Summary
In People v Blachura, 396 Mich. 723; 242 N.W.2d 390 (1976), the Supreme Court dismissed defendant's appeal of this Court's decision in People v Blachura, 59 Mich. App. 664; 229 N.W.2d 877 (1975).
Summary of this case from People v. BlachuraOpinion
Docket No. 56979.
Argued May 4, 1976 (Calendar No. 6).
Decided June 3, 1976.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Marvin S. Shwedel, Special Assistant Prosecuting Attorney, for the people.
Richard M. Lustig for defendant.
We granted leave in this case to consider whether defendant Blachura had the right to the presence of counsel during a citizens' grand jury proceeding.
MCLA 767.7 et seq.; MSA 28.947 et seq. Consequently, the proceedings must be contrasted with the one-man grand jury which includes the statutory right to have one's attorney present in the grand jury room. MCLA 767.3; MSA 28.943. See United States v Mandujano, ___ US ___; 96 S Ct 1768; 48 L Ed 2d 212 (1976), in which four justices of the United States Supreme Court said that "the witness may not insist upon the presence of his attorney in the grand jury room".
The defendant testified before a citizens' grand jury. As a result of his testimony, the grand jury indicted him on six counts of perjury; a petit jury later convicted him on five of the six counts. The trial judge granted the defendant's motion for new trial on two counts and quashed the other three counts. The Court of Appeals reinstated the jury verdicts.
An Oakland County grand jury was convened to investigate allegations of criminal misconduct in the Oakland County Drain Commission's Office, and defendant was called to testify April 26 and May 3, 1971.
People v Blachura, 59 Mich. App. 664; 229 N.W.2d 877 (1975). We first had considered the propriety of the Court of Appeals order granting the prosecutor's application for leave to appeal. 390 Mich. 326; 212 N.W.2d 182 (1973). Defendant has not yet been sentenced.
During this general, investigatory proceeding, the defendant's attorney was outside the grand jury room, and the defendant was advised of his right to consult with his attorney; he did so on several occasions. The defendant did not request that his attorney be present in the grand jury room.
The prosecutor advised the defendant that "if for any reason you felt that a question would require you to incriminate yourself * * *, then you may step outside the hearing room and * * * [defense counsel] may advise you on whether or not to answer the question, okay?"
The record discloses that the issue has not been properly preserved for review and therefore warrants no further study. We conclude that leave to appeal was improvidently granted. DePew v DePew, 373 Mich. 162; 128 N.W.2d 533 (1964); Sinnott v Noble, 390 Mich. 91; 211 N.W.2d 842 (1973); People v Watson, 390 Mich. 732; 212 N.W.2d 708 (1973). The appeal is dismissed, and the cause remanded to the Oakland Circuit Court for imposition of sentence.
Similarly, see McClanahan v Morauer Hartzell, Inc, 404 U.S. 16; 92 S Ct 170; 30 L Ed 2d 136 (1971); Johnson v Massachusetts, 390 U.S. 511; 88 S Ct 1155; 20 L Ed 2d 69 (1968); Atchley v California, 366 U.S. 207; 81 S Ct 1051; 6 L Ed 2d 233 (1961).
KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, LINDEMER, and RYAN, JJ., concurred.