People v. Torres

549 N.W.2d 540

Mich.

1996

Check Treatment

PEOPLE v TORRES

Docket No. 102759

Supreme Court of Michigan

June 25, 1996

Rehearing denied 453 Mich 1204

452 Mich 43

Argued January 11, 1996 (Calendar No. 11).

PEOPLE v TORRES

Docket No. 102759. Argued January 11, 1996 (Calendar No. 11). Decided June 25, 1996. Rehearing denied 453 Mich 1204.

Gavino Torres was convicted by a jury in the Detroit Recorder‘s Court, Daphne M. Curtis, J., of possession of more than 650 grams of cocaine and was acquitted of possession with intent to deliver over 650 grams of cocaine. Thereafter, the court vacated his conviction and, sua sponte, granted him a new trial, finding that it had committed a prejudicial error while instructing the jury. The court denied the people‘s motion for reconsideration. The Court of Appeals, MACKENZIE, P.J., and D. E. HOLBROOK, JR., and MURPHY, JJ., denied the people‘s application for leave to appeal (Docket No. 135400), as did the Supreme Court,

437 Mich 987 (1991). Retrial of the simple possession charge ended in a hung jury. The Court of Appeals, SHEPHERD, P.J., and MARILYN KELLY and FITZGERALD, JJ., denied leave to appeal (Docket No. 143436). Before the third trial began, the court dismissed the simple possession charge on double jeopardy grounds. The Court of Appeals, CAVANAGH, P.J., and CONNOR and BANDSTRA, JJ., in an opinion per curiam, concluded that it did not have jurisdiction to hear the prosecutor‘s appeal of the interlocutory decision to grant a new trial, but reversed the dismissal, and remanded for another trial of the simple possession charge (Docket No. 150551). The people appeal and the defendant cross appeals.

In an opinion by Justice RILEY, joined by Chief Justice BRICKLEY, and Justices BOYLE, MALLETT, and WEAVER, the Supreme Court held:

In an appeal of right from а final order, the people may raise the issue of a trial court‘s earlier nonfinal decision to grant a new trial where that trial ends in a hung jury. Such an appeal does not violate a defendant‘s right against double jeopardy.

1. Under MCL 770.12; MSA 28.1109, the people may take an appeal of right from a lower court‘s final order and may raise issues related to earlier interlocutory orders. The Supreme Court will only review such issues where an appellate court may fashion an appropriate remedy and where an error has not been cured or rendered moot by a later proceeding. In this case, the third trial, as a constructive continuation of the second, would not rectify the trial court‘s possible abuse of discretion in reversing the defendant‘s conviction in his first trial. The alleged error did not occur in a nullity; rather, the first trial was complete and stands by itself. The error could not be corrected by the next trial, i.e., could not be cured by a later proceeding.

2. The Double Jeopardy Clause protects against both being twice punished and being twice put in jeopardy for the same offense. This constitutional right is not violated by a retrial after a conviction has been set aside because of error in the first trial, except when that error was insufficient evidence of guilt. In this case, the defendant might not have had to endure a second trial. He could have asked the appellate courts to grant the people‘s application for interlocutory appeal of the trial court‘s decision to grant a new trial before retrial. By failing to do so, he voluntarily endured the ordeal of the second trial, knowing that it might be needless if the first trial later was determined to be fair. Reinstatement of the defendant‘s conviction presents no threat of successive prosecutions because reversal on appeal would merely reinstate the jury‘s verdict.

3. The crimes of possession with intent to deliver and simple possession cannot be the same offense for purposes of double jeopardy where the jury in the first trial acquitted the defendant of one charge and then convicted him of the lesser included offense. The trial court erred in dismissing the simple possession charge on double jeopardy grounds.

Justice CAVANAGH, joined by Justice LEVIN, concurring in part and dissenting in part, stated that when a retrial ends in a hung jury, a prosecutor‘s appeal of right from a final order may not seek review of all previous orders issued in the case.

Appeals by the people are strictly limited by the express legislative grant. MCL 770.12(1); MSA 28.1109(1) provides for appeals of right; § 12(2) provides for appeals by leave, inter alia, from interlocutory orders, but clearly prohibits appeals that violate a defendant‘s right to be free from double jeopardy. An appeal of right by the people of an order granting a new triаl, after the new trial has occurred and a final judgment has been reached, was not intended to be available under the statute. In this case, because the order granting a new trial was not final, the people could only seek leave to appeal the grant in the Court of Appeals. The people should not be allowed to incorporate such an appeal in a later appeal of right of the final decision because it would exceed the scope of the express legislative grant.

The prosecution‘s interests are adequately protected by the ability to file an interlocutory appeal. Further if the prosecution were allowed to include the new trial issue in a later appeal of right, the retrial could be rendered meaningless. These policy considerations support a rule that would require an appeal of an order granting a new trial before the new trial occurs. Because the trial court in this case erred in dismissing the charge against the defendant on the basis of double jeopardy, the case should be remanded for retrial of the charge of possession of over 650 grams of cocaine.

Affirmed in part, reversed in part, and remanded.

209 Mich App 651; 531 NW2d 822 (1995) affirmed in part and reversed in part.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O‘Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.

State Appellate Dеfender (by Ronald E. Steinberg) for the defendant.

Amicus Curiae:

David A. Moran for the Criminal Defense Attorneys of Michigan.

RILEY, J. In this case, we must resolve the legal questions that arise from the trial court‘s decision to dismiss criminal charges against defendant on double jeopardy grounds. In his first trial, defendant was convicted of simple possession of more than 650 grams of cocaine and acquitted of the charge of possession with intent to deliver over 650 grams of cocaine. The trial court vacated his conviction on the simple possession charge and granted defendant a new trial finding, sua sponte, that it had committed a prejudicial error while instructing the jury. Defendant was retried on the simple possession charge, but this trial ended in a hung jury. Before the third trial began, the trial court dismissed the simple possession charge on double jeopardy grounds. On the people‘s appeal of the dismissal, the Court of Appeals refused to review the trial court‘s interlocutory decision to grant a new trial, but reversed the dismissal, remanding for a new (third) trial on the simple possession charge. Plaintiff appeals the Court of Appeals refusal to review the grant of a new trial, and defendant cross appeals the Court of Appeals decision to reverse and remand.

We hold that the people may properly raise the issue of a trial court‘s interlocutory decision, i.e., to grant defendant a new trial, in an appeal of right from the trial court‘s final order of dismissal. The Court of Appeals erred in deciding that it did not have jurisdiction to review this decision. Such an appeal does not violate defendant‘s right against double jeopardy. We reverse and remand this issue to the Court of Appeals.

On defendant‘s cross appeal, we agree with the Court of Appeals that the trial court erred in concluding that defendant would suffer double jeopardy if he were retried on the charge of simple possession of more than 650 grams of cocaine. He was convicted of this very crime in his first trial. His retrial for that same crime does not violate his right against double jeopardy.

Hence, we affirm in part and reverse in part the Court of Appeals decision and remand for further consideration.

