record no later than the twelfth day, of good cause for the delay;

(B) The issues whether the preliminary examination was timely held or the requisite record showing for delay was made must be raised, if at all, no later than immediately before the commencement of the preliminary examination; these issues may be raised by oral motion at that time;

(C) If the defendant fails to raise these issues before the commencement of the preliminary examination, the Weston remedy of dismissal without prejudice may not be invoked;

(D) A defendant who timely raises these issues before the commencement of the preliminary examination shall, if he wishes to challenge a denial of his motion, before the trial either file a timely application for leave to appeal with the circuit court or, within twenty days after the filing of the information in the circuit court, file a motion to dismiss in the circuit court;

(E) If relief is denied by the circuit court, a defendant who wishes to obtain further review shall file a timely application with the Court of Appeals, and, if relief is denied by the Court of Appeals, a further timely application with this Court.

We affirm the Court of Appeals in Crawford.

We reverse the Court of Appeals in Harris and Williams, and remand to the Court of Appeals for consideration of defendants' other issues.

BRICKLEY, CAVANAGH, and ARCHER, JJ., concurred with LEVIN, J.

RILEY, C.J. (concurring in part and dissenting in part).

I agree with the majority that issues regarding the scheduling of the preliminary examination must be raised no later than immediately before commencement of the examination in order to preserve appellate review. However, I disagree with the majority that People v Weston, 413 Mich 371; 319 NW2d 537 (1982), is applicable if the defendant is not incarcerated during the delay in holding the preliminary examination. Additionally, while I share the majority's concern about reversing otherwise valid convictions solely on the basis of a violation of the twelve-day rule, I cannot subscribe to the proposed "remedy" which will exacerbate rather than cure defects in the scheduling of preliminary examinations.

I

The twelve-day rule, contained in MCL 766.4; MSA 28.922 provides:

The magistrate before whom any person is brought on a charge of having committed a felony shall set a day for a preliminary examination not exceeding 12 days thereafter, at which time a magistrate shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the accused, in regard to the offense charged and in regard to any other matters connected with the charge which the magistrate considers pertinent.

Sometimes the twelve-day requirement may prove to be rather onerous for the defendant or the prosecution. The defendant may be experiencing difficulty securing retained counsel, or counsel may not have adequate time to prepare a strategy. Witnesses may refuse or be unavailable to testify. See People v Den Uyl, 320 Mich 477; 31 NW2d 699 (1948). Recognizing that in some situations there may be good reasons to exceed the time provision of MCL 766.4; MSA 28.922, and that, in fact, failure to do so could be detrimental to the ends of justice, the Legislature has provided that adjournments may be granted. MCL 766.7; MSA 28.925.

The function and importance of the preliminary examination have been discussed several times by this Court.^[1] However, the issue of the remedy for violation of the twelve-day rule was a question of first impression in Weston.^[2]

In Weston, the defendant was arrested on September 4, 1978, and arraigned on September 6, 1978. His preliminary examination was scheduled to take place fourteen days later, on September 20, 1978, but was adjourned until October 4, 1978.^[3] The examination was held on that day, at which time defense counsel raised the twelve-day issue. The defendant remained incarcerated during the entire delay.

At trial, a jury convicted the defendant of armed robbery. The Court of Appeals affirmed, rejecting the defendant's argument that the delay in holding his preliminary examination required reversal. We reversed the decision of the Court of Appeals. See Weston, supra, 376.

A preliminary examination functions, in part, as a screening device to insure that there is a basis for holding a defendant to face a criminal charge. A defendant against whom there is insufficient evidence to proceed should be cleared and released as soon as possible. The notion that a presumptively innocent defendant should remain in custody until a convenient time arrives for the magistrate to conduct the preliminary examination is exactly what the Legislature precluded in MCL 766.1; MSA 28.919.[^[4]]

In the instant case, Crawford, the defendant was not in custody during the period of delay. However, the majority argues that the statute does not distinguish between "defendants who are, and those who are not, in custody." Ante, p 158. Further, since the Legislature did not provide a remedy, the task was left to this Court. Ante, p 157. Thus, the majority determines that Weston is applicable even if the defendant is not incarcerated during the delay.

