Michigan Supreme Court
Lansing, Michigan 48909
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Chie f Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
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FILED MARCH 26, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 121729
TYRONE ELLIS,
Defendant-Appellant.
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BEFORE THE ENTIRE BENCH
MEMORANDUM OPINION
Defendant seeks leave to appeal from the Court of Appeals
judgment affirming his bench trial convictions of carjacking,
MCL 750.529a, and felonious assault, MCL 750.82, as well as
the scoring of variables under the sentencing guidelines as a
second-offense habitual offender, MCL 769.10. We affirm.
However, we take this opportunity to note that the
practice that appears to have been utilized by the trial court
in this case, commonly referred to as a “waiver break,” is
unethical and a ground for referral to the Judicial Tenure
Commission in the future.
We have previously noted the impropriety of this
practice. In a statement denying leave to appeal on November
2, 1999, this Court wrote:
In this case, the trial court dismissed the
felony-firearm charge while convicting the
defendant of malicious destruction of property,
which destruction was the product of a firearm
discharge. Thus, the verdict rendered was patently
inconsistent. Moreover, the trial court gave no
explanation for its dismissal of the felony-firearm
charge. The Supreme Court previously held that a
trial judge sitting as the trier of fact may not
enter an inconsistent verdict. While juries are
not held to rules of logic, or required to explain
their decisions, a judge sitting without a jury is
not afforded the same lenience. People v Vaughn,
409 Mich 463 (1980). Moreover, because of double
jeopardy principles, the error of the trial court
in dismissing a claim and rendering an inconsistent
verdict cannot be corrected on appeal. [People v
Walker, 461 Mich 908 (1999).]
The present case suggests that, despite our statement in
Walker, the “waiver break” practice continues to be employed
by at least some criminal trial courts in Michigan.
Defendant was charged with six counts arising from a
single occurrence: carjacking, assault with intent to murder,
armed robbery, intentionally firing a gun from a vehicle,
possession of a firearm during the commission of a felony, and
being a felon in possession of a firearm. The trial court
found defendant guilty of carjacking and felonious assault as
a lesser included offense of the charged assault with intent
to murder. Defendant was acquitted of the remaining charges.
Regarding the felonious assault conviction, the trial court
stated:
The Court notes that as a lesser [included
offense] of assault with intent to murder, it has
been proven beyond a reasonable doubt that
defendant Ellis had this gun, and he fired this gun
either to injure or to make the complainants
fearful of an injury; that is, a battery. And that
he had the ability to do this. And that he did
this with a gun.
2
This clear statement of the factual findings is plainly
inconsistent with acquittals on the charges of felony-firearm
and felon in possession of a firearm and cannot be rationally
reconciled.
Accordingly, we are left with the impression that the
trial court afforded defendant a “waiver break” for waiving
his right to a jury. That is, in exchange for waiving his
right to a jury trial, defendant was rewarded with acquittals
of the firearm charges, although those acquittals are clearly
inconsistent with the factual findings of the trial court.
As we noted in our unanimous statement in Walker, this
judicial practice is an improper one. A decision to drop or
plea bargain charges is one that lies with one or both of the
parties, not the court. Regardless of any benefit that may be
realized by the trial court because of a party’s strategic
decision, such as the expedited docket management resulting
from a defendant waiving his right to a jury, it is not within
the power of the judicial branch to dismiss charges or acquit
a defendant on charges that are supported by the case
presented by the prosecutor. See Const 1963, art 3, § 2
(establishing the separation of powers).
Further, a trial court’s decision of not guilty, whether
proper or not, is constitutionally protected by double
jeopardy principles. US Const, Am V; Const 1963, art 1, § 15.
As a result, a trial judge that rewards a defendant for
waiving a jury trial by “finding” him not guilty of a charge
for which an acquittal is inconsistent with the court’s
factual findings cannot be corrected on appeal.
3
Despite the inability of the appellate process to correct
the effects of an improper “waiver break” in the form of
inconsistent verdicts, we reiterate that this judicial
practice violates the law and a trial judge’s ethical
obligations.1
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
1
See, e.g., Michigan Code of Judicial Conduct, Canon 1
(“A judge should always be aware that the judicial system is
for the benefit of the litigant and the public, not the
judiciary.”), Canon 2B (“A judge should respect and observe
the law. At all times, the conduct and manner of a judge
should promote public confidence in the integrity and
impartiality of the judiciary.”), and Canon 3A(1) (“A judge
should be faithful to the law and maintain professional
competence in it.”).
4