FACTS AND PROCEDURAL HISTORY

On January 9, 1989, defendant Gavino Torres was involved in a drug transaction. According to the testimony produced at his first trial, defendant partici-pated in a conversation with Rodney Edwards, Antonio Olmeda, and Anthony Valentin about purchasing two kilograms of cocaine. Valentin and David Crowl had arranged to sell two kilograms of cocaine to Roberto Anaya, an undercover police officer, in the parking lot of a Burger King restaurant. Defendant accompanied Edwards, Olmeda, and Valentin when they went to obtain the cocaine for this sale from Edwards’ supplier. Defendant was given the cocaine from Edwards’ source and then traveled with the others to a supermаrket parking lot near the Burger King. Valentin testified that defendant‘s role in controlling the cocaine in the car en route to the parking lot was to escape with the cocaine if they were stopped by the police.¹ Valentin also testified that he, Edwards, Olmeda, and Torres planned to split the profits of the cocaine sale.

After arriving at the supermarket‘s parking lot, defendant, Edwards, Olmeda, and Valentin met another participant in the sale, Freddie Marshall. Defendant gave the cocaine to Edwards who, in turn, gave it to Valentin. After receiving the cocaine, Valentin left with Marshall to make the sale to Anaya, who was waiting with Crowl in the Burger King parking lot. Defendant was arrested after the sale, as were Crowl, Marshall, and Valentin.

Defendant was charged with possession with intent to deliver over 650 grams of cocaine. MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). At the

close of proofs in the first trial, the prosecutor asked the trial court to give the jury an instruction on the crime of simple possession of more than 650 grams of cocaine, a violation of MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), as a lesser included offense. The trial court agreed to do so and defendant did not object.² The trial court also instructed the jury that the simple possession charge was a “less serious crime” than the charge of possession with intent to deliver. Defendant was convicted of simple possession, but was not convicted, and was thereby acquitted, of possession with intent to deliver.

On the day оf sentencing, October 16, 1990, the trial court, sua sponte, decided to grant defendant a new trial because the court concluded that it erred in giving the simple possession charge as a lesser included offense where it carries the same penalty³ as the possession with intent to deliver charge:

My point is that when you ask for an instruction and the penalty is the same, at the very least the instruction should be [“]you may consider a separate offense of so and so,[“] possession of over 650 grams in this case, rather than the language I gave them, [“]you may also consider the less serious crime of 650—possession of over 650 grams of cocaine.[“] That is my point. . . . They had an alternative without a true alternative. [Emphasis added.]

On this basis, the trial court entered an order dated October 22, 1990, setting aside defendant‘s conviction

of simple possession of 650 grams of cocaine and ordering a new trial. The people moved for reconsideration, asking the trial court to reinstate the verdict. The trial court denied this motion.⁴

On November 30, 1990, the prosecutor filed a delayed application for leave to appeal this decision to the Court of Appeals, which denied the application on February 26, 1991 (Docket No. 135400). On May 3, 1991, this Court also denied the application.⁵

In May 1991, defendant was retried on the simple possession charge. The trial ended in a hung jury, and the trial court declared a mistrial. Thereafter, a third trial was scheduled. Before this trial began, dеfendant moved to dismiss the simple possession charge on the basis that another trial would violate his right protecting him from double jeopardy. At the hearing on

this motion, on February 7, 1992, the trial court concluded that the crime of possession with intent to deliver more than 650 grams of cocaine, of which defendant was acquitted in his first trial, was the same charge as simple possession for double jeopardy purposes:

In . . . the case before the Court, there are no different transactions, no different facts, the retrial would be dealing with the same issues, the same circumstances, the same facts as the original trial on the original charge of possession with intent to deliver over 650 grams of cocaine.

On February 21, 1992, the trial court entered an order dismissing the simple possession charge against defendant because a retrial was barred by double jeopardy because of his prior acquittal on the possession with intent to deliver charge from the first trial.

The prosecutor brought an appeal of right in the Court of Appeals from the February 21, 1992, order, challenging the trial court‘s dismissal of the simple possession charge. In that appeal, the prosecutor also asked the Court to reverse the trial court‘s October 22, 1990, decision granting a new trial. In a published opinion, the Court of Appeals decided that it did not have jurisdiction to hear the prosecutor‘s appeal of the interlocutory decision. Rather, it held that “a prosecutor‘s appeal as of right from a final order in a criminal case does not allow appellate review of all previous orders issued in the case.”⁶ Consequently, the Court of Appeals did not address the question whether the trial court abused its discretion in ordering a new trial.

However, the Court of Appeals reversed the trial court‘s decision to dismiss the simple possession charge against defendant. The Court reasoned that the jury, by its verdict in the first trial, did not acquit defendant of the simple possession charge:

A jury in the present case rationally could find that defendant possessed the cocaine, but that he did not have the intent to deliver it. Thus, the fact that defendant was acquitted of the charge of possession with intent to deliver cocaine does not bar retrial on the offense of simple possession of cocaine.⁷

Accordingly, the Court of Appeals reversed the dismissal and remanded the case for a new trial of the simple possession charge.

Subsequently, we granted plaintiff‘s application for leave to appeal whether the prosecutor may appeal the trial court‘s October 22, 1990, decision granting defendant a new trial. This Court also granted defendant‘s cross appeal in which he challenges the Court of Appeals ruling to remand for a new trial.⁸

I. PEOPLE‘S RIGHT TO RAISE THE ISSUE OF THE INTERLOCUTORY DECISION

A

The Michigan Constitution does not provide the people the right of appеal in criminal cases.

People v Cooke, 419 Mich 420, 424-425; 355 NW2d 88 (1984). Rather, the people may only file an appeal as provided by statute. MCL 770.12; MSA 28.1109. MCL 770.12; MSA 28.1109 provides that the people may

take an appeal of right from a lower court‘s final order:

(1) Except as provided in subsection (2), the people of this state may take an appeal of right in a criminal case, if the protection against double jeopardy under section 15 of article I of the state constitution of 1963 and amendment V of the constitution of the United States would not bar further proceedings against the defendant, from either of the following:

(a) A final judgment or final order of the circuit court or recorder‘s court, except a judgment or order of the circuit court or recorder‘s court on appeal from any other court.

(b) A final judgment or order of a court or tribunal from which appeal of right has been established by law.

The statute also provides that the people may apply for leave to appeal an interlocutory order:

(2) The people of this state may take an appeal by leave in a criminal case, if the protection against double jeopardy under section 15 of article I of the state constitution of 1963 and amendment V of the constitution of the United States would not bar further proceedings against the defendant, from any of the following:

(a) A judgment or order of the circuit court or recorder‘s court that is not a final judgment appealable of right.

(b) A final judgment entered by the circuit court or ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the recorder‘s court on аppeal from any other court.

(c) Any other judgment or order appealable by law or rule.

(d) A judgment or order when an appeal of right could have been taken but was not timely filed.

(e) A final order or judgment based upon a defendant‘s plea of guilty or nolo contendere.

An order granting a new trial is a nonfinal, interlocutory order.

People v Pummer, 399 Mich 326, 332; 249 NW2d 78 (1976), overruled on other grounds in . Thus, the trial court‘s October 22, 1990, decision to grant defendant a new trial was not a final order but was an interlocutory order. The prosecutor sought leave to appeal this decision, but it was denied by the Court of Appeals and by this Court. The trial court entered a final order on February 21, 1992, when it dismissed the simple possession charge against defendant on double jeopardy grounds.

B

In appealing the February 21, 1992, final order, the prosecutor asked the Court of Appeals to review the trial court‘s October 22, 1990, interlocutory decision granting a new trial even though this Court and the Court of Appeals earlier refused to grant leave. Thus, this Court must determine whether MCL 770.12; MSA 28.1109 authorizes the people to raise the issue of an earlier interlocutory order when bringing an appeal of right from a final order.