I agree with the majority that the statute makes no distinction between defendants in custody and those who are not. Defendants in either circumstance have the statutory right to a preliminary examination within twelve days of their arraignment. However, neither logic nor the statute dictates that the same remedy for the violation of the statute be applied to defendants who are not incarcerated as that which is applied to those who are.

To support the proposition that Weston applies to defendants not in custody, the majority cites language in Weston which characterized the twelve-day requirement as an "unqualified statutory command that the examination be held within 12 days." Ante, p 159. Initially, it must be noted that this language is somewhat imprecise. The "statutory command" that preliminary examinations be held within twelve days is not "unqualified." The Legislature has specifically provided that a magistrate may adjourn, continue, or delay a preliminary examination beyond the twelve-day period. MCL 766.7; MSA 28.925. Furthermore, to do so does not cause the magistrate to lose jurisdiction of the case. Id.

More importantly, the statutory command must be read in light of the violation Weston sought to remedy. As Weston makes clear, the purpose of the twelve-day rule is to prevent delay in assessing the evidence against the defendant. Violation of the statute was particularly egregious in Weston because the "presumptively innocent" defendant remained in custody during the delay. That factor tipped the balance in favor of reversal. However, where the defendant is not in custody during the delay in holding the preliminary examination the argument in favor of reversing a conviction on this basis is much less compelling.

It must be stressed that the only detriment suffered by Crawford was a delay in the holding of his preliminary examination. He did receive a preliminary examination, as well as a full and fair trial. No evidence or statements were obtained from him during the delay. Furthermore, no witnesses disappeared or changed their testimony because of the late preliminary examination. The only basis for reversing Crawford's conviction would be the fifteen days, during which he was free on bond, that the examination was delayed. Such a reversal would result in another examination and retrial, with the presentation of the same evidence as in the first trial. In other words, more delay to remedy previous delay.

Of course, defendant might be quite willing to compound the earlier delay with more of the same. The passage of time will undoubtedly dull the witnesses' memories. There is also the possibility that an over-burdened prosecutor may not elect to reinitiate charges. Thus, reversing a defendant's conviction could quite possibly result in complete exoneration. See United States v Mechanik, 475 US 66; 106 S Ct 938; 89 L Ed 2d 50 (1986).^[5]

It is difficult to conclude that the Legislature intended that validly convicted defendants should go free under these circumstances. The cost to society is too great in light of the fact that the "remedy" does not cure the defect. Furthermore, the fatuity of applying the Weston remedy is evidenced by the majority's refusal to do so in Crawford. Defendant timely raised the issue before his preliminary examination and again before trial. In each instance Crawford's motion was denied, the respective courts being of the opinion that Weston did not apply if the defendant was not incarcerated during the delay. The Court of Appeals affirmed that conclusion. The majority has determined that Weston does apply even if the defendant was not incarcerated during the delay. Thus, the majority opinion would logically require reversing Crawford's conviction. Yet, despite the fact that Crawford has properly preserved the issue for review,^[6] the majority affirms his conviction. Ante, pp 157-158. This is particularly mystifying because, other than the fact that Crawford was free on bond during the delay, this case is virtually indistinguishable from Weston. The majority fails to explain how this result provides defendant with a meaningful remedy to enforce the statutory directive. In any event, I would hold that the Weston remedy does not apply in cases where the defendant is not in custody during the delay.

II

The majority has instituted a new procedure, intended to eliminate the severe result of reversing otherwise valid convictions on the basis of twelve-day rule violations. While I agree with the majority that such a result is unduly harsh, I cannot concur in the announced procedure.

In the future, a defendant must raise the issue of a twelve-day rule violation immediately before the commencement of the preliminary examination. Failure to raise the issue waives appellate review of the question.

In the event that the magistrate agrees with the defendant, the motion to dismiss will be granted. Thus, the majority's procedure for appellate review is unnecessary in this circumstance.

In the event that the magistrate denies a defendant's motion, the preliminary examination assumedly will proceed.^[7] At the conclusion of the examination, the defendant will either be released or bound over on the charges.

If the defendant is released, there is no necessity of appellate review of the denial of the motion to dismiss. Thus, the only scenario in which the majority's review procedure is implicated is where the defendant raises the issue before the preliminary examination, the motion to dismiss is denied, and the evidence is found sufficient to bind the defendant over for trial.

