People v. Vincent

• Decision Date: 16 February 1996
• Docket Number: Docket No. 157220
• Citation: 215 Mich.App. 458,546 N.W.2d 662
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Duyonn Andre VINCENT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 662

546 N.W.2d 662

215 Mich.App. 458

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Duyonn Andre VINCENT, Defendant-Appellant.

Docket No. 157220.

Court of Appeals of Michigan.

Submitted Jan. 17, 1996, at Detroit.

Decided Feb. 16, 1996, at 9:00 a.m.

Released for Publication April 29, 1996.

State Appellate Defender by Randy E. Davidson, Detroit, for defendant on appeal.

Before TAYLOR, P.J., and JANSEN and SMOLENSKI, JJ.

TAYLOR, Presiding Judge.

Defendant appeals as of right from a jury conviction of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). We reverse.

Defendant and two others were jointly tried as a result of a fatal shooting. Defendant, Marcus Hopkins, and Dameon Perkins, were all charged with open murder and felony-firearm. The charges were considered by two juries. The case against Perkins was considered by one jury, and a second jury considered the case against defendant and Hopkins. Perkins' jury convicted him of second-degree murder and felony-firearm. Defendant's and Hopkins' jury convicted Hopkins of involuntary manslaughter and felony-firearm. This same jury convicted defendant of first-degree murder and felony-firearm. Hopkins' and Perkins' convictions were affirmed on appeal in separate unpublished opinions. People v. Hopkins, unpublished opinion per curiam of the Court of Appeals, issued October 20, 1995 (Docket No. 158133); People v. Perkins, unpublished opinion per curiam of the Court of Appeals, issued November 21, 1995 (Docket No. 160177).

Defendant argues on appeal that his conviction of first-degree murder violated his constitutional right not to be placed twice in jeopardy, U.S. Const., Am. V; Const. 1963, Art. 1, § 15. We agree.

At the close of the prosecutor's case, defense counsel moved for a directed verdict of acquittal with respect to the charge of first-degree murder and asked the court to permit the jury to consider only the crime of second-degree murder. Similar motions were made by the codefendants. The prosecutor opposed the motions, arguing that the evidence was sufficient to establish first-degree murder when viewed in a light most favorable to the prosecution. The court then stated as follows:

Well my impression at this time is that there's not been shown premeditation or planning in the, in the alleged slaying. That what we have at the very best is second-degree murder.... I think that second-degree murder is an appropriate charge as to the defendants.

The parties then discussed several housekeeping matters, including whether the different juries would be present during presentation of defendant's defense, how long witnesses were expected to testify, and the logistics of moving the juries and witnesses in and out of the courtroom. After the three defendants left the courtroom, the prosecutor asked if he could make a brief "restatement" in terms of the first-degree murder charge when the juries came back the next morning because he wanted to find some law relating to the matter at issue. The court said it would be glad to hear the prosecutor. The next morning the prosecutor argued that, on the basis of the evidence and the law, the jury should determine if first-degree murder had been established. At the conclusion of the prosecutor's arguments, defense counsel argued that the court had granted a directed verdict with regard to the first-degree murder charge the previous day and cited the constitutional prohibition against placing a defendant in double jeopardy. The court advised defense counsel that it had not informed the jury "of any of these things." Defense counsel reiterated his contention that a decision had been made the previous day. The court said that it did not believe a court is precluded from reconsidering a decision already made if that decision has not been recited to the parties, particularly the jury. When counsel for Hopkins cited the Double Jeopardy Clause, the court said that it had not directed a verdict for anybody. Counsel for Hopkins then told the court that it had granted his motion. The court then stated: "Oh, I granted a motion but I have not directed a verdict." The prosecutor proceeded to present further argument in support of his position. The court then stated that it was going to consider the argument counsel had made and that no harm had come about by the "court's ruling earlier" because the jury had not been informed of "the conclusion this court drew" after arguments of counsel. The court then said that it was going to reserve ruling. Following that ruling, the defense presented its case, in which defendant called one witness and also testified in his own behalf. After all defendants had rested, the court said:

I've reconsidered the ruling that the court earlier made and I've decided to let the jury make its own determination on the degrees.

