People v. Hall

460 N.W.2d 520, 435 Mich. 599

• Court: Michigan Supreme Court
• Decided: September 11, 1990
• Docket: 85050, (Calendar No. 11)
• Status: Published

Opinions

Griffin, J.

Defendant was bound over for trial to face felony charges on the basis of hearsay testimony erroneously admitted at the preliminary examination. Although it appears that the ensuing trial was fair and error free, the Court of Appeals determined that this error compelled automatic reversal of defendant’s conviction. We disagree. Concluding that a harmless error analysis is applicable,¹ we hold that such an evidentiary deficiency at the preliminary examination is not ground for vacating a subsequent conviction where the defendant received a fair trial and was not otherwise prejudiced by the error.

i

Following a preliminary examination, defendant was bound over on charges of delivery and conspiracy to deliver cocaine upon the basis of hearsay statements made to police by two alleged coconspirators.² Defendant made timely objection to admission of the hearsay evidence. Subsequently, the coconspirators pleaded guilty and then testified at the trial of defendant, who was convicted of the conspiracy to deliver charge. On appeal, the prosecutor conceded that the hearsay statements at the preliminary examination were not admissible under MRE 801(d)(2)(E).³ The Court of Appeals reversed the conviction on the authority of People v Walker, 385 Mich 565; 189 NW2d 234 (1971).⁴

In Walker, the defendant’s car was stopped, and the car and his person were searched by police officers on the basis of a "tip” they received from an informant. The defendant was arrested and subsequently convicted of unlawful possession of narcotics. On appeal, the defendant complained that at the preliminary examination probable cause for the search and seizure of the defendant’s person and automobile had not been established. Motions to quash the information, made by the defendant at the preliminary examination and again prior to trial, were denied. Subsequently, at a preliminary stage of the trial, testimony by a police officer clearly established that in fact there had been probable cause. Nevertheless, the Walker Court set aside the conviction, and stated:

From both the Michigan and Federal cases, it is clear that while police officers may proceed upon the basis of information received from an informer and need not disclose the identity of the informer, in order to establish probable cause there must be a showing that the information was something more than a mere suspicion, a tip, or anonymous telephone call, and that it came from a source upon which the officers had a right to rely. This is the showing which should have been made at the preliminary examination in this case, but was not. Unless we require such a showing, the preliminary examination becomes meaningless, and a defendant is forced to stand trial in violation of a proper determination from legally admissible evidence at the preliminary examination stage that a crime has been committed and that there is probable cause to believe he is guilty of it. [Id., pp 575-576. Emphasis in original. See also People v White, 276 Mich 29, 31; 267 NW 777 (1936); People v Kennedy, 384 Mich 339; 183 NW2d 297 (1971).]

In this appeal we are urged to reconsider Walker and to hold that error at the preliminary examination stage should be examined under a harmless error analysis. We agree and hold that the evidentiary error committed at the preliminary examination stage of this case does not require automatic reversal of the subsequent conviction absent a showing that defendant was prejudiced at trial.

ii

Initially, it should be recognized that the preliminary examination is not a procedure that is constitutionally based. While it has been determined that a judicial determination of probable cause is a prerequisite to extended restraint of liberty following arrest, the federal constitution does not require that an adversary hearing, such as a preliminary examination, be held prior to prosecution by information. Gerstein v Pugh, 420 US 103; 95 S Ct 854; 43 L Ed 2d 54 (1975). "In Michigan, the preliminary examination is solely a creation of the Legislature — it is a statutory right.”⁵ People v Johnson, 427 Mich 98, 103; 398 NW2d 219 (1986) (opinion of Boyle, J.). See also People v Dunigan, 409 Mich 765, 770; 298 NW2d 430 (1980); People v Duncan, 388 Mich 489, 495; 201 NW2d 629 (1972).

The Legislature, which created the preliminary examination procedure, has also mandated by statute that a conviction shall not be reversed where error is harmless:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. [MCL 769.26; MSA 28.1096. Emphasis added.]

