People v. Hermiz

611 N.W.2d 783, 462 Mich. 71, 2000 WL 764348

• Court: Michigan Supreme Court
• Decided: June 13, 2000
• Docket: Docket Nos. 114586, 114587, Calendar Nos. 10-11
• Status: Published

Opinions

Taylor, J.

(for reversal). The question in these consolidated appeals is whether the state of Michigan was barred by MCL 333.7409; MSA 14.15(7409)¹ from indicting defendants for conspiracy to possess with intent to deliver more than 650 grams of a mixture containing cocaine² when they had previously been convicted in federal court in Florida of conspiracy to possess with intent to distribute more than five kilograms of cocaine.³

I would hold that the state prosecution was not barred by MCL 333.7409; MSA 14.15(7409) because conspiracy charges are not a violation of “this article” (article 7 of the Public Health Code) for purposes of the statute. The statute does not apply because the conspiracy charges arose under chapter 24 of the Penal Code,⁴ not under article 7 of the Public Health Code. Therefore, I would reverse the judgments of the trial court and Court of Appeals and reinstate defendants’ convictions.

i

In July 1990, both defendants were convicted in federal court in Florida of conspiring to possess with intent to distribute five or more grams of cocaine. In the same month, an Oakland County grand jury indicted defendants for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine. Defendants moved to quash the state indictment, arguing that the subsequent state prosecution violated their rights under Const 1963, art 1, § 15 not to be put in jeopardy twice for the same offense. The trial court denied the motions after defendants had been convicted, and the Court of Appeals affirmed.⁵

Both defendants filed applications for leave to appeal with this Court. This Court granted Hermiz’ application and held Konja’s application in abeyance. In separate opinions, a majority of the Court rejected Hermiz’ state double jeopardy claim.⁶ All justices agreed, however, that Hermiz was entitled to a remand to the trial court to address whether the state prosecution had violated MCL 333.7409; MSA 14.15(7409). This Court also remanded Kouja’s case to the trial court for consideration of the same issue.⁷ On remand, the trial court dismissed the charges against defendants, finding the successive state prosecutions had violated the statute. On appeal by the prosecution, the Court of Appeals affirmed.⁸ This Court subsequently granted leave to appeal to the prosecution.⁹

n

In accordance with our remand orders, the focus in the trial court and the Court of Appeals has been whether the Michigan conspiracy should be considered “the same act” as the Florida conspiracy. However, before oral argument, we permitted amicus curiae Prosecuting Attorneys Association of Michigan to file a brief that argues that the statute does not apply because the defendants’ conspiracy convictions were obtained under the Penal Code and not pursuant to article 7 of the Public Health Code.¹⁰

At oral argument, appellant Oakland County Prosecutor indicated full agreement with the argument of the amicus curiae. The Court explored this issue at oral argument, and we subsequently asked the parties to file supplemental briefs addressing the issue. The supplemental briefs have now been filed and the case is ripe for resolution.

I begin by acknowledging that this Court’s earlier remand orders arguably assumed, without expressly holding, that the Michigan charges would have been barred if they constituted “the same act” as the Florida conspiracy. As explained below, I am persuaded that this assumption was in error. Given such conclusion, and the fact that it was a mere assumption, as opposed to a contested holding, I am unwilling, to close my eyes to this new dispositive argument.

I also acknowledge that amicus curiae has raised an argument that appellant Oakland County Prosecutor did not argue in the trial court or the Court of Appeals.¹¹ Absent exceptional circumstances, amicus curiae cannot raise an issue that has not been raised by the parties. United Parcel Service Inc v Mitchell, 451 US 56, 60, n 2; 101 S Ct 1559; 67 L Ed 2d 732 (1981). However, this is not a hard and fast rule. See Teague v Lane, 489 US 288, 300; 109 S Ct 1060; 103 L Ed 2d 334 (1989) (addressing the question of retroactivity of a habeas corpus petitioner’s claim despite the fact that it was raised only in an amicus curiae brief), and Allen Park Village Council v Allen Park Village Clerk, 309 Mich 361, 363; 15 NW2d 670 (1944).

It is also the case that, ordinarily, this Court does not review arguments that were not presented below. Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). However, we will allow an issue to be raised for the first time on appeal if we are persuaded that its consideration “is necessary to a proper determination of a case.” Prudential Ins Co v Cusick, 369 Mich 269, 290; 120 NW2d 1 (1963); Dation v Ford Motor Co, 314 Mich 152, 160-161; 22 NW2d 252 (1946). Further, in limited circumstances, this Court will address an issue that was not raised by the parties “where justice so required.” Paramount Corp v Miskins, 418 Mich 708, 731; 344 NW2d 788 (1984). Moreover, pursuant to MCR 7.316(A)(3), we have the authority to permit the reasons or grounds of an appeal to be amended or new grounds to be added.

