People v. Torres

549 N.W.2d 540, 452 Mich. 43

• Court: Michigan Supreme Court
• Decided: June 25, 1996
• Docket: 102759, Calendar No. 11
• Status: Published

Opinions

Riley, J.

In this case, we must resolve the legal questions that arise from the trial court’s decision to dismiss criminal charges against defendant on double jeopardy grounds. In his first trial, defendant was convicted of simple possession of more than 650 grams of cocaine and acquitted of the charge of possession with intent to deliver over 650 grams of cocaine. The trial court vacated his conviction on the simple possession charge and granted defendant a new trial finding, sua sponte, that it had committed a prejudicial error while instructing the jury. Defendant was retried on the simple possession charge, but this trial ended in a hung jury. Before the third trial began, the trial court dismissed the simple possession charge on double jeopardy grounds. On the people’s appeal of the dismissal, the Court of Appeals refused to review the trial court’s interlocutory decision to grant a new trial, but reversed the dismissal, remanding for a new (third) trial on the simple possession charge. Plaintiff appeals the Court of Appeals refusal to review the grant of a new trial, and defendant cross appeals the Court of Appeals decision to reverse and remand.

We hold that the people may properly raise the issue of a trial court’s interlocutory decision, i.e., to grant defendant a new trial, in an appeal of right from the trial court’s final order of dismissal. The Court of Appeals erred in deciding that it did not have jurisdiction to review this decision. Such an appeal does not violate defendant’s right against double jeopardy. We reverse and remand this issue to the Court of Appeals.

On defendant’s cross appeal, we agree with the Court of Appeals that the trial court erred in concluding that defendant would suffer double jeopardy if he were retried on the charge of simple possession of more than 650 grams of cocaine. He was convicted of this very crime in his first trial. His retrial for that same crime does not violate his right against double jeopardy.

Hence, we affirm in part and reverse in part the Court of Appeals decision and remand for further consideration.

FACTS AND PROCEDURAL HISTORY

On January 9, 1989, defendant Gavino Torres was involved in a drug transaction. According to the testimony produced at his first trial, defendant participated in a conversation with Rodney Edwards, Antonio Olmeda, and Anthony Valentin about purchasing two kilograms of cocaine. Valentin and David Crowl had arranged to sell two kilograms of cocaine to Roberto Anaya, an undercover police officer, in the parking lot of a Burger King restaurant. Defendant accompanied Edwards, Olmeda, and Valentin when they went to obtain the cocaine for this sale from Edwards’ supplier. Defendant was given the cocaine from Edwards’ source and then traveled with the others to a supermarket parking lot near the Burger King. Valentin testified that defendant’s role in controlling the cocaine in the car en route to the parking lot was to escape with the cocaine if they were stopped by the police.¹ Valentin also testified that he, Edwards, Olmeda, and Torres planned to split the profits of the cocaine sale.

After arriving at the supermarket’s parking lot, defendant, Edwards, Olmeda, and Valentin met another participant in the sale, Freddie Marshall. Defendant gave the cocaine to Edwards who, in turn, gave it to Valentin. After receiving the cocaine, Valentin left with Marshall to make the sale to Anaya, who was waiting with Crowl in the Burger King parking lot. Defendant was arrested after the sale, as were Crowl, Marshall, and Valentin.

Defendant was charged with possession with intent to deliver over 650 grams of cocaine. MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). At the close of proofs in the first trial, the prosecutor asked the trial court to give the jury an instruction on the crime of simple possession of more than 650 grams of cocaine, a violation of MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), as a lesser included offense. The trial court agreed to do so and defendant did not object.² The trial court also instructed the jury that the simple possession charge was a “less serious crime” than the charge of possession with intent to deliver. Defendant was convicted of simple possession, but was not convicted, and was thereby acquitted, of possession with intent to deliver.

On the day of sentencing, October 16, 1990, the trial court, sua sponte, decided to grant defendant a new trial because the court concluded that it erred in giving the simple possession charge as a lesser included offense where it carries the same penalty³ as the possession with intent to deliver charge:

My point is that when you ask for an instruction and the penalty is the same, at the very least the instruction should be [“]you may consider a separate offense of so and so,[”] possession of over 650 -grams in this case, rather than the language I gave them, [“]you may also consider the less serious crime of 650 — possession of over 650 grams of cocaine. [”] That is my point. . . . They had an alternative without a true alternative. [Emphasis added.]

On this basis, the trial court entered an order dated October 22, 1990, setting aside defendant’s conviction of simple possession of 650 grams of cocaine and ordering a new trial. The people moved for reconsideration, asking the trial court to reinstate the verdict. The trial court denied this motion.⁴

On November 30, 1990, the prosecutor filed a delayed application for leave to appeal this decision to the Court of Appeals, which denied the application on February 26, 1991 (Docket No. 135400). On May 3, 1991, this Court also denied the application.⁵

In May 1991, defendant was retried on the simple possession charge. The trial ended in a hung jury, and the trial court declared a mistrial. Thereafter, a third trial was scheduled. Before this trial began, defendant moved to dismiss the simple possession charge on the basis that another trial would violate his right protecting him from double jeopardy. At the hearing on this motion, on February 7, 1992, the trial court concluded that the crime of possession with intent to deliver more than 650 grams of cocaine, .of which defendant was acquitted in his first trial, was the same charge as simple possession for double jeopardy purposes:

In . . . the case before the Court, there are no different transactions, no different facts, the retrial would be dealing with the same issues, the same circumstances, the same facts as the original trial on the original charge of possession with intent to deliver over 650 grams of cocaine.

On February 21, 1992, the trial court entered an order dismissing the simple possession charge against defendant because a retrial was barred by double jeopardy because of his prior acquittal on the possession with intent to deliver charge from the first trial.