MCL 769.26; MSA 28.1096 parallels FR Crim P 52(a), which provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Although the United States Supreme Court has held that certain constitutional violations do require automatic reversal, see, e.g., Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (denial of counsel at trial), "[I]t is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations . . . .” United States v Hasting, 461 US 499, 509; 103 S Ct 1974; 76 L Ed 2d 96 (1983). See also People v Johnson, supra, p 103, n 1.

Under the federal system, it is well established that a defendant’s conviction will not be set aside even though only hearsay evidence was presented to the grand jury which indicted him, Costello v United States, 350 US 359, 362; 76 S Ct 406; 100 L Ed 397 (1956),⁶ or for other evidentiary errors at the indictment stage, Holt v United States, 218 US 245, 247; 31 S Ct 2; 54 L Ed 1021 (1910). See also United States v Blue, 384 US 251; 86 S Ct 1416; 16 L Ed 2d 510 (1966) (the fact that the grand jury was presented with self-incriminating evidence obtained from the defendant in violation of the Fifth Amendment does not bar prosecution).

In its review of Florida court proceedings against a criminal defendant charged under Florida law, the United States Supreme Court made clear that while a defendant presently detained may challenge the probable cause for his confinement, once he has been tried and convicted, there is no requirement under the federal constitution that the conviction be vacated because the defendant was detained pending trial without a determination of probable cause. The Gerstein Court explained:

In holding that the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v Washington, 369 US 541, 545 [82 S Ct 955; 8 L Ed 2d 98] (1962); Lem Woon v Oregon, 229 US 586 [33 S Ct 783; 57 L Ed 1340] (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v Collins, 342 US 519 [72 S Ct 509; 96 L Ed 541] (1952); Ker v Illinois, 119 US 436 [7 S Ct 225; 30 L Ed 421] (1886). Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. [Pugh v Rainwater, 483 F2d 778, 786-787 (CA 5, 1973).] [Id., pp 118-119. Emphasis added.]

See also Murphy v Beto, 416 F2d 98 (CA 5, 1969); McCoy v Wainwright, 396 F2d 818 (CA 5, 1968); Scarbrough v Dutton, 393 F2d 6 (CA 5, 1968); cf. Hamilton v Alabama, 368 US 52; 82 S Ct 157; 7 L Ed 2d 114 (1961).

The Supreme Court has recognized the viability of the harmless error principle even where fundamental constitutional rights of a defendant are involved at the preliminary examination. In Coleman v Alabama, 399 US 1, 9; 90 S Ct 1999; 26 L Ed 2d 387 (1970), the Court held that because the preliminary hearing prior to indictment is a " 'critical stage’ ” in the course of prosecution under Alabama law, the Sixth Amendment right to counsel attaches. However, instead of reversing the defendant’s conviction, after finding that the right to counsel had been unconstitutionally denied, the Court remanded the case to the state courts for a determination of whether denial of counsel at the preliminary hearing was harmless error.

More recently, the Supreme Court reaffirmed its commitment to the harmless error doctrine in a context that is close to this case. In United States v Mechanik, 475 US 66; 106 S Ct 938; 89 L Ed 2d 50 (1986), two government agents appeared together and testified in sequence before a federal grand jury in violation of F R Crim P 6(d), which states that only "the witness under examination” may be present. The United States Court of Appeals for the Fourth Circuit ruled that transgression of Rule 6(d) required automatic reversal of the defendant’s subsequent conviction which came at the conclusion of a five-month jury trial. However, the Supreme Court reversed, and Chief Justice Rehnquist, writing for a majority, explained:

The Rule [6(d)] protects against the danger that a defendant will be required to defend against a charge for which there is no probable cause to believe him guilty . . . [b]ut the petit jury’s subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.

It might be argued in some literal sense that because the Rule was designed to protect against an erroneous charging decision by the grand jury, the indictment should not be compared to the evidence produced by the Government at trial, but to the evidence produced before the grand jury. But even if this argument were accepted, there 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.” [475 US 70-71. Emphasis deleted.]