On its face, the statute provides that the people may appeal of right a final order, but it does not state whether the people may also appeal a trial court‘s earlier decisions entered as nonfinal orders in appealing the final order. The statute, under subsection 2(a), does provide that the people may apрeal by leave a trial court‘s decision to grant a new trial for a defendant. However, this provision does not indicate that the people are forbidden from raising an interlocutory decision granting a new trial when they appeal a final order of right.

In order to determine whether the Legislature intended to make an interlocutory order reviewable in an appeal of right, we may examine the statute‘s legis-lative history to understand its purpose. Before MCL 770.12; MSA 28.1109 was revised in 1988, the statute only provided the people an appeal when a trial court construed the validity of a criminal statute or when a trial court decision was issued before jeopardy attached.⁹ In

Cooke, this Court held that the people could appeal a decision only in the limited circumstances provided by the statute. . The decision in eliminated the possibility that the people could appeal by leave the decision of a trial court to grant a defendant a new trial. .¹⁰

As the Court of Appeals noted, prosecutors attempted to circumvent this limitation by filing a complaint for superintending control in order to con-

test orders granting a new trial.¹¹ However, in

Burton, supra at 142-144, this Court concluded that an order of superintending control should not be used to circumvent the will of the Legislature. We held that this extraordinary remedy was not warranted where the people wished to appeal a trial court‘s order granting a new trial.

In response to this Court‘s ruling in

Cooke, the Legislature enacted 1988 PA 66, revising MCL 770.12; MSA 28.1109, to give the people the same essential right to appeal and seek leave as a defendant enjoys, within the limits of the constitutional prohibition against double jeopardy.¹²

C

Since the Legislature intended to provide the people with the same right as a criminal defendant on appeal, we must examine the provisions that authorize a defendant to appeal a final decision in order to determine whether a defendant may appeal interlocutory decisions when he appeals a final order of right.

The Michigan Constitution provides in art 1, § 20 that “the accused shall have the right to . . . have an appeal as a matter of right. . . .” In MCL 600.308; MSA 27A.308, the Legislature has provided for the jurisdiction of the Court of Appeals to hear appeals by a criminal defendant, as well as for parties in civil

cases generally. MCL 600.308; MSA 27A.308 enables a party to appeal of right a final order and apply for leave from an interlocutory order.¹³

In appealing a final order entering a conviction, a criminal defendant may raise certain trial court interlocutory decisions, e.g., admission of evidence during

trial, that might have affected the outcome of the case.¹⁴ Moreover, the Court of Appeals has also recently held that a party on appeal from a final order in a civil case is “free to raise on appeal issues related to other orders in the case.”

Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487 NW2d 807 (1992), citing .¹⁵ The Court in had relied on .

However, the Court of Appeals in the present case refused to follow

Dean in the criminal context, relying instead on Adams v Perry Furniture Co (On

Remand),

198 Mich App 1; 497 NW2d 514 (1993), and , in which the Court declined to examine an earlier order.¹⁶ The Court of Appeals here apparently reasoned that was no longer good law because the case on which it relied, , was rejected by and .¹⁷ Importantly, in , the plaintiff was appealing the final order and wished to raise an issue from a previous “final ordеr,” i.e., an “otherwise nonfinal order certified as a final order under MCR 2.604(A) . . . .”¹⁸ This was the same situation in , and . Thus, by statute, MCL 600.308; MSA 27A.308, and by court rule, MCR 7.203, the parties in , , and , had a right to appeal the earlier decision.

In contrast, the plaintiff in

Dean was appealing by right the trial court‘s decision to grant summary disposition and, in doing so, also asked the Court to review the trial court‘s earlier decision refusing to extend the deadline for filing the witness list. There was no indication that this earlier decision was certified as a final order under MCR 2.604. Consequently, unlike , , and , there was no other opportunity of right for the party in to appeal the trial court‘s decision because it did not dispose of any claims. See .¹⁹

Similarly, in this case, the people have not been accorded appellate review of the merits of this decision. The people attempted to do so by applications for leave, but each was denied.²⁰ Thus, if this Court concludes that this issue is not reviewable, then the people will not have had an opportunity for appellate review of the trial court‘s October 22, 1990, decision granting defendant a new trial.

In summary, a party in a civil action may raise previous interlocutory decisions when it brings an appeal of right from a final order. Likewise, a criminal defendant may raise an issue related to an interlocutory decision in its appeal of right from a final decision.²¹ We conclude that the Legislature intended to provide this same right to the people in an appeal from a final order in MCL 770.12; MSA 28.1109. Thus, the people have a right to raise issues related to earlier interlocutory orders in an appeal of right from the final order.²²

of right a final order, citing

Kellepourey v Burkhart, 163 Mich App 251; 413 NW2d 758 (1987), vacated on other grounds . In , the trial court granted a new trial, but conditioned it on the plaintiff‘s refusal to accept the court‘s remittitur of the jury‘s verdict. The Court of Appeals noted that the plaintiff had an appeal of right from the conditional, interlocutory order and failed to take it. . In contrast, there is no question that the prosecutor in this case did not have an appeal of right from the October 22, 1990, interlocutory decision.

D

Defendant argues that this conclusion provides the people with a more generous opportunity to appeal than provided a defendant. On the basis of this Court‘s treatment of interlocutory decisions from a criminal defendant‘s appeal, defendant argues that the people‘s interests were adequately protected by the opportunity to seek interlocutory appeal,

People v Hall, 435 Mich 599; 460 NW2d 520 (1990), and by the opportunity to seek conviction by a retrial, . The general rule that we discern from these seminal cases is that this Court will only review an earlier interlocutory decision in an appeal from a final order where (1) an appellate court may fashion an appropriate remedy²³ and (2) the error has not been cured, or rendered moot, by a later proceeding. On the basis of this rule, we conclude the people may properly ask this Court to review the trial court‘s decision to grant a new trial.

Hall, supra at 602, this Court addressed a question where, in an appeal from his conviction, a defendant claimed that there was inadequate admissible evidence presented at his preliminary examination to bind him over for trial. We concluded that an error at the preliminary examination stage should be examined for harmless error. We explained that

tradicts the Legislature‘s intent to provide the people with the same right to appeal as a defendant within the limits of the constitutional prohibition against double jeopardy. See ns 12, 14.

“the availability of an interlocutory appeal affords protection in those cases where an innocent accused should have been screened out by the preliminary examination process.”
Id. at 615. The preliminary examination process established by statute in Michigan under MCL 766.1 et seq.; MSA 28.919 et seq. ensures that a defendant shall not suffer extended restraint of liberty following an arrest unless there has been a judicial determination of probable cause that he committed the crime for which he is held.
Id. at 603.

However, once the matter proceeded to trial in

Hall, there was no way that this Court could provide a remedy specific to the harm the rule sought to avoid. In the present case, this Court could fashion an appropriate appellate remedy for the alleged trial court error by reinstating the conviction. Moreover, this Court did not state that such an error was not reviewable in , but rather that this Court would only reverse the defendant‘s conviction if the error prejudiced the outcome of his trial. In the present case, if the trial court did abuse its discretion in granting a new trial, the people‘s interests were surely prejudiced because defendant‘s conviction on simple possession was vacated and this charge was ultimately dismissed without a jury reaching a verdict of acquittal.

