People v. Burton
| Decision Date | 06 October 1987 |
| Docket Number | Docket No. 78267 |
| Citation | 429 Mich. 133,413 N.W.2d 413 |
| Parties | PEOPLE v. BURTON. Brian Clifford BURTON, Appellant, v. WAYNE COUNTY PROSECUTOR, Appellee. 429 Mich. 133, 413 N.W.2d 413 |
| Court | Michigan Supreme Court |
John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, Jan J. Raven, Asst. Pros. Atty., Detroit, for appellee.
Daniel J. Blank, Birmingham, for appellant.
State Appellate Defender Office by Dawn Van Hoek, Asst. Defender, Detroit, for amicus curiae.
In this case, we must decide whether the Court of Appeals erred in granting an order of superintending control reversing the trial court's order granting a new trial in a criminal case.
We hold that the Court of Appeals lacked jurisdiction to invoke its extraordinary power to issue an order of superintending control in this case; therefore, the Court of Appeals erred in reversing the trial court's order granting a new trial.
The defendant, Brian Burton, was arrested and charged in connection with a homicide committed during the armed robbery of a lounge. Following a jury trial, he was convicted on March 21, 1985, of first-degree felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The trial judge sentenced Mr. Burton to terms of mandatory life in prison for the felony-murder conviction, fifteen to thirty years for the armed robbery conviction, and to a mandatory two years for the felony-firearm conviction. The defendant filed an appeal as of right in the Court of Appeals.
About four months after the trial, the victim's wife, Mrs. To I DuPuis, contacted the trial prosecutor and indicated that her testimony, which she gave at trial, was not factually correct. Mrs. DuPuis gave a statement to the prosecutor. The prosecutor, shortly thereafter, advised the defendant's attorney by letter of Mrs. DuPuis' disclosure. Following a motion by the defendant's attorney, the Court of Appeals remanded the case to the trial court to allow the defendant to make a motion for a new trial on the issue whether Mrs. DuPuis' disclosure constituted newly discovered evidence. The Court of Appeals retained jurisdiction.
At the posttrial evidentiary hearing, Mrs. DuPuis testified that she was very scared that if she told the prosecutor at trial what happened the night her husband was killed, she probably would be killing all of her family. But after consulting a relative, Mrs. DuPuis contacted a police officer who was in charge of the case. Mrs. DuPuis testified that she was working in the lounge the night her husband was killed. As they were closing, Mrs. DuPuis said that she was turning off the television when she heard two shots. When she went down the hallway, she said that a blond-haired white male wearing a mask and carrying a small gun grabbed her and threw her to the floor. She said that it seemed as if the man was ready to shoot her. Meanwhile, she said that she heard another voice from the back of the bar say, "Don't do it." Mrs. DuPuis said that the voice was not that of the defendant, but later in her testimony she said that she couldn't recognize the voice.
She testified that the masked man said that if she told anybody that she saw anybody in the bar or heard any voice that he would come back and kill all of her family and blow her head off too. Then she said the blond man with the mask left and she heard a door closing. She went to the back of the bar and found her husband's body. After her husband's death, Mrs. DuPuis said she received two phone calls. Each of the callers repeated the threat of the masked man.
At the defendant's trial, Mrs. DuPuis testified on cross-examination that she saw no one in the back hall of the lounge other than her husband. She also said she did not hear anything in the back hall.
The defendant, who is black, testified at trial that he met three white men and planned with them to steal some beer and liquor from the lounge. But the defendant, a former employee at the lounge, testified that he never entered the bar and never planned or assisted in an armed robbery of Mr. DuPuis. The defendant said he was unaware that the three men were armed with a rifle prior to the time they handed it to him as they left the lounge. He didn't actually participate in stealing the liquor from the lounge, the defendant testified.
The prosecution's theory at trial, on the basis of Mrs. DuPuis' original testimony, was that no one else was involved in the robbery and shooting. However, the defendant argued that the posttrial testimony was consistent with his testimony and the defense theory that other white individuals were in the bar. The prosecutor argued that the additional testimony did not make a different result probable on retrial because of the overwhelming evidence against the defendant.
