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Attorney(S)
  • Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for the people. Robert L. Beardslee, for defendant on appeal.
Judges
  • PER CURIAM.
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citation codes
Docket Number
Attorney(S)
  • Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for the people. Robert L. Beardslee, for defendant on appeal.
Judges
  • PER CURIAM.
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Smart Summary

People v. Wolfe — Summary of Opinion (Michigan Court of Appeals, Oct. 2, 1986)

Factual and Procedural Background

Defendant and two codefendants were charged with first-degree murder in the 1977 death of Barbara Lundsford. They were jointly tried before separate juries. On the morning of October 24, 1978, after jury selection but before the juries were sworn, defendant and one codefendant joined in a motion to reduce the first-degree murder charges to second-degree murder on the ground that first-degree murder had not been established at the preliminary examination. The trial court granted the motion, reduced the charges to second-degree murder, and denied the prosecutor's motion for a stay. The prosecutor immediately appealed to this Court; notwithstanding the appeal, the juries for each defendant were sworn and the prosecutor made his opening statement, and trial proceedings for that date were closed. By order dated October 26, 1978, this Court reversed the trial court's reduction and reinstated first-degree murder charges. Leave to appeal to the Supreme Court was denied. Trial resumed January 22, 1979, and defendant and his codefendants were convicted of first-degree murder. This Court previously affirmed defendant's conviction on double jeopardy grounds. On November 3, 1983, defendant filed a delayed motion in the circuit court to reinstate lesser charges (seeking to reduce his conviction to second-degree murder and be resentenced) on the basis that this Court lacked jurisdiction to hear the prosecutor's 1978 interlocutory appeal. The trial court denied that delayed motion on February 8, 1984. Defendant appealed by leave granted; this opinion affirms the denial.

Legal Issues Presented

  1. Whether this Court lacked jurisdiction to hear the prosecutor's 1978 interlocutory appeal and to reinstate the first-degree murder charge (i.e., whether the prosecutor's interlocutory appeal was barred because the defendant had been put in jeopardy before the interlocutory appeal was taken).
  2. Whether certain jury instructions were erroneous (raised for the first time on this delayed appeal).

Arguments of the Parties

Appellant's (Defendant's) Arguments

  • The prosecutor's 1978 interlocutory appeal was improper because this Court lacked jurisdiction to hear it — defendant contends jeopardy had attached before the appeal or that the appeal otherwise was improperly taken.
  • For the first time on this delayed appeal, defendant contends certain jury instructions were erroneous (raised without an accompanying claim of appellate ineffective assistance of counsel).

People's (Prosecution's) Arguments

  • The appeal was properly taken because the controlling statutory question is whether the order appealed from was entered before the defendant was put in jeopardy (and, here, the order reducing charges was entered before the jury was sworn, so jeopardy had not attached when the order was entered).
  • The denial of leave to the Supreme Court in the companion case People v. Conte on the same issue is persuasive and supports the propriety of the interlocutory appeal in this case.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Melia v. Employment Security Comm, 346 Mich. 544, 78 N.W.2d 273 (1956) The cardinal rule of statutory construction: ascertain and give effect to the Legislature's intent. Used to support reading the interlocutory appeal statute as measuring the right to appeal by the time of the court's order rather than the time of the prosecutorial appeal.
People v. Cooke, 419 Mich. 420, 355 N.W.2d 88 (1984) The Legislature intended to limit the people's right to appeal. Cited to show legislative intent underlying the appeal statute and to explain statutory construction limiting prosecutorial appeals but not allowing trial courts to defeat legitimate interlocutory appeals by procedural timing.
People v. Pauli, 138 Mich. App. 530, 361 N.W.2d 359 (1984), lv den 422 Mich. 930 (1985) Absent a claim of appellate ineffective assistance of counsel, a defendant may not raise nonjurisdictional trial-related matters on a second appeal. Applied to reject defendant's newly raised jury-instruction issue on this delayed appeal because no claim of appellate ineffective assistance was made.
People v. Harvey, 121 Mich. App. 681, 329 N.W.2d 456 (1982) In a jury trial, jeopardy attaches when the jury is sworn. Applied to determine that because the jury was not sworn until after the charges were reduced, jeopardy had not attached at the time of the order reducing the charges.
Greaves v. Greaves, 148 Mich. App. 643, 384 N.W.2d 830 (1986) Parties may not stipulate to a question of law that is contrary to the actual state of the law. Applied to reject any argument that a prior stipulation to jeopardy could bind the court when, in fact, jeopardy had not attached under governing law.
Wayne Co Prosecutor v. Recorder's Court Judge, 151 Mich. App. 550, 391 N.W.2d 407 (1986) Interlocutory relief concerning trial-court orders may be sought via superintending control where appropriate. Cited to note that, even absent an interlocutory appeal, the Court could have treated the prosecution's appeal as a complaint for superintending control to reinstate the first-degree count.
People v. Wilkins, 121 Mich. App. 813, 329 N.W.2d 500 (1982) Illustrates judicial use of supervisory remedies in similar contexts. Used as an example supporting the alternative remedy of superintending control.
People v. Wolfe, 110 Mich. App. 606; 313 N.W.2d 350 (1981) Previous appellate disposition in this case (affirming conviction on double jeopardy grounds). Referenced as the earlier appellate opinion in which this Court affirmed defendant's conviction; cited contextually regarding prior appellate history.
People v. Ovegian, unpublished opinion per curiam of the Court of Appeals, decided March 18, 1981 (Docket No. 44542), lv den 412 Mich. 887 (1981) Companion case where codefendant's conviction was affirmed; indicates parallel appellate treatment. Cited to show codefendant's conviction affirmed and to support the Court's view that the interlocutory appeal resolution was appropriate in analogous circumstances.
People v. Conte, 104 Mich. App. 73; 304 N.W.2d 485 (1981), aff'd 421 Mich. 704 (1984) Companion case in which an identical jurisdictional issue was raised and addressed; Supreme Court denied relief on that issue. Presented as persuasive authority because the precise issue had been raised in a codefendant's appeal and the Supreme Court denied relief; the Court found this circumstance compelling.