Thompson, supra, the defendant was convicted of felony murder, but this conviction was reversed because of improper jury instructions. The defendant‘s second trial ended in a hung jury and a mistrial was declared. In his third trial, the defendant was again convicted of felony murder. This Court held that the retrial of defendant on the same charge after a mistrial because of a hung jury did not violate his double jeopardy or his due process protections under the Michigan Constitution. . Also, in the second trial, the defendant moved for a directed verdict, arguing that there was insufficient evidence to convict him presented at that trial. The trial court denied the defendant‘s motion. This Court held that there is no requirement under art 1, § 15 (double jeopardy provision) or art 1, § 17 (due process) of the Michigan Constitution that this Court review the trial court‘s decision refusing to grant a directed verdict. Defendant in the present case argues that this rule should be equally applicable to the people here, arguing that the people should not be able to appeal the trial court‘s nonfinal order from an earlier trial even though that decision could have prevented the retrial from occurring.

However, the trial at which the defendant moved for a directed verdict in

Thompson ended in a mistrial. We stated in that “[t]he general view of a hung jury mistrial has been that it is essentially a nullity аnd that the subsequent retrial determines a defendant‘s guilt or innocence.” . This Court explained that a retrial following a mistrial is treated as “a continuation of the same case.” Consequently, the error alleged from the second trial in was able to be rectified in the third trial, where the prosecution did produce sufficient evidence, because the third trial was considered a continuation of the second one.²⁴

In contrast, a third trial here, as a constructive continuation of the second, would not rectify the trial court‘s possible abuse of discretion in reversing defendant‘s conviction from his first trial. The alleged error did not occur in a “nullity,” i.e., a trial that ended in a mistrial. Rather, the first trial was complete, and stands by itself. The error could not be corrected by the next trial. Hence, in this case, unlike

Thompson, the error was not cured by later proceedings.

II. REVIEW OF THE INTERLOCUTORY DECISION AND DOUBLE JEOPARDY

A

Defendant argues that the decision to review an order after retrial violates his right to be free from double jeopardy because a successful appeal would mean reinstatement of his conviction from the first trial.

The United States and the Michigan Constitutions protect a person from being twice placed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in jeopardy for the “same offense.” US Const, Am V; Const 1963, art 1, § 15. The purpose of the double jeopardy provision is to prevent the state from making repeated attempts at convicting an individual for an alleged crime.

People v Dawson, 431 Mich 234, 250; 427 NW2d 886 (1988). The United States Supreme Court examined the origin and history of the rule in . As this Court quoted in , the United States Supreme Court in concluded that “the State with all its resources and power should not be allowed to make repeated attеmpts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” . Thus, the Double Jeopardy Clause provides three related protections:

“It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” [
United States v Wilson, 420 US 332, 343; 95 S Ct 1013; 43 L Ed 2d 232 (1975), quoting from
North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969), which was overruled in part on other grounds in
Alabama v Smith, 490 US 794, 802; 109 S Ct 2201; 104 L Ed 2d 865 (1989).]

B

Defendant argues, as do the Criminal Defense Attorneys of Michigan in their amicus curiae brief, that a defendant may not be subjected to a second trial after being validly convicted in the first one. They claim that the reinstatement of defendant‘s first conviction would render the second trial unnecessary and would violate defendant‘s right to be free from retrial after conviction.

The United States Court of Appeals for the Eleventh Circuit rejected a similar argument in

United States v Martinez, 763 F2d 1297 (CA 11, 1985). In , the defendant was convicted of cocaine distribution in his first trial, but the trial court granted his motion for a new trial. On retrial, in a bench trial, the defendant was acquitted. On appeal from the judgment of acquittal, the prosecution claimed that the trial court abused its discretion in granting a new trial. In determining whether its review of this claim would violate the defendant‘s double jeopardy protection, the Eleventh Circuit examined the United States Supreme Court‘s treatment of the constitutional right and distilled this test:

[T]he test for whether a government appeal of a judgment of acquittal is barred by the Double Jeopardy Clause is whether there will be any proceeding after a successful appeal that would require the resolution of further factual issues by the trier of fact. [
Id. at 1309.]

On the basis of this test, the court held that the prosecution could appeal the defendant‘s conviction and seek reinstatement of his conviction without violating the Double Jeopardy Clause because “reversal on appeal will simply reinstate the prior judgment of conviction and not subject defendant to another prosecution.”

Id. at 1310. In fact, the court then determined that the trial court abused its discretion, reversed the judgment acquitting him, and reinstated the jury verdict finding him guilty. .²⁵ The United States Court of Appeals for the Fifth Circuit adopted the rule in a factually similar case and also reinstated the jury verdict despite the subsequent acquittal in a bench trial. (“This appeal, like that of , does not effect double jeopardy because reversal would only require reinstating the jury verdict; further prosecution would be avoided“), cert den .

Martinez is well grounded in the United States Supreme Court‘s examination of the Double Jeopardy Clause. In , the Supreme Court ruled that the prosecution could appeal a trial court‘s decision to dismiss an indictment against a defendant because of а preindictment delay even though the jury had already found the defendant guilty of that crime. The Supreme Court reasoned that review of the trial court‘s order would not offend the policy against multiple prosecutions “[s]ince reversal on appeal would merely reinstate the jury‘s verdict . . . .” . Relying on , the Supreme Court later stated that “where a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended.” . The Court in noted that the double jeopardy bar was not “automatically averted” in its case because, unlike the present case, a successful appeal reversing the judgment of acquittal would necessitate another trial. . Also, in examining whether the prosecutor could appeal a trial court‘s decision (at the close of proofs but before a verdict) to dismiss because of the prejudice caused by preindictment delay, the Supreme Court explained that one of the principles of double jeopardy jurisprudence is that a “judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” (emphasis added).²⁶

C

Defendant and the amicus curiae contend that the Eleventh Circuit in

Martinez overlooked the Supreme Court‘s double jeopardy analysis in . In , the Supreme Court examined the question whether a trial court‘s pretrial order refusing to dismiss an indictment on double jeopardy grounds wаs a final order from which a party in federal court had a right to appeal. The defendants were convicted in the first trial, but the United States Court of Appeals for the Third Circuit had reversed the conviction because of an evidentiary error. Before retrial, the defendants moved to dismiss the indictment, claiming that double jeopardy prevented their retrial. The Supreme Court noted that the double jeopardy protection is not just a prohibition of being twice punished, but also against being twice put in jeopardy. , citing . It explained that “the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense.” . For this reason, the Court concluded that the pretrial order must be immediately appealable as a “final decision” under federal statutory law, otherwise the defendant‘s protection against double jeopardy would be lost:

[T]he [double jeopardy] protections would be lost if the accused were forced to “run the gauntlet” a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs. [
Id. at 662 (emphasis in original) (citations omitted).]²⁷

The Eleventh Circuit‘s opinion in

Martinez is consistent with the reasoning of . In , the defendants did not have to endure a second trial before they brought their appeal. In , the prosecution brought the appeal. Because the prosecution succeeded in its claim that the trial court‘s decision to grant a new trial was an abuse of discretion, the remedy was to reinstate the verdict of the first trial. The appeal did not require a retrial. Like , the defendant in did not have to endure personal strain, public embarrassment, and the expense of another criminal trial because he did not suffer another prosecution. The same would be true if the people prevailed on appeal in this case. Defendant, like the defendant in , would have already suffered the ordeal of a second trial.²⁸

