PEOPLE v HERBERT
Docket No. 93441
Supreme Court of Michigan
December 21, 1993
444 Mich 466
Dоcket No. 93441. Decided December 21, 1993. On application by the defendant for reconsideration of denial of leave to appeal, the Supreme Court granted reconsideration, and, in lieu of granting leave, vacated the judgments of the Court of Appeals and the circuit court, and remanded the case to the circuit court for reconsideration of the motion for new trial.
William G. Herbert was convicted by a jury in the Oakland Circuit Court of seven сounts of taking money by false pretenses, seven counts of embezzlement, and seven counts of conspiracy. The court, James S. Thorburn, J., directed a verdict of acquittal, finding that on the basis of the testimony a reasonable person could not conclude that all the elements of the crimes charged had been established beyond a reasonable doubt. Judge Thorburn then left office and was replaced by Judge Edward Sosnick. The prosecutor sought supеrintending control, to overturn Judge Thorburn’s decision. The Court of Appeals, McDonald, P.J., and Murphy and D. E. Holbrook, Jr., JJ., ordered dismissal of the complaint for want of jurisdiction on the ground that Judge Thorburn had merely issued an opinion, but had never entered an order (Docket No. 115036). Judge Sosnick subsequently granted reconsideration and reinstated the jury verdict, ruling that the motion for directed verdict should have been denied because the evidence, viewed in the light most favorable to the prosecution, was sufficient to support a finding of guilt. He later denied the defendant’s motion for a new trial. The Court of Appeals, Cavanagh, P.J., and D. E. Holbrook, Jr., and Cynar, JJ., affirmed in an unpublished opinion per curiam, finding that Judge Sosnick was not obliged to enter an order granting a directed verdict, that Judge Thorburn’s finding had not been supported by the record, and that, in denying the motion for a new trial, Judge Sosnick had not erred in refusing to determine the credibility of witnesses whom the jury had deсided to believe (Docket No. 124552). The Supreme Court denied leave to appeal, 441 Mich 901 (1992). The defendant seeks reconsideration.
In an opinion per curiam, signed by Chief Justice Cavanagh, and Justices Levin, Griffin, and Mallett, the Supreme Court held:
In deciding a motion for a directed verdict of acquittal, a trial
1. A successor judge is authorized to enter whatever order a predecessor could have entered, had the predecessor continued to preside.
2. The standard for determining whether a motion for directed verdict should be granted is whether, viewed in the light most favorable to the prosecution, the evidence is sufficient to permit a rational trier of fact to find the essential elements of the crime charged to be proven beyond a reasonable doubt. A weighing of proofs or a determination whether testimony favorable to the prosecution is to be believed must be resolved in favor of the prosecution. Thus, it is not permissible for a trial court to determine the credibility of witnesses in deciding a motion for a directed verdict of acquittal. To the extent that Judge Thorburn‘s opinion granting a directed verdict was premised upon such an evaluation, it was error. Viewed in the light most favorable to the prosecution, reasonable jurors could have found the defendant guilty beyond a reasonable doubt. Judge Sosnick did not err in subsequently denying a directed verdict of acquittal.
3. A new trial may be granted where the verdict is against the great weight of the evidence or to prevent an injustice. In a jury trial, the task of determining the credibility of witnesses is for the jurors, not the trial judge. However, in determining whether a verdict is against the great weight of the evidence, a judge nеcessarily reviews the whole body of proofs. Thus, a trial judge may grant a new trial after finding the testimony of witnesses for the prevailing party not to be credible.
4. The standard for appellate review of a motion for new trial is whether the judge committed an abuse of discretion. In this case, Judge Sosnick‘s exercise of discretion was hindered by the erroneous conclusion that it was improper to consider the credibility of witnesses, requiring vacation of the judgments of the Court of Appeals and the circuit court and remand for reconsideration of the motion for a new trial.
Vacated and remanded.
Justice Boyle, joined by Justice Brickley, dissenting, stated that this case is not appropriate for peremptory disposition. Whether a trial judge may sit as a thirteenth juror, overruling the credibility determinations of the other twelve, and the standard by which a successor judge is to evaluate motions for new trial on the basis of credibility are matters of major
Justice Riley took no part in the decision of this case.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Michael J. Modelski, Chief, Appellate Division, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.
