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Docket Number

Docket No. 57765.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people. Robert E. Slameka, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

People v. Brady, Docket No. 57765 — Michigan Court of Appeals (Dec. 10, 1984)

Factual and Procedural Background

Defendant shot and killed Lowell Shonkwiler in a bar on January 11, 1977. He was arrested without a warrant and initially placed in a lineup; the witness who viewed that lineup did not identify him. Defendant was then brought before a Recorder's Court judge who issued a "reverse writ" authorizing the police to detain him for a second lineup. At that subsequent lineup he was identified.

On August 19, 1977, defendant was convicted of second-degree murder and of felony-firearm (possession of a firearm during the commission of a felony). He appealed. The opinion summarizes the post-conviction chronology, including appellate and post-conviction motions, notably:

11-26-79 — The Court of Appeals affirmed his convictions in an unpublished per curiam opinion (Docket No. 77-4139).
2-27-80 — He filed a delayed application for leave to appeal to the Michigan Supreme Court.
4-18-80 — A delayed motion for a new trial was denied in Recorder's Court.
11-20-80 — The Michigan Supreme Court denied leave (409 Mich. 945).
12-12-80 — The Court of Appeals granted leave to consider new issues.
4-22-82 — A federal habeas corpus petition was denied by a federal judge.
5-6-82 — The Court of Appeals again reviewed the case, affirming the murder conviction but reversing the felony-firearm conviction (Docket No. 51376).
2-18-83 & 4-18-83 — Resentencing occurred after the felony-firearm conviction was reversed; motions for a new trial were denied.
9-23-83 — He filed a delayed motion in Recorder's Court for a new trial on the ground that he had been held on a "reverse writ"; that motion was denied on September 29, 1983.

In this appeal from resentencing, defendant sought review of the "reverse writ" issue; the Court of Appeals refused to consider it based on the doctrine of finality and affirmed the second-degree murder conviction.

Legal Issues Presented

Whether the court should review defendant's newly raised claim challenging the constitutionality of the "reverse writ" detention and the lineup identification that followed.
Whether the doctrine of finality bars consideration of the "reverse writ" claim where the defendant did not object at trial and had previously pursued appeals in which the issue was not raised.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Casey, 102 Mich. App. 595; 302 N.W.2d 248 (1980), aff'd 411 Mich. 179; 305 N.W.2d 247 (1981)	Determination that "reverse writ" proceedings were constitutionally improper.	The Court noted that only after Casey was it determined that reverse writs were constitutionally improper; Casey's change in precedent postdated defendant's earlier appeals and is the legal development prompting the delayed challenge.
People v. Allensworth, 401 Mich. 67; 257 N.W.2d 81 (1977) (dissent by Justice Coleman)	Expressed the view that issues not preserved or timely raised may not be asserted later; emphasized orderly process and need for a beginning and an ending to appeals.	The Court quoted Justice Coleman's dissent to support the principle that not all newly available issues (absent preservation) should be allowed to disrupt finality.
People v. Tubbs, 64 Mich. App. 341; 236 N.W.2d 77 (1975) (concurring opinion of Judge Bronson)	Argument favoring restriction of repeated and unlimited appellate review for nonjurisdictional errors; advocate for one opportunity to raise such errors.	The Court relied on Bronson's concurrence to stress policy reasons for restricting repetitive appeals and to support applying finality to bar the late-raised issue.
People v. Marsh, 14 Mich. App. 518; 165 N.W.2d 853 (1968) (and rev'd on other grounds 383 Mich. 495; 175 N.W.2d 780 (1970))	Support for the rule that failure to raise, argue, or brief an issue constitutes abandonment and precludes further consideration.	The Court cited Marsh as authority for the proposition that issues abandoned on appeal cannot be revived in later proceedings.
People v. Pickett, 391 Mich. 305; 215 N.W.2d 695 (1974)	Observation that delay complicates fact-finding (witness availability, memory, records), undermining the justice system if issues can be raised long after trial.	The Court invoked Pickett to underline practical problems created by delayed challenges and to justify restricting review under the doctrine of finality.
McDonough Power Equipment, Inc. v. Greenwood, (U.S. Supreme Court citation as cited in opinion)	Justice Rehnquist's remarks on the high cost of trials and the limited resources of the judicial system.	The Court quoted Justice Rehnquist to support the policy-based argument that unlimited or delayed review strains judicial resources and counsels in favor of finality.
Evitts v. Lucey, (U.S. Supreme Court citation as cited in opinion)	Chief Justice Burger's observation that interminable appeals and lack of finality harm the administration of criminal justice and public confidence.	The Court cited Chief Justice Burger to reinforce the broader policy interest in finality of criminal convictions.