The prosecutor brought an appeal of right in the Court of Appeals from the February 21, 1992, order, challenging the trial court’s dismissal of the simple possession charge. In that appeal, the prosecutor also asked the Court to reverse the trial court’s October 22, 1990, decision granting a new trial. In a published opinion, the Court of Appeals decided that it did not have jurisdiction to hear the prosecutor’s appeal of the interlocutory decision. Rather, it held that “a prosecutor’s appeal as of right from a final order in a criminal case does not allow appellate review of all previous orders issued in the case.”⁶ Consequently, the Court of Appeals did not address the question whether the trial court abused its discretion in ordering a new trial.

However, the Court of Appeals reversed the trial court’s decision to dismiss the simple possession charge against defendant. The Court reasoned that the jury, by its verdict in the first trial, did not acquit defendant of the simple possession charge:

A jury in the present case rationally could find that defendant possessed the cocaine, but that he did not have the intent to deliver it. Thus, the fact that defendant was acquitted of the charge of possession with intent to deliver cocaine does not bar retrial on the offense of simple possession of cocaine, pi

Accordingly, the Court of Appeals reversed the dismissal and remanded the case for a new trial of the simple possession charge.

Subsequently, we granted plaintiff’s application for leave to appeal whether the prosecutor may appeal the trial court’s October 22, 1990, decision granting defendant a new trial. This Court also granted defendant’s cross appeal in which he challenges the Court of Appeals ruling to remand for a new trial.^{7 8}

I. PEOPLE’S RIGHT TO RAISE THE ISSUE OF THE INTERLOCUTORY DECISION

A

The Michigan Constitution does not provide the people the right of appeal in criminal cases. People v Cooke, 419 Mich 420, 424-425; 355 NW2d 88 (1984). Rather, the people may only file an appeal as provided by statute. MCL 770.12; MSA 28.1109. MCL 770.12; MSA 28.1109 provides that the people may take an appeal of right from a lower court’s final order:

(1) Except as provided in subsection (2), the people of this state may take an appeal of right in a criminal case, if the protection against double jeopardy under section 15 of article I of the state constitution of 1963 and amendment V of the constitution of the United States would not bar further proceedings against the defendant, from either of the following:

(a) A final judgment or final order of the circuit court or recorder’s court, except a judgment or order of the circuit court or recorder’s court on appeal from any other court.

(b) A final judgment or order of a court or tribunal from which appeal of right has been established by law.

The statute also provides that the people may apply for leave to appeal an interlocutory order:

(2) The people of this state may take an appeal by leave in a criminal case, if the protection against double jeopardy under section 15 of article I of the state constitution of 1963 and amendment V of the constitution of the United States would not bar further proceedings against the defendant, from any of the following:

(a) A judgment or order of the circuit court or recorder’s court that is not a final judgment appealable of right.

(b) A final judgment entered by the circuit court or the recorder’s court on appeal from any other court.

(c) Any other judgment or order appealable by law or rule.

(d) A judgment or order when an appeal of right could have been taken but was not timely filed.

(e) A final order or judgment based upon a defendant’s plea of guilty or nolo contendere.

An order granting a new trial is a nonfinal, interlocutory order. People v Pummer, 399 Mich 326, 332; 249 NW2d 78 (1976), overruled on other grounds in Cooke, supra at 433. Thus, the trial court’s October 22, 1990, decision to grant defendant a new trial was not a final order but was an interlocutory order. The prosecutor sought leave to appeal this decision, but it was denied by the Court of Appeals and by this Court. The trial court entered a final order on February 21, 1992, when it dismissed the simple possession charge against defendant on double jeopardy grounds.

B

In appealing the February 21, 1992, final order, the prosecutor asked the Court of Appeals to review the trial court’s October 22, 1990, interlocutory decision granting a new trial even though this Court and the Court of Appeals earlier refused to grant leave. Thus, this Court must determine whether MCL 770.12; MSA 28.1109 authorizes the people to raise the issue of an earlier interlocutory order when bringing an appeal of right from a final order.

On its face, the statute provides that the people may appeal of right a final order, but it does not state whether the people may also appeal a trial court’s earlier decisions entered as nonfinal orders in appealing the final order. The statute, under subsection 2(a), does provide that the people may appeal by leave a trial court’s decision to grant a new trial for a defendant. However, this provision does not indicate that the people are forbidden from raising an interlocutory decision granting a new trial when they appeal a final order of right.

In order to determine whether the Legislature intended to make an interlocutory order reviewable in an appeal of right, we may examine the statute’s legislative history to understand its purpose. Before MCL 770.12; MSA 28.1109 was revised in 1988, the statute only provided the people an appeal when a trial court construed the validity of a criminal statute or when a trial court decision was issued before jeopardy attached. ⁹ In Cooke, this Court held that the people could appeal a decision only in the limited circumstances provided by the statute. Id. at 433. The decision in Cooke eliminated the possibility that the people could appeal by leave the decision of a trial court to grant a defendant a new trial. In re People v Burton, 429 Mich 133, 141; 413 NW2d 413 (1987).¹⁰

As the Court of Appeals noted, prosecutors attempted to circumvent this limitation by filing a complaint for superintending control in order to contest orders granting a new trial.¹¹ However, in Burton, supra at 142-144, this Court concluded that an order of superintending control should not be used to circumvent the will of the Legislature. We held that this extraordinary remedy was not warranted where the people wished to appeal a trial court’s order granting a new trial.

In response to this Court’s ruling in Cooke, the Legislature enacted 1988 PA 66, revising MCL 770.12; MSA 28.1109, to give the people the same essential right to appeal and seek leave as a defendant enjoys, within the limits of the constitutional prohibition against double jeopardy.¹²

c

Since the Legislature intended to provide the people with the same right as a criminal defendant on appeal, we must examine the provisions that authorize a defendant to appeal a final decision in order to determine whether a defendant may appeal interlocutory decisions when he appeals a final order of light.

