People v. Waterstone, Docket Nos. 303268

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: MURPHY
• Citation: 818 N.W.2d 432,296 Mich.App. 121
• Docket Number: Docket Nos. 303268,303703.
• Decision Date: 10 April 2012
• Parties: PEOPLE v. WATERSTONE.

296 Mich.App. 121
818 N.W.2d 432

PEOPLE
v.
WATERSTONE.

Docket Nos. 303268, 303703.

Court of Appeals of Michigan.

Submitted Oct. 5, 2011, at Detroit.
Decided April 10, 2012, at 9:05 a.m.

[818 N.W.2d 434]

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Anica Letica, Assistant Attorney General, for the people.

Gerald K. Evelyn, Juan A. Mateo, and Jay Y. Mandel for defendant.

Before: MURPHY, C.J., and TALBOT and MURRAY, JJ.

MURPHY, C.J.

[296 Mich.App. 126]In these consolidated appeals, the Michigan Attorney General (AG) charged defendant with four counts of felony misconduct in office under MCL 750.505 arising out of a criminal prosecution in which defendant, sitting as a circuit court judge, is alleged to have willfully neglected her judicial duties by failing to disclose certain communications and perjured testimony. MCL 750.505 provides for criminal penalties and punishment when a person commits an offense that was indictable at the common law, such as misconduct in office, absent a statutory provision that expressly punishes

[818 N.W.2d 435]

the charged offense. We find that MCL 750.478, a misdemeanor statute, constitutes a statute that expressly provides for the punishment of misconduct in office with respect to misconduct that entails willful neglect to perform a legal duty (nonfeasance), which is the type of misconduct set forth in the particular charges brought by the AG against defendant. The elements of the charged offense are the same elements of a statutory offense, MCL 750.478. Therefore, under the plain and unambiguous language in MCL 750.505, which is the sole statute relied on by the AG in regard to the four counts at issue, MCL 750.505 cannot be invoked as a basis to try and convict defendant. Defendant[296 Mich.App. 127]is entitled to dismissal of the charges without prejudice. Accordingly, we affirm the circuit court's ruling quashing counts 12, 13, and 14 of the complaint, albeit for different reasons; however, we reverse the court's ruling allowing count 15 to proceed to trial.¹

I. FACTUAL AND PROCEDURAL HISTORY

The underlying criminal case presided over by defendant concerned drug charges brought by the Wayne County Prosecutor's Office against Alexander Aceval and Ricardo Pena. The facts in that prosecution with respect to Aceval's alleged criminal activities, along with the facts regarding our defendant's behavior on the bench, were set forth as follows in People v. Aceval, 282 Mich.App. 379, 382–385, 764 N.W.2d 285 (2009):

This matter arises out of an illegal drug transaction. On March 11, 2005, police officers Robert McArthur, Scott Rechtzigel, and others, acting on information obtained from Chad William Povish, a confidential informant (CI), were on surveillance at J Dubs bar in Riverview, Michigan. Povish previously told police officers that [Aceval] had offered him $5,000 to transport narcotics from Detroit to Chicago. That day, the officers observed [Aceval], Povish, and Bryan Hill enter the bar. [Aceval] arrived in his own vehicle, while Povish and Hill arrived in another. Eventually the three individuals left the bar and loaded two black duffel bags into the trunk of Povish's car. Povish and Hill then drove away, while [Aceval] drove away in his own vehicle. Subsequently, the officers stopped both vehicles and found packages of cocaine in the duffel bags located in the trunk of Povish's car. [Aceval] was subsequently arrested and charged with possession with intent to deliver 1,000 or more grams of cocaine, MCL 333.7401(2)(a)( i ), and conspiracy to commit that offense, MCL 750.157a.

[296 Mich.App. 128]Before trial, [Aceval] moved for the production of the identity of the CI. During an evidentiary hearing on June 17, 2005, [Aceval] requested that the trial court, Judge Mary Waterstone, conduct an in camera interview of McArthur, the officer in charge of the investigation. The judge agreed, and in the conference it was revealed that McArthur and Rechtzigel knew that Povish was the CI. Further, the officer told the trial court that Povish was paid $100 for his services, plus “he was going to get ten percent, whatever we got.” The conference was sealed and the trial court denied [Aceval's] motion.

Subsequently, [Aceval] filed a motion to suppress certain evidence. During a hearing on September 6, 2005, Rechtzigel lied when he testified, in response to defense counsel's questioning, that he had never had any contact with Povish before March 11, 2005. The prosecutor did not object. On September 8, 2005, in another sealed in camera conference

[818 N.W.2d 436]

between the judge and the prosecutor, the prosecutor admitted that she knew that Rechtzigel had knowingly committed perjury but stated that she “let the perjury happen” because “I thought an objection would telegraph who the CI is.” In response, the judge stated that she thought “it was appropriate for [the witness] to do that.” Further, the court added, “I think the CI is in grave danger.... I'm very concerned about his identity being found out.”