However, if defendant‘s conviction is reinstated, the analysis from

Abney, supra at 662, suggests that defendant, like the defendant in , should not have had to endure a second trial. Yet, defendant did not ask the Court of Appeals or this Court to grant leave before the second trial. Defendant would have presented the situation from if he had asked the Court of Appeals or this Court to grant leave on the people‘s appeal before retrial. He would not have had to ask an appellate court to reverse the trial court‘s dеcision, but could have asked that leave be granted to ensure that the issue was resolved before he was required to endure another trial that might otherwise be needless. However, defendant did not file a brief in response to the people‘s application for leave to the Court of Appeals (Docket No. 135400), and did not file a response to the people‘s application to this Court (Docket No. 91140). A defendant is responsible for the “consequences of his voluntary choice.” See . Defendant did not ask appellate courts to grant leave, even though under , his right could only be vindicated by an immediate appeal.²⁹ Consequently, by failing to ask the appellate courts to review this decision interlocutorily, defendant accepted the possibility that he would have his first verdict reinstated on a later appeal by the people by right. Therefore, he voluntarily endured the ordeal of a second trial, knowing that it might be needless if the first trial was determined to be fair.³⁰

Moreover, even if we concluded that defendant suffered a constitutional injury by enduring an “unnecessary” second trial (if the first trial was valid and fair), the injury itself would have already been sustained. This Court cannot change the reality that defendant was tried a second time. This Court cannot erase the embarrassment, expense, and ordeal of living in a continued state of anxiety created by the second trial. Our refusal to rеview the interlocutory decision, leaving unreviewed the trial court‘s determination that the first trial was unfair, would not undo the ordeal of the second trial, but would only prevent it from being (in retrospect) unnecessary. The Double Jeopardy Clause is designed to prevent the ordeal of a second trial; it is not designed to prevent such a trial from being rendered needless on appellate review. See

Abney, supra at 661-662.³¹ Defendant could only have avoided the second trial by seeking an immediate appeal. There is now no possible remedy.

D

Defendant and the amicus curiae complain that the result from

Martinez would mean that defendant suffered a retrial after he was convicted in violation of the Double Jeopardy Clause. However, he was only retried after the first conviction was vacated. There is no dispute that the retrial itself would not violate defendant‘s constitutional rights where the trial court concluded that defendant was prejudiced by erroneous jury instructions. See , citing . In fact, the United States Supreme Court explained that where the judicial process is defective in a fundamental respect, the accused has a “strong interest in obtaining a fair readjudication of his guilt free from error . . . .” .

On appeal, the people ask us to reinstate defendant‘s first conviction. As the Eleventh Circuit explained in

Martinez, the reinstatement of his conviction would not offend defendant‘s constitutional rights because the “[g]overnment aрpeal presents no threat of successive prosecutions,” (emphasis added), and would not result in another prosecution, because “reversal on appeal would merely reinstate the jury‘s verdict . . . .” . Moreover, the second trial, now examined in retrospect, does not represent a second opportunity for the people to convict defendant if the first conviction was reinstated because the people did not need, or seek, a new trial. There would be no multiple punishments.

We adopt the persuasive reasoning of

Martinez as our understanding of the protections provided by the Double Jeopardy Clause of the United States and the Michigan Constitutions, at least in this circumstance where the second trial ended in a hung jury. However, we reserve for another day the question whether this holding would govern where the people seek to reinstate a conviction from the first trial after a defendant was retried and acquitted by the bench, or by a jury,³² of the same crime in a second trial.

We conclude that the people may raise the issue of the trial court‘s October 22, 1990, decision to grant a new trial under MCL 770.12(1); MSA 28.1109(1) in its appeal of right of the February 21, 1992, final order. We reverse the Court of Appeals refusal to review the issue and remand the substance of the issue to give the Court of Appeals an opportunity to address it.³³

III. DOUBLE JEOPARDY AND DEFENDANT‘S THIRD TRIAL

On cross appeal, defendant claims that the Court of Appeals erred in reversing the trial court‘s decision to dismiss before the third trial on double jeopardy grounds. The trial court relied primarily on

Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977), in which the Supreme Court held that the Double Jeopardy Clause bars prosecution for a crime where the defendant had already been convicted of a lesser included offense of that crime. The trial court also cited , in which the Supreme Court held that the Double Jeopardy Clause prevents a state from subjecting a defendant to a second prosecution where an acquittal in the first trial resolved the factual question whether the defendant committed the crime charged in the second trial. Relying on these cases, the trial court concluded that the crime of possession with intent to deliver was the same as simple possession for double jeopardy purposes and that defendant‘s acquittal of possession with intent to deliver barred a reprosecution for the lesser included offense.

As noted earlier, the United States and the Michigan Constitutions protect a person from suffering double jeopardy for the “same offense.” US Const, Am V; Const 1963, art 1, § 15. The Court of Appeals has explained, however, that this rule is not violated where a defendant is retried after his conviction is set aside ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍because of an error in the first trial, unless the error was that there was insufficient evidence of guilt to convict the defendant. See

Langley, supra at 150.

Defendant argues that he cannot be retried because the jury‘s acquittal of him on the possession with intent to deliver charge also logically required the finding that he did not possess the cocaine. Defendant explains that the jury could not rationally acquit him of possession with intent to deliver without also finding that he was not guilty of possession because the prosecution‘s sole factual theory alleged that defendant carried the cocaine with the intent of delivering it for the sale to Anaya. The Court of Appeals in the present case rejected this claim and distinguished

Ashe, supra, as well as the subsequent Supreme Court case following it, , by concluding that a rational jury could find that defendant possessed, but did not intend to deliver, the cocaine.³⁴

However, this Court need not review this conclusion because there is a more basic reason to distinguish this case from the federal ones. In

Ashe and , the defendant was acquitted on the same factual theory that would logically require the jury to find that he had not committed the uncharged crime. However, in this case, the jury explicitly rejected this possibility by convicting defendant on the very charge that defendant now claims that the jury, by its verdict, must have acquitted him. A jury‘s verdict need not be rationally consistent in the light of its power of leniency. ; .³⁵ Thus, unlike and , this Court cannot logically deduce from the first verdict that the jury acquitted defendant on this charge because it convicted him of it.

Moreover, in

Brown, the defendant was convicted of the lesser included crime of joyriding and subsequently tried and convicted of auto theft. The Supreme Court concluded that the two crimes of which the defendant was convicted were the “same offense” for double jeopardy purpоses under the test of (different offense where each crime requires proof of an element the other does not require). However, the crimes of possession with intent to deliver and simple possession cannot be the same offense for purposes of double jeopardy where the jury in the first trial acquitted defendant of one charge and then convicted him on the lesser included offense.³⁶

The trial court erred in dismissing the simple possession charge on double jeopardy grounds. This Court affirms the Court of Appeals decision to reverse.³⁷

CONCLUSION

We conclude that, in an appeal of right from a final order, the people have the right to raise the issue of a trial court‘s earlier nonfinal decision to grant a new trial where that new trial ends in a hung jury. We remand the issue whether the trial court abused its discretion in granting a new trial to the Court of Appeals. Moreover, we affirm the Court of Appeals decision to reverse the trial court‘s decision dismissing defendant‘s conviction on double jeopardy grounds. Hence, we affirm in part, reverse in part, and remand for further proceedings.

