People v. Torres

• Decision Date: 04 April 1995
• Docket Number: Docket No. 150551
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gavino TORRES, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 822

531 N.W.2d 822

209 Mich.App. 651

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gavino TORRES, Defendant-Appellee.

Docket No. 150551.

Court of Appeals of Michigan.

Submitted Feb. 22, 1995, at Detroit.

Decided April 4, 1995, at 9:05 a.m.

Released for Publication May 24, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the people.

State Appellate Defender by Ronald E. Steinberg, for the defendant on appeal.

Before MARK J. CAVANAGH, P.J., and CONNOR and BANDSTRA, JJ.

PER CURIAM.

Defendant was charged with possession with intent to deliver more than 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). A jury convicted defendant of simple possession of more than 650 grams of cocaine, M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(i); however, the trial court set aside the jury verdict and granted defendant a new trial. The trial court subsequently held that retrial was barred by the constitutional prohibition regarding double jeopardy and dismissed the charge against defendant. The prosecution appeals as of right. We reverse.

At trial, the prosecution attempted to show that defendant had acted in concert with several others in the delivery of cocaine to undercover police officers. Anthony Valentine testified that defendant participated in conversations about purchasing the cocaine. Defendant accompanied Valentine, Rodney Edwards, Freddie Marshall, and David Crowl as they went to get cocaine from Edwards' source. The source handed a box containing cocaine to defendant, who kept it in front of him as the party traveled to the meeting place. When the vehicle stopped several blocks from the site where the transaction with the undercover officers was to occur, defendant handed the box to Edwards, who in turn handed it to Valentine. Marshall, Crowl, and Valentine then left to make the sale.

The jury was instructed with regard to both possession with intent to deliver and simple possession of more than 650 grams of cocaine. When instructing the jury, the trial court described simple possession as a "less serious" offense. On September 27, 1990, the jury convicted defendant of possession of more than 650 grams of cocaine.

In an order dated October 22, 1990, the trial court, on its own motion, set aside the jury verdict and granted defendant a new trial. The court believed that it had erred in instructing the jury that simple possession is a "less serious" offense than possession with intent to deliver because both offenses carry the same penalty. ¹ The court reasoned that if it had not instructed the jury that simple possession was a "less serious offense," the jury might well have acquitted defendant.

On November 30, 1990, the prosecution filed with this Court a delayed application for leave to appeal from the order granting a new trial and a motion for a stay of proceedings. This Court denied the application and the motion in an order dated February 26, 1991. On May 3, 1991, the Supreme Court also denied the prosecutor's application for leave to appeal and motion for a stay of proceedings. People v. Torres, 437 Mich. 987 (1991).

In May 1991, defendant was retried on the charge of possession of more than 650 grams of cocaine. The trial ended in a hung jury.

A third trial was scheduled for October 2, 1991. However, before the trial date, defendant filed a motion to dismiss the charge against him on the basis that retrial was barred by the double jeopardy prohibition. In an order entered on February 21, 1992, the trial court granted defendant's motion to dismiss the charge. The trial court reasoned that possession with intent to deliver and simple possession are the same offense for double jeopardy purposes. Therefore, because the jury in the first trial acquitted defendant of possession with intent to deliver, defendant would have been acquitted outright if the jury had not been instructed on simple possession. The prosecutor filed an appeal as of right from the order dismissing the charge against defendant.

I

The prosecutor argues that the trial court erred in setting aside the jury verdict in the first trial and requests that this Court reinstate defendant's conviction. As a preliminary matter, we address the question whether the prosecutor may raise the issue of the trial court's October 22, 1990, order setting aside the jury verdict and granting defendant a new trial in this appeal as of right of the February 21, 1992, order dismissing the charge against defendant.

MCR 7.204(C)(1) requires that a party filing an appeal as of right include with the claim of appeal a copy of the judgment or order from which the appeal is taken. In the present case, the prosecutor's claim of appeal refers only to the February 21, 1992, order dismissing all charges against defendant.

