People v. Nix

556 N.W.2d 866, 453 Mich. 619

• Court: Michigan Supreme Court
• Decided: December 30, 1996
• Docket: 103072, Calendar No. 1
• Status: Published

Opinions

Cavanagh, J.

This case presents us with the question whether defendant’s rights under the Double Jeopardy Clause were violated. The Court of Appeals concluded that such a violation had occurred, and reversed defendant’s conviction. We now affirm.

i

Defendant was charged with one count of first-degree premeditated murder and one count of felony murder.¹ The victim was kidnapped by defendant’s boyfriend, Robert Hogans,² who locked the victim in the trunk of her own car while he, often accompanied by defendant, used the car for six days. The victim ultimately died from a combination of dehydration and methanol poisoning, which resulted from the ingestion of windshield washer fluid.

At trial, the prosecution’s theory was that defendant was guilty of the murder both directly and under an aiding and abetting theory. After completion of the prosecution’s case in chief, defendant made a motion for directed verdict. After hearing oral arguments on the motion, the court issued a written order granting the motion on July 19, 1991, which in its entirety states:

The Defendant having come before this Court charged with one count of first-degree premeditated murder and with one alternative count of first-degree felony murder; Defendant having made an oral motion for directed verdict arguing that she owed no legal duty to aid the victim; the prosecution having responded that Defendant was responsible as an aider and abettor to the kidnapping and murder that formed the basis for the first-degree felony murder count, and further arguing that Defendant had assumed a legal duty to aid the victim; this Court having heard these respective arguments on July 16 and 17, 1991, and having fully considered both the arguments and the submitted case law offered by the parties in support, and this Court being otherwise fully advised in the premises:

It is ordered that, as a matter of law, Defendant owed no legal duty to the victim and therefore could not be convicted of either charge as a matter of law.

It is further ordered that entry of the directed verdict and all farther proceedings in the trial are stayed until August 2, 1991, to permit the prosecution to seek appellate review of this legal ruling.

It is further ordered that Defendant is granted a $10,000 personal bond until further order of this Court.

It is further ordered that the jury is not discharged, but instead is ordered to return to their daily lives while the trial is adjourned and until summoned by this Court to return for completion of the proceedings, and is instructed that they are to continue to refrain from discussing this case, reading about this case, or listening to any news reports concerning this case.

It is so ordered.

The prosecutor filed an appeal with the Court of Appeals, which, on August 2, 1991, issued an order stating in relevant part:

Pursuant to MCR 7.205(D)(2), the Court orders that that part of the lower court order of July 19, 1991 which holds that defendant could not legally be convicted of felony murder is reversed and set aside, and this case is remanded for further proceedings consistent herewith. See MCL 767.39; MSA 28.979, People v Kelly, 423 Mich 261, 278-279 [378 NW2d 365] (1985), and People v Aaron, 409 Mich 672, 733-734 [299 NW2d 304] (1980).

On August 16, 1991, this Court denied leave to appeal that order. 437 Mich 1060.

On remand, the trial judge recalled the original jury, but ultimately discharged it on the basis of what the judge characterized as manifest necessity, after concluding that the original jurors had insufficient memory of the proceedings. Accordingly, a new jury was empaneled, a new trial was conducted, and defendant was convicted of involuntary manslaughter.³ Defendant received a sentence of seven to fifteen years.

On appeal, a unanimous panel of the Court of Appeals reversed the conviction, holding that it “constitutes a violation of her constitutional protections against double jeopardy.” 208 Mich App 648, 649; 528 NW2d 208 (1995). Relevant to the issue actually presented in this appeal, the Court of Appeals opinion states:

The question presented in this appeal is whether a trial court may avoid application of double jeopardy by staying entry of the order granting the directed verdict pending an appeal by the prosecutor. We conclude that such a procedural device cannot be used as a means of avoiding defendant’s constitutional protection against double jeopardy.

* * *

Although the court couched the order as a simple legal question and made an effort to avoid double jeopardy problems by keeping the original jury empaneled, the legal import of this holding was a directed verdict of acquittal. The court found that the prosecutor failed to establish an essential element of his case. The court judged defendant’s case on the merits and made a finding of insufficiency This is precisely the type of ruling that is not appealable. [Id. at 650-651.]

We granted leave, 450 Mich 971 (1996), and now affirm.

n

In Fong Foo v United States, 369 US 141; 82 S Ct 671; 7 L Ed 2d 629 (1962), the trial court, during presentation of the prosecutor’s case in chief, “directed the jury to return verdicts of acquittal as to all the defendants, and a formal judgment of acquittal was subsequently entered.” Id. at 142. On appeal, the United States Court of Appeals for the First Circuit held that the district court was without power to direct the acquittals, and ordered the case remanded to the trial court. On further appeal, the United States Supreme Court held as follows: “The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless, ‘[t]he verdict of acquittal was final, and could not be reviewed . . . without putting [the petitioners] twice in jeopardy, and thereby violating the constitution.’ ” Id. at 143 (citing United States v Ball, 163 US 662, 671; 16 S Ct 1192; 41 L Ed 300 [1896]).