Neil H. Fink; Bell & Gardner, P.C., of counsel (by Samuel C. Gardner), for the defendant.
PER CURIAM. In this case, the circuit court and the Court of Appeals held that a trial judge may not set aside a jury‘s verdict on the ground that prosecution witnesses, whom the jury chose to believe, were not credible. We agree with regard to a motion for directed verdict of acquittal. However, we hold that, in the course of deciding a motion for new trial, a judge may evaluate the credibility of the witnesses. We therefore vacate the judgments of the Court of Appeals and the circuit court, and remand this case to the circuit court for further proceedings in conformance with this opinion.
I
This case arises from an alleged conspiracy to steal money from a company called Diversified Technologies, of which thе defendant was the chief
The defеndant was tried on seven counts of taking money by false pretenses,2 seven counts of embezzlement,3 and seven counts of conspiracy.4 The jury trial took place in the courtroom of Oakland Circuit Judge James S. Thorburn.
During trial, the defendant moved for a directed verdict, but Judge Thorburn deferred his ruling. When the jury returned a verdict finding the defendant guilty on all counts, the defendant renewed his motion.
About a month later, Judge Thorburn issued a seven-page written opinion, in which he granted the defendant a directed verdict of acquittal on all counts. Judge Thorburn cаlled Mr. Reeves “a man to whom the truth is foreign,” and said that he had offered “wholly incredible, untrustworthy and inherently unreliable” testimony that “could not possibly justify a reasonable person in concluding that all the elements of the charges pending against William Herbert were established beyond a reasonable doubt.” The testimony of another prosecution witness was characterized as “absolutely incredible and unbelievable.”
In early 1989, the prosecutor filed a complaint for superintending control in the Court of Appeals, seeking to overturn Judge Thorburn‘s decision. However, the Court of Appeals dismissed the complaint for lack of jurisdiction, on the ground that Judge Thorburn had simply issued an opinion, and had never entered an order.5
The parties then filed a variety of motions in Oakland Circuit Court. The prosecutor sought an order granting reconsideration of Judge Thorburn‘s opinion, and an order calling for the imposition of sentence. The defendant moved for entry of an order of directed verdict in accordance with Judge Thorburn‘s opinion. The defendant also moved for a new trial.6
Judge Sosnick granted reconsideration and reinstated the jury‘s verdict. Hе ruled that the motion for directed verdict should have been denied because the evidence, viewed in the light most favorable to the prosecution, was sufficient to support a finding of guilt.
Judge Sosnick later denied the defendant‘s motion for a new trial. In his September 1989 ruling, he discussed earlier appellate decisions concerning whether a judge may overturn a jury‘s determination with regard to credibility. He then stated:
Thus, consistent with the above line of cases, this Court wishes to stress to both parties that it did not pass upon the credibility of the witnesses when it reached its decision to deny defendant‘s motion. Rather, the credibility of the witnesses was left to the jury and the jury decided. This Court does not find that the verdict was perverse or that justice has not been done.
Judge Sosnick sentenced the defendant to a term of probation. The conditions of probation included payment of a fine, performance of community service, and a period of incarceration in the county jail.
The defendant appealed. Among his issues was a claim that Judge Sosnick had erred in refusing to enter an order consistent with Judge Thorburn‘s opinion. The defendant also urged the Court of Appeals to find that Judge Sosnick had erred in failing to grant a new trial.
The Court of Appeals affirmed.7 It found that Judge Sosnick was not obliged to enter an order granting a directed verdict and that Judge Thorburn‘s findings had been unsupported by the record. Concerning the denial of the motion for new trial, the Court of Appeals said that Judge Sosnick had not erred in his refusal to determine the credibility of witnesses whom the jury had decided to believe.
The defendant sought leave to appeal in this Court, but leave was denied. 441 Mich 901 (1992). The defendant now moves for reconsideration.