The Court noted:

No long line of precedent requires the setting aside of a conviction based on a rule violation in the antecedent grand jury proceedings .... See, e.g., Gerstein v Pugh, 420 US 103, 119-123 (1975); Coleman v Alabama, 399 US 1, 10-11 (1970); Chapman v California, 386 US 18 [87 S Ct 824; 17 L Ed 2d 705] (1967). [Id., p 71, n 1.]

Importantly, the Court found that the error in Meehanik was harmless when measured by a standard which requires a showing that the error prejudicially affected the outcome of the trial. Id., p 72.

Subsequently, in Bank of Nova Scotia v United States, 487 US 250; 108 S Ct 2369; 101 L Ed 2d 228 (1988), the Supreme Court dealt with a trial court’s authority to dismiss an indictment prior to trial on the basis of the cumulative effect of several acts of prosecutorial misconduct in the grand jury proceeding. By a vote of eight to one, the Court found the harmless error principle to be applicable. Pointing to Mechanik, supra, the Court said:

In United States v Mechanik, 475 US 66 (1986), we held that there is "no reason not to apply [Rule 52(a)] to 'errors, defects, irregularities, or variances,’ occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself.” Id. at 71-72. In United States v Hasting, 461 US 506, we held that "[supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error.” We stated that deterrence is an inappropriate basis for reversal where "means more narrowly tailored to deter objectionable prosecutorial conduct are available.” Aid. We also recognized that where the error is harmless, concerns about the "integrity of the [judicial] process” will carry less weight, ibid., and that a court may not disregard the doctrine of harmless error simply "in order to chastise what the court view[s] as prosecutorial overreaching.” Id. at 507. Unlike the present cases, see infra at 258-259, Hasting involved constitutional error. It would be inappropriate to devise a rule permitting federal courts to deal more sternly with nonconstitutional harmless errors than with constitutional errors that are likewise harmless. [487 US 255-256.⁷ Emphasis added.]

As Mechanik made clear, if the federal standard were to be applied in this case, the nonconstitutional error assigned by defendant would not be ground for reversal in the absence of a showing that the error prejudiced the outcome of his subsequent trial. Id., p 72.⁸

State courts have also addressed the question before us and have concluded that errors in the preliminary examination proceedings do not require reversal per se on an appeal from a subsequent trial. For example, the California Supreme Court has held that reversal of a conviction is not required unless the defendant shows that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. People v Pompa-Ortiz, 27 Cal 3d 519; 612 P2d 941 (1980). In so holding, the Pompa-Ortiz court expressly overruled precedent (People v Elliot, 54 Cal 2d 498; 354 P2d 225 [1960]) in which it had earlier ruled that preliminary examination errors required reversal per se.⁹ See also People v Lofink, 206 Cal App 3d 161, 169-170; 253 Cal Rptr 384 (1988); People v Moore, 185 Cal App 3d 1005, 1017-1018; 230 Cal Rptr 237 (1986); People v Oyaas, 173 Cal App 3d 663, 670-671; 219 Cal Rptr 243 (1985). The California Supreme Court, sitting en banc, has explained its Pompa-Ortiz rule by pointing to art VI, § 13, of the California Constitution which mandates that "a judgment shall not be set aside for error not resulting in a miscarriage of justice.” People v Crandell, 46 Cal 3d 833, 856; 760 P2d 423 (1988). See also People v Alcala, 36 Cal 3d 604; 685 P2d 1126 (1984).

The issue at hand has also been addressed by the Colorado Supreme Court. In People v Alexander, 663 P2d 1024, 1025-1026, n 2 (Colo, 1983), it said:

The defendant . . . argues that the trial court erred in finding probable cause at the preliminary hearing. Absent unusual circumstances not present here, however, any issue as to the presence of probable cause is rendered moot by the jury’s guilty verdict.