Thereafter, the court submitted the first-degree murder charge against defendant to the jury, and he was found guilty of first-degree murder. After the jury returned its verdict, defense counsel renewed his motion for a directed verdict, which the court denied.

The propriety of the trial court's reconsidering its ruling that premeditation had not been shown, and allowing the jury to consider first-degree murder, has previously been considered by the panels of this Court that affirmed the convictions of codefendants Hopkins and Perkins. The Hopkins and Perkins panels, in unpublished opinions, held that Hopkins' and Perkins' double jeopardy rights had not been violated. Because these opinions were not published, they are not binding on this panel. Administrative Order No. 1994-4 provides only that a panel of this Court must follow the rule of law established in a prior Court of Appeals' published decision issued on or after November 1, 1990, unless reversed or modified by the Supreme Court or a special panel of this Court. Further, MCR 7.215(C) provides that an unpublished opinion is not precedentially binding under the rule of stare decisis. While we believe that inconsistent results on appeal involving codefendants are undesirable, People v. Hayden, 132 Mich.App. 273, 288-289, n. 8, 348 N.W.2d 672 (1984), we are persuaded that defendant's constitutional right not to be placed twice in jeopardy was violated and, therefore, are compelled to reverse his first-degree murder conviction.

The prosecutor has not filed a brief on appeal to contest defendant's claim that his double jeopardy rights were violated. We can only assume that the prosecutor believes this Court will follow the analysis of the Hopkins and Perkins panels and find no double jeopardy violation. The Perkins panel found no double jeopardy violation, even though the trial court had indicated the proofs supported only second-degree murder, stating:

Since the trial court had never indicated to the jury that it was directing a verdict of acquittal on first-degree murder, there was no prejudice to defendant and, more importantly, defendant's double jeopardy rights were not violated.

This conclusion of the Perkins panel is not supported by any authority.

The Hopkins panel resolved the double jeopardy issue as follows:

While the court expressed an opinion that ultimately would have ripened into a final ruling had nothing intervened and the court taken the issue from the jury, the court, before acting on its expressed opinion, agreed to hear further argument from the prosecutor regarding the issue. When the court recessed for the day, everyone was aware that the prosecutor was going to present further argument on the issue of first-degree murder the next morning, before defendants would proceed with their cases. The matter was addressed the next morning, and the court reconsidered its opinion earlier expressed, concluding that it would reserve ruling.

Thus, the record indicates that the court expressed an opinion, and then before finalizing that opinion, agreed to entertain further argument. The court did not make a final ruling until it denied defendant's motion for directed verdict and submitted the case to the jury. We conclude the court was not barred from further consideration of the matter.

This conclusion in Hopkins is also not supported by any authority.

In Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), the Supreme Court reiterated that a trial court's determination that the evidence is insufficient to convict is an acquittal under the Double Jeopardy Clause and that the Double Jeopardy Clause bars subjecting a defendant to post-acquittal fact-finding proceedings going to the guilt or innocence regarding such a charge. As explained below, we are convinced that the court granted a directed verdict of acquittal to defendant regarding the first-degree murder charge and that the court's subsequent reversal of its decision resulted in post-acquittal fact-finding by the jury when the jury was allowed to consider the first-degree murder charge in violation of defendant's double jeopardy rights.

This Court's research has located several cases with facts similar to those in the case at bar that support our finding that defendant's double jeopardy rights were violated.

In Brooks v. Maryland, 299 Md. 146, 472 A.2d 981 (1984), the Maryland Court of Appeals considered a case where the trial court granted a motion for a directed verdict and "shortly thereafter" the prosecutor asked the court to reconsider its ruling. After hearing further argument from the prosecutor, the trial court reversed the grant of a directed verdict and denied the motion. The appellate court reversed the defendant's jury conviction on double jeopardy grounds, stating:

He [the judge] was belatedly persuaded in the light of the prosecution's tardy argument that the issue was for the jury.... [B]oth the State's argument and the judge's new ruling came too late. Once a trial judge intentionally...