Frequently it will be more appropriate to remand a new potentially dispositive issue to the trial court or Court of Appeals for initial resolution. Paramount Corp at 731. However, given that these cases have already produced three published opinions, have been up and down the appellate ladder over the last decade, and the fact that we have allowed the filing of supplemental briefs, I deem this one of the rare cases where, in the interest of judicial economy and finality, it is appropriate for us to reach an issue not specifically developed below. Thus, having determined that it is necessary to a proper determination of the case, that justice so requires, and having allowed defendants the opportunity to file supplemental briefs addressing the issue, we exercise our discretion pursuant to MCR 7.316(A)(3) and consider the question whether the statute applies to conspiracy charges.

in

MCL 333.7409; MSA 14.15(7409) provides:

If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

The reference to “this article” in the statute is a reference to article 7 of the Public Health Code, which is the Controlled Substances Act. However, the conspiracy statute is found in chapter 24 of the Penal Code and not in article 7 of the Public Health Code. Nevertheless, it is also the case that defendants were charged with conspiring to violate a crime that is found in article 7 of the Public Health Code, i.e., the predicate substantive offense is part of the Controlled Substances Act.

As we recently stated in People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999):

We review questions of statutory construction de novo. In doing so, our purpose is to discern and give effect to the Legislature’s intent. We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed-—no further judicial construction is required or permitted, and the statute must be enforced as written. [Citations omitted.]

Under the plain meaning of the statute, the question is whether the conspiracy charges are a violation of article 7 of the Public Health Code. As previously indicated, they are not. Rather, the conspiracy statute is found in chapter 24 of the Penal Code, not in the Public Health Code/Controlled Substances Act.¹² It simply is not a violation of article 7 of the Public Health Code to conspire to commit a crime found in article 7 of the Public Health Code.

My analysis is supported by the fact that the Legislature amended MCL 333.7407a; MSA 14.15(7407a) in 1994 to make it a crime to “attempt,” to “solicit,” to “induce” or to “intimidate” another into violating “this part.” Conspicuously absent from this list is making it a crime to “conspire” to violate “this part.” The reference to “this part” in MCL 333.7407a; MSA 14.15(7407a) is to part 74 of article 7 of the Public Health Code. The predicate offense that defendants were charged with conspiring to commit was MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), and this statute is found in part 74 of article 7 of the Public Health Code. The Legislature did not include the word “conspire” in MCL 333.7407a; MSA 14.15(7407a). •This omission must be respected by this Court. Indeed, if we were to find that the statute barred the conspiracy charges we would be guilty of rewriting MCL 333.7409; MSA 14.15(7409) as follows:

If a violation of this article or the penal code is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

We also would be effectively amending MCL 333.7407a; MSA 14.15(7407a) as follows:

(1) A person shall not attempt or conspire to violate this part.

(2) A person shall not knowingly or intentionally solicit, induce, or intimidate another person to violate this part.

We, of course, should not be willing to amend or to rewrite statutes.¹³

I recognize that under the statutory scheme set up by the Legislature persons who violate the Controlled Substances Act have the protection afforded by MCL 333.7409; MSA 14.15(7409), but persons who conspire to violate the Controlled Substances Act do not have the protection afforded by the statute. This is because the conspiracy statute is found in the Penal Code and not the Public Health Code, and because the Legislature did not include conspiracy in the list of crimes forbidden by MCL 333.7407a; MSA 14.15(7407a).

Justice Cavanagh’s opinion asserts that my interpretation of § 7409 produces an illogical result in contravention of the Legislature’s intent. I reject this charge because my interpretation is based on the language of the statute. The inclusion or lack thereof of conspiracy in the list of crimes forbidden by MCL 333.7407a; MSA 14.15(7407a) does not implicate logic. What we have here is merely a choice that the Legislature made that is as “logical” one way as the other.¹⁴ Given this situation, and that the Legislature was acting within its constitutional authority when it did not include conspiracy in the list, the Legislature should not have to suffer judicial interference with the choice made in its legislative product. Indeed, our constitutional duty demands nothing less of us.¹⁵

IV

In conclusion, while I acknowledge that this Court’s prior opinion contributed to a misunderstanding regarding the applicability of MCL 333.7409; MSA 14.15(7409), I do not apologize for refusing to apply the statute under circumstances where it clearly does not apply. It is for all these reasons¹⁶ that I would reverse the judgments of the lower courts and reinstate defendants’ convictions.

Corrigan and Young, JJ., concurred with Taylor, J.

1 If a violation of this article (article 7 of the Public Health Code) is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

2 MCL 750.157a; MSA 28.354(1) and MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).

3 21 USC 841(A)(1).