“Resolution of these questions must be made prior to trial in order to avoid the anomalous situation where a defendant may be found guilty at trial, and then attempt to have the conviction reversed for a preliminary hearing on probable cause. The illogic of this anomaly is further exemplified by the observation of Judge McGowan, writing for the District of Columbia Circuit Court of Appeals, when he states:

" 'Where, as here, the accused has been found guilty of those charges in a full-scale trial that we have otherwise found to be free of error, the chances that he could persuade a magistrate that no probable cause exists for his continued detention are perhaps not ungenerously to be characterized as speculative. Blue v United States [119 US App DC 315] 342 F2d 894 (1964) [cert den 380 US 944; 85 S Ct 1029; 13 L Ed 2d 964 (1965)’].” Kuypers v District Court, 188 Colo 332, 335; 534 P2d 1204, 1206 (1975).

Accord People v Horrocks, 190 Colo 501; 549 P2d 400 (1976). We consider the probable cause issue to be moot, and we accordingly do not discuss it further. [See also Commonwealth v Troop, 391 Pa Super 613; 571 A2d 1084 (1990); State v West, 223 Neb 241; 388 NW2d 823 (1986); State v Navarrete, 221 Neb 171; 376 NW2d 8 (1985); State v Tomrdle, 214 Neb 580; 335 NW2d 279 (1983); State v Franklin, 194 Neb 630; 234 NW2d 610 (1975); State v Mitchell, 104 Idaho 493; 660 P2d 1336 (1983), cert den 461 US 934 (1983); Commonwealth v McCullough, 501 Pa 423; 461 A2d 1229 (1983).]

We agree with the United States Supreme Court and with state courts which have held that automatic reversal is not warranted in the present circumstances. Like the California Constitution and FR Crim P 52(a), MCL 769.26; MSA 28.1096 clearly mandates that a conviction shall not be reversed for harmless error. Except for this Court’s decision in Walker, we find no impediment to the application of that principle in this case.¹⁰ It is significant that the question of possible application of the harmless error standard was not decided or even discussed in Walker. If, and to the extent that, the Walker decision by this Court can be read as rejecting the applicability of the harmless error doctrine in circumstances such as are presented by this case, it is overruled.

In this appeal it is contended that a harmless error analysis would be inconsistent with recently adopted revisions of the Michigan Court Rules which were based upon recommendations by a committee appointed by this Court. Among its recommendations, the committee proposed MCR 6.107(G), which would have incorporated the harmless error principle into postconviction review of preliminary examination errors. The proposed rule read:

Motions to Dismiss; Harmless Error on Appeal. If, on proper motion, the circuit court finds a violation of subrule (C), (D), (E), or (F), it shall either dismiss the information or remand the case to the district court for further proceedings. Absent a showing of prejudice, a court may not reverse an otherwise valid conviction because of either a violation of these subrules or an error in . failing to dismiss an information for violation of these subrules. [422A Mich 28 (1985). Emphasis supplied.]

It is true that the rule as finally adopted and renumbered by this Court, MCR 6.110(H), does not contain the words emphasized above. However, deletion of this language need not be read as a rejection by this Court of a harmless error analysis in the present situation. Rather, as staff comments which accompanied MCR 6.110(H) explain:

Subrule (H) is consistent with current practice. This subrule does not address, and leaves to case law, what effect a violation of these rules or an error in ruling on a motion filed in the trial court may have when raised following conviction. [Mich Ct R, p R 6.1-9.]

In other words, as adopted, MCR 6.110(H) was designed merely to reflect the then-existing state of the law. Of course, the new rule could not, and was not intended to, preclude this Court from reexamining the rule in Walker.

In our view, this Court can no longer ignore the applicability of MCL 769.26; MSA 28.1096 to facts such as those presented in this case. Since we consider ourselves bound by the legislation which established the preliminary examination procedure, it is reasonable and logical to also consider the Legislature’s harmless error mandate which has direct application to the "admission or rejection of evidence.” This case involves exactly such a situation.

