People v. Simmons

338 Mich.App. 70

979 N.W.2d 373

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Latausha SIMMONS, Defendant-Appellant.

No. 349547

Court of Appeals of Michigan.

Submitted April 7, 2021, at Detroit

Decided April 29, 2021

Opinion on reconsideration issued July 1, 2021, at 9:10 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Peter Lucido, Prosecuting Attorney, Joshua D. Abbott, Chief Appellate Attorney, and Emil Semaan, Assistant Prosecuting Attorney, for the people.

Latausha Simmons in propria persona.

Mark Wiese, Kym L. Worthy, Detroit, Jon P. Wojtala, Trenton, and Timothy A. Baughman, Detroit, for Prosecuting Attorneys Association of Michigan, Amicus Curiae.

Before: Beckering, P.J., and Fort Hood and Riordan, JJ.

ON RECONSIDERATION

Riordan, J. Defendant appeals, as on leave granted from our Supreme Court,¹ the circuit court's order reversing her conviction of resisting or obstructing a police officer, MCL 750.81d(1), and remanding to the district court for a new trial. Defendant argues that the circuit court had jurisdiction to enter its earlier order and judgment of acquittal, and further, that entry of the order precludes retrial under the Double Jeopardy Clause of the United States Constitution, U.S. Const., Am. V.²

We agree in both respects. Accordingly, we reverse the circuit court's order and remand to that court for further proceedings consistent with this opinion.³

I. FACTS AND PROCEDURAL HISTORY

This case arises out of the arrest of defendant for her failure to comply with the directives of Warren police officers. Officer Sullivan observed defendant exit a grocery store through an opening not typically used by the public and walk to a car parked in an alley next to the grocery store. Defendant entered the car, drove a few feet, exited the car next to a dumpster or shipping container that was in the alley, and peeked around the corner of the dumpster or shipping container at Officer Sullivan. Officer Sullivan found her behavior to be suspicious and approached her to investigate. He requested her identification numerous times. Defendant did not respond to Officer Sullivan and did not present her identification to him. Officer Horlocker and Officer Sciullo were then dispatched to assist Officer Sullivan. Officer Horlocker and Officer Sciullo independently spoke to defendant and requested her identification. Defendant did not respond to either officer and never produced her identification. She was ultimately arrested and charged with resisting or obstructing a police officer.

Before trial, defendant filed a motion to dismiss and for an evidentiary hearing on the lawfulness of the officers’ conduct. After a hearing, the district court concluded that the officers’ conduct was lawful and the matter then proceeded to trial. On the first day of trial, before the jury was empaneled, the parties discussed the introduction of evidence regarding the lawfulness of the officers’ conduct and whether the jury was to be instructed that the lawfulness of the officers’ conduct was an element of resisting or obstructing a police officer. The district court ruled that it previously had determined that the officers’ conduct was lawful, that no evidence could be presented at trial regarding the lawfulness of the officers’ conduct or the legality of defendant's arrest, and that the jury was not to be instructed that the lawfulness of the officers’ conduct was a factual issue for it to determine. Consequently, no evidence was presented at trial on the lawfulness of the officers’ conduct and the jury did not consider that as one of the elements of the criminal allegation before it. Thus, the jury did not consider the lawfulness of the police officers’ conduct and it then found defendant guilty of resisting or obstructing a police officer.

Defendant appealed her conviction in the circuit court. The prosecution did not respond to her appeal or file an appearance. At the hearing on the appeal, the circuit court concluded that the district court erred by precluding the introduction of evidence on the lawfulness of the officers’ conduct but, nonetheless, ruled that defendant must be acquitted:

Even if the – somebody on behalf of the State of Michigan or the City of Warren did appear, on the merits, you win. This matter is reversed and a judgment of acquittal is entered in favor of the Defendant.

* * * Congratulations and on behalf of the State of Michigan let me apologize to the Defendant for going through what you did go through. I mean, even if the instructions had been correct, I see no way that you could have been or should have been convicted on this evidence.

* * *

You're an innocent person. Finally the record caught up with that. Thank you. Okay.

