Denial of counsel at a preliminary exam; Harmless error; People v. Carines; Whether the deprivation of counsel at a preliminary exam amounted to harmless error; Coleman v. Alabama; State v. Canaday (AZ); State v. Brown (CT); People v. Eddington; Ditch v. Grace (3d Cir.); Relevant elements of arson; MCL 750.73(1); MCL 750.74 & 750.74(1)(a); Principle that the presentation of sufficient evidence to convict at trial renders any erroneous bindover decision harmless; People v. Bennett; Limitations on a defendant’s opportunity to cross-examine witnesses at a preliminary exam; Adams v. Illinois; Thomas v. Kemp (11th Cir.); Sentencing; People v. Lockridge

On remand, the court held any error resulting from the denial of counsel at defendant’s preliminary exam was harmless, but remanded to the trial court for a determination as to whether it would have imposed a materially different sentence. At the preliminary exam, the trial judge indicated that defendant had rejected each of his appointed lawyers. It then proceeded with the exam, but defendant would not participate and was removed from the courtroom for interrupting and using profane language. His stand-by counsel also left. The judge then heard testimony, found sufficient probable cause, and bound him over for trial. He was convicted of four counts of third-degree arson and one count of second-degree arson. The trial court sentenced him as a fourth habitual offender to 17 to 30 years for each conviction. In a prior appeal, the court vacated his convictions and remanded for a new trial, finding the denial of counsel at his preliminary exam was a structural error requiring automatic reversal. However, the Michigan Supreme Court reversed and remanded for application of the harmless error standard. On remand, the court indicated that it could not conclude that the error was harmless “simply because defense counsel conceded that no evidence from the preliminary exam[] was used at trial, and no rights or defenses were waived by defendant’s lack of participation in the preliminary exam[].” It noted that “to determine whether the denial of counsel at a preliminary exam[] amounts to harmless error, courts must consider the factors discussed in Coleman, as well as any other factors relevant to the particular case, including the lost opportunity to negotiate a plea deal, and any prejudice resulting from the failure to file pretrial motions.” As to the first Coleman factor, it noted than any argument that counsel could have objected to the bindover based on the condition or nature of the buildings would not have altered the bindover decision. “Given that defendant was convicted at trial on the basis of sufficient evidence, the possibility that counsel could have detected preclusive flaws in the prosecution’s probable-cause showing is moot.” As to the second factor, although he was unrepresented at the preliminary exam, “he was appointed new counsel at the next hearing, who it appears was given a transcript of” the preliminary exam, which could have been used for impeachment at trial. Further, his argument that identity testimony “would have been useful at trial for impeachment purposes, [wa]s purely speculative.” As to the third factor, he failed to “identify any evidence used at trial that counsel could have discovered by virtue of participation in the preliminary exam[].” His arguments as to the specific circumstances of his case also failed. However, he was entitled to a remand in light of Lockridge.