Order Michigan Supreme Court
Lansing, Michigan
June 5, 2020 Bridget M. McCormack,
Chief Justice
153828 (80) David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein
Plaintiff-Appellee, Elizabeth T. Clement
Megan K. Cavanagh,
Justices
v SC: 153828
COA: 324018
Wayne CC: 14-000152-FC
THEODORE PAUL WAFER,
Defendant-Appellant.
_________________________________________/
By order of April 26, 2019, the motion for reconsideration of this Court’s March
9, 2018 order was held in abeyance for People v Price (Docket No. 156180). On the
Court’s own motion, the motion for reconsideration of this Court’s March 9, 2018 order
is again considered, and it is GRANTED with respect to the defendant’s double jeopardy
issue. We AMEND this Court’s March 9, 2018 order to read as follows:
On October 12, 2017, the Court heard oral argument on the
application for leave to appeal the April 5, 2016 judgment of the Court of
Appeals. On order of the Court, the application for leave to appeal is again
considered, and it is DENIED, with respect to the defendant’s jury
instruction and prosecutorial misconduct issues, because we are not
persuaded that those questions presented should be reviewed by this Court.
That part of the application for leave to appeal raising a double jeopardy
issue remains pending.
We further order that Justice MARKMAN’s accompanying dissenting statement to
the Court’s March 9, 2018 order remains unchanged.
We direct the Clerk to schedule oral argument on that part of the defendant’s
application for leave to appeal addressing double jeopardy. MCR 7.305(H)(1). The
appellant shall file a supplemental brief within 42 days of the date of this order
addressing whether the defendant’s convictions for second-degree murder, MCL 750.317,
and statutory manslaughter, MCL 750.329(1), violate constitutional prohibitions against
double jeopardy. See People v Miller, 498 Mich 13 (2015). In addition to the brief, the
appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the
brief, citations to the record must provide the appendix page numbers as required by
MCR 7.312(B)(1). The appellee shall file a supplemental brief within 21 days of being
served with the appellant’s brief. The appellee shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if
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any, must be filed by the appellant within 14 days of being served with the appellee’s
brief. The parties should not submit mere restatements of their application papers.
We direct the Clerk to schedule the oral argument in this case for the same future
session of the Court when it will hear oral argument in People v Davis (Docket No.
160775).
The Prosecuting Attorneys Association of Michigan and the Criminal Defense
Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups
interested in the determination of the issue presented in this case may move the Court for
permission to file briefs amicus curiae.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 5, 2020
t0602
Clerk