The Michigan Constitution provides in art 1, § 20 that “the accused shall have the right to . . . have an appeal as a matter of right . . . .” In MCL 600.308; MSA 27A.308, the Legislature has provided for the jurisdiction of the Court of Appeals to hear appeals by a criminal defendant, as well as for parties in civil cases generally. MCL 600.308; MSA 27A.308 enables a party to appeal of right a final order and apply for leave from an interlocutory order.¹³

The bill essentially would ensure that the people of the State had the same right to appeal that a defendant has, within the limits of constitutional prohibitions against double jeopardy.

In appealing a final order entering a conviction, a criminal defendant may raise certain trial court interlocutory decisions, e.g., admission of evidence during trial, that might have affected the outcome of the case.¹⁴ Moreover, the Court of Appeals has also recently held that a party on appeal from a final order in a civil case is “free to raise on appeal issues related to other orders in the case.” Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487 NW2d 807 (1992), citing Dean v Tucker, 182 Mich App 27, 31; 451 NW2d 571 (1990).¹⁵ The' Court in Dean had relied on Comm’r of Ins v Advisory Bd of the Michigan State Accident Fund, 173 Mich App 566, 589; 434 NW2d 433 (1988).

However, the Court of Appeals in the present case refused to follow Dean in the criminal context, relying instead on Adams v Perry Furniture Co (On Remand), 198 Mich App 1; 497 NW2d 514 (1993), and Klco v Dynamic Training Corp, 192 Mich App 39; 480 NW2d 596 (1991), in which the Court declined to examine an earlier order.¹⁶ The Court of Appeals here apparently reasoned that Dean was no longer good law because the case on which it relied, Comm’r of Ins, supra, was rejected by Adams and Klco, supra17 Importantly, in Comm’r of Ins, supra at 589, the plaintiff was appealing the final order and wished to raise an issue from a previous “final order,” i.e., an “otherwise nonfinal order certified as a final order under MCR 2.604(A) . . . .”¹⁸ This was the same situation in Adams, supra at 3-4, 8, and Klco, supra at 40-41. Thus, by statute, MCL 600.308; MSA 27A.308, and by court rule, MCR 7.203, the parties in Comm’r of Ins, Adams, and Klco, supra, had a right to appeal the earlier decision.

In contrast, the plaintiff in Dean was appealing by right the trial court’s decision to grant summary disposition and, in doing so, also asked the Court to review the trial court’s earlier decision refusing to extend the deadline for filing the witness list. There was no indication that this earlier decision was certified as a final order under MCR 2.604. Consequently, unlike Adams, Klco, and Comm’r of Ins, there was no other opportunity of right for the party in Dean to appeal the trial court’s decision because it did not dispose of any claims. See Dean, supra at 29-31.¹⁹

Similarly, in this case, the people have not been accorded appellate review of the merits of this decision. The people attempted to do so by applications for leave, but each was denied.²⁰ Thus, if this Court concludes that this issue is not reviewable, then the people will not have had an opportunity for appellate review of the trial court’s October 22, 1990, decision granting defendant a new trial.

In summary, a party in a civil action may raise previous interlocutory decisions when it brings an appeal of right from a final order. Likewise, a criminal defendant may raise an issue related to an interlocutory decision in its appeal of right from a final decision.²¹ We conclude that the Legislature intended to provide this same right to the people in an appeal from a final order in MCL 770.12; MSA 28.1109. Thus, the people have a right to raise issues related to earlier interlocutory orders in an appeal of right from the final order.²²

D

Defendant argues that this conclusion provides the people with a more generous opportunity to appeal than provided a defendant. On the basis of this Court’s treatment of interlocutory decisions from a criminal defendant’s appeal, defendant argues that the people’s interests were adequately protected by the opportunity to seek interlocutory appeal, People v Hall, 435 Mich 599; 460 NW2d 520 (1990), and by the opportunity to seek conviction by a retrial, People v Thompson, 424 Mich 118; 379 NW2d 49 (1985). The general rule that we discern from these seminal cases is that this Court will only review an earlier interlocutory decision in an appeal from a final order where (1) an appellate court may fashion an appropriate remedy²³ and (2) the error has not been cured, or rendered moot, by a later proceeding. On the basis of this rule, we conclude the people may properly ask this Court to review the trial court’s decision to grant a new trial.

In Hall, supra at 602, this Court addressed a question where, in an appeal from his conviction, a defendant claimed that there was inadequate admissible evidence presented at his preliminary examination to bind him over for trial. We concluded that an error at the preliminary examination stage should be examined for harmless error. Id. We explained that “the availability of an interlocutory appeal affords protection in those cases where an innocent accused should have been screened out by the preliminary examination process.” Id. at 615. The preliminary examination process ■ established by statute in Michigan under MCL' 766..1 et seq:, MSA 28.919 et seq. ensures that a defendant shall not suffer extended restraint of liberty following an arrest unless there has been a judicial determination of probable cause that he committed the crime for which he is held. Id. at 603.

However, once the matter proceeded to trial in Hall, there was no way that this Court could provide a remedy specific to the harm the rule sought to avoid. In the present case, this Court could fashion an appropriate appellate remedy for the alleged trial court error by reinstating the conviction. Moreover, this Court did not state that such an error was not reviewable in Hall, but rather that this Court would only reverse the defendant’s conviction if the error prejudiced the outcome of his trial. In the present case, if the trial court did abuse its discretion in granting a new trial, the people’s interests were surely prejudiced because defendant’s conviction on simple possession was vacated and this charge was ultimately dismissed without a jury reaching a verdict of acquittal.

In Thompson, supra, the defendant was convicted of felony murder, but this conviction was reversed because of improper jury instructions. The defendant’s second trial ended in a hung jury and a mistrial was declared. In his third trial, the defendant was again convicted of felony murder. This Court held that the retrial of defendant on the same charge after a mistrial because of a hung jury did not violate his double jeopardy or his due process protections under the Michigan Constitution. Id. at 135-136. Also, in the second trial, the defendant moved for a directed verdict, arguing that there was insufficient evidence to convict him presented at that trial. The trial court denied the defendant’s motion. This Court held that there is no requirement under art 1, § 15 (double jeopardy provision) or art 1, § 17 (due process) of the Michigan Constitution that this Court review the trial court’s decision refusing to grant a directed verdict. Id. Defendant in the present case argues that this rule should be equally applicable to the people here, arguing that the people should not be able to appeal the trial court’s nonfinal order from an earlier trial even though that decision could have prevented the retrial from occurring.

