Opinion
No. 349547
04-29-2021
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Latausha SIMMONS, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Peter Lucido, Prosecuting Attorney, Joshua D. Abbott, Chief Appellate Attorney, and Emil Semaan, Assistant Prosecuting Attorney, for the people. Latausha Simmons in propria persona. Mark Wiese, Kym L. Worthy, Detroit, Jon P. Wojtala, Trenton, and Timothy A. Baughman, Detroit, for Prosecuting Attorneys Association of Michigan, Amicus Curiae.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Peter Lucido, Prosecuting Attorney, Joshua D. Abbott, Chief Appellate Attorney, and Emil Semaan, Assistant Prosecuting Attorney, for the people.
Latausha Simmons in propria persona.
Mark Wiese, Kym L. Worthy, Detroit, Jon P. Wojtala, Trenton, and Timothy A. Baughman, Detroit, for Prosecuting Attorneys Association of Michigan, Amicus Curiae.
Before: Beckering, P.J., and Fort Hood and Riordan, JJ.
ON RECONSIDERATION
Riordan, J. Defendant appeals, as on leave granted from our Supreme Court, the circuit court's order reversing her conviction of resisting or obstructing a police officer, MCL 750.81d(1), and remanding to the district court for a new trial. Defendant argues that the circuit court had jurisdiction to enter its earlier order and judgment of acquittal, and further, that entry of the order precludes retrial under the Double Jeopardy Clause of the United States Constitution, U.S. Const., Am. V. We agree in both respects. Accordingly, we reverse the circuit court's order and remand to that court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY
People v. Simmons , 506 Mich. 912, 948 N.W.2d 445 (2020).
As applied to the states through the Fourteenth Amendment of the United States Constitution, U.S. Const., Am. XIV. See Benton v. Maryland , 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). See also Const. 1963, art. 1, § 15.
Our opinion on reconsideration is substantively identical to our original opinion but for the addition of this footnote and footnote 11. See People v. Simmons , unpublished opinion of the Court of Appeals, issued April 29, 2021 (Docket No. 349547), 2021 WL 1703264.
This case arises out of the arrest of defendant for her failure to comply with the directives of Warren police officers. Officer Sullivan observed defendant exit a grocery store through an opening not typically used by the public and walk to a car parked in an alley next to the grocery store. Defendant entered the car, drove a few feet, exited the car next to a dumpster or shipping container that was in the alley, and peeked around the corner of the dumpster or shipping container at Officer Sullivan. Officer Sullivan found her behavior to be suspicious and approached her to investigate. He requested her identification numerous times. Defendant did not respond to Officer Sullivan and did not present her identification to him. Officer Horlocker and Officer Sciullo were then dispatched to assist Officer Sullivan. Officer Horlocker and Officer Sciullo independently spoke to defendant and requested her identification. Defendant did not respond to either officer and never produced her identification. She was ultimately arrested and charged with resisting or obstructing a police officer.
Before trial, defendant filed a motion to dismiss and for an evidentiary hearing on the lawfulness of the officers’ conduct. After a hearing, the district court concluded that the officers’ conduct was lawful and the matter then proceeded to trial. On the first day of trial, before the jury was empaneled, the parties discussed the introduction of evidence regarding the lawfulness of the officers’ conduct and whether the jury was to be instructed that the lawfulness of the officers’ conduct was an element of resisting or obstructing a police officer. The district court ruled that it previously had determined that the officers’ conduct was lawful, that no evidence could be presented at trial regarding the lawfulness of the officers’ conduct or the legality of defendant's arrest, and that the jury was not to be instructed that the lawfulness of the officers’ conduct was a factual issue for it to determine. Consequently, no evidence was presented at trial on the lawfulness of the officers’ conduct and the jury did not consider that as one of the elements of the criminal allegation before it. Thus, the jury did not consider the lawfulness of the police officers’ conduct and it then found defendant guilty of resisting or obstructing a police officer.
Defendant appealed her conviction in the circuit court. The prosecution did not respond to her appeal or file an appearance. At the hearing on the appeal, the circuit court concluded that the district court erred by precluding the introduction of evidence on the lawfulness of the officers’ conduct but, nonetheless, ruled that defendant must be acquitted:
Even if the – somebody on behalf of the State of Michigan or the City of Warren did appear, on the merits, you win. This matter is reversed and a judgment of acquittal is entered in favor of the Defendant.
* * *
Congratulations and on behalf of the State of Michigan let me apologize to the Defendant for going through what you did go through. I mean, even if the instructions had been correct, I see no way that you could have been or should have been convicted on this evidence.
* * *
You're an innocent person. Finally the record caught up with that. Thank you. Okay.
The circuit court accordingly entered an order and judgment of acquittal, which stated as follows:
For the reasons stated on the record, Defendant's motion is GRANTED, Defendant's conviction is reversed,
and all arrest records and fingerprint cards shall be returned to Defendant forthwith. This order is a final order resolving all claims and closing the case.
Thirteen days later, the prosecution moved for reconsideration, asserting that it never was served with defendant's claim of appeal or any of the documents filed thereafter, and that the proper remedy for the district court's error was to remand to that court for a new trial, not to enter an order of acquittal. After reviewing the record, the circuit court concluded that the prosecution was not served with defendant's claim of appeal or any of the documents filed thereafter and set aside the order of acquittal. Ultimately, the circuit court reversed itself by concluding that the district court erroneously removed the element of whether the officers acted lawfully from the province of the jury, and it remanded the matter to the district court so that defendant could be re-tried on the charge of resisting or obstructing a police officer.
