People v. Vincent

Cavanagh, J.

(dissenting). This case presents the identical issue we dealt with earlier this term in People v Nix, 453 Mich 619; 556 NW2d 866 (1996), which decision was based on controlling case law from the United States Supreme Court and this Court’s acknowledgment of those binding precedents in People v Anderson, 409 Mich 474; 295 NW2d 482 (1980). The majority purports to “reaffirm the principles articulated in Nix [and] Anderson,” ante, p 121, but in fact departs from those principles. In so doing, the majority violates the rule of law. Accordingly, I dissent.

i

The legal principles that are dispositive of this case have not changed since they were set forth in Nix:

In Fong Foo v United States, 369 US 141; 82 S Ct 671; 7 L Ed 2d 629 (1962), the trial court, during presentation of the *128prosecutor’s case in chief, “directed the jury to return verdicts of acquittal as to all the defendants, and a formal judgment of acquittal was subsequently entered.” Id. at 142. On appeal, the United States Court of Appeals for the First Circuit held that the district court was without power to direct the acquittals, and ordered the case remanded to the trial court. On further appeal, the United States Supreme Court held as follows: “The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless, ‘[t]he verdict of acquittal was final, and could not be reviewed . . . without putting [the petitioners] twice in jeopardy, and thereby violating the constitution.’ ” Id. at 143 (citing United States v Ball, 163 US 662, 671; 16 S Ct 1192; 41 L Ed 300 [1896]).
In United States v Martin Linen Supply Co, 430 US 564, 571; 97 S Ct 1349; 51 L Ed 2d 642 (1977), the United States Supreme Court reaffirmed this principle from Ball and Fong Foo, stating: “[W]e have emphasized that what constitutes ‘an acquittal’ is not to be controlled by the form of the judge’s action. Rather, we 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.” (Citations omitted.)4_

In People v Anderson, 409 Mich 474, 486; 295 NW2d 482 (1980), this Court acknowledged and applied this legal principle:

“To be sure, the judge did not say that he was directing a verdict, and no formal judgment of acquittal was entered. The determination of what the judge did, however, does not turn on how the judge characterizes his actions. ‘[T]he trial judge’s characterization of his own actions cannot control the classification of the action.’24 What constitutes an ‘acquittal’ is not controlled by the form of the judge’s action.25
“To decide how a trial judge’s action should be characterized, the reviewing 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 ele*129merits of the offense charged.’26 There 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.’27_
[Nix, 453 Mich 624-626.]

The insignificant factual distinctions between Nix and the case at bar relied on by the majority notwithstanding, the application of these legal principles to the instant case is straightforward and warrants affirmance of the Court of Appeals.

n

A

In my opinion, the outcome of this case is determined by the following facts: the statements of the trial judge at issue here were made after the close of the prosecutor’s case in chief and were in response to defense counsel’s motions for directed verdicts of acquittal on the first-degree murder charges; the judge’s statements expressed his legal opinion of the legal sufficiency of the evidence presented relative to the appropriate degree of murder that a reasonable jury could find defendants guilty of; at the separate hearing conducted the next day there was no new evidence introduced; and, at this next day hearing, the trial judge, in response to defense counsel’s argument *130that he had directed a verdict, said, “Oh, I granted a motion but I have not directed a verdict.”1

Applying the controlling legal principles to these facts, I can only conclude that the trial judge considered all the prosecutor’s evidence, and that, in his opinion,2 that evidence was legally insufficient to allow a charge of first-degree murder to be submitted to the jury. “To be sure, the judge did not say that he was directing a verdict, and no formal judgment of acquittal was entered. The determination of what the judge did, however, does not turn on how the judge characterizes his actions.” Anderson, 409 Mich 486.

B

The trial judge’s comments were as follows:

*131Well my impression at this time is that there’s not been shown premeditation or planning in the, in the alleged slaying. That what we have at the very best is Second Degree Murder. I don’t see that the participation of any of the defendants is any different then [sic] anyone else as I hear the comment made by Mr. Doll [counsel for Perkins] about the short time in which his client was in the vehicle. But I think looking at it in a broad scope as to what part each and every one of them played, if at all, in the event that it’s not our premeditation planning episode. It may very well be the circumstance for bad judgement was used in having weapons but the weapons themselves may relate to a type of intent, but don’t necessarily have to show the planning of premeditation. I have to consider all the factors. I think that the second Count should remain as it is, felony firearm. And I think that Second Degree Murder is an appropriate charge as to the defendants. Okay.

The majority seizes upon the word “impression,” when in fact the determinative phrase is “at this time” because this latter phrase refers to a chronological point after the prosecution had presented all its evidence and closed its case in chief.3

The majority’s selective extraction of two other phrases — “in the event that it’s not our premeditation planning episode” and “ [i]t may very well be” — further ignores the conclusive nature of the trial judge’s statements. This is readily demonstrated by reading these phrases in their true context.

Referring to the participation of all three defendants in the crime for which they were tried, the trial judge said: “But I think looking at it in a broad scope as to what part each and every one of them played, if *132at all, in the event that it’s not our premeditation planning episode.” If looked at objectively, it should not be difficult to decipher the essential meaning of this sentence: Looking at the big picture with respect to what part, if any, each and every one of these defendants played in this event, it is not a case involving premeditation or planning.