However, the trial at which the defendant moved for a directed verdict in Thompson ended in a mistrial. We stated in Thompson that “[t]he general view of a hung jury mistrial has been that it is essentially a nullity and that the subsequent retrial determines a defendant’s guilt or innocence.” Id. at 135. This Court explained that a retrial following a mistrial is treated as “a continuation of the same case.” Id. Consequently, the error alleged from the second trial in Thompson was able to be rectified in the third trial, where the prosecution did produce sufficient evidence, because the third trial was considered a continuation of the second one.²⁴

In contrast, a third trial here, as a constructive continuation of the second, would not rectify the trial court’s possible abuse of discretion in reversing defendant’s conviction from his first trial. The alleged error did not occur in a “nullity,” i.e., a trial that ended in a mistrial. Rather, the first trial was complete, and stands by itself. The error could not be corrected by the next trial. Hence, in this case, unlike Thompson, the error was not cured by later proceedings.

n. REVIEW OF THE INTERLOCUTORY DECISION AND DOUBLE JEOPARDY

Defendant argues that the decision to review an order after retrial violates his right to be free from double jeopardy because a successful appeal would mean reinstatement of his conviction from the first trial.

The United States and the Michigan Constitutions protect a person from being twice placed in jeopardy for the “same offense.” US Const, Am V; Const 1963, art 1, § 15. The purpose of the double jeopardy provision is to prevent the state from making repeated attempts at convicting an individual for an alleged crime. People v Dawson, 431 Mich 234, 250; 427 NW2d 886 (1988). The United States Supreme Court examined the origin and history of the rule in United States v Green, 355 US 184; 78 S Ct 221; 2 L Ed 2d 199 (1957). As this Court quoted in Dawson, supra at 251, the United States Supreme Court in Green concluded that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green at 187-188. Thus, the Double Jeopardy Clause provides three related protections:

“It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” [United States v Wilson, 420 US 332, 343; 95 S Ct 1013; 43 L Ed 2d 232 (1975), quoting from North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969), which was overruled in part on other grounds in Alabama v Smith, 490 US 794, 802; 109 S Ct 2201; 104 L Ed 2d 865 (1989).]

Defendant argues, as do the Criminal Defense Attorneys of Michigan in their amicus curiae brief, that a defendant may not be subjected to a second trial after being validly convicted in the first one. They claim that the reinstatement of defendant’s first conviction would render the second trial unnecessary and would violate defendant’s right to be free from retrial after conviction.

The United States Court of Appeals for the Eleventh Circuit rejected a similar argument in United States v Martinez, 763 F2d 1297 (CA 11, 1985). In Martinez, the defendant was convicted of cocaine distribution in his first trial, but the trial court granted his motion for a new trial. On retrial, in a bench trial, the defendant was acquitted. On appeal from the judgment of acquittal, the prosecution claimed that the trial court abused its discretion in granting a new trial. In determining whether its review of this claim would violate the defendant’s double jeopardy protection, the Eleventh Circuit examined the United States Supreme Court’s treatment of the constitutional right and distilled this test:

[T]he test for whether a government appeal of a judgment of acquittal is barred by the Double Jeopardy Clause is whether there will be any proceeding after a successful appeal that would require the resolution of further factual issues by the trier of fact. [Id. at 1309.]

On the basis of this test, the court held that the prosecution could appeal the defendant’s conviction and seek reinstatement of his conviction without violating the Double Jeopardy Clause because “reversal on appeal will simply reinstate the prior judgment of conviction and not subject defendant to another prosecution.” Id. at 1310. In fact, the court then determined that the trial court abused its discretion, reversed the judgment acquitting him, and reinstated the jury verdict finding him guilty. Id. at 1313, 1315-1316.²⁵ The United States Court of Appeals for the Fifth Circuit adopted the Martinez rule in a factually similar case and also reinstated the jury verdict despite the subsequent acquittal in a bench trial. United States v Leal, 781 F2d 1108, 1110 (CA 5, 1986) (“This appeal, like that of Martinez, does not effect double jeopardy because reversal would only require reinstating the jury verdict; further prosecution would be avoided”), cert den 479 US 831 (1986).

Martinez is well grounded in the United States Supreme Court’s examination of the Double Jeopardy Clause. In Wilson, supra, the Supreme Court ruled that the prosecution could appeal a trial court’s decision to dismiss an indictment against a defendant because of a preindictment delay even though the jury had already found the defendant guilty of that crime. The Supreme Court reasoned that review of the trial court’s order would not offend the policy against multiple prosecutions “[s]ince reversal on appeal would merely reinstate the jury’s verdict . ...” Id. at 344-345. Relying on Wilson, the Supreme Court later stated that “where a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended.” United States v Martin Linen Supply Co, 430 US 564, 569-570; 97 S Ct 1349; 51 L Ed 2d 642 (1977). The Court in Martin Linen noted that the double jeopardy bar was not “automatically averted” in its case because, unlike the present case, a successful appeal reversing the judgment of acquittal would necessitate another trial. Id. at 571. Also, in examining whether the prosecutor could appeal a trial court’s decision (at the close of proofs but before a verdict) to dismiss because of the prejudice caused by preindictment delay, the Supreme Court explained that one of the principles of double jeopardy jurisprudence is that a “judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” United States v Scott, 437 US 82, 91; 98 S Ct 2187; 57 L Ed 2d 65 (1978) (emphasis added).²⁶