The prosecution conceded in both the circuit court and this Court that the district court erred by precluding the introduction of evidence on the lawfulness of the officers’ conduct and by refusing to instruct the jury concerning that element of the charged offense. See People v. Moreno , 491 Mich. 38, 51-52, 814 N.W.2d 624 (2012) (concluding that whether the officer acted lawfully is an element of the crime of resisting or obstructing a police officer).
Defendant filed an application for leave to appeal in this Court, which was denied for lack of merit on the grounds presented. People v. Simmons , unpublished order of the Court of Appeals, entered July 30, 2019 (Docket No. 349547). Defendant then filed an application for leave to appeal in our Supreme Court. In lieu of granting leave to appeal, our Supreme Court remanded the case to this Court for consideration as on leave granted. People v. Simmons , 506 Mich. 912, 948 N.W.2d 445 (2020). We now address the merits of her appeal. II. JURISDICTION
Defendant first argues that the circuit court erred by finding that she did not properly serve her claim of appeal on the prosecution, and alternatively, even if the circuit court did not err by so finding, that the circuit court nonetheless possessed jurisdiction to enter the order of acquittal. We need not address the former argument because we conclude that the circuit court possessed jurisdiction over her appeal in either event. This Court reviews jurisdictional questions de novo. Teran v. Rittley , 313 Mich. App. 197, 205, 882 N.W.2d 181 (2015).
"To vest the circuit court with jurisdiction in an appeal of right, an appellant must file with the clerk of the circuit court within the time for taking an appeal: (1) the claim of appeal, and (2) the circuit court's appeal fees, unless the appellant is indigent." MCR 7.104(B). "An appeal of right to the circuit court must be taken within ... 21 days or the time allowed by statute after entry of the judgment, order, or decision appealed[.]" MCR 7.104(A)(1). "The time limit for an appeal of right is jurisdictional." MCR 7.104(A).
On June 26, 2018, defendant timely filed a claim of appeal with the clerk of the circuit court. In addition, defendant filed a request for a fee waiver with her claim of appeal. On July 9, 2018, the circuit court waived her fees because of her indigency. Therefore, under MCR 7.104(A)(1) and (B), jurisdiction was vested in the circuit court because defendant timely filed her claim of appeal and her fees were waived. This is true regardless of whether defendant properly served the prosecution with her claim of appeal because the service-of-process provisions contained in the court rules "are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances. These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant." MCR 2.105(J)(1). Thus, even if defendant did not properly serve her claim of appeal on the prosecution, it did not divest the circuit court of jurisdiction to enter its judgment of acquittal. See MCL 600.611 ("Circuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts’ jurisdiction and judgments.").
At most, the alleged failure to properly serve the claim of appeal would perhaps result in a lack of personal jurisdiction over the prosecution. See In re Koss Estate , 340 Mich. 185, 190, 65 N.W.2d 316 (1954) ("[S]ervice of the notice of claim of appeal is the means whereby the circuit court attains jurisdiction over the parties to the appeal (although filing claim of appeal vests jurisdiction of the subject matter in the circuit court)[.]"). But see Mich. Employment Security Comm v. Wayne State Univ. , 66 Mich. App. 26, 30-31, 238 N.W.2d 191 (1975) (limiting In re Koss Estate to the court rule in effect when that case was decided). Regardless, the prosecution does not raise any personal-jurisdiction argument.
We note that the prosecution concedes this point as well.
III. DOUBLE JEOPARDY
Defendant next argues that retrial would violate the constitutional prohibition against double jeopardy. We agree. "A double jeopardy challenge involves a question of law that this Court reviews de novo." People v. Dillard , 246 Mich. App. 163, 165, 631 N.W.2d 755 (2001). Likewise, "[t]his Court reviews de novo claims of instructional error." People v. Dupree , 284 Mich. App. 89, 97, 771 N.W.2d 470 (2009).
"The United States and the Michigan Constitutions protect a person from being twice placed in jeopardy for the same offense." People v. Parker , 230 Mich. App. 337, 342, 584 N.W.2d 336 (1998), citing U.S. Const., Am. V ; Const. 1963, art. 1, § 15. "The prohibition against double jeopardy provides three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense." People v. Nutt , 469 Mich. 565, 574, 677 N.W.2d 1 (2004).
With regard to the first protection, "the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy." Richardson v. United States , 468 U.S. 317, 325, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984). Therefore, "a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense." Ball v. United States , 163 U.S. 662, 671, 16 S. Ct. 1192, 41 L. Ed. 300 (1896). Similarly, "the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is ‘based upon an egregiously erroneous foundation.’ " Evans v. Michigan , 568 U.S. 313, 318, 133 S. Ct. 1069, 185 L. Ed. 2d 124 (2013), quoting Fong Foo v. United States , 369 U.S. 141, 143, 82 S. Ct. 671, 7 L. Ed. 2d 629 (1962). "[A]n acquittal precludes retrial even if it is premised upon an erroneous decision to exclude evidence, a mistaken understanding of what evidence would suffice to sustain a conviction, or a ‘misconstruction of the statute’ defining the requirements to convict." Evans , 568 U.S. at 318, 133 S.Ct. 1069 (citations omitted). Consequently, "an acquittal is final even if it is based on an erroneous evidentiary ruling that precluded the prosecution from introducing evidence that would have been sufficient to convict the defendant." People v. Szalma , 487 Mich. 708, 717-718, 790 N.W.2d 662 (2010). See also Webster v. Duckworth , 767 F.2d 1206, 1214 (C.A. 7, 1985) ("The absence of competent substantive evidence to support a verdict of guilty beyond a reasonable doubt, whether the result of prosecutorial inability, judicial error or a recalcitrant witness, requires an acquittal either at trial or on appeal.").