Court's Reasoning and Analysis

The Court began by interpreting the interlocutory appeal statute in effect at the time, which permitted the people to appeal "from another order of the court relative to admission of evidence or proceedings had or made before the defendant is put in jeopardy." The Court identified the threshold interpretive question as whether the statute requires that the order appealed from be entered before jeopardy attaches or whether the appeal itself must be taken before jeopardy attaches. Relying on the cardinal rule of statutory construction to effect legislative intent, the Court held that the statute should be read to make the time of the order controlling, not the time of the appeal. The Court explained that reading the statute otherwise (i.e., measuring by the time of appeal) would allow trial courts to defeat legitimate interlocutory appeals simply by denying a stay and immediately proceeding to swear the jury.

The Court then addressed whether jeopardy had attached at the time the trial court entered the order reducing the charges. It applied the rule that, in a jury trial, jeopardy attaches when the jury is sworn. The trial transcript established that the jury was not sworn until after the charges were reduced; therefore, the Court concluded jeopardy had not attached at the time of the order. The Court rejected any binding effect of a stipulation that allegedly conceded jeopardy had attached, explaining that parties cannot stipulate to a question of law contrary to the actual state of the law.

As an alternative, the Court noted that even if an interlocutory appeal had not been available, the prosecution's filing could have been treated as a complaint for superintending control to restore the first-degree count, and it cited prior supervisory-relief decisions. The Court also observed that a codefendant raised an identical issue on appeal and that the Supreme Court denied relief in that companion case, which the Court found persuasive.

Holding and Implications

Affirmed.

Holding: The Court affirmed the trial court's denial of defendant's delayed motion to reinstate lesser charges, concluding that this Court had jurisdiction to entertain the prosecutor's 1978 interlocutory appeal because the order appealed from was entered before jeopardy attached (the jury had not been sworn when the charges were reduced).

Implications: The direct effect is that defendant's delayed motion to reinstate lesser charges was denied and his conviction stands. The opinion applies existing statutory-construction and double jeopardy principles to the facts and relies on prior decisions; it does not announce a novel rule of law beyond its application here.

Show full summary ...

PEOPLE v. WOLFE

PER CURIAM.

Defendant appeals by leave granted from an order of the trial court denying his delayed motion to reinstate lesser charges. We affirm.

Defendant and his two codefendants, David Ovegian and Augustino Conte, were charged with first-degree murder, MCL 750.316; MSA 28.548, in the 1977 death of Barbara Lundsford. They were jointly tried before separate juries. On the morning of October 24, 1978, after the juries were selected, defendant and Conte joined in Ovegian's motion to reduce the first-degree murder charges to second-degree murder because first-degree murder had not been established at the preliminary examination. The trial court granted the motion, reduced the charges to second-degree murder, and denied the prosecutor's motion for a stay of proceedings. While the prosecutor's office immediately commenced an appeal to this Court, the juries for each defendant were sworn and the prosecutor made his opening statement. This closed trial proceedings for October 24. Proceedings were scheduled to resume on October 26, 1978.