Defendant and the amicus curiae contend that the Eleventh Circuit in Martinez overlooked the Supreme Court’s double jeopardy analysis in Abney v United States, 431 US 651; 97 S Ct 2034; 52 L Ed 2d 651 (1977). In Abney, supra at 653, the Supreme Court examined the question whether a trial court’s pretrial order refusing to dismiss an indictment on double jeopardy grounds was a final order from which a party in federal court had a right to appeal. The defendants were convicted in the first trial, but the United States Court of Appeals for the Third Circuit had reversed the conviction because of an evidentiary error. Before retrial, the defendants moved to dismiss the indictment, claiming that double jeopardy prevented their retrial. The Supreme Court noted that the double jeopardy protection is not just a prohibition of being twice punished, but also against being twice put in jeopardy. Id. at 661, citing Price v Georgia, 398 US 323, 326; 90 S Ct 1757; 26 L Ed 2d 300 (1970). It explained that “the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense.” Abney, supra at 661. For this reason, the Court concluded that the pretrial order must be immediately appealable as a “final decision” under federal statutory law, otherwise the defendant’s protection against double jeopardy would be lost:

[T]he [double jeopardy] protections would be lost if the accused were forced to “run the gauntlet” a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs. [Id. at 662 (emphasis in original) (citations omitted).]1²⁷1

The Eleventh Circuit’s opinion in Martinez is consistent with the reasoning of Abney. In Abney, the defendants did not have to endure a second trial before they brought their appeal. In Martinez, the prosecution brought the appeal. Because the prosecution succeeded in its claim that the trial court’s decision to grant a new trial was an abuse of discretion, the remedy was to reinstate the verdict of the first trial. The appeal did not require a retrial. Like Abney, the defendant in Martinez did not have to endure personal strain, public embarrassment, and the expense of another criminal trial because he did not suffer another prosecution. The same would be true if the people prevailed on appeal in this case. Defendant, like the defendant in Martinez, would have already suffered the ordeal of a second trial.²⁸

However, if defendant’s conviction is reinstated, the analysis from Abney, supra at 662, suggests that defendant, like the defendant in Martinez, should not have had to endure a second trial. Yet, defendant did not ask the Court of Appeals or this Court to grant leave before the second trial. Defendant would have presented the situation from Abney if he had asked the Court of Appeals or this Court to grant leave on the people’s appeal before retrial. He would not have had to ask an appellate court to reverse the trial court’s decision, but could have asked that leave be granted to ensure that the issue was resolved before he was required to endure another trial that might otherwise be needless. However, defendant did not file a brief in response to the people’s application for leave to the Court of Appeals (Docket No. 135400), and did not file a response to the people’s application to this Court (Docket No. 91140). A defendant is responsible for the “consequences of his voluntary choice.” See Scott, supra at 99. Defendant did not ask appellate courts to grant leave, even though under Abney, his right could only be vindicated by an immediate appeal.²⁹ Consequently, by failing to ask the appellate courts to review this decision interloc-utorily, defendant accepted the possibility that he would have his first verdict reinstated on a later appeal by the people by right. Therefore, he voluntarily endured the ordeal of a second trial, knowing that it might be needless if the first trial was determined to be fair.³⁰

Moreover, even if we concluded that defendant suffered a constitutional injury by enduring an “unnecessary” second trial (if the first trial was valid and fair), the injury itself would have already been sustained. This Court cannot change the reality that defendant was tried a second time. This Court cannot erase the embarrassment, expense, and ordeal of living in a continued state of anxiety created by the second trial. Our refusal to review the interlocutory decision, leaving unreviewed the trial court’s determination that the first trial was unfair, would not undo the ordeal of the second trial, but would only prevent it from being (in retrospect) unnecessary. The Double Jeopardy Clause is designed to prevent the ordeal of a second trial; it is not designed to prevent such a trial from being rendered needless on appellate review. See Abney, supra at 661-662.³¹ Defendant could only have avoided the second trial by seeking an immediate appeal. There is now no possible remedy.

D

Defendant and the amicus curiae complain that the result from Martinez would mean that defendant suffered a retrial after he was convicted in violation of the Double Jeopardy Clause. However, he was only retried after the first conviction was vacated. There is no dispute that the retrial itself would not violate defendant’s constitutional rights where the trial court concluded that defendant was prejudiced by erroneous jury instructions. See People v Langley, 187 Mich App 147, 150; 466 NW2d 724 (1991), citing Burks v United States, 437 US 1, 14-16; 98 S Ct 2141; 57 L Ed 2d 1 (1978). In fact, the United States Supreme Court explained that where the judicial process is defective in a fundamental respect, the accused has a “strong interest in obtaining a fair readjudication of his guilt free from error . . . .” Burks, supra at 15.

On appeal, the people ask us to reinstate defendant’s first conviction. As the Eleventh Circuit explained in Martinez, the reinstatement of his conviction would not offend defendant’s constitutional rights because the “[g]ovemment appeal presents no threat of successive prosecutions,” Martin Linen, supra at 570 (emphasis added), and would not result in another prosecution, because “reversal on appeal would merely reinstate the jury’s verdict . . . .” Wilson, supra at 344-345. Moreover, the second trial, now examined in retrospect, does not represent a second opportunity for the people to convict defendant if the first conviction was reinstated because the people did not need, or seek, a new trial. There would be no multiple punishments.

We adopt the persuasive reasoning of Martinez as our understanding of the protections provided by the Double Jeopardy Clause of the United States and the Michigan Constitutions, at least in this circumstance where the second trial ended in a hung jury. However, we reserve for another day the question whether this holding would govern where the people seek to reinstate a conviction from the first trial after a defendant was retried and acquitted by the bench, or by a jury,³² of the same crime in a second trial.