In United States v Martin Linen Supply Co, 430 US 564, 571; 97 S Ct 1349; 51 L Ed 2d 642 (1977), the United States Supreme Court reaffirmed this principle from Ball and Fong Foo, stating: “[W]e have emphasized that what constitutes ‘an acquittal’ is not to be controlled by the form of the judge’s action. Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” (Citations omitted.)⁴

In People v Anderson, 409 Mich 474, 486; 295 NW2d 482 (1980), this Court acknowledged and applied this legal principle:

To be sure, the judge did not say that he was directing a verdict, and no formal judgment of acquittal was entered. The determination of what the judge did, however, does not turn on how the judge characterizes his actions. “[T]he trial judge’s characterization of his own actions cannot control the classification of the action.”²⁴ What constitutes an “acquittal” is not controlled by the form of the judge’s action.²⁵

To decide how a trial judge’s action should be characterized, the reviewing court “must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.”²⁶ There is an acquittal and retrial is impermissible when the judge “evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction.”²⁷

The application of this law to the facts of this case is straightforward.

III

The prosecutor’s attempt at revisionist history of the principles underlying the Double Jeopardy Clause notwithstanding, the controlling case law, of both the United States Supreme Court and this Court, is clear and unambiguous.⁵ The trial court’s grant of defendant’s motion for directed verdict bars any further proceedings relative to the charges brought against defendant. The trial court’s attempt to circumvent the clear dictates of double jeopardy jurisprudence by purportedly staying the effect of its legal determination is without any effect whatsoever. The trial court’s decision not to discharge the jury is also without any legal effect.

• Essential to our decision is the fact that the trial court’s July 19, 1991, order was a binding legal resolution, based on the trial judge’s evaluation of all the evidence presented by the prosecution in its case in chief, of the two counts brought against defendant, under both a direct theory and an aiding and abetting theory. The fact of this ruling precludes appellate inquiry into its legal correctness, Martin Linen Supply, supra at 571, and, accordingly, completely undermines the prosecutor’s law-of-the-case argument.

The dissent’s strained reading of Sanabria v United States, 437 US 54; 98 S Ct 2170; 57 L Ed 2d 43 (1978), and United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 (1978), obfuscates the clear (and clearly stated) standard for what constitutes an acquittal for purposes of the double jeopardy clause: “[W]hether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Martin Linen Supply, 430 US 571. The dissent imagines a “lack of clarity generated by Sanabria,” post, p 638, but, even if this were true, it would still be irrelevant to our inquiry here because the applicable standard comes from Martin Linen Supply, not Sanabria, as the dissent acknowledges: “The Sanabria Court specifically referred to the Martin Linen test for defining an acquittal . . . .” Post, p 638.

The dissent appears to read the Martin Linen .standard as if the phrase “correct or not” refers to the factual truth of the prosecution’s evidence, a determination completely outside the trial court’s purview in a jury trial when considering- a defendant’s motion for directed verdict. When ruling on a motion for directed verdict, a trial court must, as this trial court did, view the prosecution’s evidence in the light most favorable to the prosecution. Accordingly, the trial court cannot make an erroneous factual resolution. The phrase “correct or not” refers to all aspects of the trial court’s ultimate legal decision, including even cases where the trial court is factually wrong with respect to whether a particular factor is an element of the charged offense. As discussed below, however, it is not clear that this situation even exists in the case at bar.

The prosecutor also argues that the Court of Appeals erred in that it “failed to consider . . . that the trial court in the instant case was ruling on the underlying legal basis for a determination of the Defendant’s criminal culpability — not on the evidentiary sufficiency of the prosecution’s proofs. The question whether the prosecution could proceed on a theory of ‘legal duty’ was not dependent on the proofs presented at trial and should have been challenged by the defense prior to trial rather than in a motion for directed verdict at the close of the prosecutor’s proofs.” (Emphasis in original.) We find this argument to be without merit.

The text of the trial court’s order makes it clear that, in granting defendant’s motion for directed verdict, the trial judge considered all the factual evidence proffered by the prosecution and concluded that that factual evidence, as a matter of law, was insufficient to permit the jury to convict defendant of the charges brought, under either theory.⁶

The dissent relies on a principle narrowly applied in People v Coleman, 350 Mich 268; 86 NW2d 281 (1957), a principle not logically operative under the circumstances imagined by the dissent. In Coleman, the defendant was charged with attempt to obstruct justice: in particular, the attempt to dissuade a witness from testifying at a trial through the use of verbal threats. This Court noted the defendant’s argument that the relevant criminal statute did not apply to him because his alleged actions constituted only “evil intent unaccompanied by some overt act going directly toward the consummation of a crime.” Id. at 280. This Court responded as follows:

But what, here, is the crime? It is the attempt to dissuade, which may be accomplished by words as well as physical act of violence. That words themselves may be overt acts under some circumstances, in fact overt acts sufficient to constitute crimes, is well settled. [Id. (emphasis added).]

