People v. Ellis - Case Law

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
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
____________________________________________________________________________________________________________________________

FILED MARCH 26, 2003

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 121729

TYRONE ELLIS,

Defendant-Appellant.

___________________________________

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.

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.

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.”).