The United States Supreme Court has "made a single exception to the principle that acquittal by judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty." Smith v. Massachusetts , 543 U.S. 462, 467, 125 S. Ct. 1129, 160 L. Ed. 2d 914 (2005). See also People v. Jones , 203 Mich. App. 74, 79 n. 1, 512 N.W.2d 26 (1993) ("Although retrial following acquittal is barred under the Double Jeopardy Clause, the government may appeal if reinstatement of the jury's verdict of conviction, rather than retrial, is sought.").
The United States Supreme Court has "defined an acquittal to encompass any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense." Evans , 568 U.S. at 318, 133 S.Ct. 1069. "Thus, an acquittal includes a ruling by the court that the evidence is insufficient to convict, a factual finding that necessarily establishes the criminal defendant's lack of criminal culpability, and any other ruling which relates to the ultimate question of guilt or innocence." Id. at 319, 133 S. Ct. 1069 (cleaned up). On the other hand, "a defendant who has been released by a court for reasons required by the Constitution or laws, but which are unrelated to factual guilt or innocence, has not been determined to be innocent in any sense of that word, absolute or otherwise." United States v. Scott , 437 U.S. 82, 98 n. 11, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978). In these scenarios, the Double Jeopardy Clause generally does not bar retrial following such "procedural dismissals." See Evans , 568 U.S. at 319, 133 S.Ct. 1069.
"Whether a judgment of a lower court is an acquittal for purposes of double jeopardy ‘is not to be controlled by the form of the judge's action.’ " Szalma , 487 Mich. at 721, 790 N.W.2d 662, quoting United States v. Martin Linen Supply Co. , 430 U.S. 564, 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977). "Rather, an appellate court ‘must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ " Szalma , 487 Mich. at 721, 790 N.W.2d 662, quoting Martin Linen , 430 U.S. at 571, 97 S. Ct. 1349. That is, "[t]here is an acquittal and retrial is impermissible when the judge ‘evaluated the government's evidence and determined that it was legally insufficient to sustain a conviction.’ " People v. Anderson , 409 Mich. 474, 486, 295 N.W.2d 482 (1980), quoting Martin Linen , 430 U.S. at 572, 97 S.Ct. 1349.
Two cases illustrate the opposite ends of the spectrum of the double-jeopardy issue before us. In Sanabria v. United States , 437 U.S. 54, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978), the petitioner was charged in federal district court with violating 18 USC 1955, a statute that prohibits operating an "illegal gambling business" in violation of state law. Id. at 56, 98 S. Ct. 2170. The federal district court originally allowed the Government to introduce evidence of both "numbers betting" and "horse betting," but subsequently struck all evidence of numbers betting near the end of trial "because it believed such action to be required by the indictment's failure to set forth the proper section." Id. at 58-59, 98 S. Ct. 2170. The federal district court then entered a judgment of acquittal in favor of the petitioner on the basis that the Government failed to introduce sufficient proof that the petitioner was connected to the "horse-betting activities." Id. at 59, 98 S. Ct. 2170. Thereafter, the Government sought to retry the petitioner for numbers betting alone. Id. at 60-61, 98 S. Ct. 2170. The United States Supreme Court ruled that the Double Jeopardy Clause barred retrial notwithstanding the federal district court's presumably erroneous interpretation of the indictment and accompanying decision to exclude evidence:
We must assume that the trial court's interpretation of the indictment was erroneous. But not every erroneous interpretation of an indictment for purposes of deciding what evidence is admissible can be regarded as a "dismissal." Here the District Court did not find that the count failed to charge a necessary element of the offense; rather, it found the indictment's description of the offense too narrow to warrant the admission of certain evidence. To this extent, we believe the ruling below is properly to be characterized as an erroneous evidentiary ruling, which led to an acquittal for insufficient evidence. That judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error. [ Id. at 68-69, 98 S. Ct. 2170 (citations omitted).]
In United States v. Houston , 792 F.3d 663 (C.A. 6, 2015), the defendant was charged in federal district court with violating 18 USC 875(c), a statute prohibiting the transmittal of a threat in interstate commerce. Id. at 665. The federal district court instructed the jury that " ‘[a] statement is a true threat if it was made under such circumstances that a reasonable person hearing the statement would understand it as a serious expression of intent to inflict injury.’ " Id. at 666. The United States Court of Appeals for the Sixth Circuit reversed the defendant's conviction and remanded the matter to the federal district court for a new trial, explaining that the instruction was erroneous because "[i]t permitted the jury to return a criminal conviction based on a negligent state of mind[.]" Id. at 667. The Court then addressed his sufficiency-of-the-evidence challenge, stating as follows:
Before addressing this argument, a brief digression is in order. Do we measure the sufficiency of the evidence to convict Houston under the wrong instruction (what was given) or the right one (what would otherwise be given on remand)? Oddly enough, it is the wrong instruction, at least when the instructions omit or inaccurately describe an element of the offense and the defendant fails to object—as
here. Otherwise, we would be forced to measure the evidence introduced by the government against a standard it did not know it had to satisfy and potentially prevent it from ever introducing
evidence on that element. Nor does this approach create Double Jeopardy problems. Consider this case: If we think about the sufficiency of the evidence with respect to correct jury instructions, the government would not be seeking a second bite at the apple but a first bite under the right legal test.... Other appellate courts have reached the same conclusion. [ Id. at 669-670.]