Appeals by the prosecution in criminal cases are allowed only in specific instances set forth in M.C.L. § 770.12; M.S.A. § 28.1109. The statute provides:

(1) The people of this state may take an appeal of right in a criminal case, if the protection against double jeopardy under section 15 of article I of the state constitution of 1963 and amendment V of the constitution of the United States would not bar further proceedings against the defendant, from either of the following:

(a) A final judgment or final order of the circuit court or recorder's court, except a judgment or order of the circuit court or recorder's court on appeal from any other court.

(b) A final judgment or order of a court or tribunal from which appeal of right has been established by law.

(2) The people of this state may take an appeal by leave in a criminal case, if the protection against double jeopardy under section 15 of article I of the state constitution of 1963 and amendment V of the constitution of the United States would not bar further proceedings against the defendant, from any of the following:

(a) A judgment or order of the circuit court or recorder's court which is not a final judgment appealable of right.

(b) A final judgment entered by the circuit court or the recorder's court on appeal from any other court.

(c) Any other judgment or order appealable by law or rule.

(d) A judgment or order when an appeal of right could have been taken but was not timely filed.

An order granting a new trial is a nonfinal, interlocutory order. People v. Pummer, 399 Mich. 326, 332, 249 N.W.2d 78 (1976), overruled in part on other grounds in People v. Cooke, 419 Mich. 420, 433, 355 N.W.2d 88 (1984). ² Thus, under M.C.L. § 770.12; M.S.A. § 28.1109, the prosecution may appeal an order granting a new trial only by application for leave to appeal.

In his brief on appeal, the prosecutor did not specifically address this issue. However, in the trial court the prosecutor relied on Dean v. Tucker, 182 Mich.App. 27, 30-31, 451 N.W.2d 571 (1990), for the proposition that an appeal from a final order may raise any issues related to other orders in the case. Dean, a civil case, involved an appeal from an order granting summary disposition wherein the plaintiff also sought to contest other rulings of the trial court. The Dean Court relied on Comm'r of Ins. v. Advisory Bd of the Michigan State Accident Fund, 173 Mich.App. 566, 589, 434 N.W.2d 433 (1988), which held that a party may claim an appeal as of right from an otherwise nonfinal order certified as a final order under MCR 2.604(A) following either the entry of the certified final order or the entry of the actual final order in the case.

However, in two more recent cases, this Court has held that the decision in Comm'r of Ins. is unsupported by the language of MCR 7.204. Adams v. Perry Furniture Co. (On Remand), 198 Mich.App. 1, 8, 497 N.W.2d 514 (1993); Klco v. Dynamic Training Corp., 192 Mich.App. 39, 41, 480 N.W.2d 596 (1991). Although both Adams and Klco were civil cases, in view of the statutory limits on appeals by prosecutors, we believe that a similar result is appropriate in the present case. Therefore, we hold that a prosecutor's appeal as of right from a final order in a criminal case does not allow appellate review of all previous orders issued in the case.

Our holding does not leave the prosecution without remedy in cases of egregious error, because the prosecution may always timely apply for leave to appeal nonfinal orders. In fact, in the present case the prosecution did seek leave to appeal the October 22, 1990, order granting defendant a new trial; however, its application was denied by both this Court and the Supreme Court. Moreover, defendant already has been retried pursuant to that order, although the jury was unable to reach a verdict. The prosecution has provided no authority under which it is entitled to seek leave to appeal a second time from that order.

Accordingly, the propriety of the trial court's order sua sponte setting aside the jury verdict and granting defendant a new trial is not properly before us, and we therefore decline to address the merits of the issue.

II

The prosecutor also argues that the trial court erred in dismissing the charge against defendant on the basis of the double jeopardy prohibition. This is a question of law that we review de novo on appeal. People v. Young, 206 Mich.App. 144, 154, 521 N.W.2d 340 (1994).

Under the double jeopardy provisions of the federal and state constitutions, the state may not place a defendant twice in jeopardy for a single offense. U.S. Const., Am. V; Const. 1963, art. 1, § 15. The purpose of both the federal and the state protections against...