People v. Torres

Decision Date25 June 1996
Docket NumberNo. 11,Docket No. 102759,11
Citation549 N.W.2d 540,452 Mich. 43
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, Cross-Appellee, v. Gavino TORRES, Defendant-Appellee, Cross-Appellant. Calendar
CourtMichigan Supreme Court

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, Detroit, for the people.

State Appellate Defender by Ronald E. Steinberg, Detroit, for defendant.

David A. Moran, Detroit, Amicus Curiae for Criminal Defense Attorneys of Michigan.

RILEY, Justice.

In this case, we must resolve the legal questions that arise from the trial court's decision to dismiss criminal charges against defendant on double jeopardy grounds. In his first trial, defendant was convicted of simple possession of more than 650 grams of cocaine and acquitted of the charge of possession with intent to deliver over 650 grams of cocaine. The trial court vacated his conviction on the simple possession charge and granted defendant a new trial finding, sua sponte, that it had committed a prejudicial error while instructing the jury. Defendant was retried on the simple possession charge, but this trial ended in a hung jury. Before the third trial began, the trial court dismissed the simple possession charge on double jeopardy grounds. On the people's appeal of the dismissal, the Court of Appeals refused to review the trial court's interlocutory decision to grant a new trial, but reversed the dismissal, remanding for a new (third) trial on the simple possession charge. Plaintiff appeals the Court of Appeals refusal to review the grant of a new trial, and defendant cross appeals the Court of Appeals decision to reverse and remand.

We hold that the people may properly raise the issue of a trial court's interlocutory decision, i.e., to grant defendant a new trial, in an appeal of right from the trial court's final order of dismissal. The Court of Appeals erred in deciding that it did not have jurisdiction to review this decision. Such an appeal does not violate defendant's right against double jeopardy. We reverse and remand this issue to the Court of Appeals.

On defendant's cross appeal, we agree with the Court of Appeals that the trial court erred in concluding that defendant would suffer double jeopardy if he were retried on the charge of simple possession of more than 650 grams of cocaine. He was convicted of this very crime in his first trial. His retrial for that same crime does not violate his right against double jeopardy.

Hence, we affirm in part and reverse in part the Court of Appeals decision and remand for further consideration.

FACTS AND PROCEDURAL HISTORY

On January 9, 1989, defendant Gavino Torres was involved in a drug transaction. According to the testimony produced at his first trial, defendant participated in a conversation with Rodney Edwards, Antonio Olmeda, and Anthony Valentin about purchasing two kilograms of cocaine. Valentin and David Crowl had arranged to sell two kilograms of cocaine to Roberto Anaya, an undercover police officer, in the parking lot of a Burger King restaurant. Defendant accompanied Edwards, Olmeda, and Valentin when they went to obtain the cocaine for this sale from Edwards' supplier. Defendant was given the cocaine from Edwards' source and then traveled with the others to a supermarket parking lot near the Burger King. Valentin testified that defendant's role in controlling the cocaine in the car en route to the parking lot was to escape with the cocaine if they were stopped by the police. 1 Valentin also testified that he, Edwards, Olmeda, and Torres planned to split the profits of the cocaine sale.

After arriving at the supermarket's parking lot, defendant, Edwards, Olmeda, and Valentin met another participant in the sale, Freddie Marshall. Defendant gave the cocaine to Edwards who, in turn, gave it to Valentin. After receiving the cocaine, Valentin left with Marshall to make the sale to Anaya, who was waiting with Crowl in the Burger King parking lot. Defendant was arrested after the sale, as were Crowl, Marshall, and Valentin.

Defendant was charged with possession with intent to deliver over 650 grams of cocaine. M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). At the close of proofs in the first trial, the prosecutor asked the trial court to give the jury an instruction on the crime of simple possession of more than 650 grams of cocaine, a violation of M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(i), as a lesser included offense. The trial court agreed to do so and defendant did not object. 2 The trial court also instructed the jury that the simple possession charge was a "less serious crime" than the charge of possession with intent to deliver. Defendant was convicted of simple possession, but was not convicted, and was thereby acquitted, of possession with intent to deliver.

