People v. Mehall

539 N.W.2d 593, 213 Mich. App. 353

Opinions

Holbrook, Jr., P.J.

Defendant was charged with two counts of first-degree criminal sexual conduct, MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). At trial, defendant unsuccessfully moved for a directed verdict of acquittal at the close of the people’s proofs. Defendant then rested without presenting any testimony. Following approximately five hours of deliberation, the jury informed the court that it was deadlocked, and visiting Washtenaw Circuit Court Judge Thomas Roumell declared a mistrial on grounds of manifest necessity. Defendant immediately renewed his motion for a directed verdict, but Judge Roumell declined to address it. Approximately three weeks later, defendant moved again for a directed verdict of acquittal before Washtenaw Circuit Court Judge Donald Shelton, to whom the case was next assigned. Judge Shelton ruled that the motion must be heard by the judge who presided at trial, and docketed it for a hearing before Judge Roumell. At a hearing, Judge Roumell made findings on the record and granted the motion for a directed verdict of acquittal because of the insufficiency of the evidence with regard to both counts. The people appeal as of right.

i

The gravamen of this appeal is whether a trial court is authorized to grant a defendant’s motion for a directed verdict of acquittal after a mistrial is declared on the basis of a hung jury, and, if so, whether the prosecutor’s appeal of such a ruling is barred by the Double Jeopardy Clauses of the United States Constitution, US Const, Am V, and the Michigan Constitution, Const 1963, art 1, § 15. The prosecutor argues that, because no court rule expressly authorizes a postmistrial motion for a directed verdict of acquittal, Judge Roumell lacked authority to grant such a motion. The prosecutor further argues that, even if Judge Roumell was authorized to grant the motion, this Court should vacate defendant’s "acquittal” and remand for a retrial because Judge Roumell erred in granting the motion on the basis that the complainant’s testimony was not credible. Defendant argues that Judge Roumell had authority under the staff comments to MCR 6.419(B) to grant the motion and that his acquittal is not reviewable under the Double Jeopardy Clause. We conclude that MCR 6.419 authorizes such a motion, and that under these facts the people’s appeal must be dismissed.

A

In Michigan, MCR 6.419 sets forth the procedure for motions for a directed verdict of acquittal in a criminal case:

(A) Before Submission to Jury. After the prosecutor has rested the prosecution’s case in chief and before the defendant presents proofs, the court on its own initiative may, or on the defendant’s motion must, direct a verdict of acquittal on any charged offense as to which the evidence is insufficient to support conviction. The court may not reserve decision on the defendant’s motion. If the defendant’s motion is made after the defendant presents proofs, the court may reserve decision on the motion, submit the case to the jury, and decide the motion before or after the jury has completed its deliberations.

(B) After Jury Verdict. After a jury verdict, the defendant may file an original or renewed motion for directed verdict of acquittal in the same manner as provided by MCR 6.431(A) for filing a motion for a new trial.

(C) Conditional New Trial Ruling. If the court grants a directed verdict of acquittal after the jury has returned a guilty verdict, it must also conditionally rule on any motion for a new trial by determining whether it would grant the motion if the directed verdict of acquittal is vacated or reversed.

(D) Explanation of Rulings on Record. The court must state orally on the record or in a written ruling made a part of the record its reasons for granting or denying a motion for a directed verdict of acquittal and for conditionally granting or denying a motion for a new trial.

The staff comment to MCR 6.419 provides:

MCR 6.419 is a new rule.

Subrule (A) is based on 3 ABA Standards for Criminal Justice (2d ed), Standard 15-3.5(b) and is consistent with existing practice except for the provision prohibiting the court from reserving decision on a defense motion for directed verdict made at the close of the prosecution’s proofs. This rule does not state the standard of proof that the court must apply in determining the sufficiency of the evidence. The standard is constitutional and it is therefore left to case law. See People v Hampton, 407 Mich 354 [285 NW2d 284 (1979), cert den 449 US 885 (1980)].

Subrule (B) pertains to motions for directed verdict of acquittal made after the jury verdict. It incorporates by reference the same postconviction procedures that a defendant may use to move for a new trial. This rule does not impose any time limits on a motion for directed verdict of acquittal in the event that the jury does not reach a verdict and is discharged.

