People of Michigan v. Latausha Simmons ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
July 1, 2021
Plaintiff-Appellee,
v No. 349547
Macomb Circuit Court
LATAUSHA SIMMONS, LC No. 2018-000127-AR
Defendant-Appellant.
ON RECONSIDERATION
Before: BECKERING, P.J., and FORT HOOD and RIORDAN, JJ.
BECKERING, P.J. (dissenting).
At the heart of this appeal is whether double jeopardy bars defendant, Latausha Simmons,
from being retried in the district court after having been convicted by a jury, sentenced,
successfully had her conviction thrown out on appeal in the circuit court, and then having that
victory overturned by the circuit court due to a motion for reconsideration filed by the prosecution.
Contrary to my colleagues, I conclude that double jeopardy does not apply here, and the circuit
court did not err in remanding for a new trial. Consequently, I respectfully dissent.
I. BASIC FACTS AND PROCEDURAL HISTORY
As noted by the majority, defendant appeals as on leave granted the circuit court’s order
reversing her district court jury trial conviction for resisting or obstructing a police officer, MCL
750.81d(1), and remanding to the district court for a new trial. Defendant argues on appeal1 that
1
This Court denied defendant’s application for leave to appeal. People v Simmons, unpublished
order of the Court of Appeals, entered July 30, 2019 (Docket No. 349547). Defendant filed an
application for leave to appeal with the Michigan Supreme Court. On September 23, 2020, in lieu
of granting leave to appeal, the Supreme Court remanded the case to this Court for consideration
as on leave granted. People v Simmons, 939 NW2d 268 (Mich, 2020). The case is also on
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(1) the circuit court erred in concluding that the prosecution was not properly served with her claim
of appeal, (2) the circuit court had jurisdiction to enter an order of acquittal, (3) the circuit court
did not have jurisdiction to grant the prosecution’s untimely motion for reconsideration, and (4)
the circuit court erred in remanding the case for a new trial because double jeopardy barred retrial.
I agree that the circuit court had jurisdiction to enter the order of acquittal, but I disagree with
defendant’s other arguments.
Warren Police Officer Sean Sullivan testified at trial that on May 24, 2016, he observed
defendant exit a supermarket through a garage-like door that he believed was an employee-only
entrance. Defendant looked at Officer Sullivan and walked toward a nearby alley. She entered a
car, drove a few feet down the alley, then exited the car and peeked around the corner of a shipping
container or dumpster at Officer Sullivan. Finding her conduct suspicious, Officer Sullivan drove
toward defendant to investigate what she was doing.
As Officer Sullivan drove toward defendant, she got back into the car. Officer Sullivan
parked in front of her, but he did not block the entire alleyway. He approached defendant and
spoke to her through the driver’s side window, asking her for identification and why she was
parked in the alley. Defendant did not respond, and instead, she asked Officer Sullivan why he
was harassing her. Officer Sullivan returned to his car to investigate his suspicion that her car may
be stolen based on a crack he observed in the steering column. He determined that the car was
registered to a Latausha Simmons, and that she did not have any arrest warrants. Officer Sullivan
returned to defendant’s car, asked if she was Latausha Simmons, and advised her that she could
be on her way if she showed him her identification. Defendant did not respond or produce her
identification. Officer Sullivan requested backup, and Officers Robert Horlocker and Timothy
Sciullo arrived to assist. Officer Horlocker and Officer Sciullo each asked defendant for her
identification, and she did not respond. After explaining to her that she would be arrested for
resisting or obstructing their investigation and receiving no response, Officer Horlocker broke
defendant’s passenger side window and defendant was arrested and charged with resisting and
obstructing a police officer.
Prior to trial, defendant filed a motion to dismiss and for an evidentiary hearing concerning
the lawfulness of the officers’ conduct. Specifically, defendant argued that the charge had to be
dismissed because Officer Sullivan unlawfully stopped her and, as a result, her arrest was illegal.
The district court concluded that it was reasonable for Officer Sullivan to stop defendant because
her actions were suspicious and not “normal behavior.”