We conclude that the people may raise the issue of the trial court’s October 22, 1990, decision to grant a new trial under MCL 770.12(1); MSA 28.1109(1) in its appeal of right of the February 21, 1992, final order. We reverse the Court of Appeals refusal to review the issue and remand the substance of the issue to give the Court of Appeals an opportunity to address it.³³

m. DOUBLE JEOPARDY AND DEFENDANT’S third trial

On cross appeal, defendant claims that the Court of Appeals erred in reversing the trial court’s decision to dismiss before the third trial on double jeopardy grounds. The trial court relied primarily on Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977), in which the Supreme Court held that the Double Jeopardy Clause bars prosecution for a crime where the defendant had already been convicted of a lesser included offense of that crime. The trial court also cited Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970), in which the Supreme Court held that the Double Jeopardy Clause prevents a state from subjecting a defendant to a second prosecution where an acquittal in the first trial resolved the factual question whether the defendant committed the crime charged in the second trial. Relying on these cases, the trial court concluded that the crime of possession with intent to deliver was the same as simple possession for double jeopardy purposes and that defendant’s acquittal of possession with intent to deliver barred a reprosecution for the lesser included offense.

As noted earlier, the United States and the Michigan Constitutions protect a person from suffering double jeopardy for the “same offense.” US Const, Am V; Const 1963, art 1, § 15. The Court of Appeals has explained, however, that this rule is not violated where a defendant is retried after his conviction is set aside because of an error in the first trial, unless the error was that there was insufficient evidence of guilt to convict the defendant. See Langley, supra at 150.

Defendant argues that he cannot be retried because the jury’s acquittal of him on the possession with intent to deliver charge also logically required the finding that he did not possess the cocaine. Defendant explains that the jury could not rationally acquit him of possession with intent to deliver without also finding that he was not guilty of possession because the prosecution’s sole factual theory alleged that defendant carried the cocaine with the intent of delivering it for the sale to Anaya. The Court of Appeals in the present case rejected this claim and distinguished Ashe, supra, as well as the subsequent Supreme Court case following it, Turner v Arkansas, 407 US 366; 92 S Ct 2096; 32 L Ed 2d 798 (1972), by concluding that a rational jury could find that defendant possessed, but did not intend to deliver, the cocaine.³⁴

However, this Court need not review this conclusion because there is a more basic reason to distinguish this case from the federal ones. In Ashe and Turner, the defendant was acquitted on the same factual theory that would logically require the jury to find that he had not committed the uncharged crime. However, in this case, the jury explicitly rejected this possibility by convicting defendant on the very charge that defendant now claims that the jury, by its verdict, must have acquitted him. A jury’s verdict need not be rationally consistent in the light of its power of leniency. People v Lewis, 415 Mich 443, 450-453; 330 NW2d 16 (1982); People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980).³⁵ Thus, unlike Ashe and Turner, this Court cannot logically deduce from the first verdict that the jury acquitted defendant on this charge because it convicted him of it.

Moreover, in Brown, the defendant was convicted of the lesser included crime of joyriding and subsequently tried and convicted of auto theft. The Supreme Court concluded that the two crimes of which the defendant was convicted were the “same offense” for double jeopardy pmposes under the test of Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932) (different offense where each crime requires proof of an element the other does not require). However, the crimes of possession with intent to deliver and simple possession cannot be the same offense for purposes of double jeopardy where the jury in the first trial acquitted defendant of one charge and then convicted him on the lesser included offense.³⁶

The trial court erred in dismissing the simple possession charge on double jeopardy grounds. This Court affirms the Court of Appeals decision to reverse.³⁷

CONCLUSION

We conclude that, in an appeal of right from a final order, the people have the right to raise the issue of a trial court’s earlier nonfinal decision to grant a new trial where that new trial ends in a hung jury. We remand the issue whether the trial court abused its discretion in granting a new trial to the Court of Appeals. Moreover, we affirm the Court of Appeals decision to reverse the trial court’s decision dismissing defendant’s conviction on double jeopardy grounds. Hence, we affirm in part, reverse in part, and remand for further proceedings.

Brickley, C.J., and Boyle, Mallett, and Weaver, JJ., concurred with Riley, J.

1 Valentin testified that he rebuked defendant for laying the cocaine on the front seat between defendant and Edwards asking, “if the police pull us over, what are you going to do?” Valentin said that defendant answered “that’s what I am here for” and explained that he would “jump out and run” if they were stopped by the police.

2 In fact, defense counsel said, “I have no problem with that.”

3 At this time, these crimes carried the same penalty of life imprisonment without the opportunity for parole. This Court, in People v Bullock, 440 Mich 15, 37; 485 NW2d 866 (1992), concluded that such a penalty for simple possession violated the constitutional prohibition against cruel or unusual punishment. Therefore, this crime is now a parolable offense.

4 At the November 9, 1990, hearing on the motion for reconsideration, the trial court stated in pertinent part:

Two things then occurred as far as I am concerned. One, [the trial court] misled a jury when [the court] use[d] the term less serious offense and it is not a less serious offense. Had the Court said this is a lesser included offense, then [the prosecutor’s] previous position, [which] I believe, is still his position that a lesser included is simply one that has less elements!,] would fly, would be meritorious. In this instance, the jury was not told that this was a lesser included. The jury was told this was a lesser, a less serious offense.

The second problem that I have is that the prosecution had two chances to convict the defendant on the very same facts of an offense carrying . . . the same penalty. They had two cracks at a conviction carrying mandatory life on one set of facts. The jury in this case found the defendant guilty of possession of over 650 grams of cocaine, which meant that they did not believe that the prosecution had proven beyond a reasonable doubt that the defendant possessed with intent to deliver cocaine in an amount over 650 grams. In effect if this Court had not instructed on possession of over 650 grams, the jury might well have come back with a verdict of not guilty.

5 437 Mich 987.

6 209 Mich App 651, 658; 531 NW2d 822 (1995).

7 Id. at 660.

8 450 Mich 867 (1995).

9 Before 1988, MCL 770.12; MSA 28.1109 provided in pertinent part:

(1) An appeal may be taken by and on behalf of the people of this state from a court pf record in all criminal cases, in any of the following circumstances:

(a) From a decision or judgment quashing or setting aside an indictment, information, or other charging instrument, or a count thereof, where that decision or judgment is based upon the invalidity or construction of the statute upon which the indictment, information, or other charging instrument is founded.

