People v. McEwan

• Decision Date: 28 December 1995
• Docket Number: Docket No. 184600
• Citation: 543 N.W.2d 367,214 Mich.App. 690
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Moses Bernard McEWAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 367

543 N.W.2d 367

214 Mich.App. 690

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Moses Bernard McEWAN, Defendant-Appellee.

Docket No. 184600.

Court of Appeals of Michigan.

Submitted Dec. 19, 1995, at Detroit.

Decided Dec. 28, 1995, at 9:30 a.m.

Released for Publication Feb. 7, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and John F. Fennessey, Assistant Prosecuting Attorney, for People.

David Cripps, Detroit, for defendant.

Before CAVANAGH, P.J., and SAWYER and TEMPLIN, ^* JJ.

PER CURIAM.

The prosecutor appeals by leave granted a trial court order granting defendant a new trial. We reverse and remand.

On October 19, 1994, following a bench trial, defendant was convicted of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, larceny from a person, M.C.L. § 750.357; M.S.A. § 28.589, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant then pleaded guilty of being an habitual offender, third offense, M.C.L. § 769.12; M.S.A. § 28.1084.

At the sentencing hearing on November 3, 1994, the trial court expressed concern about defendant's convictions on the basis of the presentence investigation report and the contents of a letter defendant had written the court after trial. The trial court requested that the complainant and defendant take polygraph examinations. At subsequent hearings on January 20 and February 8, 1995, defendant requested adjournments because he was having difficulty arranging a polygraph examination at the Wayne County Jail.

Another hearing was held on March 15, 1995. Although the record is not clear, apparently the polygraph examinations were never done. Nevertheless, the trial court expressed uneasiness regarding defendant's convictions. When asked by the prosecutor what additional information had been brought out, the trial court responded:

The only information that was brought out was a very long and lengthy letter from the defendant that seems to indicate that there were some things about this complaint that were not brought out at trial. Now, it could be self-serving, it could be true, or whatever.

But, I guess what triggers the whole thing, in my mind, is whether or not in making the decision, as trier of fact, in this case, whether or not I was aware of all those possibilities, you know, those circumstances. And, whether or not those things can or should be brought out somewhere else.

Now, I don't know if they are relevant, or if they are true, how they would be brought out. But it's just a matter of, I guess, considering the equities of the circumstances, and whether or not I would be in error, or wrong, or perhaps unfair to not let, to not let those other factors be brought out. That's basically what I'm saying.

* * * * * *

[I]f this had been a jury verdict on this case the motions would be made, but I would see no reason, even remotely, to grant the defense request. But, I am simply measuring this by what I looked at as part of the case.

* * * * * *

So, I'm going to grant the motion for the new trial.

In fact, defendant neither filed a motion for a new trial nor orally moved for a new trial at any of the hearings. In addition, defendant never specifically consented to the trial court's action.

On March 23, 1995, the trial judge disqualified himself. The case was reassigned to Judge Robert L. Ziolkowski. On April 5, 1995, Judge Ziolkowski denied the prosecution's request for a stay of proceedings. On April 13, 1995, this Court granted the prosecution's applications for leave to appeal and motion for a stay of proceedings. Unpublished order of the Court of Appeals, entered April 13, 1995 (Docket No. 184600).

The prosecution argues that the trial court erred in ordering a new trial on its own initiative. The prosecution contends that MCR 6.431, the court rule governing motions for a new trial in criminal cases, ¹ prohibits a court from granting a criminal defendant a new trial on its own motion.

MCR 6.431 provides, in part:

(B) Reasons for Granting. On the defendant's motion, the court may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice. The court must state its reasons for granting or denying a new trial orally on the record or in a written ruling made part of the record.

(C) Trial Without Jury. If the court tried the case without a jury, it may, on granting a new trial and with the defendant's consent, vacate any judgment it has entered, take additional testimony, amend its findings of fact and conclusions of law, and order the entry of a new judgment.

This Court construes court rules according to the same basic principles that govern statutory interpretation. If the language of the court rule is clear and unambiguous, judicial construction is normally neither necessary nor permitted. People v. Strong, 213 Mich.App. 107, 111, 539 N.W.2d 736 (1995).

Because the language used in the court rule is clear and unambiguous, we apply its plain and ordinary meaning. MCR 6.431(B) allows the trial court to order a new trial in a criminal case only when a motion has been brought by the defendant. Cf. Strong, supra.

Defendant argues that the trial court's actions were permissible under MCR 6.431(C). We disagree. While MCR 6.431(C) applies to bench trials, it permits the trial court, "on granting a new trial and with the defendant's consent, [to] vacate any judgment it has entered, take additional testimony, amend its findings of fact and conclusions of law, and order the entry of a new judgment" (emphasis added). We construe this language to mean that where a defendant has been convicted in a bench trial, after the defendant's motion for a new trial has been granted and if the defendant consents, the trial court may take additional testimony instead of commencing another trial from the beginning.

Defendant also contends that the trial court's action was authorized by MCR 6.435(B), which allows the court to correct substantive mistakes before entry of a judgment. ² We do not believe, however, that this rule is applicable in the present situation. First, the staff comment to MCR 6.435(B) provides as an example of a substantive mistake of fact correctable under the rule a situation where the trial court confused codefendants. Such a situation is not analogous to the vacation of a verdict. Second, it is a fundamental rule of statutory construction that when a general statute is in conflict with a specific statute, the specific one prevails. People v. Kotesky, 190 Mich.App. 330, 331, 475 N.W.2d 473 (1991). Thus, MCR 6.431(B), as the court rule governing new trials in criminal cases, controls our analysis.

We believe that our resolution of this issue is supported by the fact that a contrary interpretation of MCR 6.431 would lead to double jeopardy problems. In criminal cases, finality of verdicts is required under the Double Jeopardy Clause. People v. Jones, 203 Mich.App. 74, 82, 512 N.W.2d 26 (1993). After jeopardy attaches, ³ a defendant has a " 'valued right to have his trial completed by a particular tribunal.' " People v. Anderson, 409 Mich. 474, 484, 295 N.W.2d 482 (1980), cert. den. 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981), quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). The exception permitting a retrial where manifest necessity compelled the termination of the first trial or proceeding would not apply where a court, on its own initiative, decided to grant a new trial. See id.

We note the similarity of MCR 6.431(B) and (C) to the equivalent federal rule, which provides:

The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. [F.R.Crim.P. 33.]

The Federal Rules of Criminal Procedure preclude a trial court from ordering a new trial on its own motion in order to forestall any later objections on the ground of double jeopardy. The Advisory Committee Notes to Rule 33 state:

The amendments to the first two sentences make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant. Problems of double jeopardy arise when the court acts on its own motion. See United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947).

Michigan rules of procedure and evidence are generally modeled after the federal rules, and, in the absence of state authority, this Court may properly look to comparable federal rules to ascertain the intent of a given state rule. People v. Mehall, 213 Mich.App. 353, 360-361, 539 N.W.2d 593 (1995). We find that the similarity between the state and federal rules governing new trials in criminal cases supports our conclusion that MCR 6.431(B) prohibits a trial court from ordering a new trial when the defendant has not so moved.

We are aware that in Jones this Court stated that a trial court is entitled to grant a new trial on its own motion. See Jones, supra at 83, 512 N.W.2d 26. However, this statement was dicta; the issue in Jones was whether a...