Subrule (C) is derived from MCR 2.610(C), which requires the court to rule conditionally on any motion for new trial in the event that it grants a motion for judgment notwithstanding the verdict.

Subrule (D) is derived from the provisions in MCR 2.610(B)(3) and (C)(1) requiring the court to place on the record the reasons for its rulings.

Contrary to defendant’s claim, we find subrule B to be inapplicable where a mistrial based on a hung jury has been declared. Subrule B, by its own terms, governs where a jury verdict has been returned; obviously, no verdict has been returned where a mistrial is declared because of jury deadlock. Moreover, while the staff comments to sub-rule B appear to support defendant’s interpretation, the comments cannot be deemed authoritative where they appear to contradict the plain language of the subrule that they are meant to clarify. See MCR 1.101.

Instead, our reading of MCR 6.419 leads us to conclude that subrule A provides authority to trial courts to direct a verdict of acquittal after a mistrial based on a hung jury has been declared. The second sentence of subrule A expressly provides that the court may reserve decision regarding such a motion made at the close of all evidence, submit the case to the jury, and then "decide the motion before or after the jury has completed its deliberations.” (Emphasis added.) Because it is not patently clear that this language incorporates the circumstance where a mistrial is declared on the basis of a hung jury, we must attempt to ascertain and give effect to the intent of the Michigan Supreme Court in drafting the rule. See People v McCoy, 189 Mich App 201, 204; 471 NW2d 648 (1991).

The staff comment to subrule A states that it is primarily based on 3 ABA Standards for Criminal Justice (2d ed), Standard 15-3.5(b), which provides:

(b) If the defendant’s motion [for judgment of acquittal] is made at the close of the evidence offered by the prosecution, the court may not reserve decision on the motion. If the defendant’s motion is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. [Emphasis added.]

The commentary explains the rationale for Standard 15-3.5(b):

The first sentence of paragraph (b) rests upon the notion that a defendant who moves for acquit tal at the end of the government’s case should have the benefit of a ruling on that motion prior to electing whether or not to present evidence on his or her own behalf. . . .

The second sentence of this paragraph permits a court to reserve decision on a motion made at the end of all the evidence. The objection stated above is not present in this situation, and it is better to expressly recognize the power of a judge to render a decision on the motion even after the jury has returned a guilty verdict or has been discharged without having returned a verdict. This portion of the standard, based on ■ rule 29(b) of the Federal Rules of Criminal Procedure, expressly recognizes the propriety of what often is referred to as a judgment notwithstanding the verdict. This practice is currently recognized in some but not all jurisdictions. The arguments against the practice— that there is a possibility of abuse by the courts and that it is unfair to confront the prosecution with an unappealable acquittal after a jury conviction—are not persuasive. On the contrary, it is desirable that a court not lose its power to direct a verdict once the jury retires and that it not be thereafter confined to granting a new trial. [3 ABA Standards for Criminal Justice (2d ed), Standard 15-3.5(b), Commentary, pp 15-92—15-97.]

Thus, Standard 15-3.5(b) clearly authorizes a trial court to consider a defendant’s motion for judgment of acquittal after a mistrial based on a hung jury is declared, notwithstanding certain policy arguments to the contrary.

Notably, the commentary to Standard 15-3.5 states that it is patterned after FR Crim P 29. Michigan rules of procedure and evidence are generally modeled after the federal rules, Shields v Reddo, 432 Mich 761, 784; 443 NW2d 145 (1989), and, in the absence of state authority, this Court may properly look to comparable federal rules (and cases interpreting those rules) to ascertain the intent of a given state rule, Brewster v Martin Marietta Aluminum Sales, Inc, 107 Mich App 639, 643; 309 NW2d 687 (1981). As does Standard 15-3.5(b), FR Crim P 29(b) expressly provides a federal district court with authority to reserve decision on a motion for judgment of acquittal made at the close of all the evidence, submit the case to the jury, and "decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.”¹ See United States v Martin Linen Sup ply Co, 430 US 564; 97 S Ct 1349; 51 L Ed 2d 642 (1977).

