People v. Hermiz

• Decision Date: 13 June 2000
• Docket Number: Docket No. Calendar,Docket No. 114586,Docket No. 114587,Docket No. 10-11.
• Citation: 611 N.W.2d 783,462 Mich. 71
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Issam Tobia HERMIZ, Defendant-Appellee. People of the State of Michigan, Plaintiff-Appellant, v. Najah Konja, Defendant-Appellee.
• Court: Michigan Supreme Court

611 N.W.2d 783

462 Mich. 71

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Issam Tobia HERMIZ, Defendant-Appellee.

People of the State of Michigan, Plaintiff-Appellant, v. Najah Konja, Defendant-Appellee.

Docket Nos. 114586, 114587, Calendar Nos. 10-11.

Supreme Court of Michigan.

Argued January 13, 2000.

Decided June 13, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Robert C. Williams, Assistant Prosecuting Attorney, Pontiac, for the people.

Michael J. McCarthy, Redford, for the defendant-appellee Hermiz.

Richard M. Lustig and Daniel P. Marcus, Birmingham, for the defendant-appellee Konja.

Brian Mackie, President, John D. O'Hair, Wayne County Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney Detroit, for amicus curiae Prosecuting Attorneys Association of Michigan.

Opinion

TAYLOR, J. (for reversal).

The question in these consolidated appeals is whether the state of Michigan was barred by M.C.L. § 333.7409; MSA 14.15(7409)¹ from indicting defendants for conspiracy to possess with intent to deliver more than 650 grams of a mixture containing cocaine² when they had previously been convicted in federal court in Florida of conspiracy to possess with intent to distribute more than five kilograms of cocaine.³

I would hold that the state prosecution was not barred by M.C.L. § 333.7409; MSA 14.15(7409) because conspiracy charges are not a violation of "this article" (article 7 of the Public Health Code) for purposes of the statute. The statute does not apply because the conspiracy charges arose under chapter 24 of the Penal Code,⁴ not under article 7 of the Public Health Code. Therefore, I would reverse the judgments of the trial court and Court of Appeals and reinstate defendants' convictions.

I

In July 1990, both defendants were convicted in federal court in Florida of conspiring to possess with intent to distribute five or more grams of cocaine. In the same month, an Oakland County grand jury indicted defendants for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine. Defendants moved to quash the state indictment, arguing that the subsequent state prosecution violated their rights under Const. 1963, art. 1, § 15 not to be put in jeopardy twice for the same offense. The trial court denied the motions after defendants had been convicted, and the Court of Appeals affirmed.⁵

Both defendants filed applications for leave to appeal with this Court. This Court granted Hermiz' application and held Konja's application in abeyance. In separate opinions, a majority of the Court rejected Hermiz' state double jeopardy claim.⁶ All justices agreed, however, that Hermiz was entitled to a remand to the trial court to address whether the state prosecution had violated M.C.L. § 333.7409; MSA 14.15(7409). This Court also remanded Konja's case to the trial court for consideration of the same issue.⁷ On remand, the trial court dismissed the charges against defendants, finding the successive state prosecutions had violated the statute. On appeal by the prosecution, the Court of Appeals affirmed.⁸ This Court subsequently granted leave to appeal to the prosecution.⁹

II

In accordance with our remand orders, the focus in the trial court and the Court of Appeals has been whether the Michigan conspiracy should be considered "the same act" as the Florida conspiracy. However, before oral argument, we permitted amicus curiae Prosecuting Attorneys Association of Michigan to file a brief that argues that the statute does not apply because the defendants' conspiracy convictions were obtained under the Penal Code and not pursuant to article 7 of the Public Health Code.¹⁰

At oral argument, appellant Oakland County Prosecutor indicated full agreement with the argument of the amicus curiae. The Court explored this issue at oral argument, and we subsequently asked the parties to file supplemental briefs addressing the issue. The supplemental briefs have now been filed and the case is ripe for resolution.

I begin by acknowledging that this Court's earlier remand orders arguably assumed, without expressly holding, that the Michigan charges would have been barred if they constituted "the same act" as the Florida conspiracy. As explained below, I am persuaded that this assumption was in error. Given such conclusion, and the fact that it was a mere assumption, as opposed to a contested holding, I am unwilling, to close my eyes to this new dispositive argument.

