People v. Wolfe , 156 Mich. App. 225 ( 1986 )

156 Mich. App. 225 (1986) 401 N.W.2d 283

PEOPLE
v.
WOLFE

Docket No. 80869.

Michigan Court of Appeals.

Decided October 2, 1986.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.

Robert L. Beardslee, for defendant on appeal.

Before: ALLEN, P.J., and MacKENZIE and J.P. SWALLOW,^[*] JJ.

PER CURIAM.

Defendant appeals by leave granted from an order of the trial court denying his delayed motion to reinstate lesser charges. We affirm.

Defendant and his two codefendants, David Ovegian and Augustino Conte, were charged with first-degree murder, MCL 750.316; MSA 28.548, in the 1977 death of Barbara Lundsford. They were jointly tried before separate juries. On the morning of October 24, 1978, after the juries were selected, defendant and Conte joined in Ovegian's motion to reduce the first-degree murder charges to second-degree murder because first-degree murder had not been established at the preliminary examination. The trial court granted the motion, reduced the charges to second-degree murder, and denied the prosecutor's motion for a stay of proceedings. While the prosecutor's office immediately commenced an appeal to this Court, the juries for each defendant were sworn and the prosecutor made his opening statement. This closed trial proceedings for October 24. Proceedings were scheduled to resume on October 26, 1978.

By order dated October 26, 1978, this Court reversed the trial court's ruling and reinstated charges of first-degree murder against the three defendants. All three applied for leave to appeal to the Supreme Court, which denied leave by order of November 3, 1978, and subsequently denied rehearing. Trial resumed January 22, 1979.

Defendant and his two codefendants were convicted of first-degree murder. Defendant appealed his conviction as of right on double jeopardy grounds. This Court affirmed. People v Wolfe, 110 Mich App 606; 313 NW2d 350 (1981) (Judge MacKENZIE dissenting). Both codefendants' convictions were also affirmed. People v Ovegian, unpublished opinion per curiam of the Court of Appeals, decided March 18, 1981 (Docket No. 44542), lv den 412 Mich. 887 (1981), and People v Conte, 104 Mich. App. 73; 304 NW2d 485 (1981), aff'd 421 Mich. 704 (1984).

On November 3, 1983, defendant filed in the circuit court a delayed motion to reinstate lesser charges, apparently in an attempt to have his conviction reduced to second-degree murder and to be resentenced. The basis of the motion was that this Court lacked the jurisdiction to hear the prosecutor's 1978 interlocutory appeal. The trial court denied the motion on February 8, 1984.

Defendant raises two issues on appeal. First, as in the trial court, he asserts that this Court lacked jurisdiction to hear the prosecutor's interlocutory appeal and order the reinstatement of the first-degree murder charge against him. Second, defendant for the first time claims error in certain jury instructions. Absent a claim of appellate ineffective assistance of counsel, a defendant may not raise nonjurisdictional trial-related matters on a second appeal. People v Pauli, 138 Mich. App. 530, 533-534; 361 NW2d 359 (1984), lv den 422 Mich. 930 (1985). Having made no such claim, defendant's second issue is therefore not properly before us. We proceed then to the merits of defendant's jurisdictional argument.

At the time of the prosecutor's interlocutory appeal, the relevant portion of the statute governing such appeals, MCL 770.12(1)(c); MSA 28.1109(1)(c), provided:

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 instances:

* * *

(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.

The threshold question in determining whether there was a proper prosecutorial appeal in this case is whether the statute requires that the order appealed from be entered before defendant is put in jeopardy, or whether the appeal must be taken before the defendant is put in jeopardy. We read the statute to provide that the time of the order, and not the time of the appeal, controls. The cardinal rule of statutory construction is to ascertain and give effect to the Legislature's intent. Melia v Employment Security Comm, 346 Mich. 544, 562; 78 NW2d 273 (1956). In reenacting the above statute, the Legislature intended to limit the people's right to appeal, People v Cooke, 419 Mich. 420, 430; 355 NW2d 88 (1984), not to make that right wholly vulnerable to defeat by trial courts. Were we to read the statute to require that the time of the appeal controls the right to take an interlocutory appeal, trial courts would be absolutely empowered to preclude legitimately sought interlocutory appeals simply by denying a stay following the disputed order and immediately swearing the jury.

We must next decide whether, at the time the trial court entered the order reducing the charges, defendant was in jeopardy. In a jury trial, jeopardy attaches when the jury is sworn. People v Harvey, 121 Mich. App. 681; 329 NW2d 456 (1982). Since the trial transcript before us clearly indicates that the jury was not sworn until after the charges were reduced, it is apparent that defendant was not in jeopardy at the time of the order. The fact that jeopardy had been stipulated to prior to the court's ruling does not alter this conclusion. It has long been recognized that parties may not stipulate to a question of law which is contrary to the actual state of the law, let alone stipulate conclusively. Greaves v Greaves, 148 Mich. App. 643, 647; 384 NW2d 830 (1986), and cases cited therein. Accordingly, we conclude that this Court had jurisdiction to entertain the prosecution's appeal.

We note that even if there had been no appeal available in this case, this Court could have treated the prosecution's appeal as a complaint for superintending control to cause the first-degree murder count to be reinstated. See, e.g., Wayne Co Prosecutor v Recorder's Court Judge, 151 Mich. App. 550; 391 NW2d 407 (1986); People v Wilkins, 121 Mich. App. 813; 329 NW2d 500 (1982). It is also convincing to note that, when one of defendant's codefendants raised an identical issue on appeal, this Court, although admittedly before People v Cooke, supra, was issued, found no merit. People v Conte, supra. We agree with the people that the Supreme Court's denial of relief in Conte on this precise issue, even in the face of the Supreme Court's release of Cooke on the same date, is compelling.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.