The other phrase taken out of context by the majority undermines further its attempt to find uncertainty and indecision where, in fact, there exists judicious consideration and decision. The relevant sentence is, “ ‘It may very well be the circumstance for bad judgement was used in having weapons but the weapons themselves may relate to a type of intent, but don’t necessarily have to show the planning of premeditation.’ ”4 Paraphrased, accurately and in its entirety, the essence of this sentence is as follows: The fact that defendants had weapons may be evidence of their bad judgment, and it is evidence to be considered in determining their intent, but the mere existence of the weapons per se does not prove the premeditation or planning required for a charge of first-degree murder.5 And the very next statement of the trial judge, ignored by the majority, shows the truly deliberative nature of his comments: “I have to consider all the factors.” Then, having considered all the evidence, having looked at the “broad scope” of the circumstances of the crime, having “considered] all the factors,” the trial judge concluded: “And I think *133that Second Degree Murder is an appropriate charge as to the defendants.”

c

The majority’s disregard for the principles articulated in Nix and Anderson leads to its reliance on several irrelevant factors.

The majority emphasizes that the trial judge’s statements were made “outside the hearing of the jury.” Ante, p 114. This fact is of no consequence whatsoever for purposes of applying the federal constitutional decisions of the United States Supreme Court that we acknowledged and applied in Nix and Anderson.6

The majority also inappropriately relies on the majority decision of the Supreme Court of Washington in State v Collins, 112 Wash 2d 303; 771 P2d 350 (1989). There are several reasons that this reliance is inappropriate, the dispositive one being that the Collins majority does not even purport to follow the relevant case law of the United States Supreme Court.7 In fact, the Collins majority fails to even cite the relevant United States Supreme Court cases.8

*134m

In my opinion, the statements of the trial judge, made in response to defense counsel's motions for directed verdict of acquittal on the charges of first-degree murder, constitute “a resolution, correct or not, of some or all of the factual elements of the offense charged.” Martin Linen Supply, 430 US 571. Therefore, under the clear and controlling case law of the United States Supreme Court, “[t]he court’s reversal of its directed verdict resulted in further proceedings in which the jury resolved factual issues concerning the elements of first-degree murder contrary to defendant’s right not to be placed twice in jeopardy regarding the first-degree murder charge.” 215 Mich App 458, 469; 546 NW2d 662 (1996) (citing Smalis v Pennsylvania, supra).

I would affirm the decision of the Court of Appeals.

Brickley and Kelly, JJ., concurred with Cavanagh, J.

This principle was more recently reaffirmed in Smalis v Pennsylvania, 476 US 140; 106 S Ct 1745; 90 L Ed 2d 116 (1986).

"24United States v Scott [437 US 82, 96; 98 S Ct 2187; 57 L Ed 2d 65 (1978)], quoting United States v Jorn [400 US 470, 478, n 7; 91 S Ct 547; 27 L Ed 2d 543 (1971)] (plurality opinion). See United States v Martin Linen Supply Co, supra. . . .

“25United States v Martin Linen Supply Co, supra, p 571.

“26Id.

“27Id., p 572. See People v Hampton, 407 Mich 354, 385-386; 285 NW2d 284 (1979) (Ryan, J.).”

This latter statement of the trial judge evidences his belief that he had to actually instruct the jury on the charges it could consider before it could be said that he had directed a verdict on the first-degree murder charges. This statement by itself constitutes sufficient evidence that the trial judge was certain that he had ruled on the evidence relative to the first-degree murder charges. His belief that he could reverse that ruling simply because the jury did not know about it is clearly at odds with the legal principles reiterated in part I of this opinion.

In addition to the fact that the trial judge’s understanding of the controlling legal principles was erroneous, the majority’s conclusion that the trial judge’s violation of MCR 6.419(A) was harmless error because “the presentation of the defense was not impaired,” ante, p 115, n 1, is equally baseless. The defendant did not know what charges would be submitted to the jury, depriving him of knowledge he had an undisputed right to, knowledge that could have affected the presentation of his defense. More importantly, however, I reject the majority’s attempt even to apply a harmless error analysis in this case. An error affecting a defendant’s federal constitutional right not to be placed twice in jeopardy is not susceptible of harmless error analysis. The majority’s attempt to employ this analysis is erroneous on its face, but is even more so by virtue of its mischaracterizing a federal constitutional violation as a mere violation of a state court procedural rule.

Or his “impression” or his “think[ing]” or any other synonymous term that, in this context, connotes his “evaluation” of the evidence.

The majority utilizes phrases such as “the judge’s inchoate impressions,” ante, p 118, “this conclusory impression,” id., p 123, and “the loose impressions of the judge,” id., p 125. None of these phrases, in my opinion, undermines the true character of the trial court’s action.

Ante, p 114.

In rephrasing these statements of the trial judge, I imply no criticism whatsoever, grammatical or otherwise. The extemporaneous comments of a trial judge in the heat of trial should not be held to the same standards of grammar and diction one should rightly expect from the solitude of appellate chambers.

I would also point out that during a jury trial, motions for directed verdict (and other motions seeking a legal ruling from the judge) are routinely argued and decided without the jury being present.

Other reasons that the Collins decision is inapposite to the case at bar include the fact that Collins dealt with a bench trial and, more importantly, the Collins majority considered the issue before it solely in the context of a rule that Court previously had set forth purely as a matter of state law.

The dissenting justice, however, correctly cites and applies Fong Foo and Martin Linen Supply. See Collins, supra, pp 311-314.