People v. Herbert
| Decision Date | 21 December 1993 |
| Docket Number | Docket No. 93441 |
| Citation | 444 Mich. 466,511 N.W.2d 654 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Gordon HERBERT, Defendant-Appellant. |
| Court | Michigan Supreme Court |
In this case, the circuit court and the Court of Appeals held that a trial judge may not set aside a jury's verdict on the ground that prosecution witnesses, whom the jury chose to believe, were not credible. We agree with regard to a motion for directed verdict of acquittal. However, we hold that, in the course of deciding a motion for new trial, a judge may evaluate the credibility of the witnesses. We therefore vacate the judgments of the Court of Appeals and the circuit court, and remand this case to the circuit court for further proceedings in conformance with this opinion.
This case arises from an alleged conspiracy to steal money from a company called Diversified Technologies, of which the defendant was the chief executive officer. According to Gerald Reeves, 1 the chief financial officer of Diversified, he and the defendant arranged for Diversified checks to be issued for work that was never performed. The stolen money was to be used to fund the Tixon Company, of which defendant was president and principal owner. The goal was to enhance Tixon's financial position, so that it would be positioned to obtain a contract to process the City of Detroit's parking tickets.
The defendant was tried on seven counts of taking money by false pretenses, 2 seven counts of embezzlement, 3 and seven counts of conspiracy. 4 The jury trial took place in the courtroom of Oakland Circuit Judge James S. Thorburn.
During trial, the defendant moved for a directed verdict, but Judge Thorburn deferred his ruling. When the jury returned a verdict finding the defendant guilty on all counts, the defendant renewed his motion.
About a month later, Judge Thorburn issued a seven-page written opinion, in which he granted the defendant a directed verdict of acquittal on all counts. Judge Thorburn called Mr. Reeves "a man to whom the truth is foreign," and said that he had offered "wholly incredible, untrustworthy and inherently unreliable" testimony that "could not possibly justify a reasonable person in concluding that all the elements of the charges pending against William Herbert were established beyond a reasonable doubt." The testimony of another prosecution witness was characterized as "absolutely incredible and unbelievable."
Several days after issuing this opinion, Judge Thorburn completed his term of office. He left without entering an order to confirm the decision stated in his opinion. His elected replacement, Oakland Circuit Judge Edward Sosnick, took office January 1, 1989.
In early 1989, the prosecutor filed a complaint for superintending control in the Court of Appeals, seeking to overturn Judge Thorburn's decision. However, the Court of Appeals dismissed the complaint for lack of jurisdiction, on the ground that Judge Thorburn had simply issued an opinion, and had never entered an order. 5
The parties then filed a variety of motions in Oakland Circuit Court. The prosecutor sought an order granting reconsideration of Judge Thorburn's opinion, and an order calling for the imposition of sentence. The defendant moved for entry of an order of directed verdict in accordance with Judge Thorburn's opinion. The defendant also moved for a new trial. 6
Judge Sosnick granted reconsideration and reinstated the jury's verdict. He ruled that the motion for directed verdict should have been denied because the evidence, viewed in the light most favorable to the prosecution, was sufficient to support a finding of guilt.
Judge Sosnick later denied the defendant's motion for a new trial. In his September 1989 ruling, he discussed earlier appellate decisions concerning whether a judge may overturn a jury's determination with regard to credibility. He then stated:
Judge Sosnick sentenced the defendant to a term of probation. The conditions of probation included payment of a fine, performance of community service, and a period of incarceration in the county jail.
The defendant appealed. Among his issues was a claim that Judge Sosnick had erred in refusing to enter an order consistent with Judge Thorburn's opinion. The defendant also urged the Court of Appeals to find that Judge Sosnick had erred in failing to grant a new trial.
The Court of Appeals affirmed. 7 It found that Judge Sosnick was not obliged to enter an order granting a directed verdict and that Judge Thorburn's findings had been unsupported by the record. Concerning the denial of the motion for new trial, the Court of Appeals said that Judge Sosnick had not erred in his refusal to determine the credibility of witnesses whom the jury had decided to believe.
The defendant sought leave to appeal in this Court, but leave was denied. 441 Mich. 901, 496 N.W.2d 288 (1992). The defendant now moves for reconsideration.
It must first be said that Judge Sosnick, as successor to Judge Thorburn, had the authority to enter whatever orders Judge Thorburn could have entered, had he continued to preside in this case. MCR 2.613(B) provides:
8
In this respect, the present case is nearly identical to Harry v. Fairlane Club Properties, Ltd., 126 Mich.App. 122, 337 N.W.2d 2 (1983). There, after hearing the verdict, the plaintiffs moved immediately for a mistrial. Wayne Circuit Judge Horace W. Gilmore concluded in a written opinion that the plaintiffs were entitled to a new trial. However, he did not enter an order.
Several days later, Judge Gilmore resigned to accept an appointment to the United States District Court for the Eastern District of Michigan. The Harry case was then assigned to Wayne Circuit Judge Patrick J. Duggan, who granted rehearing and denied the plaintiffs' motion for new trial. The Court of Appeals affirmed.
Here, Judge Sosnick became the presiding judge in this matter upon taking office as Judge Thorburn's elected successor. Judge Thorburn, having left office, ceased to be available to hear this matter. Judge Sosnick therefore had full authority to reconsider Judge Thorburn's earlier rulings. 9
It is clear from this record that the defendant made two separate motions. His midtrial motion, renewed immediately after the jury returned its verdict, was a motion for directed verdict. Judge Thorburn's written opinion dealt solely with that motion. Only later did the defendant move for a new trial.
In People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980), the trial court responded to a motion for directed verdict by ordering a new trial. 407 Mich. at 369, 374, 285 N.W.2d 284. Sorting out the procedural history and appellate issues of the case, this Court, in a split opinion, adopted a new standard for determining whether a motion for directed verdict should be granted. 407 Mich. at 368, 377, 285 N.W.2d 284.
Under Hampton, the test is not simply whether there is any evidence to support the prosecutor's position regarding each element of the offense. Rather the question is whether, viewed in the light most favorable to the prosecution, the evidence is sufficient to permit a rational trier of fact to find the essential elements of the crime to be proven beyond a reasonable doubt. 10 407 Mich. at 368, 377, 285 N.W.2d 284.
The Hampton standard remains the test for determining whether there is sufficient evidence to support a conviction. People v. Wolfe, 440 Mich. 508, 513-516, 489 N.W.2d 748 (1992). 11 Inherent in the task of considering the proofs in the light most favorable to the prosecution is the necessity to avoid a weighing of the proofs or a determination whether testimony favorable to the prosecution is to be believed. All such concerns are to be resolved in favor of the prosecution. 440 Mich. at 514-515, 489 N.W.2d 748.
It is thus not permissible for a trial court to determine the credibility of the witnesses in the course of deciding a motion for directed verdict of acquittal. To the extent that Judge Thorburn's opinion granting a directed verdict was premised upon such an evaluation of the credibility of the prosecution witnesses, it was error.
The defendant asks that we reverse Judge Sosnick's denial of the motion for a directed verdict. Our review of the record satisfies us that, viewed in the light most favorable to the prosecution, there was ample evidence of guilt. Reasonable jurors could have found the defendant guilty beyond a reasonable doubt. Therefore Judge Sosnick did not err when he denied the motion for a directed verdict of acquittal.
As indicated above, the defendant also filed a motion for new trial, which was denied by Judge Sosnick. In rendering his opinion on that motion, Judge...
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