In this case, the order of acquittal provided that it was granted "[f]or the reasons stated on the record." And the circuit court stated on the record that "even if the instructions had been correct, I see no way that [defendant] could have been or should have been convicted on this evidence." This was an unequivocal determination that the evidence was insufficient to establish all of the elements of resisting or obstructing a police officer beyond a reasonable doubt and therefore the circuit court's action constituted an acquittal. See Anderson , 409 Mich. at 486, 295 N.W.2d 482 (explaining that an acquittal occurs "when the judge ‘evaluated the government's evidence and determined that it was legally insufficient to sustain a conviction’ "), quoting Martin Linen , 430 U.S. at 572, 97 S.Ct. 1349. Further, the circuit court also stated that defendant was "an innocent person." Such an express finding of innocence also constitutes an acquittal. See Evans , 568 U.S. at 319, 133 S.Ct. 1069. Simply put, the circuit court's statements on the record may only be reasonably understood to be an acquittal for the purposes of the Double Jeopardy Clause. Having concluded that the order of acquittal was an "acquittal" for the purposes of the Double Jeopardy Clause, retrial is barred. See Fong Foo , 369 U.S. at 143, 82 S.Ct. 671 ; Szalma , 487 Mich. at 717-718, 790 N.W.2d 662. The order of acquittal "precludes reexamination of guilt" in all cases except "a prosecution appeal to reinstate the ... verdict of guilty." Smith , 543 U.S. at 467, 125 S.Ct. 1129. Here, however, the prosecution does not seek to reinstate the jury's guilty verdict because it has acknowledged, as it must under the factual and procedural history, that the underlying instructional error would require a new trial, not the reinstatement of a guilty verdict. Accordingly, the Fifth Amendment's Double Jeopardy Clause applies here and bars defendant's retrial as the prosecution seeks to do.
By analogy, MCR 6.419(A) provides that during a jury trial, at the close of the prosecution's case-in-chief or the close of evidence, "the court on the defendant's motion must direct a verdict of acquittal on any charged offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction." The finding of evidentiary insufficiency in this case is akin to such a finding in a directed verdict of acquittal.
We do not find the prosecution's citation of People v. Reed , unpublished per curiam opinion of the Court of Appeals, issued November 21, 2013 (Docket No. 311067), 2013 WL 6134082, persuasive. Notwithstanding that it is unpublished and therefore not precedentially binding, see MCR 7.215(C)(1), there is nothing in Reed to suggest that the jury had already been selected and sworn when the trial court dismissed the case "[o]n the day of defendant's trial." "Jeopardy attaches when a jury is selected and sworn ...." People v. Grace , 258 Mich. App. 274, 279, 671 N.W.2d 554 (2003).
Lastly, we acknowledge that the circuit court, on reconsideration, set aside its order of acquittal and instead remanded to the district court for a new trial on the basis that the error in the original trial was merely instructional. Such reasoning is not without force. As Houston explains, when a trial court fails to instruct a jury on a particular element of the crime, a sufficiency-of-the-evidence challenge should be reviewed on the basis of the wrong instructions. See Houston , 792 F.3d at 669-670. And although the question is not before us today, we acknowledge that it is at least arguable that there was sufficient evidence to sustain defendant's conviction under the wrong instructions given to the jury. Nonetheless, the key factor which distinguishes the matter here from cases such as Houston , and brings it within the realm of cases such as Sanabria , is that the circuit court entered a judgment and order of acquittal. While the same circuit court later tried to reverse course, we conclude that its ruling on reconsideration cannot supersede its earlier order of acquittal for the purposes of the Double Jeopardy Clause because that earlier order, as evidenced by its unequivocal language, was not tentative in any respect. See United States v. Blount , 34 F.3d 865, 868 (C.A. 9, 1994) (holding that the federal district court could not reverse its earlier ruling of acquittal because "there is no suggestion in this case that the district court's oral grant of the motion for acquittal was tentative or subject to reconsideration"); United States v. Thompson , 690 F.3d 977, 996 (C.A. 8, 2012) ("When the district court initially granted Thompson's motion for judgment of acquittal, it did so unequivocally, without making any indication of any availability of reconsideration .... Once Thompson had rested his case, relying at least in part on the district court's judgment of acquittal, double jeopardy attached and the reversal of that judgment was a constitutional violation.").
Defendant argues that the circuit court did not possess jurisdiction to grant the prosecution's motion for reconsideration because the motion was filed more than 21 days after the order of acquittal was entered. See MCR 2.119(F)(1). The record, however, indicates that the motion was filed on January 10, 2019, only 13 days after the order of acquittal was entered.
We agree with the dissent that the circuit court's order of acquittal was not "final" in the sense that it was subject to being set aside on reconsideration or on appeal to a higher court. However, we conclude that it was only subject to being set aside to the extent that doing so would not result in a second trial. That is, the prosecution was permitted to challenge the order of acquittal below and in this Court, and it may do so by seeking leave to appeal in our Supreme Court, but only to the extent that a successful challenge would reinstate the guilty verdict. This conclusion, in our view, is consistent with the decisions of the United States Supreme Court on the matter. See, e.g., Burks v. United States , 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) ("[T]he Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient ...."); Tibbs v. Florida , 457 U.S. 31, 41, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982) ("A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial. A reversal based on the insufficiency of the evidence has the same effect because it means that no rational factfinder could have voted to convict the defendant."); Lockhart v. Nelson , 488 U.S. 33, 39, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988) ("Because the Double Jeopardy Clause affords the defendant who obtains a judgment of acquittal at the trial level absolute immunity from further prosecution for the same offense, it ought to do the same for the defendant who obtains an appellate determination that the trial court should have entered a judgment of acquittal."); Monge v. California , 524 U.S. 721, 729, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998) ("We have held that where an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial."); Bravo-Fernandez v. United States , 580 U.S. 5, ––––, 137 S. Ct. 352, 364, 196 L. Ed. 2d 242 (2016) ("Bravo and Martínez could not be retried on the bribery counts, of course, if the Court of Appeals had vacated their § 666 convictions because there was insufficient evidence to support those convictions. For double jeopardy purposes, a court's evaluation of the evidence as insufficient to convict is equivalent to an acquittal and therefore bars a second prosecution for the same offense.").