BRICKLEY, C.J., and BOYLE, MALLETT, and WEAVER, JJ., concurred with RILEY, J.

CAVANAGH, J. (concurring in part and dissenting in part). I concur with the majority‘s resolution of the defendant‘s cross appeal because I agree that the trial court erred when it dismissed the simple possession charge on double jeopardy grounds.¹ However, I do not agree with the majority‘s analysis or holding regarding the people‘s appeal. Thus, I dissent from the majority‘s holding that, when a retriаl ends in a hung jury, a prosecutor has the right to appeal a trial court‘s earlier interlocutory order granting a new trial in its later appeal of right of the final order entered in the case. Rather, I would adopt the holding of the Court of Appeals that a prosecutor‘s appeal of right from a final order in a criminal case does not allow appellate review of all previous orders issued in the case.

209 Mich App 651, 658; 531 NW2d 822 (1995).

I. LEGISLATIVE INTENT

As noted by the majority, the Michigan Constitution does not provide for appeals by the people. Rather, the people‘s right to appeal derives from statute.² Thus, appeals by the people are strictly limited to appeals that fall within the express legislative grant.

People v Cooke, 419 Mich 420; 355 NW2d 88 (1984).

The statute governing such appeals, MCL 770.12(1); MSA 28.1109(1), provides an appeal of right from a final judgment or final order entered in a criminal case.³ While § 12(1) provides for appeals of right, § 12(2) provides the people with an appeal by leave in various circumstances, including an appeal from an interlocutory order.⁴

Moreover, § 12 clearly prohibits an appeal by the people if it would violate the defendant‘s right to be free from double jeopardy. In this case, the defendant argues that the decision to review an order granting a new trial after retrial would violate his right to be free from double jeopardy because a successful appeal would mean reinstatement of his conviction from the first trial. However, I would not decide the constitutional issue whether allowing such an appeal would violate the defendant‘s protections to be free from double jeopardy because I believe legislative intent and policy considerations should prevent the people from appealing in this instance.⁵

Clearly, § 12(2) contemplates an appeal by leave in an appeal by the people from an interlocutory order in a criminal case; § 12(1) does not provide for an appeal of right in this situation. Although the statute does not explicitly preclude the inclusion of this issue in an appeal by the people of right, I do not believe that the Legislature intended that an order granting a new trial could be appealed by the people of right, after retrial had occurred and the case had later reached final judgment.⁶ Rather, I would hold that because the order granting a new trial was not final, the people could seek to appeal only by filing an application for leave with the Court of Appeals. The people should not be allowed to include that appeal in its later appeal of the final decision of right, because allowing such an appeal exceeds the scope of the express legislative grant providing for appeals by the people.

II. POLICY CONSIDERATIONS

Moreover, policy considerations clearly support this position. The strongest policy consideration supporting prohibition of the instant appeal is that the prosecution‘s interests are adequately protected by the ability to file an interlocutory appeal.⁷ Further, even if the Court of Appeals and this Court, in the exercise of discretion, decide that the appeal is not worthy of interlocutory review,⁸ the prosecution still has the opportunity to obtain a conviction following the retrial of the defendant.

Additionally, there are also several other strong policy reasons for requiring a prosecutor to file only an appeal from an interlocutory order granting a new trial. If a prosecutor were allowed to include the new trial issue in a later appeal of right, then the retrial could be rendered meaningless.⁹ First, this would subject the defendant to the personal strain, expense, and embarrassment at an unnecessary retrial. Second, allowing the delay in appeal will result in considerable expense to the state in bringing the defendant to retrial. Third, it will take up scarce judicial resources and time for a needless trial. Fourth, it will force jurors to spend their valuable time and energy in meaningless deliberations. Fifth, it will needlessly put witnesses and victims through the anxiety and trauma of having to testify or suffer through a retrial.

The emotional and financial costs and waste of judicial resources can be prevented if the prosecution is required to appeal from an order granting a new trial immediаtely, if at all. Witnesses, victims, judges, jurors, attorneys, and defendants should not be forced to endure a retrial if that retrial can subsequently be rendered utterly meaningless. I believe these policy considerations support a rule that would require an appeal of an order granting a new trial before the new trial occurs.

III. CONCLUSION

I would affirm the decision of the Court of Appeals, which held that, under § 12, the prosecution may appeal an order granting a new trial only by application for leave to appeal. Legislative intent and policy considerations support this position. Further, I would affirm the holding of the Court of Appeals that the trial court erred in dismissing the charge against the defendant on the basis of the double jeopardy provision. I would remand the case to the circuit court for a retrial of the charge of possession of over 650 grams of cocaine.

LEVIN, J., concurred with CAVANAGH, J.

Notes

Valentin testified that he rebuked defendant for laying the cocaine on the front seat between defendant and Edwards asking, “if the police pull us over, what are you going to do?” Valentin said that defendant answered “that‘s what I am here for” and explained that he would “jump out and run” if they were stopped by the police. See part III.

In fact, defense counsel said, “I have no problem with that.” See MCL 770.12; MSA 28.1109.

At this time, these crimes carried the same penalty of life imprisonment without the opportunity for parole. This Court, in , concluded that such a penalty for simple possession violated the constitutional prohibition against cruel or unusual punishment. Therefore, this crime is now a parolable offense. See ante, pp 51-52 (providing the express statutory language).

At the November 9, 1990, hearing on the motion for reconsideration, the trial court stated in pertinent part:

Two things then occurred as far as I am concerned. One, [the trial court] misled a jury when [the court] use[d] the term less serious offense and it is not a less serious offense. Had the Court said this is a lesser included offense, then [the prosecutor‘s] previous position, [which] I believe, is still his position that a lesser included is simply one that has less elements[,] would fly, would be meritorious. In this instance, the jury was not told that this was a lesser included. The jury was told this was a lesser, a less serious offense.

The second problem that I have is that the prosecution had two chances to convict the defendant on the very same facts of an offense carrying . . . the same penalty. They had two cracks at a conviction carrying mandatory life on one set of facts. The jury in this case found the defendant guilty of possession of over 650 grams of cocaine, which meant that they did not believe that the prosecution had proven beyond a reasonable doubt that the defendant possessed with intent to deliver cocaine in an amount over 650 grams. In effect if this Court had not instructed on possession of over 650 grams, the jury might well have come back with a verdict of not guilty.

See id. Appeals by the people of right and by leave in criminal cases are also limited by defendants’ protections against double jeopardy.