In the absence of a contrary intent, we are persuaded that our Supreme Court intended the language of MCR 6.419(A)—permitting a trial court to decide a motion for directed verdict of acquittal "before or after the jury has completed its deliberations”—to be interpreted in accordance with ABA Standard 15-3.5(b), FR Crim P 29, and existing practice in other jurisdictions. Thus, a jury that has been discharged without returning a verdict has "completed its deliberations.” Accordingly, we conclude as a matter of law that Judge Roumell had the authority under MCR 6.419(A) to consider defendant’s motion for a directed verdict of acquittal after the mistrial was declared.²

B

In this case, Judge Roumell granted defendant’s motion for a directed verdict of acquittal because he found that the complainant was not credible. The people correctly assert that Judge Roumell applied an erroneous standard of review for such a motion. See Hampton, supra at 368, 377. Our Supreme Court has clearly stated that a trial court must not weigh the evidence or assess the credibility of witnesses in deciding a motion for a directed verdict of acquittal. People v Herbert, 444 Mich 466, 473-474; 511 NW2d 654 (1993).

The difficult question posed is whether Judge Roumell’s erroneous ruling of "acquittal” is appealable by the prosecution, in light of the obvious double jeopardy implications. We find that it is not.

Where manifest necessity requires that a mistrial be declared, retrial of the defendant does not offend the Double Jeopardy Clause because a mistrial does not constitute a final judgment of the defendant’s guilt or innocence. People v Thompson, 424 Mich 118; 379 NW2d 49 (1985); Martin Linen Supply, supra at 570. However, once a defendant has been acquitted on the merits, even though it may be based on an "egregiously erroneous foundation,” the judgment of acquittal is not reviewable without subjecting the defendant to successive trials for the same offense in violation of the Double Jeopardy Clause. Fong Foo v United States, 369 US 141, 143; 82 S Ct 671; 7 L Ed 2d 629 (1962) (court’s entry of judgments of acquittal after determining, among other things, that government’s witnesses were not credible, although erroneous, barred a retrial). See also People v Anderson, 409 Mich 474, 483; 295 NW2d 482 (1980), cert den 449 US 1101 (1981); In re Wayne Co Prosecutor, 192 Mich App 677, 680; 481 NW2d 733 (1992); People v Killarney, 95 Mich App 396, 398; 290 NW2d 156 (1980); People v Smith (On Rehearing), 89 Mich App 478, 489-490; 280 NW2d 862 (1979); Sanabria v United States, 437 US 54, 64; 98 S Ct 2170; 57 L Ed 2d 43 (1978); Martin Linen Supply, supra at 571. Certainly, because a jury’s verdict of acquittal is accorded absolute finality, no matter how erroneous its decision, the same standard must necessarily be applied to a legal ruling of the trial court that the evidence was insufficient to support a conviction. Where the Double Jeopardy Clause applies, its sweep is absolute and the grounds on which an acquittal is based are not subject to judicial examination. Burks v United States, 437 US 1, 11; 98 S Ct 2141; 57 L Ed 2d 1 (1978).

Although I am deeply troubled by Judge Roumell’s statements on the record in granting defendant’s motion, I am compelled, in light of established legal principles, to conclude that defendant’s directed verdict of acquittal is final and unreviewable. I take this opportunity to reiterate the admonition of our Supreme Court, in Herbert, supra at 477, that "this exercise of judicial power is to be undertaken with great caution, mindful of the special role accorded jurors under our constitutional system of justice.”

The people’s appeal is dismissed.

Footnotes

1

At the time of trial in this matter, FR Crim P 29 provided in its entirety:

(a) Motion Before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.

(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.

(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period.

If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal.

It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.

(d) Same: Conditional Ruling on Grant of Motion. If a motion for judgment of acquittal after verdict of guilty under this Rule is granted, the court shall also determine whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed, specifying the grounds for such determination. If the motion for a new trial is granted conditionally, the order thereon does not affect the finality of the judgment. If the motion for a new trial has been granted conditionally and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. If such motion has been denied conditionally, the appellee on appeal may assert error in that denial, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

2

We note that, under the second sentence of MCR 6.419(A), a trial court should reserve decision on the motion, submit the case to the jury, and then decide the motion before or after the jury completes its deliberations. Here, defendant moved for a directed verdict at the close of the prosecution’s evidence and Judge Roumell denied the motion. After the jury was discharged, defendant' renewed the motion and Judge Roumell granted it. We consider this to be an inconsequential procedural defect and therefore conclude that the motion was properly brought before Judge Roumell.