We acknowledge that these cases concerned midtrial judgments of acquittal, whereas this case concerns a posttrial order of acquittal. We nonetheless find them persuasive and believe that barring retrial here is consistent with the overarching general rule that acquittals cannot be set aside unless the fact-finder has already returned a verdict of guilty and the prosecution simply seeks to have that verdict reinstated. See Smith , 543 U.S. at 467, 125 S.Ct. 1129. Indeed, it would be a peculiar outcome if a judgment and order of acquittal resulting from a trial could not be set aside by a higher court on appeal, but an order and judgment of acquittal could be set aside on reconsideration by the same court which issued it.
IV. CONCLUSION
We conclude that the circuit court had jurisdiction to enter the order of acquittal and that the Double Jeopardy Clause bars defendant's retrial on the charge of resisting or obstructing a police officer, MCL 750.81d(1). Accordingly, we reverse the circuit court's order remanding to the district court for a new trial, and remand to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Fort Hood, J., concurred with Riordan, J.
Beckering, P.J. (dissenting).
At the heart of this appeal is whether double jeopardy bars defendant, Latausha Simmons, from being retried in the district court after having been convicted by a jury, sentenced, successfully had her conviction thrown out on appeal in the circuit court, and then having that victory overturned by the circuit court due to a motion for reconsideration filed by the prosecution. Contrary to my colleagues, I conclude that double jeopardy does not apply here, and the circuit court did not err by remanding for a new trial. Consequently, I respectfully dissent.
I. BASIC FACTS AND PROCEDURAL HISTORY
As noted by the majority, defendant appeals as on leave granted the circuit court's order reversing her district court jury trial conviction for resisting or obstructing a police officer, MCL 750.81d(1), and remanding to the district court for a new trial. Defendant argues on appeal that (1) the circuit court erred by concluding that the prosecution was not properly served with her claim of appeal, (2) the circuit court had jurisdiction to enter an order of acquittal, (3) the circuit court did not have jurisdiction to grant the prosecution's untimely motion for reconsideration, and (4) the circuit court erred by remanding the case for a new trial because double jeopardy barred retrial. I agree that the circuit court had jurisdiction to enter the order of acquittal, but I disagree with defendant's other arguments.
This Court denied defendant's application for leave to appeal. People v. Simmons , unpublished order of the Court of Appeals, entered July 30, 2019 (Docket No. 349547). Defendant filed an application for leave to appeal with the Michigan Supreme Court. On September 23, 2020, in lieu of granting leave to appeal, the Supreme Court remanded the case to this Court for consideration as on leave granted. People v. Simmons , 939 N.W.2d 268 (Mich. 2020). The case is also on reconsideration, as this Court issued an initial opinion but then granted the prosecution's motion for reconsideration, resulting in our vacation of the earlier opinion by way of order. While my colleagues have chosen to remain with their earlier analysis, I am persuaded by the arguments set forth in the prosecution's motion for reconsideration and the amicus curiae brief in support filed by the Prosecuting Attorneys Association of Michigan.
Warren Police Officer Sean Sullivan testified at trial that on May 24, 2016, he observed defendant exit a supermarket through a garage-like door that he believed was an employee-only entrance. Defendant looked at Officer Sullivan and walked toward a nearby alley. She entered a car, drove a few feet down the alley, then exited the car and peeked around the corner of a shipping container or dumpster at Officer Sullivan. Finding her conduct suspicious, Officer Sullivan drove toward defendant to investigate what she was doing.
As Officer Sullivan drove toward defendant, she got back into the car. Officer Sullivan parked in front of her, but he did not block the entire alleyway. He approached defendant and spoke to her through the driver's side window, asking her for identification and why she was parked in the alley. Defendant did not respond, and instead, she asked Officer Sullivan why he was harassing her. Officer Sullivan returned to his car to investigate his suspicion that her car may be stolen based on a crack he observed in the steering column. He determined that the car was registered to a Latausha Simmons, and that she did not have any arrest warrants. Officer Sullivan returned to defendant's car, asked if she was Latausha Simmons, and advised her that she could be on her way if she showed him her identification. Defendant did not respond or produce her identification. Officer Sullivan requested backup, and Officers Robert Horlocker and Timothy Sciullo arrived to assist. Officer Horlocker and Officer Sciullo each asked defendant for her identification, and she did not respond. After explaining to her that she would be arrested for resisting or obstructing their investigation and receiving no response, Officer Horlocker broke defendant's passenger side window and defendant was arrested and charged with resisting and obstructing a police officer.
Before trial, defendant filed a motion to dismiss and for an evidentiary hearing concerning the lawfulness of the officers’ conduct. Specifically, defendant argued that the charge had to be dismissed because Officer Sullivan unlawfully stopped her and, as a result, her arrest was illegal. The district court concluded that it was reasonable for Officer Sullivan to stop defendant because her actions were suspicious and not "normal behavior."
