STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 9, 2010
Oakland Circuit Court
LC No. 2008-222304-FH
PATRICK ALAN STARK,
Before: METER, P.J., and SERVITTO and BECKERING, JJ.
Servitto, J. (concurring).
Though I agree with the majority’s conclusion to affirm, I write separately to address my
concerns about the procedural irregularities involved in defendant’s conviction. On January 8,
2009, defendant appeared before the trial court and, on that date, waived his right to a jury trial
and stipulated to proceeding with a bench trial. The parties stipulated that the court could
consider all of the testimony from both the preliminary examination and a prior evidentiary
hearing. The court found defendant guilty of eavesdropping on this same date, without a pause
in the proceedings or reference to any specific prior testimony. While the trial court did ask
defendant if he understood that by accepting the stipulation he was waiving his right to call and
cross-examine any witnesses, and his right to testify, and defendant agreed that he understood,
given that “a trial court sitting as a trier of the facts determines the credibility of witnesses, and
has not only the right but the duty to ask material questions of witnesses so as to clarify the
matters before it,” People v Jablonski, 70 Mich App 218, 224; 245 NW2d 571 (1976), I harbor
serious doubts as to whether a waiver such as the one that took place in the instant matter should
ever be employed and accepted by a trial court.
First, the purpose of a preliminary examination is to determine whether probable cause
exists to believe that a crime was committed and that the defendant committed it. People v
Perkins, 468 Mich 448, 452; 662 NW2d 727 (2003). Probable cause requires a quantum of
evidence “sufficient to cause a person of ordinary prudence and caution to conscientiously
entertain a reasonable belief” of the accused's guilt. People v Justice (After Remand), 454 Mich
334, 344, 562 NW2d 652 (1997). The probable cause standard of proof is, of course, less
rigorous than the guilt beyond a reasonable doubt standard of proof that governs at a criminal
trial. People v Yost, 468 Mich 122, 125-126; 659 NW2d 604 (2003). “The gap between these
two concepts is broad.” People v Justice, 454 Mich 334, 344; 562 NW2d 652 (1997). The two
proceedings are vastly different, and the motive in developing witnesses’ testimony at
preliminary examination is unlike that at trial.
More importantly, in People v Ramsey, 385 Mich 221, 225; 187 NW2d 887 (1971), our
Supreme Court announced that “as an absolute rule, it is reversible error for the trial court sitting
without a jury to refer to the transcript of testimony taken at the preliminary examination except
under exceptions provided by statute.” According to the Ramsey court, “[a] jury, if impanelled,
would not be aware of the testimony taken at a preliminary examination except under the
provisions of the statute. A trial judge, sitting as the trier of the facts, can assume no greater
prerogatives than a jury if a jury were impanelled to determine the facts.” Id. The exceptions
provided by statute referenced in Ramsey, 385 Mich at 225, can be found at MCL 768.26, which
Testimony taken at an examination, preliminary hearing, or at a former trial of the
case, or taken by deposition at the instance of the defendant, may be used by the
prosecution whenever the witness giving such testimony can not, for any reason,
be produced at the trial, or whenever the witness has, since giving such testimony
become insane or otherwise mentally incapacitated to testify.
There is no assertion that the witnesses testifying at the preliminary examination in this matter
were unavailable to testify at a trial.
True, examination of the preliminary examination transcript by the judge sitting as trier
of fact has been upheld where the examination was limited to impeachment purposes and the
parties had stipulated that such examination be made. See, e.g., People v Dorsey, 45 Mich App
230; 206 NW2d 459 (1973). Here, in contrast, however, the preliminary examination record
together with the testimony at an evidentiary hearing was allowed to substitute for the entire trial.
Further, while MCR 6.110(D) allows for an evidentiary issue to be determined by the trial court
on the basis of the preliminary examination transcript alone, I have been directed to no court rule
or statute that would allow a similar application to the ultimate determination of guilt or
innocence in lieu of a trial. I believe that to allow a criminal case to be decided on a preliminary
examination transcript is not in accordance with MCL 768.26 and Ramsey, 385 Mich 221, and is,
in fact, violative of the protections afforded throughout our judicial process.
My disapproval of the judicial process that occurred in this matter having been
thoroughly expressed, and despite my dismay with the trial court relying solely on the
preliminary examination and evidentiary hearing transcripts, I agree with the majority that
defendant’s convictions should be affirmed.
/s/ Deborah A. Servitto