Unfortunately, at this stage in the proceedings, there is simply no way to return to the defendant the benefit which would have accrued under the twelve-day rule. The purpose of the rule is to insure a prompt preliminary examination. Once the preliminary examination is held, any delay in the scheduling cannot be remedied. In a similar situation, the Mechanik Court noted:

[T]here is no simple way after the verdict to restore the defendant to the position in which he would have been had the indictment been dismissed before trial. He will already have suffered whatever inconvenience, expense, and opprobrium that a proper indictment may have spared him. In courtroom proceedings as elsewhere, "the moving finger writes; and, having writ, moves on." Thus reversal of a conviction after trial free from reversible error cannot restore to the defendant whatever benefit might have accrued to him from a trial on an indictment returned in conformity with [Federal Rule of Criminal Procedure] 6(d). [Mechanik, supra, 71.]

The same may just as accurately be said for dismissing the charges against a defendant, bound over in an error-free preliminary examination, for a twelve-day rule violation.

In addition to being ineffectual, the procedures instituted by the majority actually worsen the delay rather than remedy it. The majority provides:

To obtain appellate review, the defendant must, before the trial, timely file an application for leave to appeal from the denial of such a motion. If leave to appeal is denied by the Court of Appeals, a timely application may be filed with this Court. By requiring that the issue be raised by application for leave to appeal before the trial, the possibility of reversal after conviction on this basis should be avoided both where the defendant has been and where he has not been incarcerated between the arraignment and the preliminary examination. [Ante, 157.]

Even if these appeals are handled expeditiously and in a summary manner, it is clear that this appellate procedure will take many times the twelve-day period in which the statute requires the preliminary examination be held. Thus rather than remedying the delay sought to be prevented by the statute, the majority's procedure only adds further delay.

The majority does not make clear whether a defendant who properly preserves the issue by raising it before the preliminary examination and then pursuing the majority's interlocutory appellate procedure may raise the issue in an appeal by right following a conviction. Since Crawford properly preserved the issue, and the majority refuses to reverse his conviction, I assume the same will follow under this new procedure. If this is true, and I do not see how it logically cannot be, the consequence of denying the defendant's motion for interlocutory appeal will effectively result in a decision of the issue on its merits.

The remedy for delay is promptness rather than additional delay. In order to vindicate a defendant's right to a prompt preliminary examination, the time for a remedy is before the preliminary examination takes place. Therefore, if the preliminary examination has been delayed, the defendant should be required to move the court for a prompt examination. Barring good cause, MCL 766.7; MSA 28.925, the magistrate would be obliged to grant the motion. This would terminate the delay, without adding further delay as would result from dismissal and reinitiation of the charges. Thus, there would be no potential for "unlimited delay" which the majority fears would result from holding that the Weston remedy is inapplicable where the defendant is not incarcerated during the delay.

CONCLUSION

I concur with the majority in reversing the Court of Appeals decision in Harris and Williams. However, I would affirm the Court of Appeals decision in Crawford as the Weston remedy does not apply where the defendant is not incarcerated during the delay in holding the preliminary examination. Finally, I do not join the portion of the majority opinion announcing the new appellate procedure.

GRIFFIN, J., concurred with RILEY, C.J.

BOYLE, J. (concurring in part and dissenting in part).

I concur with Chief Justice RILEY'S result, but write separately to state that as the debate between the majority and minority indicates, the rule of People v Weston, 413 Mich 371; 319 NW2d 537 (1982), was ill conceived. Rather than seek to distinguish that holding, Weston should be overruled and its potential for mischief put to rest.

For one to clearly understand the issue here, it must be first stated: no justice of this Court is of the opinion that any defendant involved in these cases was given a trial in which any error occurred. We posit convictions of defendants at error-free trials where the prosecution proved guilt beyond a reasonable doubt.

The majority recognizes that it is "disproportionate to dismiss the charge and discharge the defendant after trial and conviction...." Ante, p 156. The majority seems to feel that this situation can be avoided and the statute can be enforced by imposing the new procedural requirements. If it is desirable to avoid the disproportionate effect of the Weston remedy, the majority proposal is seriously flawed.

The majority fails to explain what the result will be if the defendant takes all the procedural steps necessary to preserve the issue and relief is denied. The Chief Justice assumes that the denial of interlocutory appeal "will effectively result in a decision of the issue on its merits." Ante, p 171. I disagree. I assume that the majority opinion means that an interlocutory denial would not be a decision on the merits and that a defendant who had preserved the issue by complying with the interlocutory procedure will be allowed to secure Weston relief on appeal after conviction.

