People v. Wolfe

• Decision Date: 21 October 1981
• Docket Number: Docket No. 52107
• Citation: 110 Mich.App. 606,313 N.W.2d 350
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Duane WOLFE, Defendant-Appellant. 110 Mich.App. 606, 313 N.W.2d 350
• Court: Court of Appeal of Michigan — District of US

Page 350

313 N.W.2d 350

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Duane WOLFE, Defendant-Appellant.

Docket No. 52107.

110 Mich.App. 606, 313 N.W.2d 350

Court of Appeals of Michigan.

Oct. 21, 1981.

Released for Publication Dec. 22, 1981.

[110 MICHAPP 608] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Prosecuting Atty., Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Asst. Prosecuting Atty., for the people.

Faintuck, Shwedel, Wolfram, McDonald & Zipser, Farmington Hills by Harriet B. Rotter, Farmington Hills, for defendant on appeal.

Before BEASLEY, P. J., and BASHARA and MacKENZIE, JJ.

BASHARA, Judge.

Defendant was convicted by a jury of committing first-degree premeditated murder M.C.L. § 750.316; M.S.A. § 28.548. He was sentenced to life imprisonment.

The victim was Barbara Lunsford. The evidence established that defendant conspired with Augustino Conte and David Ovegian to murder Lunsford in order to prevent her from testifying against Ovegian in another murder trial. Defendant, Ovegian and Conte were concurrently convicted of first-degree murder in the same trial by separate juries.

Defendant asserts on appeal that he was twice [110 MICHAPP 609] placed in jeopardy for the same offense in contravention of the Double Jeopardy Clause. ¹

On October 24, 1978, the jury was impaneled, and it was stipulated that "jeopardy had attached". On defendant's motion, the prosecutor made an offer of proof as to premeditation and deliberation. The trial court held that the evidence was insufficient to support the first-degree murder charge. This ruling was based upon the erroneous assumption that the prosecutor could not rely upon the in-court testimony of an accomplice in establishing the elements of the crime during trial. See People v. Barron, 381 Mich. 421, 163 N.W.2d 219 (1968).

The prosecutor immediately sought a stay of proceedings in order that an interlocutory appeal could be filed. The motion was denied by the trial court, and the prosecutor was ordered to begin his opening statement on the charge of second-degree murder.

While the prosecutor was delivering the opening statement, an associate prosecutor applied for leave to make an emergency appeal in the Court of Appeals. On the same day, this Court stayed the proceedings in the trial court. However, the stay was not received until the next jury day, October 26. Up to that time, only the prosecutor's opening statement had been given.

On October 26, 1978, by order of this Court, the first-degree murder charge was reinstated, and the matter was remanded for trial. Upon receiving the order, the trial court instructed the jurors to leave the courtroom and go about their daily lives. Trial was resumed on January 22, 1979, before the same juries. Defendant and his codefendants were convicted of first-degree murder.

[110 MICHAPP 610] The convictions of Conte and Ovegian were appealed on double jeopardy grounds, among other issues. The convictions were affirmed by this Court in People v. Conte, 104 Mich.App. 73, 304 N.W.2d 485 (1981), and People v. Ovegian (Docket No. 44542, decided March 18, 1981 (unreported)).

We have reviewed defendant's claim and find it to be without merit. The Court's opinion in Conte is well reasoned, and we adopt it herein. Crucial to the decision authored by Judge Cavanagh is the fact that defendant was subjected to only one prosecution before one jury. The Court stated:

"Here, the prosecution appealed interlocutorily the dismissal of the charge and so the defendant was not subjected to two trials. The important policy reasons barring a retrial in double jeopardy cases were not present to militate against the continuation of the case now before this Court. The instant case is distinguishable from People v. Killarney, 95 Mich.App. 396, 290 N.W.2d 156 (1980), where the trial court's grant of the defendant's motion for a directed verdict was appealed by the prosecution and found by this Court to bar retrial based on the reasoning of People v. Smith (On Rehearing), 89 Mich.App. 478, 280 N.W.2d 862 (1979), and Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). The interlocutory appeal of the dismissal of the charge in the instant case did not subject the defendant to a second prosecution when the Court of Appeals reinstated the charge. Likewise, the trial judge's sending of the jurors home following an order staying further proceedings from this Court was the reasonable and proper action to take. The trial court did not indicate that the release of the jurors terminated the action against the defendant, nor did the release imply a dismissal of the jury. There was no violation of the defendant's right to be free from being placed twice in jeopardy." Id., 104 Mich.App. 78-79, 304 N.W.2d 485.