In support of this statement of law, the Coleman Court cited People v Ruthenberg, 229 Mich 315; 201 NW 358 (1924), a case in which the defendant was charged under a criminal syndicalism statute that made punishable as a felony the advocacy “by word of mouth or writing” of the use of crime, sabotage, violence or other unlawful method of terrorism as a means of accomplishing industrial or political reform. Id. at 320. No one would dispute that words can constitute the actus reus where the crime is the attempt to dissuade (as in Coleman), or where the crime is advocacy by word of mouth of a certain doctrine (as in Ruthenberg). But the use by the unanimous Coleman Court of the limiting phrase “under some circumstances,” when read fairly in its proper context, belies the dissent’s attempted application of Coleman to the case at bar. The testimony by one witness at trial that she told defendant she thought she heard screams coming from the trunk and that defendant said she was “crazy” is not evidence of “an affirmative act performed by defendant” relevant to the prosecution’s case against defendant. It is, of course, relevant to whether defendant actually had knowledge that the victim was confined in the trunk, which was the reason the prosecution introduced this evidence at trial. And it is evidence of which the trial court was aware when it made its ultimate legal ruling.

But even if the dissent were correct that the narrow holding of Coleman is applicable in the instant case (which, as just discussed, is not the case), that does not change the fact that the prosecution had presented all the evidence it planned on presenting and had formally concluded its case in chief. Accordingly, the trial court was fully aware of all the evidence, and apparently considered all that evidence, before reaching its ultimate legal conclusion. The judge “ ‘evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction’ . . . .” Anderson, 409 Mich 486, quoting Martin Linen Supply, 430 US 572. This constitutes an acquittal for purposes of the double jeopardy clause, whether “the acquittal was based upon an egregiously erroneous foundation,” Fong Foo, 369 US 143, or not. If acquittals include “egregiously erroneous” decisions (as in Fong Foo), then they surely include merely arguable errors such as the one presented in the case at bar.

The dissent ignores the significant fact that the prosecution’s case was grounded solely on the premise that defendant had knowledge of the victim’s confinement in the trunk and did nothing to free the victim. In a very real sense, the dissent’s focus on the fact that “duty” is not a specifically enumerated element of kidnapping is not significant and, under the actual facts presented here, a distinction without a difference. The prosecution never proffered a theory or any evidence that defendant aided in the initial confinement of the victim in the trunk. The prosecution’s case, its most fundamental basis for charging defendant under both the direct theory and the aiding and abetting theory, rested entirely on the allegation that defendant acquired knowledge that the victim was confined in the trunk and became complicit in the criminal endeavor when she failed to act to free or otherwise aid the victim. And if guilt can accompany a failure to act — that is, guilt by omission — then, obviously, it can only be so because the guilty party had an obligation to act in some way, was legally compelled to act in some way, had a duty to act in some way: A rose by any other name . ’. . .

With regard to the prosecutor’s claim that defendant should have brought a motion before trial, we briefly address it. This case has nothing to do with whether the prosecutor could proceed on a theory of legal duty; the decision of what theory (or theories) to proceed on is solely within the province of the prosecutor. The reality of this case is that the prosecutor chose to proceed on the theory that defendant was guilty of the charges brought against her because she had a legal duty to the victim that she failed to fulfill. The prosecutor then presented its evidence and, after considering all that evidence, the trial court ruled that it was legally insufficient to support a conviction of the charges brought against defendant. This ruling by the trial court is completely dispositive of this case for purposes of the Double Jeopardy Clause.

IV

We affirm the decision of the Court of Appeals and remand this case to the circuit court for entry of the order granting defendant’s motion for directed verdict.

Brickley, C.J., and Levin and Mallett, JJ., concurred with Cavanagh, J.

1 MCL 750.316; MSA 28.548.

2 Hogans was tried and convicted in a separate proceeding that is not relevant to this appeal.

3 MCL 750.321; MSA 28.553.

4 This principle was more recently reaffirmed in Smalis v Pennsylvania, 476 US 140; 106 S Ct 1745; 90 L Ed 2d 116 (1986).

24 United States v Scott [437 US 82, 96; 98 S Ct 2187; 57 L Ed 2d 65 (1978)], quoting United States v Jom [400 US 470, 478, n 7; 91 S Ct 547; 27 L Ed 2d 543 (1971)] (plurality opinion). See United States v Martin Linen Supply Co, supra. . . .

25 United States v Martin Linen Supply Co, supra, p 571.

26 Id.

27 Id, p 572. See People v Hampton, 407 Mich 354, 385-386; 285 NW2d 284 (1979) (Ryan, J.).

5 In this regard, we note the prosecutor’s failure to even cite, let alone address on the merits, this Court’s controlling opinion in People v Anderson, supra.

6 Despite the prosecutor’s protestations to the contrary, the text of the trial court’s order and the transcript of the oral arguments on defendant’s motion show that the trial judge was fully aware of the prosecutor’s aiding and abetting theory, and included it in the grant of defendant’s motion for directed verdict.