During the trial, two police officers testified that they saw the defendant's car in a gas station across the street from the site of the robbery and murder. After watching the car for some time, the officers left, went to a doughnut shop and came back. The officers said they noticed that the car was leaving the gas station with its lights out at about 2:00 a.m. After stopping the car, the officers approached and saw a rifle on the front seat. After ordering the defendant out, the officers saw money and receipts from the lounge on the floor of the car. The officers then heard a radio message that there had been a shooting at the lounge. The defendant was arrested, and the evidence was admitted at trial. Subsequently, it was determined that the rifle found on the front seat of the defendant's car was the murder weapon. The defendant also had a key to the lounge which he admitted he had stolen.
After hearing the arguments at the posttrial hearing, the trial court granted the defendant's motion for a new trial. The prosecutor challenged the trial court's decision by seeking an order of superintending control in the Court of Appeals. Before the Court of Appeals ruled on the complaint for superintending control, the first panel which had retained jurisdiction during the remand of the case to the trial court dismissed the defendant's appeal as of right, finding that the defendant had received the relief requested at the trial court level. Meanwhile, the second panel considered the prosecutor's complaint for superintending control. On February 19, 1986, the Court of Appeals, in a two-to-one decision, granted the complaint for superintending control and reversed the trial court's decision. The defendant sought leave to appeal, and we granted leave, 425 Mich. 872 (1986).
In exercising the power of superintending control over a lower court, a reviewing court is invoking an extraordinary power. 1 Under its constitutional power, this Court adopted MCR 7.203(C) which provides the jurisdiction of the Court of Appeals for extraordinary writs, original actions, and enforcement actions. MCR 7.203(C)(1) provides that the Court may entertain an action for "superintending control over a lower court or a tribunal immediately below it arising out of an action or proceeding which, when concluded, would result in an order appealable to the Court of Appeals." MCR 3.302(C) provides that superintending control is to be used in place of the former writs of certiorari, mandamus, and prohibition. An order of superintending control, comparable to a writ of certiorari, traditionally has been used only to determine "if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law." Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 194 N.W.2d 693 (1972), quoting In re Fredericks, 285 Mich. 262, 280 N.W. 464 (1938). The review in such a case is limited only to questions of law.
The trial court, after hearing the testimony of the witness at the posttrial evidentiary hearing, granted the defendant's motion for a new trial. The trial court determined that the new testimony of the victim's wife gave some support to the defendant's theory and to his testimony at trial. Therefore, the trial court exercised its discretion and granted a new trial.
The issue is whether the Court of Appeals had jurisdiction to invoke its extraordinary power in this case.
Although a complaint for superintending control is characterized as a separate civil action, 2 our consideration in this case is influenced by the fact that a criminal prosecution is the underlying proceeding. Therefore, we must consider the statutory issues and policies which apply in a criminal prosecution.
Appeals by the people in criminal cases are limited in this state by statute. 3 In People v. Cooke, 419 Mich. 420, 355 N.W.2d 88 (1984), the Court held that the people do not have a right of appeal outside the express provisions of the Code of Criminal Procedure, M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109. The statute does not provide for an appeal by the people of a trial court's decision to grant a new trial in a criminal case. M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109. See also People v. Hinerman, 420 Mich. 851, 358 N.W.2d 894 (1984).
The defendant and amicus curiae argue that this Court should not permit the use of superintending control by the people to be employed as a substitute for a direct appeal.
The defendant argues that this use of superintending control circumvents the Court's ruling in Cooke and the statute, resulting in attempts to expand prosecution appeals in the absence of legislative authorization.
The people argue that a complaint for an order of superintending control is an original, civil action. People v. Flint Municipal Judge, 383 Mich. 429, 175 N.W.2d 750 (1970). The Court of Appeals obtains its authority to issue such an order through the court rules. The...
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People v. Torres, Docket No. 102759
...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 N.W.2d 413 (1987). it does not state whether the people may also appeal a trial court's earlier decisions entered as nonfinal orders in appea......
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