II
It must first be said that Judge Sosnick, as successor to Judge Thorburn, had the authority to
A judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act. If the judge who entered the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be entered by a judge otherwise empowered to rule in the matter.8
In this respect, the present case is nearly identical to Harry v Fairlane Club Properties, Ltd, 126 Mich App 122; 337 NW2d 2 (1983). There, after hearing the verdict, the plaintiffs moved immediately fоr a mistrial. Wayne Circuit Judge Horace W. Gilmore concluded in a written opinion that the plaintiffs were entitled to a new trial. However, he did not enter an order.
Several days later, Judge Gilmore resigned to accept an appointment to the United States District Court for the Eastern District of Michigan. The Harry case was then assigned to Wayne Circuit Judge Patrick J. Duggan, who granted rehearing and denied the plaintiffs’ motion for new trial. The Court of Appeals affirmed.
Here, Judgе Sosnick became the presiding judge in this matter upon taking office as Judge Thorburn‘s elected successor. Judge Thorburn, having left office, ceased to be available to hear this matter. Judge Sosnick therefore had full authority to reconsider Judge Thorburn‘s earlier rulings.9
It is clear from this record that the defendant made two separate motions. His midtrial motion, renewed immediately after the jury returned its verdict, was a motion for directed verdict. Judge Thorburn‘s written opinion dealt solely with that motion. Only later did the defendant move for a new trial.
In People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), cert den 449 US 885 (1980), the trial court responded to a motion for directed verdict by ordering a new trial. 407 Mich 369, 374. Sorting out the procedural history and appellate issues of the case, this Court, in a split opinion, adopted a new standard for determining whether a motion for directed verdict should be granted. 407 Mich 368, 377.
Under Hampton, the test is not simply whether there is any evidence to support the prosecutor‘s position regarding eaсh element of the offense. Rather the question is whether, viewed in the light most favorable to the prosecution, the evidence is sufficient to permit a rational trier of fact to find the essential elements of the crime to be proven beyond a reasonable doubt.10 407 Mich 368, 377.
The Hampton standard remains the test for determining whether there is sufficient evidence to support a conviction. People v Wolfe, 440 Mich
It is thus not permissible for a trial court to determine the credibility of the witnesses in the course of deciding a motion for directed verdict of acquittal. To the extent that Judge Thorburn‘s opinion granting a directed verdict was premised upon such an evaluation of the credibility of the prosecution witnesses, it was error.
The defendant asks that we reverse Judge Sosnick‘s denial of the motion for a directed verdict. Our review of the record satisfies us that, viewed in the light most favorable to the prosecution, there was ample evidence of guilt. Reasonable jurors could have found the defendant guilty beyond a reasonable doubt. Therefore Judge Sosnick did not err when he denied the motion for a dirеcted verdict of acquittal.
IV
As indicated above, the defendant also filed a motion for new trial, which was denied by Judge Sosnick. In rendering his opinion on that motion, Judge Sosnick stated that he was not evaluating the credibility of the witnesses.
In a variety of factual and procedural settings, this Court has stated that, in a jury trial, the task of determining the credibility of witnesses is for the jurors, not the trial judge.13 Yet, standing alone, that maxim cannot fully capture the difficult role of a trial judge when faced with a motion for new trial. To determine whether a verdict is against the great weight of the evidence, or has worked an injustice, a judge necеssarily reviews the whole body of proofs.14 Thus Justice Cooley
In accordance with these principles, we stated in People v Johnson, 397 Mich 686, 687; 246 NW2d 836 (1976), that “a trial judge may grant a new trial because he disbelieves the testimony of witnesses for the prevailing party.”15 Accord Hampton, 407 Mich 380 (opinion of Ryan, J.).
When a trial court grants a new trial on the ground that the prosecution‘s witnesses lack credibility, it is finding, in effect, that the verdict is against the great weight of the evidence. In this regard Judge Frank‘s concurring opinion in Dyer v MacDougall, 201 F2d 265, 271-272 (CA 2, 1952), is instructive:
[A] motion for new trial may invoke “the exercise of the trial court‘s discretion, such as that the verdict is inadequate or excessive, or that the verdict is against the weight of the evidence. In reference to this latter matter this function of the motion for a new trial must be sharply distinguished from the motion for a directed verdict.” A “verdict may be set aside as contrary to the preponderance of the evidence, although a directed verdict is not justified.”