On the first day of trial, before the jury was empaneled, the parties discussed the introduction of evidence regarding the lawfulness of the officers’ conduct and whether the jury was to be instructed that the lawfulness of the officers’ conduct was an element of resisting or obstructing a police officer. The district court ruled that it previously had determined that the officers’ conduct was lawful, that no evidence could be presented at trial regarding the lawfulness of the officers’ conduct or the legality of defendant's arrest, and that the jury was not to be instructed that the lawfulness of the officers’ conduct was a factual issue for it to determine. After hearing the evidence, the jury found defendant guilty of resisting or obstructing a police officer. The district court sentenced defendant to six months’ probation.
Acting in propria persona , defendant appealed her conviction to the circuit court. She contended that the district court erred by concluding that Officer Sullivan's conduct was lawful, by precluding the parties from presenting evidence or making any arguments regarding the lawfulness of the officers’ conduct, and by failing to instruct the jury that it was to determine whether the officers’ conduct was lawful because it was an element of the offense. She also asserted that defense counsel was ineffective for failing to present evidence regarding the lawfulness of the officers’ conduct. Defendant requested that the circuit court grant her a new trial. She later filed a supplemental brief, arguing that her trial counsel was also ineffective for failing to thoroughly cross-examine Officer Sullivan and for failing to obtain and introduce the police report concerning the incident. She requested that the case be dismissed.
Defendant was represented by counsel at various points in the lower court proceedings, but she also represented herself on other occasions.
At the hearing concerning the appeal, the circuit court noted that the prosecution did not file a response and was not present. The circuit court concluded that the district court erred by precluding the parties from presenting evidence regarding the lawfulness of the officers’ conduct and by failing to instruct the jury that the lawfulness of the officers’ conduct was an element of resisting or obstructing a police officer. The circuit court further ruled that defendant was entitled to an acquittal, stating the following:
Even if the—somebody on behalf of the State of Michigan or the City of Warren did appear, on the merits, you win.
This matter is reversed and a judgment of acquittal is entered in favor of the Defendant.
* * *
Congratulations and on behalf of the State of Michigan let me apologize to the Defendant for going through what you did go through. I mean, even if the instructions had been correct, I see no way that you could have been or should have been convicted on this evidence.
The circuit court told defendant that she was "an innocent person" and stated, "Finally the record caught up with that." The corresponding order provided:
For the reasons stated on the record, Defendant's motion is GRANTED, Defendant's conviction is reversed, and all arrest records and fingerprint cards shall be returned to Defendant forthwith. This order is a final order resolving all claims and closing the case.
The prosecution filed a motion for reconsideration, explaining that it was not served with defendant's claim of appeal or any other documents. The prosecution agreed that the district court erred by not allowing the jury to determine the lawfulness of the officers’ conduct, by precluding the parties from introducing evidence on or arguing about the lawfulness of the officers’ conduct, and by failing to properly instruct the jury. The prosecution argued, however, that the proper remedy for the district court's error was to remand for a new trial, not acquittal. At a hearing held regarding the motion for reconsideration, the circuit court reviewed the record and concluded that the prosecution was never served with defendant's claim of appeal or any of the other documents. The court set aside its order of acquittal and ordered defendant to file a delayed application for appeal.
Additionally, the prosecution noted that the city of Warren was erroneously named as plaintiff on defendant's claim of appeal and on the circuit court's docket sheet.
Defendant filed a delayed application for appeal and properly served the prosecution. At the hearing regarding defendant's appeal, she argued that the proper remedy for the district court's error was acquittal because there was insufficient evidence presented to support her conviction and double jeopardy barred retrial. On the other hand, the prosecution submitted that the issue was not the sufficiency of the evidence, but rather that the district court concluded the officers’ conduct was lawful, erroneously precluded the introduction of evidence and argument on an element of the offense, and failed to properly instruct the jury. The prosecution further noted that if the circuit court was to determine that there was insufficient evidence presented to support defendant's conviction, it would be making the same mistake as the district court because no evidence was presented on the element and the issue was not decided by the jury. Accordingly, the prosecution asserted that the proper remedy was remand for a new trial.
The circuit court issued a written opinion and order, concluding that the district court erroneously removed the element of whether the officers acted lawfully from the jury. The circuit court concluded that the proper remedy was to reverse and remand for a new trial because the jury verdict was overturned on the basis of an instructional error. Accordingly, the circuit court reversed defendant's conviction and remanded to the district court for a new trial.
II. ANALYSIS
A. SERVICE AND CIRCUIT COURT JURISDICTION
Defendant first argues that the circuit court erred by concluding that she failed to serve her claim of appeal and supporting documents on the prosecution. I disagree.
An appeal as of right to the circuit court is governed by MCR 7.104 and must be filed within 21 days of the entry of a judgment. MCR 7.104(A)(1) ; See MCR 6.625(A) (directing that an appeal from a misdemeanor case is governed by subchapter 7.100 of the court rules). "To vest the circuit court with jurisdiction in an appeal of right, an appellant must file with the clerk of the circuit court within the time for taking an appeal: (1) the claim of appeal, and (2) the circuit court's appeal fees, unless the appellant is indigent." MCR 7.104(B). The claim of appeal must "name the parties in the same order as they appear in the trial court, with the added designation ‘appellant’ or ‘appellee.’ " MCR 7.104(C)(b). With the claim of appeal, the appellant must file, in relevant part, "proof that a copy of the claim of appeal and other documents required by this subrule were served on all parties, the trial court or agency, and any other person or officer entitled by law to notice of the appeal." MCR 7.104(D)(9). Additionally, the court rules require that an appellant "must file a brief conforming to MCR 7.212(C) and serve it on all other parties to the appeal." MCR 7.111(A)(1)(a).