I also acknowledge that amicus curiae has raised an argument that appellant Oakland County Prosecutor did not argue in the trial court or the Court of Appeals.¹¹ Absent exceptional circumstances, amicus curiae cannot raise an issue that has not been raised by the parties. United Parcel Service Inc. v. Mitchell, 451 U.S. 56, 60, n. 2, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). However, this is not a hard and fast rule. See Teague v. Lane, 489 U.S. 288, 300, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (addressing the question of retroactivity of a habeas corpus petitioner's claim despite fact that it was raised only in an amicus curiae brief), and Allen Park Village Council v. Allen Park Village Clerk, 309 Mich. 361, 363, 15 N.W.2d 670 (1944).

It is also the case that, ordinarily, this Court does not review arguments that were not presented below. Peterman v. Dep't of Natural Resources, 446 Mich. 177, 183, 521 N.W.2d 499 (1994). However, we will allow an issue to be raised for the first time on appeal if we are persuaded that its consideration "is necessary to a proper determination of a case." Prudential Ins. Co. v. Cusick, 369 Mich. 269, 290, 120 N.W.2d 1 (1963); Dation v. Ford Motor Co., 314 Mich. 152, 160-161, 22 N.W.2d 252 (1946). Further, in limited circumstances, this Court will address an issue that was not raised by the parties "where justice so required." Paramount Corp. v. Miskinis, 418 Mich. 708, 731, 344 N.W.2d 788 (1984). Moreover, pursuant to MCR 7.316(A)(3), we have the authority to permit the reasons or grounds of an appeal to be amended or new grounds to be added.

Frequently it will be more appropriate to remand a new potentially dispositive issue to the trial court or Court of Appeals for initial resolution. Paramount Corp. at 731, 344 N.W.2d 788. However, given that these cases have already produced three published opinions, have been up and down the appellate ladder over the last decade, and the fact that we have allowed the filing of supplemental briefs, I deem this one of the rare cases where, in the interest of judicial economy and finality, it is appropriate for us to reach an issue not specifically developed below. Thus, having determined that it is necessary to a proper determination of the case, that justice so requires, and having allowed defendants the opportunity to file supplemental briefs addressing the issue, we exercise our discretion pursuant to MCR 7.316(A)(3) and consider the question whether the statute applies to conspiracy charges.

III

MCL 333.7409; MSA 14.15(7409) provides:

If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

The reference to "this article" in the statute is a reference to article 7 of the Public Health Code, which is the Controlled Substances Act. However, the conspiracy statute is found in chapter 24 of the Penal Code and not in article 7 of the Public Health Code. Nevertheless, it is also the case that defendants were charged with conspiring to violate a crime that is found in article 7 of the Public Health Code, i.e., the predicate substantive offense is part of the Controlled Substances Act.

As we recently stated in People v. Morey, 461 Mich. 325, 329-330, 603 N.W.2d 250 (1999):

We review questions of statutory construction de novo. In doing so, our purpose is to discern and give effect to the Legislature's intent. We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed—no further judicial construction is required or permitted, and the statute must be enforced as written. [Citations omitted.]

Under the plain meaning of the statute, the question is whether the conspiracy charges are a violation of article 7 of the Public Health Code. As previously indicated, they are not. Rather, the conspiracy statute is found in chapter 24 of the Penal Code, not in the Public Health Code/Controlled Substances Act.¹² It simply is not a violation of article 7 of the Public Health Code to conspire to commit a crime found in article 7 of the Public Health Code.

Our analysis is supported by the fact that the Legislature amended M.C.L. § 333.7407a; MSA 14.15(7407a) in 1994 to make it a crime to "attempt," to "solicit," to "induce" or to "intimidate" another into violating "this part." Conspicuously absent from this list is making it a crime to "conspire" to violate "this part." The reference to "this part" in M.C.L. § 333.7407a; MSA 14.15(7407a) is to part 74 of article 7 of the Public Health Code. The predicate offense that defendants were charged with conspiring to commit was M.C.L. § 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), and this statute is found in part 74 of article 7 of the Public Health Code. The Legislature did not include the word "conspire" in M.C.L. § 333.7407a; MSA 14.15(7407a). This omission must be respected by this Court. Indeed, if we were to find that the statute barred the conspiracy charges we would be guilty of rewriting M.C.L. § 333.7409; MSA 14.15(7409) as follows:

If a violation of this article or the penal code is a violation of a federal law or the law of another state, a conviction or acquittal under...