The matter went to trial on September 12, 2005. At trial, the prosecutor and the judge continued their efforts to protect the CI's identity. Povish testified that he had never met Rechtzigel or McArthur before they stopped his vehicle on the day that he received the duffel bags and that neither had offered him a deal of any kind. He further testified that he did not know what was in the duffel bags and that, until trial, he believed that he could be charged with a crime for his role in the incident. The prosecutor made no objection to this testimony. The prosecutor and the judge again indicated, in another sealed ex parte bench conference on September 19, 2005, that they knew Povish had perjured himself in order to conceal his identity. At the [296 Mich.App. 129]close of the trial, the jury was unable to reach a verdict and, thus, the trial court declared a mistrial.

On December 7, 2005, attorney Warren E. Harris filed an appearance to represent [Aceval] in his retrial, again in Judge Waterstone's court. On March 6, 2006, attorney David L. Moffitt petitioned for leave to file a limited appearance solely for purposes of filing certain motions by [Aceval], which the trial court granted on March 17, 2006. Subsequently, at a hearing on March 28, 2006, [Aceval] indicated that he had become aware that the CI was Povish and argued that the case should be dismissed because of the trial court's and the prosecutor's complicit misconduct in permitting perjured testimony. [Aceval] also requested that both the prosecuting attorney and Judge Waterstone disqualify themselves from the case. Judge Waterstone disqualified herself on the record. The following day, Judge Vera Massey–Jones, the successor judge, entered an order unsealing the three in camera interviews.

* * *

[Aceval's] retrial began on June 1, 2006, with Harris acting as counsel. Before trial, [Aceval] allegedly contacted a prosecution witness and directed him to provide false testimony in support of the defense. After the prosecution discovered this information, it informed the trial court and defense counsel. Subsequently, the witness testified that [Aceval] had asked him to lie and he purged his testimony. Thereafter, [Aceval] pleaded guilty to the charge of possession with intent to distribute more than 1,000 grams of cocaine.

This Court affirmed Aceval's plea-based conviction. Id. at 392–393, 764 N.W.2d 285.²

Subsequently, after a series of issues and problems [296 Mich.App. 130]were resolved related to the proper prosecuting entity for purposes of the case at bar, see People v. Waterstone, 287 Mich.App. 368, 789 N.W.2d 669 (2010), rev'd and remanded to 36th District Court 486 Mich. 942, 783 N.W.2d 314 (2010), the AG pursued charges against defendant. The AG had also brought charges against the prosecutor and the two police officers

[818 N.W.2d 437]

involved in the concealment and perjury alluded to in Aceval. The charges brought against defendant were contained in counts 12 through 15 of the AG's complaint, which provided:

COUNT 12 DEFENDANT(S)(04): COMMON LAW OFFENSES

did commit Misconduct in Office, an indictable offense at common law, by willfully neglecting her judicial duties by permitting or considering an improper ex parte communication on September 8, 2005 and concealing that communication from the defendants in the case of People of the State of Michigan v. Alexander Aceval and/or People of the State of Michigan v. Ricardo Pena; contrary to MCL 750.505....

COUNT 13 DEFENDANT(S)(04): COMMON LAW OFFENSES

did commit Misconduct in Office, an indictable offense at common law, by willfully neglecting her judicial duties by permitting or considering an improper ex parte communication on September 19, 2005 and concealing that communication from the defendants in the case of People of the State of Michigan v. Alexander Aceval and/or People of the State of Michigan v. Ricardo Pena; contrary to MCL 750.505....

COUNT 14 DEFENDANT(S)(04): COMMON LAW OFFENSES

did commit Misconduct in Office, an indictable offense at common law, by willfully neglecting her judicial duties by concealing perjured testimony from the defendants in the case of People of the State of Michigan v. Alexander Aceval and/or People of the State of Michigan v. Ricardo Pena by her rulings and orders; contrary to MCL 750.505....

[296 Mich.App. 131]COUNT 15 DEFENDANT(S)(04): COMMON LAW OFFENSES

did commit Misconduct in Office, an indictable offense at common law, by willfully neglecting her judicial duties by allowing perjured testimony [to] be heard by the jury in the case of People of the State of Michigan v. Alexander Aceval and/or People of the State of Michigan v. Ricardo Pena; contrary to MCL 750.505....

The district court bound defendant over on all four counts of misconduct in office, but the circuit court quashed counts 12 through 14, while allowing the AG to go to trial solely on count 15. In Docket...