(b) From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, information, or other charging instrument, where the decision is based upon the invalidity or construction of the statute upon which the indictment, information, or other charging instrument is founded.

(c) From a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy, or from another order of the court relative to admission of evidence or proceedings had or made before the defendant is put in jeopardy.

10 See also People v Hinerman, 420 Mich 851; 358 NW2d 894 (1984) (“The Court of Appeals had no authority to entertain the prosecution’s appeal of the trial court’s decision to grant a new trial since MCL 770.12; MSA 28.1109 does not permit such an appeal under the circumstances of the case”).

11 See People v Reed, 198 Mich App 639, 643; 499 NW2d 441 (1993), aff’d 449 Mich 375; 535 NW2d 496 (1995).

12 The Senate Fiscal Agency’s Analysis of House Bill 4719, completed on March 1, 1988, p 2, stated in its arguments in support of the bill:

13 MCL 600.308; MSA 27A.308 provides in pertinent part:

(1) The court of appeals has jurisdiction on appeals from the following orders and judgments which shall be appealable as a matter of right:

(a) All final judgments from the circuit court, court of claims, and recorder’s court, except judgments on ordinance violations in the traffic and ordinance division of recorder’s court and final judgments and orders described in subsection (2).

(2) The court of appeals has jurisdiction on appeal from the following orders and judgments which shall be reviewable only upon application for leave to appeal granted by the court of appeals:

(e) Any other judgment or interlocutory order as determined by court rule.

Pursuant to subsection (2)(e) of § 308, MCR 7.203(B)(1) provides that a party may appeal by leave “a judgment or order of the circuit court, court of claims, and recorder’s court which is not a final judgment appealable by right . . . .”

This Court has also provided for review by right in MCR 7.203(A), which provides in pertinent part:

(A) The court has jurisdiction of an appeal of right filed by an aggrieved party from the following:

(1) A final judgment or final order of the circuit court, court of claims, and recorder’s court, except a judgment or order of the circuit court or recorder’s court

(a) on appeal from any other court or tribunal;

(b) in a criminal case in which the conviction is based on a plea of guilty or nolo contendere;

(2) A judgment or order of a court or tribunal from which appeal of right to the Court of Appeals has been established by law or court rule[.]

14 See People v Bahoda, 448 Mich 261, 288-293; 631 NW2d 659 (1995) (reversing the Court of Appeals decision, and reinstating the defendant’s conviction where the admission of testimony was not an abuse of discretion); People v Fisher, 439 Mich 884; 476 NW2d 889 (1991) (peremptory reversal of the defendant’s conviction because of the admission of prejudicial hearsay evidence). Similarly, in a case filed before the passage of the Michigan Constitution in 1963, this Court erqpressly held that a party in a civil action, in an appeal of right from a final order, may seek review of an interlocutory order leading to that final order. See Tomkiw v Sauceda, 374 Mich 381, 385; 132 NW2d 125 (1965). See also 7A Callaghan’s Michigan Pleading & Practice (2d ed), § 57.101, pp 554-555:

[T]he general rule is that where an appeal is taken from a final judgment, all previous orders connected with the judgment and affecting the merits are reviewable, if properly brought before the appellate court. Generally, therefore, interlocutory orders leading up to the final judgment are reviewable on an appeal from that final judgment.

Citing, among other cases, Benedict v Thompson, 2 Doug 299, 306 (Mich, 1846) (“Without pretending to lay down any general rule on the subject, it may, I think, be safely affirmed, that where a final decree is the subject of appeal, this court will review all previous orders connected with such decree, and affecting the merits”). See also 2 Michigan Law & Practice, Appeal, § 301, p 179.

15 Stated another way, the Court of Appeals has held that all prior non-final rulings and orders are “incorporated” into the final judgment and are finalized for purposes of appeal. Washington v Starke, 173 Mich App 230, 241-242; 433 NW2d 834 (1988).

16 209 Mich App 657.

17 Id. at 657-658.

18 MCR 2.604 allowed the trial court to certify an otherwise nonfinal order as final to permit a party an immediate appeal by right. This Court eliminated this procedure when it amended MCR 2.604 on May 16, 1995.

19 Defendant argues that the Court of Appeals has held that a party may not seek the review of a previous order granting a new trial in appealing of right a final order, citing Kellepourey v Burkhart, 163 Mich App 251; 413 NW2d 758 (1987), vacated on other grounds 430 Mich 889; 423 NW2d 577 (1988). In Kellepourey, supra at 256, the trial court granted a new trial, but conditioned it on the plaintiff’s refusal to accept the court’s remittitur of the jury’s verdict. The Court of Appeals noted that the plaintiff had an appeal of right from the conditional, interlocutory order and failed to take it. Id. at 257. In contrast, there is no question that the prosecutor in this case did not have an appeal of right from the October 22, 1990, interlocutory decision.

20 In fact, the Court of Appeals denied the application because it was not persuaded of the “need for immediate appellate review.” Unpublished order, entered February 26, 1991 (Docket No. 135400). Moreover, this Court’s denial stated that “we are not persuaded that the question presented should now be reviewed by this Court.” Each order suggests the possibility that the issue would be reviewable later.

21 See Bahoda and Fisher, n 14 supra.

22 The dissent concludes that under MCL 770.12; MSA 28.1109 the people may only seek redress of a trial court’s interlocutory decision by asking for leave to appeal under subsection 2. See post, pp 79-80. This restrictive interpretation of the statute, not required by its plain language, contradicts the Legislature’s intent to provide the people with the same right to appeal as a defendant within the limits of the constitutional prohibition against double jeopardy. See ns 12, 14.

23 See also People v Crawford, 429 Mich 151, 156-157; 414 NW2d 360 (1987) (in order to obtain appellate review of a district court’s interlocutory decision denying a defendant’s motion to dismiss without prejudice for a procedural violation, a defendant must apply for leave before the trial begins).