Moreover, the instant case provides insight concerning the exacting toll of an automatic reversal rule. When the two coconspirators testified at defendant’s trial, and thus were subject to cross-examination, the hearsay issue was mooted. The trial was rather lengthy for a bench trial,¹¹ and the error at the preliminary examination was unrelated to the issues which were the focus of the trial. To require automatic reversal of an otherwise valid conviction for an error which is harmless constitutes an inexcusable waste of judicial resources and contorts the preliminary examination screening process so as to protect the guilty rather than the innocent. As Chief Justice Rehnquist explained in Mechanik, supra, p 72:

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. See Morris v Slappy, 461 US 1, 14 [103 S Ct 1610; 75 L Ed 2d 610] (1983). The "[p]assage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.” Engle v Isaac, 456 US 107, 127-128 [102 S Ct 1558; 71 L Ed 2d 783] (1982). Thus, while reversal "may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution,” id. at 128, and thereby "cost society the right to punish admitted offenders.” Id. at 127. Even if a defendant is convicted in a second trial, the intervening delay may compromise society’s "interest in the prompt administration of justice,” United States v Hasting, supra at 509, and impede accomplishment of the objectives of deterrence and rehabilitation. These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial.[¹²]_

Otherwise stated,

[Procedural rules] are not to be things to which individual litigants have claims in and of themselves. Nothing is so subversive of the real purposes of legal procedure as individual vested rights in procedural errors .... [Pound, The canons of procedural reform, 12 ABA J 541, 543 (1926).]

Although we do not overlook the concerns expressed in the dissenting opinion, we believe the availability of an interlocutory appeal affords protection in those cases where an innocent accused should have been screened out by the preliminary examination process.¹³ Given the viability of that remedy and the enormous price of reversing valid convictions obtained pursuant to fair, error-free trials, we cannot support application of the automatic reversal rule under circumstances such as those presented in this case.¹⁴

Accordingly, we reverse and remand this case to the Court of Appeals for an analysis of whether the admission of hearsay evidence at the preliminary examination constituted harmless error and, if so, for resolution of the other issues raised by defendant in her appeal of right.

Riley, C.J., and Brickley and Boyle, JJ., concurred with Griffin, J.

1 MCL 769.26; MSA 28.1096.

2 MCL 333.7401(1), (2)(a)(iii), 750.157a; MSA 14.15(7401X1), (2)(a)(iii), 28.354(1).

3 MRE 801(d)(2) provides in pertinent part:

A statement is not hearsay if . . . [t]he statement is offered against a party and is (A) his own statement ... or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy on independent proof of the conspiracy.

4 The Court of Appeals did not address the defendant’s other allegations of error raised on appeal.

5 See MCL 766.1 et seq.; MSA 28.919 et seq.

6 In Michigan hearsay evidence may be presented to a grand jury. Our Rules of Evidence do not apply to grand jury proceedings. MRE 1101(b)(2).

7 In this preconviction setting, the standard for determining whether the error was harmless differed from that applied in Mechanik:

[D]ismissal of the indictment is appropriate only "if it is established that the violation substantially influenced the grand jury’s decision to indict,” or if there is "grave doubt” that the decision to indict was free from the substantial influence of such violations. United States v Mechanik, supra at 78 [O’Connor, J., concurring], [487 US 256.]

8 The applicability of this standard in the present context has been recognized by this Court, albeit in dicta. In People v Johnson, supra, the defendant argued that evidence of premeditation and deliberation at his preliminary examination was insufficient to justify binding the defendant over on an open charge of murder, thereby requiring reversal of his second-degree murder conviction. The Johnson Court (per Boyle, J.) disagreed, finding that there was evidence from which the magistrate could have inferred premeditation and deliberation. In a footnote, Justice Boyle discussed the issue of reversals for errors at preliminary examination:

