People v. Crawford

414 N.W.2d 360, 429 Mich. 151

• Court: Michigan Supreme Court
• Decided: October 6, 1987
• Docket: Docket Nos. 76715, 78743, 78744, (Calendar Nos. 5-6)
• Status: Published

Opinions

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 statute¹⁰ "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

n

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.

hi

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.

1 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. [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(7401X2Xb).

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 A 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

14 If 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.]