4 MCL 750.157a; MSA 28.354(1) (“Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein”).

5 People v Hermiz, 207 Mich App 449; 526 NW2d 1 (1994); People v Konja, unpublished opinion per curiam, issued June 20, 1995 (Docket No. 150596).

6 People v Mezy, 453 Mich 269; 551 NW2d 389 (1996) (Hermiz’ appeal was the companion case to lead defendant Mezy).

7 453 Mich 953 (1996).

8 People v Hermiz, 235 Mich App 248; 597 NW2d 218 (1999).

9 461 Mich 880 (1999).

10 As this Court stated with reference to amicus curiae briefs in Grand Rapids v Consumers Power Co, 216 Mich 409, 415; 185 NW 852 (1921): “This court is always desirous of having all the light it may have on the questions before it.” Hence, we express our gratitude to amicus curiae paam for bringing this dispositive argument to our attention.

11 The Oakland County Prosecutor has argued that the statute did not bar the state prosecution because the state conspiracy was not “the same act” as the Florida conspiracy.

12 As stated in People v Justice, 454 Mich 334, 345-346; 562 NW2d 652 (1997):

Conspiracy is defined by common law as a partnership in criminal purposes. Under such a partnership, two ór more individuals must have voluntarily agreed to effectuate the commission of a criminal offense. Establishing that the individuals specifically intended to combine to pursue the criminal objective of their agreement is critical because the gist of the offense of conspiracy lies in the unlawful agreement meaning the crime is complete upon formation of the agreement.

The specific intent to combine, including knowledge of that intent, must be shared by two or more individuals because there can be no conspiracy without a combination of two or more. This combination of two or more is essential because the rationale underlying the crime of conspiracy is based on the increased societal dangers presented by the agreement between the plurality of actors. [Citations and internal quotation marks deleted.]

13 I note that Justice Cavanagh’s opinion has no answer to this point, apparently being content to issue an opinion that would rewrite the statute. I take comfort in the fact that the Legislature is free to amend MCL 333.7409; MSA 14.15(7409) to make it applicable to conspiracy charges if it so desires.

14 While the Legislature need not explain its choices to us, it may be that it chose not to include “conspiracy” charges within MCL 333.7407a; MSA 14.15(7407a), and thus within the protection of MCL 333.7409; MSA 14.15(7409), because of the additional danger to society that conspiracies represent.

As stated in People v Sammons, 191 Mich App 351, 374; 478 NW2d 901 (1991):

While the controlled substance provisions of the Public Health Code are designed to protect society from the “patently harmful” effects of drug trafficking, see People v Gorgon, 121 Mich App 203, 206-207; 328 NW2d 619 (1982), the purpose of the conspiracy statute is to protect society from the “increased and special danger to society presented by group as opposed to individual activity.” People v Carter, 415 Mich 558, 569-570; 330 NW2d 314 (1982).

As indicated, distinct social norms are involved. Further, the conspiracy statute, MCL 750.157a; MSA 28.354(1), provides for punishment equal to the substantive crime; it does not impose an hierarchical, harsher penalty on the basis of the presence of aggravating factors. Additionally, as noted in Carter, supra at 569:

It is a settled principle of black-letter law that conspiracy is a crime that is separate and distinct from the substantive crime that is its object. LaFave & Scott, Criminal Law, § 62, p 494; People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975); People v Chambers, 279 Mich 73; 271 NW 556 (1937).

15 Justice Cavanagii’s opinion also claims my opinion is inconsistent with People v Denio, 454 Mich 691, 695; 564 NW2d 13 (1997). I disagree. In Denio, this Court construed the sentencing provision of the conspiracy statute, which provides for punishment “by a penalty equal to that which could be imposed if [the defendant] had been convicted of committing the crime he conspired to commit The conspiracy statute thus expressly incorporates the penalty provisions of the offense that is the object of the conspiracy. Denio concluded that the term “penalty” encompassed the consecutive sentencing provisions of the Controlled Substances Act. The language of MCL 333.7409; MSA 14.15(7409), in contrast, does not link the statutes. Therefore, MCL 333.7409; MSA 14.15(7409) simply does not include the conspiracy statute within its scope.

16 Our holding is also supported by the decision of the North Dakota Supreme Court in State v Meyer, 356 NW2d 149 (ND, 1984). North Dakota has a statute similar to MCL 333.7409; MSA 14.15(7409) that provides:

If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state. [ND Cent Code, § 19-03.1-28.]

In North Dakota, conspiracy is an offense under a different chapter than the chapter cited in the statute. Thus, the North Dakota Supreme Court held that its statute did not bar a state prosecution for conspiracy where there had been a previous prosecution in another state for a related conspiracy.