People v. Berry

• Decision Date: 29 March 1968
• Docket Number: No. 2,Docket No. 783,2
• Citation: 10 Mich.App. 469,157 N.W.2d 310
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benjamin F. BERRY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 310

157 N.W.2d 310

10 Mich.App. 469

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benjamin F. BERRY, Defendant-Appellant.

Docket No. 783.

Court of Appeals of Michigan, Division No. 2.

March 29, 1968.

Camille Sam Abood, Abood, Abood & Abood, Lansing, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald L. Reisig, Pros. Atty., Ingham County, Lansing, for appellee.

Before T. G. KAVAHAGH, P.J., and GILLIS and McGREGOR, JJ.

McGREGOR, Judge.

Defendant Benjamin Berry was arraigned on January 25, 1963, without counsel, and charged with breaking and entering in the night-time. C.L.1948, § 750.110 (Stat.Ann.1954 Rev. 28.305). He entered a plea of guilty and was sentenced.

The pertinent parts of the transcript of the aggaignment are quoted below:

'The Court: The court wishes to advise you that you are entitled to be represented by a lawyer and if you are not financially able to employ one and will so advise the court, the court will see that you have a lawyer. Do you understand that?

'Defendant: Yes, I do.

'The Court: The court also wishes to inform you that you are entitled to have a trial either before a jury or before the court without a jury. Do you understand that?

'Defendant: Yes, I do

'The Court: How do you wish to plead, guilty or not guilty?

'Defendant: If I pleaded guilty * * *

'The Court: How do you wish to plead, guilty or not guilty?

'Defendant: Guilty.'

(A few more brief questions were asked and then an unrecorded conference was held in the judge's chambers.)

'The Court: Step up here, please (to Berry). Let the record show the court has conferred with Mr. Berry relative to the circumstances of the crime, is convinced that he committed the crime, that his plea was freely, understandingly, and voluntarily made without undue influence, compulson, or duress and without promise of leniency. Therefore, his plea is accepted.'

First, it is necessary to decide whether the matters presented on this appeal are Res judicata. This Court denied an application for delayed appeal in this case on June 8, 1965. Thereafter, defendant appealed this order to the Supreme Court. On October 6, 1965, the Supreme Court denied the application for delayed appeal and later denied a motion for reconsideration. There is some question whether the matters raised here are Res judicata. We do not believes they are. In Malooly v. York Heating & Ventilating Corp. (1935), 270 Mich. 240, 247, 258 N.W. 622, 624, the Supreme Court said:

'The denial of an application for leave to appeal is ordinarily an act of judicial discretion equivalent to the denial of certiorari. It is held that the denial of the writ of certiorari is not equivalent of an affirmation of the decree sought to be reviewed. United States v. Carver, 260 U.S. 482, 43 S.Ct. 181, 67 L.Ed. 361; Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629.'

This holding was followed in Great Lakes Realty Corporation v. Peters (1953), 336 Mich. 325, 57 N.W.2d 901, and Walters v. O'Keefe, Arenac Circuit Judge (1966), 377 Mich. 37, 138 N.W.2d 751. All three cases involved denials of applications for leave to appeal from interlocutory orders. However, the principle enunciated in Malooly and Walters is equally applicable to denials of applications for leave to appeal from final judgments. See denial of leave to appeal, Frishett v. State Farm Mutual Automobile Insurance Company (1966), 378 Mich. 733. Such denials are acts of judicial discretion and do not constitute affirmances on the merits.

The reference to denials of certiorari in Malooly is particularly illuminating. In Chessman v. Teets (1957), 354 U.S. 156, 164 footnote 13, 77 S.Ct. 1127, 1132, 1 L.Ed.2d 1253, 1260, the Supreme Court said:

'Certainly this Court's previous denials of certiorari (citing previous denials), do not foreclose us from now granting appropriate relief.'

The reasoning behind this statement is uncomplicated. Denials of certiorari import 'no expression of opinion on the merits.' Sunal v. Large (1946), 332 U.S. 174, 181, 67 S.Ct. 1588, 1592, 91 L.Ed. 1982, 1988. A decision on the merits is an essential element of the doctrine of Res judicata. See 50 C.J.S. Judgments § 626, at p. 51. In the same way, denials of applications for leave to appeal do not import an expression of opinion on the merits of a cause, but rather are acts of judicial discretion. Malooly v. York Heating & Ventilating Corp., supra. For this reason such denials cannot be afforded Res judicata treatment. This Court is not barred from looking into the merits of the present cause.

In order to decide this case this Court must arrive at an interpretation of C.L.1948 § 769.26 (Stat.Ann.1954 Rev. § 28.1096). This statute reads:

'No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of Has resulted in a miscarriage of justice.' (Emphasis supplied.)

The problem in applying the statute centers around the question of whether or not the error raised has resulted in a 'miscarriage of justice.'

Counsel for appellant urges upon us the interpretation given this statute in People v. Bigge (1939), 288 Mich. 417, 421, 285 N.E. 5, 7:

'The statutory provision is not a cureall for it must serve within constitutional limitations or else be declared void. Minor errors which clearly can be held not to have affected the result may be mollified by this statutory provision, but errors which deprive an accused of the right of due process of law cannot be composed thereby to the detriment of an accused. The responsibility of maintaining the right of fair trial and due process of law is placed with the judicial branch and cannot be otherwise by legislative...