Order Michigan Supreme Court
Lansing, Michigan
September 25, 2009 Marilyn Kelly,
Chief Justice
138577 & (87)(89)(90) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman
Plaintiff-Appellee, Diane M. Hathaway,
Justices
v SC: 138577
COA: 279017
Wayne CC: 05-003228-01
ALEXANDER ACEVAL,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the February 5, 2009
judgment of the Court of Appeals is considered, and it is DENIED, there being no
majority in favor of granting leave to appeal. The motion for bond on appeal is DENIED.
The motion for immediate consideration of the motion to compel discovery and expand
the record is GRANTED. The motion to compel discovery and expand the record is
DENIED.
KELLY, C.J. (dissenting).
I would grant leave to appeal to address whether defendant was denied the right to
counsel of his choice under United States v Gonzalez-Lopez.1 The trial court removed
one of defendant’s attorneys of choice on the ground that a conflict existed between the
attorneys, and the removed attorney had filed a limited appearance. I would also address
whether defendant was deprived of due process such that retrial should be barred. The
prosecution acquiesced in the presentation of perjured testimony in order to conceal the
identity of a confidential informant.
MARKMAN, J. (dissenting).
False testimony was provided in this drug-related criminal prosecution, and the
police, the assistant prosecutor, and trial court were apparently aware of this.
Defendant’s first trial, at which the false testimony was offered, ended in a mistrial.
Subsequently, the trial court allowed the prosecutor to initiate a second criminal
prosecution, which resulted in a guilty plea. After remand from this Court, the Court of
1
United States v Gonzalez-Lopez, 548 US 140 (2006).
2
Appeals affirmed, and defendant now appeals to this Court. Because this is a remarkable
case, I would grant leave to appeal for the exclusive purpose of determining whether,
pursuant to the double jeopardy clauses of the United States Constitution, US Const, Am
V, and the Michigan Constitution, Const 1963, art 1, § 15, a second trial should have
been barred.
CAVANAGH, J., joins the statement of MARKMAN, J.
CORRIGAN, J., states as follows:
I am not participating because I may be a witness in a related case.
I, Corbin R. Davis, 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.
September 25, 2009 _________________________________________
p0922 Clerk