24 Yet, this Court has allowed a defendant to challenge a trial court’s interlocutory decision to grant a retrial after a mistrial caused by a prosecutor’s intentional misconduct, where the defendant appealed by right his conviction secured from an error-free retrial. See People v Dawson, 431 Mich 234, 250; 427 NW2d 886 (1988). Such an appeal provides an analogous situation to the people’s appeal in the present case. A defendant may seek to reverse a conviction from an error-free retrial because of an error in a prior proceeding that allowed the retrial to occur. Similarly, the people appeal a dismissal, asking this Court to examine an alleged error that allowed the retrial (ending in a hung jury) to occur.

25 In 1984, the United States enacted PL 98-473, which, among other provisions, amended 18 USC 3731, providing the government the right to appeal a trial court’s decision to grant a new trial after a verdict or judgment. Id. at 1307, 1308, n 11. Consequently, the United States will not likely encounter this question again after the effective date of the legislation.

26 See also Smalis v Pennsylvania, 476 US 140, 142; 106 S Ct 1745; 90 L Ed 2d 116 (1986) (“the Double Jeopardy Clause bars an appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into further proceedings devoted to the resolution of factual issues going to the elements of the offense charged”).

27 In examining a similar question as the one presented in Abney, an apparent majority of states has concluded that Abney merely interpreted the federal statute governing appeals, but did not announce a constitutional requirement under the Fifth Amendment’s double jeopardy provision that a state must allow a defendant to bring an immediate appeal, before (re)trial, from a trial court’s refusal to dismiss on double jeopardy grounds. See Oregon v Salzmann, 119 Or App 217, 222-224; 850 P2d 1122 (1993); Huff v State, 325 Md 55, 67-73; 599 A2d 428 (1991); Burleson v State, 552 So 2d 186 (Ala Crim App, 1989); State v Joseph, 92 NC App 203, 204-206; 374 SE2d 132 (1988); State v Miller, 289 SC 426, 427-428; 346 SE2d 705 (1986); State v Jenich, 94 Wis 2d 74, 79, n 5; 288 NW2d 114 (1980); People ex rel Mosley v Carey, 74 Ill 2d 527, 537-540; 25 Ill Dec 669; 387 NE2d 325 (1979); State v Fisher, 2 Kan App 2d 353, 354-356; 579 P2d 167 (1978). Other states have held that Abney recognized a constitutional right to an immediate appeal. See Nalbandian v Superior Court, 163 Ariz 126, 128-129; 786 P2d 977 (Ariz App, 1989); Ex parte Robinson, 641 SW2d 552, 555 (Tex Crim App, 1982). We do not need to answer this question in resolving the present case.

28 In fact, because of our decision to affirm the Court of Appeals, see part in, defendant in this case must endure the ordeal of another trial only if he succeeds in claiming that his double jeopardy protection prevents us from reviewing the trial court’s interlocutory decision. The dissent lists five “strong policy reasons” to deny the people the right to bring this appeal because of the ordeal, cost, and waste associated with retrial. Post, pp 81-82. Yet, the dissent ignores the fact that an appeal by the people asking an appellate court to reinstate an original conviction will not result in new expenses or personal strain because, if the people prevail, there will be no new trial.

29 See also United States v Richardson, 468 US 317, 320; 104 S Ct 3081; 82 L Ed 2d 242 (1984). We reiterate that we do not hold that a defendant would necessarily have a right under the Fifth Amendment, or under Michigan law, to have a double jeopardy claim heard immediately. See n 27.

30 The dissent claims that “the defendant only consented to the retrial on the understanding that the conviction of the first trial was vacated and he would be starting with a clean slate at the retrial” and that to allow the reinstatement of the first verdict would “vitiate[ ]” his consent. See post, p 79, n 5. However, as the dissent itself notes, the status of Michigan law was uncertain when defendant failed to ask the appellate courts to grant the people immediate review of the first trial’s validity. In failing to act, he should have been aware that, according to the Fifth and Eleventh Circuits (Leal and Martinez), the United States Constitution would allow the reinstatement of the first verdict even if the second trial resulted in an acquittal, and, consequently, that Michigan law might permit the same result if he were acquitted in his retrial. Therefore, the dissent cannot contend that defendant only consented to the second trial on the condition that the first trial’s validity never be reviewed when he should have known that this trial’s verdict might be reinstated if it was found to be fair.

31 The dissent argues that the people’s appeal “force[s] [defendant] to live in a continuing state of anxiety and insecurity regarding his future freedom,” post, p 79, n 5, presumably because he fears that the first verdict will be reinstated. However, Abney makes clear that it is the “exposure to double jeopardy” by a second trial that the clause seeks to prevent, not the anxiety created by the possible reinstatement on appeal of a verdict from a trial that has already been held. See Abney, supra at 662.

32 Notably, in both Martinez and Leal, the second trial resulting in acquittal was a bench trial rather than a jury trial.

33 On remand, the Court of Appeals may also consider the question that defendant raises on cross appeal: whether the trial court erred in giving the lesser included instructions where the included crime carried the same penalty. Also, the Court may consider defendant’s argument that the prosecution has abandoned its appeal by failing to file a transcript of the jury instructions with the Court of Appeals in accordance with MCR 7.210(B)(1)(a).

34 209 Mich App 660.

35 Although defendant suggests that the verdict may have been the product of a compromise rather than leniency, he does not argue that he should be retried for the charges the jury could not agree on. See Lewis, supra at 451-452.

36 Simple possession is at least a “lesser included offense” when comparing only the elements of the crimes.

37 Defendant also argues in his cross appeal, that the trial court erred in instructing the jury in the first trial on the lesser included offense of simple possession. If there were an error, it would not justify the trial court’s decision to dismiss on the basis of double jeopardy. The Court of Appeals may consider this argument regarding why the jury instructions were wrong on remand. See n 33.