On June 26, 2018, defendant timely filed a claim of appeal, a motion for a fee waiver, and a request for a hearing in the circuit court. The claim of appeal erroneously named both "The State of Michigan" and "The People of the City of Warren" as plaintiff and only included the city of Warren's address. The proof of service on the claim of appeal was blank. The motion for a fee waiver and request for a hearing only named the "City of Warren" as plaintiff. A review of the lower court record shows that the prosecution was never served with defendant's claim of appeal or other documents. Despite defendant's claim that she served the prosecution via first-class mail, I agree with the circuit court that the record is void of any evidence supporting her claim. Additionally, this case is designated with the "AR" case code and was subject to the 16th Circuit Court's mandatory electronic-filing program, which requires that all court documents be electronically filed in lieu of traditional paper filings. Administrative Order 2010-6, 494 Mich. lxvii (2010) (expanding the e-filing program to cover all cases with an "AR" designation). Accordingly, the circuit court did not err by concluding that the prosecution was not served with defendant's claim of appeal or any documents filed thereafter.
The circuit court later determined that the city of Warren was not properly named as a party in this case. Subsequent electronic filings submitted in the case were served on the attorney representing the city of Warren, defendant's appointed counsel, defendant, the court reporter, and district court clerk. Defendant filed a brief on appeal in the circuit court. She attached two copies of her claim of appeal, which indicated that the prosecution was served with the claim of appeal via first-class mail.
At any rate, as both parties agree, defendant's failure to properly serve her claim of appeal on the prosecution did not affect the circuit court's jurisdiction over the appeal. As stated earlier, defendant filed in the circuit court a claim of appeal and a motion to waive fees. The circuit court granted the motion to waive fees on July 9, 2018. Therefore, jurisdiction vested in the circuit court when defendant filed her claim of appeal and her fees were waived. See MCR 7.104(B). This is true regardless of whether defendant properly served the prosecution because the service-of-process provisions contained in the court rules are intended to satisfy due-process requirements that parties be notified of pending actions. See MCR 2.105(K)(1) (the service-of-process provisions "are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances. These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant"). Therefore, defendant's defective service did not divest the circuit court of jurisdiction to enter an order related to her appeal.
Next, defendant contends that the circuit court did not have jurisdiction to consider the prosecution's motion for reconsideration because it was not timely filed. I disagree.
A motion for reconsideration "must be served and filed not later than 21 days after entry of an order deciding the motion." MCR 2.119(F)(1) ; See MCR 7.110 (providing that "[m]otion practice in a circuit court appeal is governed by MCR 2.119"). In this case, the circuit court entered an order of acquittal on December 26, 2018. Thirteen days later, on January 10, 2019, the prosecution filed a motion for reconsideration. The motion was entered into the register of actions on January 18, 2019. This discrepancy in the date of filing versus the date that the motion was entered into the register of actions was addressed by the circuit court. The circuit court concluded that, while the register of actions reflected that the prosecution's motion was filed on January 18, 2019, the prosecution timely filed the motion electronically on January 10, 2019. I agree because "[r]egardless of the date a filing is accepted by the clerk of the court, the date of filing is the date submitted." MCR 1.109(G)(5)(b). Therefore, the circuit court properly concluded that the prosecution's motion was timely filed.
B. DOUBLE JEOPARDY
Defendant finally argues that double jeopardy bars retrial because the circuit court initially concluded that insufficient evidence was presented to support her conviction and entered an order of acquittal. I disagree.
"A double jeopardy challenge presents a question of law that we review de novo." People v. Herron , 464 Mich. 593, 599, 628 N.W.2d 528 (2001). Likewise, claims of instructional error and issues of law arising from jury instructions are reviewed de novo as a question of law. People v. Mitchell , 301 Mich. App. 282, 285-286, 835 N.W.2d 615 (2013).
"The United States and Michigan Constitutions prohibit placing a defendant twice in jeopardy for a single offense." People v. Ackah-Essien , 311 Mich. App. 13, 31, 874 N.W.2d 172 (2015) ; U.S. Const., Am. V ; Const. 1963, art. 1 § 15. The Double Jeopardy Clauses in the United States and Michigan Constitutions are construed consistently with each other. People v. Szalma , 487 Mich. 708, 716, 790 N.W.2d 662 (2010). "The purpose of the double jeopardy provision is to prevent the state from making repeated attempts at convicting an individual for an alleged crime." People v. Torres , 452 Mich. 43, 63, 549 N.W.2d 540 (1996). Our Supreme Court explained that the Double Jeopardy Clause provides the following protections: (1) protection "against a second prosecution for the same offense after acquittal[;]" (2) protection "against a second prosecution for the same offense after conviction[;]" and (3) protection "against multiple punishments for the same offense." Id. at 64, 549 N.W.2d 540 (quotation marks and citations omitted). "The interests underlying these protections are quite similar. When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense." United States v. Wilson , 420 U.S. 332, 343, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975). "By contrast, where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended." Id. at 344, 95 S. Ct. 1013.