. Although I would not decide that constitutional issue in this case, I have reservations about the majority‘s analysis and holding on this issue. The majority holds that such an appeal does not violate defendant‘s right against double jeopardy, because he would not be subjected to a retrial; rather, the conviction at the first trial would be reinstated. The majority opines that at this point, the defendant would have already suffered the ordeal of a second trial. That being the case, there is now no possible remedy, because leaving unreviewed the trial court‘s determination that the first trial was unfair, would not undo the embarrassment, expense, and ordeal of the second trial.
My problem with that analysis is that it focuses on multiple prosecutions. However, in , the Supreme Court stated, quoting :
“The [double jeopardy] prohibition is not against being twice punished, but against being twice put in jeopardy. . . . The ‘twice put in jeopardy’ language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried.”
Thus, the focus is on the exposure to the strain, embarrassment, and expense of a criminal trial more than once for the same offense, regardless of the result of the trial. By reinstating the defendant‘s conviction from the first trial, the court would be revalidating a trial that previously had been invalidated when the judge set it aside sua sponte because of erroneous jury instructions. Although the defendant impliedly consented to the setting aside of the conviction from the first trial, he did not do so with the knowledge that the second trial might be needless if the first trial was determined to be fair. The propriety of the inclusion of an appeal of the new trial order in an appeal by right from the final judgment is an issue of first impression in Michigan. Thus, I do not believe there is support for the majority‘s position that the defendant “voluntarily endured the ordeal of a second trial, knowing that it might be needless if the first trial was determined to be fair.” Ante, p 70.
However, if the prosecution is allowed to appeal the new trial order other than interlocutorily, and if the court later determines that the new trial was erroneously granted, then that decision acts as a validation of the first trial and its resultant conviction. Double jeopardy protections are implicated because the defendant was already subjected to the second trial. In this case, the prosecution would be given two chances to convict the defendant: one, at the retrial, and two, by pursuing an appeal of the new trial order that could result in the reinstatement of the conviction. That is the scenario here. The prosecution failed to convict the defendant at the retrial and is now seeking to reinstate the original conviction.
What is important to recognize is that the defendant only consented to the retrial on the understanding that the conviction of the first trial was vacated and he would be starting with a clean slate at the retrial. If the prosecution is allowed to appeal the new trial order after the new trial occurs, the defendant‘s consent is vitiated. If the prosecution is allowed to take this belated appeal, the defendant‘s double jeopardy protections are violated because he is forced to live in a continuing state of anxiety and insecurity regarding his future freedom, a state that the clause seeks to prevent from occurring.
The majority posits that because the retrial has occurred “[t]here is now no possible remedy.” Ante, p 71. However, the appropriate remedy is to require the prosecution to appeal interlocutorily or not at all.

. I note that Judge BANDSTRA, who was a panel member of the Court of Appeals in this decision, was a cosponsor of 1988 PA 66 (which revised MCL 770.12; MSA 28.1109 to broaden the scope of appeals by the people) when he was a state representative. Thus, I find persuasive his interpretation that the Legislature did not intend the statute to allow the people to include an appeal from the interlocutory order in its appeal of right of the final judgment or final order entered in the case.

Id. at 660. Even where a party has a right to appeal from a final decision, this Court has limited the types of issues that may be raised in an appeal from a final decision in a criminal case. This Court has held that some issues must be raised in an interlocutory appeal, or not at all.
For example, in , this Court held that a violation of the twelve-day limit for holding a preliminary examination cannot be raised on an appeal from a final judgment, but must be raised in an interlocutory appeal before the preliminary examination, if at all, by applying for leave to appeal.
Similarly, in , the majority (CAVANAGH, J., dissenting), held that error in binding the defendant over for trial on the basis of inadmissible hearsay evidence did not require automatic reversal of the subsequent conviction because the defendant received a fair trial and was not otherwise prejudiced by the error. A majority of this Court remanded the case to the Court of Appeals for an analysis of whether the admission of hearsay evidence at the preliminary examination was harmless error. The majority stated:
[W]e believe the availability of an interlocutory appeal affords protection in those cases where an innocent accused should have been screened out by the preliminary examination process. [.]
Thus, although this Court analyzed the issue, it in effect held that it was too late for the defendant to raise that issue and demand the relief of automatic reversal. Rather than providing the appropriate relief for a defect in the preliminary examination process, this Court instead decided that a harmless error analysis should apply.
Additionally, in , the defendant sought review of the trial court‘s denial of his motion for directed verdict of acquittal in his appeal of right from the final judgment of conviction. Although the defendant had an appeal of right from the final judgment, the majority (CAVANAGH, J., joined the opinion of BRICKLEY, J., concurring in part and dissenting in part) held that the defendant‘s interests were adequately protected by the subsequent retrial of the case, and that the issue of the sufficiency of the evidence in the prior trial that ended in a mistrial did not need to be reviewed. . I note that three justices disagreed with that position and instead would have held that the defendant was entitled to appellate review of the sufficiency of the evidence claim before retrial. .
If, as the majority holds, an appeal from a final judgment allows the appellant to appeal prior interlocutory orders, these appellants should have been allowed to raise and receive a decision on the merits of those issues in their later appeals of right. The majority‘s attempts to distinguish these cases from the instant case are not persuasive. Rather, an appeal by the people from an order granting a new trial is the type that must be raised in an interlocutory appeal, or not at all.
As stated in the amicus curiae brief of the Criminal Defense Attorneys of Michigan:
[I]f the retrial in adequately protected Mr. Thompson‘s right to be free of a conviction on inadequate evidence, it is impossible to understand how the retrial here did not protect the prosecution‘s right to seek a conviction based on the evidence. [Id. at 6.]

. In fact, both the Court of Appeals and this Court denied the prosecutor‘s application for leave to appeal.

Before 1988, MCL 770.12; MSA 28.1109 provided in pertinent part:

(1) An appeal may be taken by and on behalf of the people of this state from a court of record in all criminal cases, in any of the following circumstances:

(a) From a decision or judgment quashing or setting aside an indictment, information, or other charging instrument, or a count thereof, where that decision or judgment is based upon the invalidity or construction of the statute upon which the indictment, information, or other charging instrument is founded.

(b) From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, information, or other charging instrument, where the decision is based upon the invalidity or construction of the statute upon which the indictment, information, or other charging instrument is founded.

(c) From a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy, or from another order of the court relative to admission of evidence or proceedings had or made before the defendant is put in jeopardy.

Contrary to what the majority posits in n 28, I do not ignore the fact that a third trial may not occur. However, a third trial would be required if, on remand, the Court of Appeals determines that the trial court did not abuse its discretion in granting a new trial on the basis of erroneous jury instructions. If the new trial grant was proper, the guilty verdict of the first trial could not be reinstated.
However, even if the Court of Appeals determines that the trial court abused its discretion in granting a new trial, the policy reasons still advance the dissenting position. What the majority ignores is that a retrial already has occurred in this case. If the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍conviction is reinstated, then the retrial is rendered meaningless. The ordeal, cost, and waste refer to that trial as well as to a possible third trial. Our proposed holding would prevent these costs of meaningless retrials from being realized in future cases.

See also (“The Court of Appeals had no authority to entertain the prosecution‘s appeal of the trial court‘s decision to grant a new trial since MCL 770.12; MSA 28.1109 does not permit such an appeal under the circumstances of the case“).

See , aff‘d .

The Senate Fiscal Agency‘s Analysis of House Bill 4719, completed on March 1, 1988, p 2, stated in its arguments in support of the bill:

The bill essentially would ensure that the people of the State had the same right to appeal that a defendant has, within thе limits of constitutional prohibitions against double jeopardy.

MCL 600.308; MSA 27A.308 provides in pertinent part:

(1) The court of appeals has jurisdiction on appeals from the following orders and judgments which shall be appealable as a matter of right:

(a) All final judgments from the circuit court, court of claims, and recorder‘s court, except judgments on ordinance violations in the traffic and ordinance division of recorder‘s court and final judgments and orders described in subsection (2).

*

*

*

(2) The court of appeals has jurisdiction on appeal from the following orders and judgments which shall be reviewable only upon application for leave to appeal granted by the court of appeals:

*

*

*

(e) Any other judgment or interlocutory order as determined by court rule.