Court's Reasoning and Analysis

The Court analyzed the request to review the "reverse writ" issue through the lens of the doctrine of finality. The reasoning proceeded in the following steps, as stated in the opinion:

Chronology and procedural posture: The Court emphasized that defendant's conviction had already been affirmed by this Court twice (initially on 11-26-79, and again on 5-6-82 with respect to the murder conviction), and that defendant did not object to the "reverse writ" proceedings at trial nor raise the issue on his earlier appeals.
Change in law: The Court recognized that the constitutional impropriety of "reverse writ" proceedings was not established at the time of defendant's trial and was only clearly determined later in People v. Casey (1980/1981). Thus, the legal basis for the present challenge post-dated defendant's earlier appeals.
Policy and precedent favoring finality: The Court relied on authorities and judicial commentary (Allensworth dissent, Tubbs concurrence, Marsh, Pickett, and quotations from federal judges and justices) emphasizing the need to restrict repetitive or belated appellate review to preserve the orderly process of law, to protect judicial resources, and to avoid the practical problems caused by delay (witness unavailability, fading memories, loss of records).
Application to the case: Given that defendant had multiple opportunities to raise issues on appeal and in post-conviction motions, and because the new legal development postdated those opportunities, the Court concluded that allowing a belated challenge based on Casey would contravene the principle of finality. The Court held that defendant's right to raise new issues had ended before his delayed motion for a new trial in September 1983.
Disposition based on finality doctrine: On that basis, the Court refused to consider the "reverse writ" issue and proceeded to affirm the second-degree murder conviction.

Holding and Implications

Holding: The Court refused to review defendant's late-raised challenge to the "reverse writ" proceedings under the doctrine of finality and affirmed the defendant's conviction of second-degree murder.

Direct consequences: The immediate effect is that the conviction for second-degree murder remains affirmed and the Court declined to consider the claim that the defendant had been detained under an unconstitutional "reverse writ." Earlier in the post-conviction history the felony-firearm conviction had been reversed on appeal, and resentencing was conducted accordingly; this opinion affirms the murder conviction following that procedural history.

Broader implications: The opinion applies and reinforces the doctrine of finality as a bar to belatedly raised nonjurisdictional claims—particularly where a defendant had prior opportunities to litigate issues and did not preserve them. The Court did not purport to establish a new rule of law beyond applying finality to the circumstances of this case; it emphasized policy considerations and prior authority in support of refusing repeated or untimely challenges.

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PEOPLE v BRADY

PER CURIAM.

Defendant was convicted of second-degree murder in 1977. That conviction has been upheld in two previous appeals to this Court. We invoke the doctrine of finality and deny review of his newest claim which concerns evidence of a lineup at which he was identified and for which he was detained on a "reverse writ".

Defendant shot and killed Lowell Shonkwiler in a bar on January 11, 1977. He was arrested without a warrant and placed in a lineup, but was not identified by the witness who viewed the lineup. He was then taken before a Recorder's Court judge who issued a "reverse writ" allowing the police to detain him for a second lineup. At that lineup, he was identified.

On August 19, 1977, defendant was convicted of second-degree murder and possession of a firearm during the commission of a felony (felony-firearm). After sentencing, he appealed.

CHRONOLOGY OF POST-CONVICTION PROCEEDINGS

11-26-79 His convictions were affirmed by the Court of Appeals in an unpublished per curiam opinion (Docket No. 77-4139).

2-27-80 He filed a delayed application for leave to appeal to the Michigan Supreme Court.

4-18-80 A delayed motion for a new trial was denied in Recorder's Court.

11-20-80 The Michigan Supreme Court denied leave. 409 Mich. 945.

12-12-80 The Court of Appeals granted leave to consider new issues.

4-22-82 A petition for a writ of habeas corpus was denied by a federal judge.

5-6-82 The Court of Appeals affirmed the murder conviction a second time in an unpublished per curiam opinion, but reversed the felony-firearm conviction (Docket No. 51376).

11-29-82 He filed a motion in Recorder's Court for resentencing and a delayed motion for a new trial on new grounds.

1-28-83 He supplemented the delayed motion for a new trial with an additional new ground.

