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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________
C hief Justice

Opinion
Plaintiff-Appellant,
Cross-Appellee,
v WILLIE GLASS, JR.,


Maura D. Cor rigan

Justices

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JUNE 12, 2001


PEOPLE OF THE STATE OF MICHIGAN,


No.

114795


Defendant-Appellee,
Cross-Appellant.
____________________________________ BEFORE THE ENTIRE COURT
(AFTER REMAND)
WEAVER, J.
Following his waiver of preliminary examination, the
defendant was bound over to Eaton Circuit Court on the charge
of conspiracy to deliver 650 or more grams of cocaine.


Defendant, who is black, seeks to challenge the composition of
the multicounty grand jury that indicted him, claiming that
the selection process systematically excluded blacks from the
multicounty grand jury. information it filed The prosecution responds that the
after defendant waived preliminary


examination purged any taint in the grand jury selection
process.
On remand from this Court, the Court of Appeals rejected


the prosecution's argument and directed further proceedings on
the selection issue, including the unsealing and inspection of
certain grand jury documents that might be relevant to the
claim of racial discrimination in selection of the composition
of the grand jury.
We hold that this Court exceeded its criminal procedure
rulemaking authority in People v Duncan, 388 Mich 489; 201
NW2d 629 (1972), by creating a substantive right to a


preliminary examination for grand jury indictees.

To the


extent that Duncan exceeded this Court's rulemaking authority,
it is overruled and its implementing court rules are rejected.
As to defendant's constitutional claims, we hold that he
has not established and cannot establish a prima facie case of
discrimination Amendment. under either the Sixth or the Fourteenth


It was, therefore, an abuse of discretion for the


Court of Appeals to order an in-camera inspection of the grand
jury record.
The judgment of the Court of Appeals is reversed in part,
and this case remanded to the circuit court for further
proceedings consistent with this opinion.
I
Upon a petition filed by Clinton, Eaton, and Ingham
County prosecutors, the Court of Appeals on January 13, 1995,
formed a multicounty grand jury under MCL 767.7b et seq. The


grand jury was given jurisdiction over the three counties.
The Court of Appeals order provided that the grand jury would
consist of seventeen jurors: six from Ingham County, six from
2


Eaton, and five from Clinton County.

The court's order


granted the prosecutors' motion to suppress the grand jury
proceedings.
On April 27, 1995, the grand jury indicted the defendant
on a charge of conspiracy to deliver 650 grams or more of
cocaine.1 The indictment alleged that the conspiracy took
A felony warrant was issued by the


place in Eaton County.

circuit judge on assignment by the Court of Appeals to the
multicounty grand jury. Defendant was apparently arraigned on
the indictment on May 12, 1995, and bond was set for


$150,000.2
On September 8, 1995, the defendant appeared in the 56th
District Court and waived preliminary examination on the
indictment. Defendant was bound over to the Eaton Circuit


Court, and his papers were filed with that court on September
11, 1995. Defendant waived arraignment in the Circuit Court


on September 27, 1995 or September 28, 1995.3
On September 29, 1995, the Eaton County prosecutor filed
an information in circuit court. The information was


identical to the indictment, again alleging conspiracy to
deliver 650 grams or more of cocaine. information was a list of witnesses. Attached to the


There is no record of


1

MCL 333.7401(2)(a)(i), 750.157a.


Court of Appeals Order Setting Bond and Remanding Case
to the 56-2 District Court for Further Proceedings.
Two copies of what appear to be one waiver arraignment
appear in the record with these dates stamped by the Eaton
County Clerk.
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a complaint and warrant or a separate preliminary examination
or waiver in the district court before the filing of the
information.
Trial was scheduled and adjourned several times. On


February 21, 1996, the defendant moved to dismiss, alleging,
among other things, that the composition of the grand jury
violated his due process rights, his Sixth Amendment right to
a jury selected from a fair cross section of the community,
As


and his Fourteenth Amendment right to equal protection. the Court of Appeals summarized his allegations:
Specifically, defendant indicated that the
population of Clinton County is 3.85 percent
African-American and 13.8 percent of the total
population of the three counties, the population of
Eaton County is 3.56 percent African-American and
21.47 percent of the total population of the three
counties, and the population of Ingham County is
9.87 percent African-American and 65.16 percent of
the total population of the three counties.3
Defendant thus contended that this Court's order
that five grand jurors be from Clinton County, six
from Eaton County, and six from Ingham County
amounted to a systematic overrepresentation of the
counties with the smallest African-American
population and a systematic underrepresentation of
the county with the largest African-American
population. Defendant further contended that if
proper percentages had been used, Clinton County
would have had two grand jurors, Eaton County would
have had four grand jurors, and Ingham County would
have had eleven grand jurors.4 In addition to
arguing for dismissal, defendant requested that the
trial court order the prosecution to produce a copy
of the petition for the establishment of the
multicounty grand jury.
__________________________________________________
3 These population figures are based on the
1990 census.