It is argued that People v. Anderson, 409 Mich. [110 MICHAPP 611] 474, 295 N.W.2d 482 (1980), not considered by the Court in Conte, requires reversal. In Anderson, the trial court dismissed the jury mid-trial and accepted defendant's plea to a lesser crime. The prosecutor sought the opportunity to retry defendant on the original charge. The Court held that retrial was barred by the Double Jeopardy Clause because the trial court's actions constituted resolution of some or all of the factual elements of the charge. The Court stated the legal standard for consideration of Double Jeopardy Clause claims, as follows:

"The Clause secures the defendant's interests in (1) the finality of judgments, and (2) protection against multiple prosecutions.

"If a trial ends in a judgment of acquittal, both interests are implicated, and there can be no retrial. This has been called 'the most fundamental rule in the history of double jeopardy jurisprudence', and is absolute. It applies whether the acquittal is based on findings of a judge or the verdict of a jury, and whether it is erroneously based or brought about with the defendant's voluntary participation.

"Where, however, the trial or proceeding does not end in a judgment of acquittal or conviction, only the second interest is implicated, and the constitutional protections are not absolute. The defendant has an interest in avoiding harassment from repeated proceedings and in having his guilt decided by the jury impaneled to try him. The people, however, have a competing interest in having one complete opportunity to try those accused of breaking the law. Where there is no judgment of conviction or acquittal, these interests are balanced.

"If the trial or proceeding ends without the defendant's consent, further prosecution is generally barred; the defendant's 'valued right to have his trial completed by a particular tribunal' was taken from him, and reprosecution smacks of harassment. An exception is recognized, and retrial permitted, where 'manifest necessity'[110 MICHAPP 612] compelled the termination of the first trial or proceeding." Id., 482-484, 295 N.W.2d 482. (Footnotes omitted.)

The Court then applied the test to the case before it and concluded:

"(T)hat the judge's decision to accept Anderson's mid-trial plea and to dismiss the murder charge involved a resolution of factual elements of the offense charged, and was based on his belief, correct or incorrect, prematurely formed or not, that the evidence was insufficient to support a conviction of murder." Id., 487, 295 N.W.2d 482.

We find Anderson to be significantly distinguishable from the case at bar. This jury had not been discharged, and defendant was not tried and convicted of a lesser offense as in Anderson.

A prosecutor may seek leave to appeal interlocutory orders. People v. Blachura, 390 Mich. 326, 212 N.W.2d 182 (1973); Jackson County Prosecutor v. Court of Appeals, 394 Mich. 527, 232 N.W.2d 172 (1975). Clearly, had the trial court granted the request for a stay, there would be no double jeopardy claim. However, since the proceedings were not stopped until after the prosecutor gave his opening statement, defendant asserts that he is being harassed with multiple prosecutions. We reject that contention since only one trial has occurred and only the prosecution could have been prejudiced by the fact that an opening statement was delivered for second-degree rather than first-degree murder.

Similarly, the fact that the trial court temporarily released the jury does not present a constitutional infirmity. The jury was not discharged. The defendant was tried by the original jury. Defendant cites no authority prohibiting adjournment of criminal proceedings on double jeopardy grounds.

[110 MICHAPP 613] In summary, we find no Double Jeopardy Clause violation because defendant was subjected to only one trial before one jury.

Affirmed.

BEASLEY, P. J., concurred.

MacKENZIE, Judge (dissenting).

I respectfully dissent. I would reverse and remand for a new trial on the charge of second-degree murder. A finding that defendant's right to be free from being placed twice in jeopardy was violated is supported by People v. Anderson, 409 Mich. 474, 295 N.W.2d 482 (1980), which dealt with a similar double jeopardy...