By order dated October 26, 1978, this Court reversed the trial court's ruling and reinstated charges of first-degree murder against the three defendants. All three applied for leave to appeal to the Supreme Court, which denied leave by order of November 3, 1978, and subsequently denied rehearing. Trial resumed January 22, 1979.

Defendant and his two codefendants were convicted of first-degree murder. Defendant appealed his conviction as of right on double jeopardy grounds. This Court affirmed. People v. Wolfe, 110 Mich. App. 606; 313 N.W.2d 350 (1981) (Judge MacKENZIE dissenting). Both codefendants' convictions were also affirmed. People v. Ovegian, unpublished opinion per curiam of the Court of Appeals, decided March 18, 1981 (Docket No. 44542), lv den 412 Mich. 887 (1981), and People v. Conte, 104 Mich. App. 73; 304 N.W.2d 485 (1981), aff'd 421 Mich. 704 (1984).

On November 3, 1983, defendant filed in the circuit court a delayed motion to reinstate lesser charges, apparently in an attempt to have his conviction reduced to second-degree murder and to be resentenced. The basis of the motion was that this Court lacked the jurisdiction to hear the prosecutor's 1978 interlocutory appeal. The trial court denied the motion on February 8, 1984.

Defendant raises two issues on appeal. First, as in the trial court, he asserts that this Court lacked jurisdiction to hear the prosecutor's interlocutory appeal and order the reinstatement of the first-degree murder charge against him. Second, defendant for the first time claims error in certain jury instructions. Absent a claim of appellate ineffective assistance of counsel, a defendant may not raise nonjurisdictional trial-related matters on a second appeal. People v. Pauli, 138 Mich. App. 530, 533-534; 361 N.W.2d 359 (1984), lv den 422 Mich. 930 (1985). Having made no such claim, defendant's second issue is therefore not properly before us. We proceed then to the merits of defendant's jurisdictional argument.

At the time of the prosecutor's interlocutory appeal, the relevant portion of the statute governing such appeals, MCL 770.12(1)(c); MSA 28.1109(1)(c), provided:

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

* * *

(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.

The threshold question in determining whether there was a proper prosecutorial appeal in this case is whether the statute requires that the order appealed from be entered before defendant is put in jeopardy, or whether the appeal must be taken before the defendant is put in jeopardy. We read the statute to provide that the time of the order, and not the time of the appeal, controls. The cardinal rule of statutory construction is to ascertain and give effect to the Legislature's intent. Melia v. Employment Security Comm, 346 Mich. 544, 562; 78 N.W.2d 273 (1956). In reenacting the above statute, the Legislature intended to limit the people's right to appeal, People v. Cooke, 419 Mich. 420, 430; 355 N.W.2d 88 (1984), not to make that right wholly vulnerable to defeat by trial courts. Were we to read the statute to require that the time of the appeal controls the right to take an interlocutory appeal, trial courts would be absolutely empowered to preclude legitimately sought interlocutory appeals simply by denying a stay following the disputed order and immediately swearing the jury.

We must next decide whether, at the time the trial court entered the order reducing the charges, defendant was in jeopardy. In a jury trial, jeopardy attaches when the jury is sworn. People v. Harvey, 121 Mich. App. 681; 329 N.W.2d 456 (1982). Since the trial transcript before us clearly indicates that the jury was not sworn until after the charges were reduced, it is apparent that defendant was not in jeopardy at the time of the order. The fact that jeopardy had been stipulated to prior to the court's ruling does not alter this conclusion. It has long been recognized that parties may not stipulate to a question of law which is contrary to the actual state of the law, let alone stipulate conclusively. Greaves v. Greaves, 148 Mich. App. 643, 647; 384 N.W.2d 830 (1986), and cases cited therein. Accordingly, we conclude that this Court had jurisdiction to entertain the prosecution's appeal.

We note that even if there had been no appeal available in this case, this Court could have treated the prosecution's appeal as a complaint for superintending control to cause the first-degree murder count to be reinstated. See, e.g., Wayne Co Prosecutor v. Recorder's Court Judge, 151 Mich. App. 550; 391 N.W.2d 407 (1986); People v. Wilkins, 121 Mich. App. 813; 329 N.W.2d 500 (1982). It is also convincing to note that, when one of defendant's codefendants raised an identical issue on appeal, this Court, although admittedly before People v. Cooke, supra, was issued, found no merit. People v. Conte, supra. We agree with the people that the Supreme Court's denial of relief in Conte on this precise issue, even in the face of the Supreme Court's release of Cooke on the same date, is compelling.

Affirmed.

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PEOPLE v. WOLFE
(Oct 2, 1986)