Defendant also attached to his motion two
affidavits from witnesses at the grand jury
proceedings who stated that there were no African 4


4

Americans on the seventeen-person grand jury.
___________________________________________________ [235 Mich App 455, 459-460; 597 NW2d 876 (1999).]
On March 12 and April 2, 1997, the circuit court held
evidentiary hearings on defendant's motion to dismiss. The


Court of Appeals summarized the testimony at the hearing as
follows:
Those witnesses who did testify shed little
light on how the grand jury was selected and
whether African-Americans were excluded from the
The Eaton County deputy clerk and
grand jury.5 Ingham County deputy clerk indicated that their
juror questionnaire did not contain questions
pertaining to race. Both the Eaton County and
Ingham County deputy clerks indicated that they did
not know how the multicounty grand jury was
selected. A member of the Clinton County jury
board indicated that two panels of potential petit
jurors from Clinton County were assigned to the
multicounty grand jury pool. These panels were
formed by use of the Secretary of State's list of
licensed drivers in Clinton County, mailing
questionnaires to the licensed drivers, and the
jury board's review of the returned questionnaires
to determine who could sit on the jury panels.
Persons excluded were those who did not have
appropriate citizenship, had a documented physical
disability, were over the age of seventy, lacked
competency, were currently under conviction of a
felony; or served on a jury within the past twelve
months. The Clinton County juror questionnaire
also did not include questions about race.
__________________________________________________ We note that the Legislature requires that
the names of grand jurors shall be drawn in the
same manner and from the same source as petit
jurors. MCL 600.1326.
__________________________________________________ [Id. at 460-461.]
The circuit court denied defendant's motion to dismiss on
the basis of racial discrimination in selection of the grand
jury, concluding that the defendant had failed to establish
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that blacks were systematically excluded.
Defendant filed an application for leave to appeal from
that decision, which the Court of Appeals denied.4 The


defendant filed an application for leave to appeal to this
Court, and on September 25, 1997, we issued an order remanding
the case to the Court of Appeals for consideration as on leave
granted.
On remand, the Court of Appeals concluded that defendant
had not established a prima facie case of racial


discrimination under either the Sixth or Fourteenth Amendment
because he had not provided evidence regarding the racial
composition of the grand jury venire, had not shown that
underrepresentation of blacks was due to systematic exclusion
during the selection process, and had not shown that the grand
jury selection procedure was racially biased or susceptible to
abuse. Nevertheless, the Court of Appeals agreed with


defendant that the grand jury records should be unsealed so
that he might obtain evidence to support that claim.5 The


Unpublished order, entered July 21, 1997 (Docket No.
203592).
The Court said that the defendant should request the
grand jury record from the chief judge of the Court of
Appeals, who was to conduct an in-camera inspection and,
"certify the parts of the record bearing on the issue of
defendant's claim of racial discrimination in the selection
and composition of the grand jury . . . ." 235 Mich App 473.
The Court directed a further evidentiary hearing in the
circuit court on defendant's claims. The Court also lifted
part of the suppression order initially entered regarding the
grand jury records so as to permit additional testimony by
county officials or employees (some of whom had previously
refused to testify).
6

5

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Court of Appeals dissent concluded that any errors in the
grand jury selection or proceedings were harmless because the
prosecutor proceeded by information in the circuit court.
II
Michigan law provides that criminal prosecutions may be
initiated in the court having jurisdiction to hear the cause
by either indictment or information. Throughout the record in this case, MCL 767.1 et seq.
there is confusion


regarding whether the defendant is in circuit court on the
indictment or the information.6 The record does reveal that


the prosecution filed an information in the circuit court
after the grand jury indictment had already been returned and
the defendant bound over. The effect of the prosecutor's


decision to file an information after the defendant's bindover
on the grand jury indictment has raised questions involving
the interplay of the statutes, case law, and court rules
governing informations and indictments. In our order granting
leave, we requested that the parties brief three issues in
addition to granting leave on the issues raised by the


At oral argument before this Court, the prosecution
indicated that no complaint and warrant had been filed and yet
seemed to argue that the information was validly filed in
circuit court, thus mooting any taint in the grand jury
proceeding. During a July 17, 1997, hearing on the
prosecution's motion to endorse certain witnesses, the
prosecutor stated that she was "not moving to amend the
indictment." At that same hearing however, defense counsel
included in a brief outline of this case's procedural history
an "arraignment on the information."
7


6

parties.7

A

brief

overview

of

Michigan's

two

criminal


charging procedures provides context for the discussion and
conclusions that follow.
A
Criminal prosecutions may be initiated in the court
having jurisdiction over the charge upon the filing of an
information. MCL 767.1 et seq.; People v Simon, 324 Mich 450,
456; 36 NW2d 734 (1949). An information is predicated upon a
A complaint must state the


signed complaint and warrant.

substance of the accusation and reasonable cause to believe
that the person accused committed the offense. MCL 764.1d.


