In re WAYNE COUNTY PROSECUTOR
Docket No. 110605.Michigan Court of Appeals.
Decided November 26, 1991. Approved for publication January 29, 1992, at 9:05 A.M.John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the plaintiff.
Alphonso R. Harper, for the defendant.
Before: MARILYN J. KELLY, P.J., and WAHLS and SHEPHERD, JJ.
PER CURIAM.
This is an original action for superintending control brought by the Wayne County Prosecutor. Robert Lucas had been charged with armed robbery, MCL 750.529; MSA 28.797, assault with intent to murder, MCL 750.83; MSA 28.278, and first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). After Lucas was bound over for trial in the Detroit Recorder's Court, he asserted his right to a jury trial. Trial began before a jury, but Lucas requested a waiver of his right to a jury at the close of the proofs and asked that the merits of the case be decided by the trial judge. Over the prosecutor's objection, Lucas' request was granted. The trial judge thereafter *679 found Lucas not guilty on the basis of his assessment of the credibility of the complaining witness.
The trial judge erred when he held that MCL 763.3; MSA 28.856, as amended by 1988 PA 89, effective June 1, 1988, did not apply to Lucas' motion, which was brought on June 28, 1988. The amended version of MCL 763.3; MSA 28.856 requires a defendant to obtain the consent of the prosecutor and the court before waiving a jury trial and proceeding with a bench trial. Contrary to the trial judge's belief, no ex post facto violation would have occurred if the amended version of the statute had been applied to a motion brought after the amendment's effective date but relating to alleged criminal conduct that occurred before the amendment. MCL 763.3; MSA 28.856 is a procedural statute that conveys no substantive rights. People v Rodgers, 180 Mich. App. 111; 446 NW2d 845 (1989); People v Bates, 175 Mich. App. 490; 438 NW2d 298 (1989). There is no constitutional right to a bench trial. Singer v United States, 380 U.S. 24; 85 S. Ct. 783; 13 L. Ed. 2d 630 (1965); Bates, supra at 493. The Ex Post Facto Clause does not restrict legislative control of remedies and modes of procedure that do not affect matters of substance or vested rights. People v Davis, 181 Mich. App. 354, 358; 448 NW2d 842 (1989), quoting Miller v Florida, 482 U.S. 423, 433; 107 S. Ct. 2446; 96 L. Ed. 2d 351 (1987), and Calder v Bull, 3 US (3 Dall) 386, 390; 1 L. Ed. 648 (1798). Application of the amended version of MCL 763.3; MSA 28.856 to Lucas' motion would not have resulted in an ex post facto violation.
The prosecutor argues that, because the trial judge erred as a matter of law in overruling the objection to the jury waiver, this Court should order a new trial of Lucas, presumably before a jury. This Court may generally entertain complaints *680 for superintending control only where it is alleged that a trial court has committed an error of law; superintending control is not to be used to review an alleged abuse of discretion. Wayne County Prosecutor v Recorder's Court Judge (On Remand), 167 Mich. App. 282; 421 NW2d 665 (1988). The relief requested by the prosecutor in this case would be inappropriate, however, because it would twice place Lucas in jeopardy in violation of US Const, Am V; Const 1963, art 1, § 15.
Among the protections afforded by the Double Jeopardy Clause is the prohibition against retrial following acquittal. "The Clause secures the defendant's interests in (1) the finality of judgments, and (2) protection against multiple prosecutions." People v Anderson, 409 Mich. 474, 482-483; 295 NW2d 482 (1980), cert den 449 U.S. 1101 (1981).
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. [Anderson, supra at 483.]
When a criminal defendant has been acquitted, retrial on the same charge is barred even if the legal ruling underlying the acquittal was erroneous. Sanabria v United States, 437 U.S. 54, 64; 98 S. Ct. 2170; 57 L. Ed. 2d 43 (1978); Fong Foo v United States, 369 U.S. 141; 82 S. Ct. 671; 7 L. Ed. 2d 629 (1962). "The essential character of an acquittal is not altered depending on whether it results from an erroneous evidentiary ruling or an erroneous interpretation of governing legal principles." People v Jakiel, 92 Mich. App. 754, 758; 285 NW2d 448 (1979), citing United States v Scott, 437 U.S. 82, 98; *681 98 S. Ct. 2187; 57 L. Ed. 2d 65 (1978), reh den 439 U.S. 883 (1978).
In this case, Lucas was acquitted by the trial judge on the merits of the evidence. Given the degree of protection afforded by the Double Jeopardy Clause in this situation, we consider it to be of no consequence that the trial judge's erroneous understanding of MCL 763.3; MSA 28.856 resulted in him, rather than the jury, sitting as the trier of fact. This circumstance is no more relevant to our inquiry than a trial court's legally erroneous taking of a plea at midtrial over the prosecution's objection. See Anderson, supra. We reject the prosecutor's argument that "discharging the jury stripped the court of jurisdiction to proceed to verdict ... [and] any purported verdict returned by the court was void." The fact remains that an acquittal on the merits has been had, and its character is not altered by the erroneous interpretation of a legal principle. United States v Scott, supra at 98. Jurisdiction lies with the court, not any particular trier of fact within that court.
In closing, we find wholly inappropriate the court's criticism of the prosecutor's office, which criticism the trial judge launched into upon the prosecutor's objection to Lucas' motion and continued in front of the jury before it was dismissed. The trial judge's attack before the jury exceeded the bounds of judicial decorum. Whatever belief motivated the criticism also appears to have clouded the trial judge's decision not to grant the prosecutor's motion for a stay of the proceedings, presumably brought in order to take an interlocutory appeal from the judge's ruling on Lucas' motion. An interlocutory appeal was the proper avenue for review of the judge's decision and would have forestalled the double jeopardy problem that we have resolved today.
Complaint dismissed.