While the opinion for reversal bases its result upon an admittedly nonconstitutional error, post, pp 137-138, it errs in the standard it applies to determine whether the error is harmless. Certain constitutional violations require automatic reversal. See, e.g., Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (denial of counsel at trial). Other constitutional violations are measured by the standard that requires a court to be convinced "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967) (commenting on defendant’s failure to testify at trial could be harmless error); Rose v Clark, 478 US [570]; 106 S Ct 3101; 92 L Ed 2d 460 (1986) (jury instruction shifting the burden of proof to the defendant can be harmless error). Nonconstitutional violations, such as that alleged in the instant case, are measured by a third standard in the federal system: The defendant must show a reasonable probability that the error affected the outcome of the trial. See United States v Mechanik, 475 US 66; 106 S Ct 938; 89 L Ed 2d 50 (1986) (no reversal for grand jury error unless the error affected the outcome of the trial). [427 Mich 115, n 14.]

9 The Elliot case had held that where an accused is illegally bound over due to a material error at the preliminary hearing, the binding over is voidable, and, upon proper objection, the court has no jurisdiction to proceed. In overruling Elliot, the Pompa-Ortiz court rejected the prior cases’ "uncritical use of the term 'jurisdiction’ ” and held that a trial court is not deprived of "jurisdiction” in the fundamental sense ("legal power to hear and determine a cause”) in matters correctable by pretrial motions. 27 Cal 3d 528-529.

This Court likewise has held that the circuit court does not lose jurisdiction where a void or improper information is filed. See People v Johnson, supra, p 106, n 7.

10 This Court has previously applied MCL 769.26; MSA 28.1096 in a number of contexts. See, e.g., People v Straight, 430 Mich 418; 424 NW2d 257 (1988); People v Beach, 429 Mich 450; 418 NW2d 861 (1988); People v Crawford, 429 Mich 151; 414 NW2d 360 (1987); People v Blue, 428 Mich 684; 411 NW2d 451 (1987); People v Cash, 419 Mich 230; 351 NW2d 822 (1984); People v Woods, 416 Mich 581; 331 NW2d 707 (1982), cert den 462 US 1134 (1983); People v Weston, 413 Mich 371; 319 NW2d 537 (1982); People v Eady, 409 Mich 356; 294 NW2d 202 (1980); People v Richardson, 409 Mich 126; 293 NW2d 332 (1980); People v Wilkens, 408 Mich 69; 288 NW2d 583 (1980).

11 The trial commenced January 7, 1987, and defendant was found guilty on January 29,1987.

12 An automatic reversal rule would contradict MCR 6.002, which provides:

These rules are intended to promote a just determination of every criminal proceeding. They are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.

13 The underlying assumption of the dissent’s dismay at the result of this opinion is that short of a reversal of an error-free trial, we cannot depend on the magistrate who is bound to follow the rules of evidence, the circuit or Recorder’s Court judge who is bound to quash a bindover where the rules of evidence are not followed, and the Court of Appeals which is required to correct error of this nature to maintain the applicability of the rules of evidence in preliminary examinations.

We obviously do not share that skepticism.

14 In his dissent in People v Johnson, supra, p 127, n 9, Justice Levin wrote:

Any other rule would deprive the accused of any remedy for a defect in the conduct of a preliminary examination. Manifestly, the accused cannot be convicted unless sufficient evidence is adduced at the trial; if the sufficiency of the evidence at the trial cured an insufficiency at the preliminary examination, there would be no remedy unless the circuit judge quashed the information or the Court of Appeals or this Court granted an interlocutory appeal from an adverse decision by the circuit judge. Interlocutory appeals are infrequently granted defendants in criminal cases, and, thus, if there is to be any review of the circuit judge’s decision, it can occur only, in the ordinary case, after trial and conviction.

If a problem does exist because appellate courts do not grant applications of criminal defendants for interlocutory appeal in sufficient numbers or in appropriate cases, it is suggested that this Court could deal with the problem directly through the exercise of its supervisory authority, rather than by adhering to an arbitrary rule that automatically reverses otherwise valid convictions. For example, the rules of appellate procedure could be amended.