2-18-83 A Recorder's Court judge granted the motion for resentencing because the felony-firearm conviction had been reversed.

4-18-83 He was resentenced by a different judge; the delayed motion for a new trial and any other motions were denied.

6-3-83 He filed a claim of appeal to the Court of Appeals from the resentencing.

9-23-83 He filed a delayed motion in Recorder's Court for a new trial because he had been held on a "reverse writ". This motion was denied on September 29, 1983. He now challenges the "reverse writ" ruling pursuant to his claim of appeal from the resentencing.

THE DOCTRINE OF FINALITY

At the time of the defendant's conviction, no one had challenged the validity of "reverse writ" proceedings. When this Court originally affirmed the defendant's conviction in an unpublished per curiam opinion on November 26, 1979, the Recorder's Court still conducted such proceedings. Moreover, defendant did not object to the proceedings in his trial nor did he raise this issue on his first appeal or on his second appeal. Not until People v Casey, 102 Mich. App. 595; 302 N.W.2d 248 (1980), aff'd 411 Mich. 179; 305 N.W.2d 247 (1981), was it determined that "reverse writ" proceedings were constitutionally improper.

In a dissenting opinion in People v Allensworth, 401 Mich. 67, 74; 257 N.W.2d 81, 84 (1977), Justice COLEMAN said:

"The question then becomes whether all persons who might have raised a similar issue can claim it, absent preservation, regardless of the period intervening between timely appeal and a subsequent decision of the Court in another unrelated case. Although there must be an exception to provide for fundamentals necessary to justice, the orderly process of law suggests a beginning and an ending."

Judge BRONSON expressed a similar view about restricting appellate review in his concurring opinion in People v Tubbs, 64 Mich. App. 341, 347-348; 236 N.W.2d 77 (1975):

"There is good reason for restricting repeated and unlimited availability of appellate review to a criminal defendant. He already has a constitutional right to appeal his conviction to this Court. If unsatisfied with our treatment of that appeal, he may request rehearing. GCR 1963, 819.4. He may also request Supreme Court review. GCR 1963, 853.

"In his appeal to this Court, he may raise any and all issues for our consideration. Indeed, he is well advised to do so, since, as we have repeatedly held, failure to raise, argue or brief an issue constitutes abandonment of that issue and precludes further consideration of it. * * *

* * *

"There should be but one opportunity to raise nonjurisdictional errors on appeal. That is the rule elsewhere. See People v Marsh, 14 Mich. App. 518, 524, fn 5; 165 N.W.2d 853 (1968), rev'd on other grounds, 383 Mich. 495; 175 N.W.2d 780 (1970), 1 ALR 725. Otherwise, finality is never achieved. The appeal process becomes a battle of attrition, waged by a relentless prisoner with nothing to lose and everything to gain on an adversarial battlefield the conditions of which — through the mere passage of time — necessarily begin to take on an appearance very different from those prevailing at the time of trial. As the Pickett Court stressed [People v Pickett, 391 Mich. 305, 308; 215 N.W.2d 695 (1974)]:

"`Since a period of years may very well be involved, the problems of finding witnesses in our mobile society, the state of their memory, the availability of records and exhibits, etc., are very real and very significant.'" (Footnote omitted.)

Appellate judges must be mindful of the remarks of Justice Rehnquist in McDonough Power Equipment, Inc v Greenwood, ___ US ___, ___; 104 S Ct 845, 848; 78 L Ed 2d 663, 669 (1984):

"Trials are costly, not only for the parties, but also for the jurors performing their civic duty and for society which pays the judges and support personnel who manage the trials. It seems doubtful that our judicial system would have the resources to provide litigants with perfect trials, were they possible, and still keep abreast of its constantly increasing case load."

Also, Chief Justice Warren E. Burger recently wrote:

"Few things have so plagued the administration of criminal justice, or contributed more to lowered public confidence in the courts, than the interminable appeals, the retrials and the lack of finality." Evitts v Lucey, 469 US ___; 83 L Ed 2d 821, 836; 105 S Ct 830, 841.

We hold that this is an appropriate case for application of the doctrine of finality. Defendant's conviction has been affirmed twice. There has to be an end to a case. We hold that the end to defendant's right to raise new issues was reached before he raised the issue of the "reverse writ" by a delayed motion for a new trial in September of 1983.

We refuse to consider that issue and, again, affirm his conviction of second-degree murder.

Affirmed.

PEOPLE v. BRADY