Generally, the Double Jeopardy Clause does not prohibit the retrial of a defendant whose conviction was set aside as the result of an error that occurred at trial. People v. Setzler , 210 Mich. App. 138, 139-140, 533 N.W.2d 18 (1995). However, if a defendant's conviction is reversed due to insufficient evidence, "double jeopardy bars reprosecution where the elements of the subsequent crime charged are identical to the elements of the original crime charged." Id. at 140, 533 N.W.2d 18. Moreover, the Double Jeopardy Clause bars retrial following a court-decreed midtrial acquittal, even if the acquittal is based upon an egregiously erroneous foundation. Evans v. Michigan , 568 U.S. 313, 318, 133 S. Ct. 1069, 185 L. Ed. 2d 124 (2013). In Evans , the trial court entered a midtrial directed verdict of acquittal based upon its view that the prosecution failed to present sufficient evidence of a particular element of the charged offense. Id. , 568 U.S. at 315, 133 S.Ct. 1069. However, the "unproven ‘element’ was not actually" required for a conviction. Id. The United States Supreme Court held that the midtrial acquittal constituted an acquittal on the merits even though it was based on the "erroneous addition of a statutory element ...." Id. at 316, 133 S.Ct. 1069. Nonetheless, and importantly to the instant case, the Supreme Court noted that "[i]f a court grants a motion to acquit after the jury has convicted, there is no double jeopardy barrier to an appeal by the government from the court's acquittal, because reversal would result in reinstatement of the jury verdict of guilty, not a new trial." Id. at 330 n. 9, 133 S. Ct. 1069. The majority opinion, in its footnote 7, recognizes these principles, citing Smith v. Massachusetts , 543 U.S. 462, 467, 125 S. Ct. 1129, 160 L. Ed. 2d 914 (2005) and People v. Jones , 203 Mich. App. 74, 79 n. 1, 512 N.W.2d 26 (1993). In this case, the Double Jeopardy Clause does not prohibit the prosecution from retrying defendant. There are two rulings in this case that require differentiation: the circuit court's reversal of its own order of acquittal, and its subsequent order remanding for a new trial based on evidentiary and instructional error. The majority appears to conflate these aspects of the case. Defendant was convicted by a jury for resisting and obstructing a police officer in the district court. She then appealed her conviction to the circuit court. The circuit court, acting as an intermediate appellate court, entered an order of acquittal after apparently concluding that the jury was improperly instructed and that the evidence was insufficient to support defendant's conviction. The prosecution moved for reconsideration of that order, arguing that it had not been served defendant's claim of appeal and that the proper remedy for instructional error was to remand for retrial. After determining that defendant failed to serve the claim of appeal on the prosecution, the circuit court vacated its order of acquittal. The prosecution was permitted to seek reconsideration of the order of acquittal because the circuit court was sitting as an appellate court reviewing defendant's jury conviction. See Evans , 568 U.S. at 330 n. 9, 133 S.Ct. 1069. Moreover, the circuit court had the authority to reverse its prior order of acquittal on reconsideration. MCR 7.114(D) ; MCR 2.119(F). See also People v. Walters , 266 Mich. App. 341, 349-350, 700 N.W.2d 424 (2005) (the circuit court, sitting as an appellate court, has the inherent ability to reconsider a judgment or order under MCR 2.119(F) ). The acquittal had not yet become "final" because the prosecution could appeal to a higher appellate court. See People v. Oros , 502 Mich. 229, 234, 917 N.W.2d 559 (2018) (overruling this Court's decision concluding that the evidence was insufficient to support a conviction for first-degree premeditated murder and reinstating the defendant's first-degree murder conviction). Additionally, because defendant was convicted by a jury and the verdict was set aside by the circuit court acting as an appellate court, double jeopardy did not preclude reinstatement of the jury verdict. Evans , 568 U.S. at 330 n. 9, 133 S.Ct. 1069 ; Smith , 543 U.S. at 467, 125 S.Ct. 1129. In sum, after the circuit court properly set aside its order of acquittal on appeal and ordered defendant to file a delayed application to appeal, defendant's conviction was logically reinstated until the delayed application was considered and decided.
In its written opinion on defendant's delayed application, the circuit court concluded that because the lawfulness of the officers’ conduct was an element of the charged offense and the parties were prohibited from presenting evidence in that regard, "if this court determined the actions of the officers in this case were not lawful, this court would be committing the same error [as the district court] in usurping the jury's function." See People v. Kowalski , 489 Mich. 488, 501, 803 N.W.2d 200 (2011) ("A criminal defendant has a constitutional right to have a jury determine his or her guilt from its consideration of every essential element of the charged offense.").
After defendant filed her delayed application to appeal, the circuit court ultimately agreed with the parties that the district court erred by prohibiting evidence related to the lawfulness of the officers’ actions. See People v. Moreno , 491 Mich. 38, 52, 814 N.W.2d 624 (2012) (stating that the prosecution must establish that the officers’ actions were lawful in a case in which the defendant is charged with resisting or obstructing a police officer). The circuit court then set aside defendant's conviction and remanded the case to the district court for retrial based on the evidentiary and instructional error. The Double Jeopardy Clause, as previously stated, does not prohibit the retrial of a defendant whose conviction was set aside as the result of an error that occurred at trial. Setzler , 210 Mich. App. at 139-140, 533 N.W.2d 18. Therefore, the circuit court's remand for a new trial was the proper remedy upon deciding defendant's delayed application for leave to appeal.
To summarize, I respectfully suggest that the majority conflated two separate principles: the circuit court appellate error in entering an order of acquittal, which was subsequently remedied by the circuit court itself, and the circuit court remanding for a new trial. Because postconviction orders of acquittal are subject to reversal and reconsideration, reversal of the order of acquittal was appropriate. And because pretrial legal errors entitle a defendant to a new trial, remand for a new trial was also appropriate.