The majority states, "If the defendant fails to raise these issues before the commencement of the preliminary examination, the Weston remedy of dismissal without prejudice may not be invoked." Ante, p 157. The negative pregnant of this statement is that if the defendant does raise these issues before the commencement of the preliminary examination, the Weston remedy, that is, dismissal of a conviction without prejudice, may be invoked.

As the Chief Justice notes, the interlocutory appellate procedure will take many times the twelve-day period in which the statute requires the preliminary examination. If the Chief Justice is correct in assuming that interlocutory denial is a decision on the merits, a defendant who takes all pretrial steps will secure either a dismissal of the information or a denial which is a decision on the merits. In the case of a dismissal of the information, the entire process has been delayed for the appeals period. In the case of a denial which is treated as a decision on the merits, the trial has been delayed for the appeals period.

Assuming, as I do, that the majority opinion intends that interlocutory denial implies nothing regarding the Court's view of the merits, Great Lakes Realty Corp v Peters, 336 Mich 325; 57 NW2d 901 (1953), the interlocutory procedures here set forth have an even more mischievous result. If this assumption is correct, a defendant will have preserved the Weston remedy by invoking the interlocutory procedure with consequent delay and will then, after trial and conviction, be able to secure the Weston remedy on appeal, and the process will start again.

Under either approach, the majority has compounded the Weston problem by adding further delay. Either approach makes the purported solution to Weston worse than the problem Weston created.^[1]

Weston erred first in assuming that the remedy for a pretrial violation of MCL 766.7; MSA 28.925 should be reversal of a conviction. Both the state and the accused are entitled to a prompt examination under the statute. While a remedy for delay might be dismissal of the information if prejudice were shown,^[2] the most obvious remedy for a delay in examination is the holding of an examination. This is the logical inference to be drawn from the purpose of the statute, and it is supported by the provision of the statute which states: "An action on the part of the magistrate in adjourning or continuing any case, shall not cause the magistrate to lose jurisdiction of the case." MCL 766.7; MSA 28.925. Despite these words, Weston and the majority treat the statute as if the failure to timely hold the examination or to support the delay with adequate reasons is a jurisdictional defect requiring pretrial discharge of a defendant.

Secondly, Weston's assumption that the Legislature intended that its directive was to be enforced by reversal, despite the absence of prejudice, flies in the face of the Legislative directive that "[n]o judgment or verdict shall be set aside or reversed ... for error as to any matter of ... procedure, unless ... it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice." MCL 769.26; MSA 28.1096.

Since the Weston remedy of discharge without prejudice adds more delay to the process by permitting renewal of the prosecution, the Weston remedy is simply a waste of time and resources which can benefit a defendant only if the retrial falters for lack of witnesses, evidence, or prosecution interest. No legitimate interest is served by the Weston result. As the Chief Justice observes, the majority remedy not only suffers from the same fault, but actually builds even further delay into the process.

Other remedies for a violation of the statute exist. Where a probable cause determination has not been made, the Fourth Amendment requires a state to provide a prompt determination of probable cause by a judicial officer "as a condition for any significant pretrial restraint of liberty," Gerstein v Pugh, 420 US 103, 125; 95 S Ct 854; 43 L Ed 2d 54 (1975).

Moreover, whether defendants are incarcerated or not, this Court has recognized that prolonged delay in concluding examination will justify the pretrial issuance of process mandating the conclusion of the examination or the discharge of the defendant, People v Den Uyl, 320 Mich 477; 31 NW2d 699 (1948). The unexcused failure of the magistrate to perform a clear legal duty would also be an appropriate subject for a writ of superintending control, People v Flint Municipal Judge, 383 Mich 429, 432; 175 NW2d 750 (1970). Such a situation would of course be correctable through use of our administrative powers of superintending control. Jett v Recorder's Court Judge, 366 Mich 281; 114 NW2d 504 (1962). MCR 3.302.