The accused has a right to a preliminary examination
before the prosecutor files an information in the court having
jurisdiction to hear the cause. MCL 767.42. The accused and


the state are entitled to a "prompt" examination. MCL 766.1;.
The primary function of a preliminary examination is to
determine if a crime has been committed and, if so, if there
is probable cause to believe that the defendant committed it.
People v Bellanca, 386 Mich 712; 194 NW2d 863 (1972). the timing of the preliminary examination, MCR As to


6.112(B)


We asked: (1) whether the prosecutor's filing of an
information under MCR 6.112 after the defendant waived the
preliminary examination removed the taint of the alleged
racial discrimination in the selection of the grand jury that
indicted defendant, (2) whether MCR 6.112 conflicts with MCL
767.29, as construed in People v Curtis, 389 Mich 698; 209
NW2d 243 (1973), and (3) whether this Court properly exercised
its authority over criminal procedure in People v Duncan,
supra, to grant defendants indicted by grand juries the right
to a preliminary examination.
8


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provides in pertinent part that
[u]nless the defendant is a fugitive from justice,
the prosecutor may not file an information until
the defendant has had or waives preliminary
examination.
Once an information has been filed, the prosecutor may not
enter a nolle prosequi "or in any other way discontinue or
abandon the same, without stating on the record the reasons
therefore and without leave of the court having jurisdiction
to try the offense charged, entered into its minutes."


Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 120;
215 NW2d 145 (1974).8
Criminal prosecutions may also be initiated by grand jury
indictment. MCL 767.1 et seq.; MCR 6.112(B). Grand juries


may be convened over two or more counties upon petition filed
with the Court of Appeals by the Attorney General or by
prosecuting attorneys from each county named in the petition
and upon an order of the Court of Appeals. MCL 767.b. The


Court of Appeals may convene the requested grand jury if the
petition establishes probable cause to believe that a crime,
or portion thereof, has been committed in two or more of the
named counties and if the petition establishes that a grand
jury could "more effectively address" that alleged criminal


Genesee noted that MCL 767.29, which discusses
obligations of a prosecuting attorney upon any indictment,
also applies to prosecutions by information pursuant to MCL
750.10, which provides "the word `indictment' includes
information." Further, Genesee noted that MCL 767.2 provides
that all provisions of law applicable to prosecutions by
indictment shall in general apply to prosecutions by
information.
9


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activity.

MCL 767.7d.


There is no state constitutional right to indictment by
grand jury; rather, indictment by grand jury is an alternative
charging procedure created by the Legislature. 255 Mich 632; 238 NW 732 (1931). In re Palm,


Grand juror names are "drawn


in the same manner and from the same source as petit jurors."
MCL 600.1326. Indictment by grand jury establishes probable


cause that a crime has been committed. Vasquez v Hillery, 474
US 254; 106 S Ct 617; 88 L Ed 2d 598 (1986). If an indictment


is found, the foreperson presents the indictment to the court.
MCL 767.25(1). The presiding judge then returns the


indictment to the court having jurisdiction over the offense,
where it is filed. MCL 767.25(3), (4). A prosecutor is


prohibited from entering a nolle prosequi upon an indictment
or discontinuing or abandoning an indictment without stating
reasons on the record and without leave of the court having
jurisdiction over the charge. MCL 767.29. The court to which
the indictment is presented may issue a warrant for the arrest
of the person indicted. MCL 767.30.


Duncan, supra at 502, granted indictees the right to a
preliminary examination. In accordance with Duncan, MCR 6.110
provides a preliminary examination for a defendant indicted by
a grand jury. Consistent with MCL 767.2; MCR 6.112(A)


provides, except as otherwise provided by the court rules or
elsewhere, "the law and rules that apply to informations and
prosecutions on informations apply to indictments and


prosecutions on indictments." MCR 6.112(B) also provides that
10


when an indictment is returned and filed before a defendant's
preliminary examination, "the indictment may substitute for
the complaint of and commence (B) judicial reflects proceedings."9 the requirement be afforded The
of
a


provision Duncan,

subsection that

supra,

grand

jury

indictees

preliminary examination.
B
The confused procedural posture of this case raises
fundamental questions regarding Michigan's current dual


charging procedures. returned to circuit

As noted above, the indictment had been
court in and the defendant court had waived
the


preliminary

examination

district

before

prosecutor filed the information in Eaton Circuit Court.
There was no complaint and warrant filed to support the
information. Nor did the prosecutor seek to abandon or


This procedure, established by court rule and case law,
is unique to Michigan. While our research reveals that
twenty-eight states generally allow prosecutions by
information or indictment and four other states require
indictment by grand jury only in cases involving the most
serious felonies, only Michigan and Oklahoma, Okla Stat, tit
22,

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