On a motion for new trial, the judge acts “as the thirteenth juror,” i.e., he evaluates the credibility of the orally-testifying witnesses and therefore their demeanor. But on a motion for a directed verdict he does not.
We thus reaffirm our statement in Johnson that a judge may grant a new trial after finding the testimony of witnesses for the prevailing party not to be credible. We caution, however, that this exercise of judicial power is to be undertaken with great caution, mindful of the special role accorded jurors under our constitutional system of justice.
V
Ordinarily, the standard for appellate review of a trial judge‘s decision regarding a motion for new trial is whether the judge committed an abuse of discretion.
The grant or denial of a motion for new trial on the ground that the verdict is against the great weight of the evidence rests within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless a clear abuse is shown. [Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985). Citations omitted.]
In this instance, Judge Sosnick‘s exercise of discretion was hindered by the erroneous conclusion that it was improper to consider the credibility of the witnesses. It is necessary that the motion for new trial be reconsidered, with due consideration given to the question whether the prosecution witnesses were credible.
We therefore grant reconsideration of the appli-
CAVANAGH, C.J., and LEVIN, GRIFFIN, and MALLETT, JJ., concurred.
BOYLE, J. I dissent because this is not an appropriate casе for peremptory disposition. I would grant or deny leave to appeal.
The successor judge stated that he did not find “that the verdict was perverse or that justice ha[d] not been done.” The Court of Appeals found that documentary evidence supported the witnesses’ testimony. The Court of Appeals also observed that a new trial may be granted if the verdict was against the great weight of the evidence, or if the verdict resulted in a miscarriage of justice. The Court stated that the test of the great weight of evidence is whether the verdict is against the overwhelming weight of evidence, and concluded that the successor judge was not required to weigh credibility because “there [was] conflicting evidence [and] the question of credibility [was] for the factfinder.” Unpublished opinion per curiam of the Court of Appeals, decided February 24, 1992
Today‘s per curiam opinion announces a rule of judicial oversight of the credibility of decisions of trial court juries and remands for a determination by the successor judge of the credibility of the witnesses.
In People v Johnson, 397 Mich 686, 687; 246 NW2d 836 (1976), this Court observed that “[a]s the trier of fact, the jury is the final judge of credibility.” Unfortunately, however, the opinion in Johnson (hereafter Johnson II) and an earlier order from this Court (People v Johnson, 391 Mich 834 [1974]) contain language that intimates judicial oversight of the credibility decisions of trial court juries. The Court of Appeals opinion in the case resulting in the first order of this Court in Johnson, People v Johnson, 52 Mich App 385; 217 NW2d 417 (1974), was based on a finding of injustice. The order of reversal relied on the dissenting opinion in Sloan v Kramer-Orloff Co, 371 Mich 403, 410-412; 124 NW2d 255 (1963). The issue in Johnson II was the standard for dismissal of charges. Therefore, the discussion in the opinion in Johnson regarding credibility oversight was dicta.
Thus, the rule announced in today‘s opinion, without benefit of oral argument and full briefing, is one that is new to Michigan‘s jurisprudence. In my judgment, it is singularly inappropriate to adopt a thirteenth juror rule by per curiam opinion.
Additionally, the opinion remands for an evaluation of crеdibility—something that the successor judge clearly cannot do. Thus, without any guidance from this Court regarding how credibility is to be evaluated, see Carbo v United States, 314 F2d 718 (CA 9, 1963), which the opinion expressly declines to do, ante, p 478, n 16, the court and the
The question whether a trial judge may sit as the thirteenth juror, overruling the credibility determinations of the other twelve, and the standard by which a successor judge is to evaluate motions for new trial on the basis of credibility are matters of major significance to the state‘s jurisprudence. I would grant or deny leave to appeal.
BRICKLEY, J., concurred with BOYLE, J.
RILEY, J., took no part in the decision of this case.