Finally, the majority seems most troubled by the prospect that a magistrate might fail to fulfill the oath of office to uphold the laws of this state and that such a failure would not be corrected. Weston and the majority proceed from the incorrect assumption that all error must not only be capable of correction, but actually be corrected on appeal. In fact, even if it be posited that the magistrate erred in continuing an examination and that the circuit court, the Court of Appeals, and this Court all erroneously denied leave to appeal and affirmed the magistrate, the delay would warrant reversal, if delay had impaired the right to a fair trial, United States v Marion, 404 US 307; 92 S Ct 455; 30 L Ed 2d 468 (1971). If, however, the delay did not impair the defendant's right to a fair trial, it would not warrant reversal, even though the magistrate erred and the appeals courts failed to correct the error.

The Code of Criminal Procedure contains a number of provisions urging magistrates to certain forms of conduct: A magistrate shall not issue warrants for other than minor offenses without security for costs or initiation by the prosecution or other significant officials, MCL 764.1; MSA 28.860, a warrant shall be directed to a peace officer, MCL 764.16; MSA 28.875, the magistrate shall certify the recognizance for appearance, MCL 764.6; MSA 28.865, and the magistrate shall inform an alleged felon of his rights and give him an opportunity to speak, MCL 764.26, 765.6; MSA 28.885, 28.893. A violation of these statutory duties might be correctable prior to trial by one or more of the remedies suggested above, but it could not be legitimately posited that such a violation must be corrected by vacation of a trial verdict untainted by the error. If, for example, a magistrate failed to advise a defendant of his rights and the prosecution did not use evidence procured by reason of the statutory violation at the trial, an otherwise valid conviction would not be reversible, even if the defendant had sought pretrial relief and it had erroneously been denied.

I cannot accept the premise that the Legislature intended that the appropriate response to a delay in examination that does not cause prejudice to an accused should be the reversal and retrial of an error-free conviction. Nor can I accept the conclusion that where there is no miscarriage of justice, justice requires reversal of a conviction. I cannot accept such premises and conclusions because, apart from this Court's ill-conceived opinion in Weston, there is nothing in law to support them and much which refutes them. Nor is there wisdom in such a rule. The majority would impose the most severe systemic penalty, reversal of a conviction, for a one-day violation of a time requirement, despite the assumption that the judgment was validly obtained and error free. The Legislature did not intend that result, and nothing in the sound administration of justice supports it.

I would overrule Weston and affirm the judgment of the Court of Appeals in Crawford. In Harris and Williams, I would reverse the judgment of the Court of Appeals and remand the case for consideration of those issues not reached by the Court of Appeals.

GRIFFIN, J., concurred with BOYLE, J.

NOTES

[1] magistrate before whom any person is brought on a charge of having committed a felony shall set a day for a preliminary examination not exceeding 12 days thereafter, at which time a magistrate shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the accused, in regard to the offense charged and in regard to any other matters connected with the charge which the magistrate considers pertinent. [MCL 766.4; MSA 28.922.]

[2] Crawford was arraigned on September 9, 1982. He posted a money bond and was released from jail on September 16, 1982. Notice was mailed to Crawford on September 28, 1982, setting October 6, 1982, as the date of the preliminary examination. The examination was held on that date.

[3] MCL 333.7401(2)(b); MSA 14.15(7401)(2)(b).

[4] The Court of Appeals stated that the record showed that Harris made bond on the day of his arraignment, but was immediately or shortly thereafter arrested on another charge.

[5] MCL 750.110; MSA 28.305.

[6] See n 1.

[7] magistrate may adjourn a preliminary examination for a felony to a place in the county as the magistrate deems necessary. The accused may in the meantime be committed either to the county jail or to the custody of the officer by whom he was arrested or to any other officer; or, unless he is charged with treason or murder, he may be admitted to bail. An adjournment, continuance, or delay of a preliminary examination shall not be granted by a magistrate except for good cause shown. A magistrate shall not adjourn, continue, or delay the examination of any cause by the consent of the prosecution and accused unless in his discretion it shall clearly appear by a sufficient showing to the magistrate to be entered upon the record that the reasons for such consent are founded upon strict necessity and that the examination of the cause cannot then be had, or a manifest injustice will be done. An action on the part of the magistrate in adjourning or continuing any case, shall not cause the magistrate to lose jurisdiction of the case. [MCL 766.7; MSA 28.925.]

[8] Under some circumstances docket congestion may, in this instance of a twelve-day deadline for holding the examination, constitute good cause for delay.