On the day of sentencing, October 16, 1990, the trial court, sua sponte, decided to grant defendant a new trial because the court concluded that it erred in giving the simple possession charge as a lesser included offense where it carries the same penalty 3 as the possession with intent to deliver charge:

My point is that when you ask for an instruction and the penalty is the same, at the very least the instruction should be ["]you may consider a separate offense of so and so,["] possession of over 650 grams in this case, rather than the language I gave them, ["]you may also consider the less serious crime of 650--possession of over 650 grams of cocaine. ["] That is my point.... They had an alternative without a true alternative. [Emphasis added.]

On this basis, the trial court entered an order dated October 22, 1990, setting aside defendant's conviction of simple possession of 650 grams of cocaine and ordering a new trial. The people moved for reconsideration, asking the trial court to reinstate the verdict. The trial court denied this motion. 4

On November 30, 1990, the prosecutor filed a delayed application for leave to appeal this decision to the Court of Appeals, which denied the application on February 26, 1991 (Docket No. 135400). On May 3, 1991, this Court also denied the application. 5

In May 1991, defendant was retried on the simple possession charge. The trial ended in a hung jury, and the trial court declared a mistrial. Thereafter, a third trial was scheduled. Before this trial began, defendant moved to dismiss the simple possession charge on the basis that another trial would violate his right protecting him from double jeopardy. At the hearing on this motion, on February 7, 1992, the trial court concluded that the crime of possession with intent to deliver more than 650 grams of cocaine, of which defendant was acquitted in his first trial, was the same charge as simple possession for double jeopardy purposes:

In ... the case before the Court, there are no different transactions, no different facts, the retrial would be dealing with the same issues, the same circumstances, the same facts as the original trial on the original charge of possession with intent to deliver over 650 grams of cocaine.

On February 21, 1992, the trial court entered an order dismissing the simple possession charge against defendant because a retrial was barred by double jeopardy because of his prior acquittal on the possession with intent to deliver charge from the first trial.

The prosecutor brought an appeal of right in the Court of Appeals from the February 21, 1992, order, challenging the trial court's dismissal of the simple possession charge. In that appeal, the prosecutor also asked the Court to reverse the trial court's October 22, 1990, decision granting a new trial. In a published opinion, the Court of Appeals decided that it did not have jurisdiction to hear the prosecutor's appeal of the interlocutory decision. Rather, it held 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." 6 Consequently, the Court of Appeals did not address the question whether the trial court abused its discretion in ordering a new trial.

However, the Court of Appeals reversed the trial court's decision to dismiss the simple possession charge against defendant. The Court reasoned that the jury, by its verdict in the first trial, did not acquit defendant of the simple possession charge:

A jury in the present case rationally could find that defendant possessed the cocaine, but that he did not have the intent to deliver it. Thus, the fact that defendant was acquitted of the charge of possession with intent to deliver cocaine does not bar retrial on the offense of simple possession of cocaine.[ 7

Accordingly, the Court of Appeals reversed the dismissal and remanded the case for a new trial of the simple possession charge.

Subsequently, we granted plaintiff's application for leave to appeal whether the prosecutor may appeal the trial court's October 22, 1990, decision granting defendant a new trial. This Court also granted defendant's cross appeal in which he challenges the Court of Appeals ruling to remand for a new trial. 8

I. People's right to raise the issue of the interlocutory decision
A

The Michigan Constitution does not provide the people the right of appeal in criminal cases. People v. Cooke, 419 Mich. 420, 424-425, 355 N.W.2d 88 (1984). Rather, the people may only file an appeal as provided by statute. M.C.L. § 770.12; M.S.A. § 28.1109. M.C.L. § 770.12; M.S.A. § 28.1109 provides that the people may take an appeal of right from a lower court's final order:

(1) Except as provided in subsection (2), 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...

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