Pursuant to subsection (2)(e) of § 308, MCR 7.203(B)(1) provides that a party may appeal by leave “a judgment or order of the circuit court, court of claims, and recorder‘s court which is not a final judgment appealable by right. . . .”

This Court has also provided for review by right in MCR 7.203(A), which provides in pertinent part:

(A) The court has jurisdiction of an appeal of right filed by an aggrieved party from the following:

(1) A final judgment or final order of the circuit court, court of claims, and recorder‘s court, except a judgment or order of the circuit court or recorder‘s court

(a) on appeal from any other court or tribunal;

(b) in a criminal case in which the conviction is based on a plea of guilty or nolo contendere;

(2) A judgment or order of a court or tribunal from which appeal of right to the Court of Appeals has been established by law or court rule[.]

See (revеrsing the Court of Appeals decision, and reinstating the defendant‘s conviction where the admission of testimony was not an abuse of discretion); (peremptory reversal of the defendant‘s conviction because of the admission of prejudicial hearsay evidence). Similarly, in a case filed before the passage of the Michigan Constitution ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in 1963, this Court expressly held that a party in a civil action, in an appeal of right from a final order, may seek review of an interlocutory order leading to that final order. See . See also 7A Callaghan‘s Michigan Pleading & Practice (2d ed), § 57.101, pp 554-555:

[T]he general rule is that where an appeal is taken from a final judgment, all previous orders connected with the judgment and affecting the merits are reviewable, if properly brought before the appellate court. Generally, therefore, interlocutory orders leading up to the final judgment are reviewable on an appeal from that final judgment.

Citing, among other cases,

Benedict v Thompson, 2 Doug 299, 306 (Mich, 1846) (“Without pretending to lay down any general rule on the subject, it may, I think, be safely affirmed, that where a final decree is the subject of appeal, this court will review all previous orders connected with such decree, and affecting the merits“). See also 2 Michigan Law & Practice, Appeal, § 301, р 179.

Stated another way, the Court of Appeals has held that all prior nonfinal rulings and orders are “incorporated” into the final judgment and are finalized for purposes of appeal. .

Id. at 657-658.

MCR 2.604 allowed the trial court to certify an otherwise nonfinal order as final to permit a party an immediate appeal by right. This Court eliminated this procedure when it amended MCR 2.604 on May 16, 1995.

Defendant argues that the Court of Appeals has held that a party may not seek the review of a previous order granting a new trial in appealing

In fact, the Court of Appeals denied the application because it was not persuaded of the “need for immediate appellate review.” Unpublished order, entered February 26, 1991 (Docket No. 135400). Moreover, this Court‘s denial stated that “we are not persuaded that the question presented should now be reviewed by this Court.” Each order suggests the possibility that the issue would be reviewable later.

See and , n 14 supra.

The dissent concludes that under MCL 770.12; MSA 28.1109 the people may only seek redress of a trial court‘s interlocutory decision by asking for leave to appeal under subsection 2. See post, pp 79-80. This restrictive interpretation of the statute, not required by its plain language, con-

See also (in order to obtain appellate review of a district court‘s interlocutory decision denying a defendant‘s motion to dismiss without prejudice for a procedural violation, a defendant must apply for leave before the trial begins).

Yet, this Court has allowed a defendant to challenge a trial court‘s interlocutory decision to grant a retrial after a mistrial caused by a prosecutor‘s intentional misconduct, where the defendant appealed by right his conviction secured from an error-free retrial. See .

In 1984, thе United States enacted PL 98-473, which, among other provisions, amended 18 USC 3731, providing the government the right to appeal a trial court‘s decision to grant a new trial after a verdict or judgment. . Consequently, the United States will not likely encounter this question again after the effective date of the legislation.

See also (“the Double Jeopardy Clause bars an appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into further proceedings devoted to the resolution of factual issues going to the elements of the offense charged“).

In examining a similar question as the one presented in , an apparent majority of states has concluded that merely interpreted the federal statute governing appeals, but did not announce a constitutional requirement under the Fifth Amendment‘s double jeopardy provision that a state must allow a defendant to bring an immediate appeal, before (re)trial, from a trial court‘s refusal to dismiss on double jeopardy grounds. See ; ; ; ; ; ; ; . Other states have held that recognized a constitutional right to an immediate appeal. See ; . We do not need to answer this question in resolving the present case.

In fact, because of our decision to affirm the Court of Appeals, see part III, defendant in this case must endure the ordeal of another trial only if he succeeds in claiming that his double jeopardy protection prevents us from reviewing the trial court‘s interlocutory decision. The dissent lists five “strong policy reasons” to deny the people the right to bring this appeal bеcause of the ordeal, cost, and waste associated with retrial. Post, pp 81-82. Yet, the dissent ignores the fact that an appeal by the people asking an appellate court to reinstate an original conviction will not result in new expenses or personal strain because, if the people prevail, there will be no new trial.

See also . We reiterate that we do not hold that a defendant would necessarily have a right under the Fifth Amendment, or under Michigan law, to have a double jeopardy claim heard immediately. See n 27.

The dissent claims that “the defendant only consented to the retrial on the understanding that the conviction of the first trial was vacated and he would be starting with a clean slate at the retrial” and that to allow the reinstatement of the first verdict would “vitiate[]” his consent. See post, p 79, n 5. However, as the dissent itself notes, the status of Michigan law was uncertain when defendant failed to ask the appellate courts to grant the people immediate review of the first trial‘s validity. In failing to act, he should have been aware that, according to the Fifth and Eleventh Circuits ( and ), the United States Constitution would allow the reinstatement of the first verdict even if the second trial resulted in an acquittal, and, consequently, that Michigan law might permit the same result if he were acquitted in his retrial. Therefore, the dissent cannot contend that defendant only consented to the second trial on the condition that the first trial‘s validity never be reviewed when he should have known that this trial‘s verdict might be reinstated if it was found to be fair.

The dissent argues that the people‘s appeal “force[s] [defendant] to live in a continuing state of anxiety and insecurity regarding his future freedom,” post, p 79, n 5, presumably because he fears that the first verdict will be reinstated. However, makes clear that it is the “exposure to double jeopardy” by a second trial that the clause seeks to prevent, not the anxiety created by the possible reinstatement on appeal of a verdict from a trial that has already been held. See .

Notably, in both and , the second trial resulting in acquittal was a bench trial rather than a jury trial.

On remand, the Court of Appeals may also consider the question that defendant raises on cross appeal: whether the trial court erred in giving the lesser included instructions where the included crime carried the same penalty. Also, the Court may consider defendant‘s argument that the prosecution has abandoned its appeal by failing to file a transcript of the jury instructions with the Court of Appeals in accordance with MCR 7.210(B)(1)(a).

Although defendant suggests that the verdict may have been the product of a compromise rather than leniency, he does not argue that he should be retried for the charges the jury could not agree on. See .

Simple possession is at least a “lesser included offense” when comparing only the elements of the crimes.

Defendant also argues in his cross appeal, that the trial court erred in instructing the jury in the first trial on the lesser included offense of simple possession. If there were an error, it would not justify the trial court‘s decision to dismiss on the basis of double jeopardy. The Court of Appeals may consider this argument regarding why the jury instructions were wrong on remand. See n 33.