[9] People v Weston, 413 Mich 371; 319 NW2d 537 (1982).

[10] MCL 769.26; MSA 28.1096.

[11] Weston, supra, p 376.

[12] The burden imposed on the prosecution, when the charges are dismissed without prejudice before the preliminary examination is held, is substantial and sufficient to encourage the magistrate timely to schedule and hold the preliminary examination or to establish a record with the requisite showing of good cause for delay required by the statute. The burden on the prosecution of dismissal without prejudice if the requisite showing is not made, while substantial, is not overwhelming. The charges can be refiled, the defendant rearrested, and a timely preliminary examination held.

[13] Weston, supra, p 376.

[14] it shall appear to the magistrate at the conclusion of the preliminary examination either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate at the conclusion of the preliminary examination that a felony has been committed and there is probable cause for charging the defendant therewith, the magistrate shall forthwith bind the defendant to appear before the circuit court of such county, or other court having jurisdiction of the cause, for trial. [MCL 766.13; MSA 28.931.]

[1] See, e.g., People v Johnson, 427 Mich 98, 103-110; 398 NW2d 219 (1986); People v Dunigan, 409 Mich 765; 298 NW2d 430 (1980); People v Duncan, 388 Mich 489; 201 NW2d 629 (1972); People v Charles D Walker, 385 Mich 565; 189 NW2d 234 (1971).

The United States Supreme Court has determined that a preliminary examination is not constitutionally required. Gerstein v Pugh, 420 US 103; 95 S Ct 854; 43 L Ed 2d 54 (1975). Defendants have a right to appointed counsel at the preliminary examination stage of proceedings. However, the violation of this right is subject to a harmless error analysis on appeal. Coleman v Alabama, 399 US 1; 90 S Ct 1999; 26 L Ed 2d 387 (1970); Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967).

An initial judicial determination of probable cause must be reached to constitutionally hold a defendant in custody. Gerstein, supra. The determination need not be reached in an adversarial proceeding. Id., 120. A valid arrest warrant satisfies this requirement. The arraignment of a defendant arrested without a warrant also fulfills this function. See People v Mallory, 421 Mich 229, 239; 365 NW2d 673 (1984). This initial determination of probable cause takes place before the preliminary examination. An appointed counsel is not required as this is not a "critical stage" in the prosecution. Gerstein, supra, 122.

All defendants were promptly arraigned. In addition, Crawford was arrested under a warrant. Thus, there is no question that any detainment of defendants comported with the constitution.

[2] The Court of Appeals had decided several cases presenting violations of the twelve-day rule. See cases cited in Weston, supra, 375, n 6.

[3] The record did not indicate the reason for the initial scheduling of the examination beyond the twelve-day period or for the adjournment.

[4] The Court in Crawford relied on this language.

[5] The defendants in Mechanik were found guilty of drug charges by a jury after a three-day trial. On appeal to the United States Supreme Court, they argued that defects in the indictment proceedings required reversal. Two law enforcement agents apparently had testified in tandem before the grand jury, arguably in violation of the Federal Rule of Criminal Procedure 6(d). The Supreme Court held that even if rule 6(d) had been violated, reversal was not required.

The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences.... The "[p]assage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible." ... Thus, while reversal "may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution," ... and thereby "cost society the right to punish admitted offenders." [Mechanik, supra, 72.]

[6] Of course, defendant cannot be faulted for failing to employ the majority's heretofore nonexistent interlocutory appeals procedure.

[7] Since the purpose of the new appellate procedure is to eliminate the potential for reversal of otherwise valid convictions, I assume that the defendant's trial will be delayed during the course of the appeals. No mention is made whether the preliminary examination will also be delayed. However, since the statute explicitly does not allow the preliminary examination to be delayed on the defendant's consent, it would be an anomalous result to allow defendant to force a delay by raising this issue. Therefore, I assume that the majority does not intend for the preliminary examination to be stayed upon the denial of defendant's motion to dismiss.

[1] I would respectfully suggest that a solution to the Weston problem must speak to this ambiguity for the benefit of the bench and bar.

[2] This Court's Committee on the Proposed Rules of Criminal Procedure has proposed that "[a] violation of this subrule is to be deemed harmless error unless the defendant demonstrates actual prejudice." Proposed Rule 6.107(B).