The circuit court accordingly entered an order and judgment of acquittal, which stated as follows:

For the reasons stated on the record, Defendant's motion is GRANTED, Defendant's conviction is reversed, and all arrest records and fingerprint cards shall be returned to Defendant forthwith. This order is a final order resolving all claims and closing the case.

Thirteen days later, the prosecution moved for reconsideration, asserting that it never was served with defendant's claim of appeal or any of the documents filed thereafter, and that the proper remedy for the district court's error was to remand to that court for a new trial, not to enter an order of acquittal.⁴ After reviewing the record, the circuit court concluded that the prosecution was not served with defendant's claim of appeal or any of the documents filed thereafter and set aside the order of acquittal. Ultimately, the circuit court reversed itself by concluding that the district court erroneously removed the element of whether the officers acted lawfully from the province of the jury, and it remanded the matter to the district court so that defendant could be re-tried on the charge of resisting or obstructing a police officer.

Defendant filed an application for leave to appeal in this Court, which was denied for lack of merit on the grounds presented. People v. Simmons , unpublished order of the Court of Appeals, entered July 30, 2019 (Docket No. 349547). Defendant then filed an application for leave to appeal in our Supreme Court. In lieu of granting leave to appeal, our Supreme Court remanded the case to this Court for consideration as on leave granted. People v. Simmons , 506 Mich. 912, 948 N.W.2d 445 (2020). We now address the merits of her appeal.

II. JURISDICTION

Defendant first argues that the circuit court erred by finding that she did not properly serve her claim of appeal on the prosecution, and alternatively, even if the circuit court did not err by so finding, that the circuit court nonetheless possessed jurisdiction to enter the order of acquittal. We need not address the former argument because we conclude that the circuit court possessed jurisdiction over her appeal in either event. This Court reviews jurisdictional questions de novo. Teran v. Rittley , 313 Mich. App. 197, 205, 882 N.W.2d 181 (2015).

"To vest the circuit court with jurisdiction in an appeal of right, an appellant must file with the clerk of the circuit court within the time for taking an appeal: (1) the claim of appeal, and (2) the circuit court's appeal fees, unless the appellant is indigent." MCR 7.104(B). "An appeal of right to the circuit court must be taken within ... 21 days or the time allowed by statute after entry of the judgment, order, or decision appealed[.]" MCR 7.104(A)(1). "The time limit for an appeal of right is jurisdictional." MCR 7.104(A).

On June 26, 2018, defendant timely filed a claim of appeal with the clerk of the circuit court. In addition, defendant filed a request for a fee waiver with her claim of appeal. On July 9, 2018, the circuit court waived her fees because of her indigency. Therefore, under MCR 7.104(A)(1) and (B), jurisdiction was vested in the circuit court because defendant timely filed her claim of appeal and her fees were waived. This is true regardless of whether defendant properly served the prosecution with her claim of appeal because the service-of-process provisions contained in the court rules "are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances.

These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant." MCR 2.105(J)(1).⁵ Thus, even if defendant did not properly serve her claim of appeal on the prosecution, it did not divest the circuit court of jurisdiction to enter its judgment of acquittal.⁶ See MCL 600.611 ("Circuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts’ jurisdiction and judgments.").

III. DOUBLE JEOPARDY

Defendant next argues that retrial would violate the constitutional prohibition against double jeopardy. We agree. "A double jeopardy challenge involves a question of law that this Court reviews de novo." People v. Dillard , 246 Mich. App. 163, 165, 631 N.W.2d 755 (2001). Likewise, "[t]his Court reviews de novo claims of instructional error." People v. Dupree , 284 Mich. App. 89, 97, 771 N.W.2d 470 (2009).

"The United States and the Michigan Constitutions protect a person from being twice placed in jeopardy for the same offense." People v. Parker , 230 Mich. App. 337, 342, 584 N.W.2d 336 (1998), citing U.S. Const., Am. V ; Const. 1963, art. 1, § 15. "The prohibition against double jeopardy provides three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense." People v. Nutt , 469 Mich. 565, 574, 677 N.W.2d 1 (2004).

With regard to the first protection, "the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which...