On the first day of trial, before the jury was empaneled, the parties discussed the
introduction of evidence regarding the lawfulness of the officers’ conduct and whether the jury
was to be instructed that the lawfulness of the officers’ conduct was an element of resisting or
obstructing a police officer. The district court ruled that it previously had determined that the
reconsideration, as this Court issued an initial opinion, but granted the prosecution’s motion for
reconsideration, resulting in our vacation of the earlier opinion by way of order. While my
colleagues have chosen to remain with their earlier analysis, I am persuaded by the arguments set
forth in the prosecution’s motion for reconsideration and the amicus curiae brief in support filed
by the Prosecuting Attorneys Association of Michigan.
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officers’ conduct was lawful, that no evidence could be presented at trial regarding the lawfulness
of the officers’ conduct or the legality of defendant’s arrest, and that the jury was not to be
instructed that the lawfulness of the officers’ conduct was a factual issue for it to determine. After
hearing the evidence, the jury found defendant guilty of resisting or obstructing a police officer.
The district court sentenced defendant to six months’ probation.
Acting in propria persona,2 defendant appealed her conviction to the circuit court. She
contended that the district court erred by concluding that Officer Sullivan’s conduct was lawful,
by precluding the parties from presenting evidence or making any arguments regarding the
lawfulness of the officers’ conduct, and by failing to instruct the jury that it was to determine
whether the officers’ conduct was lawful because it was an element of the offense. She also
asserted that defense counsel was ineffective for failing to present evidence regarding the
lawfulness of the officers’ conduct. Defendant requested that the circuit court grant her a new
trial. She later filed a supplemental brief, arguing that her trial counsel was also ineffective for
failing to thoroughly cross-examine Officer Sullivan and for failing to obtain and introduce the
police report concerning the incident. She requested that the case be dismissed.
At the hearing concerning the appeal, the circuit court noted that the prosecution did not
file a response and was not present. The circuit court concluded that the district court erred by
precluding the parties from presenting evidence regarding the lawfulness of the officers’ conduct
and by failing to instruct the jury that the lawfulness of the officers’ conduct was an element of
resisting or obstructing a police officer. The circuit court further ruled that defendant was entitled
to an acquittal, stating the following:
Even if the—somebody on behalf of the State of Michigan or the City of Warren
did appear, on the merits, you win. This matter is reversed and a judgment of
acquittal is entered in favor of the Defendant.
* * *
Congratulations and on behalf of the State of Michigan let me apologize to
the Defendant for going through what you did go through. I mean, even if the
instructions had been correct, I see no way that you could have been or should have
been convicted on this evidence.
The circuit court told defendant that she was “an innocent person” and stated, “Finally the record
caught up with that.” The corresponding order provided:
For the reasons stated on the record, Defendant’s motion is GRANTED,
Defendant’s conviction is reversed, and all arrest records and fingerprint cards shall
2
Defendant was represented by counsel at various points in the lower court proceedings, but she
also represented herself on other occasions.
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be returned to Defendant forthwith. This order is a final order resolving all claims
and closing the case.
The prosecution filed a motion for reconsideration, explaining that it was not served with
defendant’s claim of appeal or any other documents.3 The prosecution agreed that the district court
erred by not allowing the jury to determine the lawfulness of the officers’ conduct, by precluding
the parties from introducing evidence on or arguing about the lawfulness of the officers’ conduct,
and by failing to properly instruct the jury. The prosecution argued, however, that the proper
remedy for the district court’s error was to remand for a new trial, not acquittal. At a hearing held
regarding the motion for reconsideration, the circuit court reviewed the record and concluded that
the prosecution was never served with defendant’s claim of appeal or any of the other documents.
The court set aside its order of acquittal and ordered defendant to file a delayed application for
appeal.
Defendant filed a delayed application for appeal and properly served the prosecution. At
the hearing regarding defendant’s appeal, she argued that the proper remedy for the district court’s
error was acquittal because there was insufficient evidence presented to support her conviction and
double jeopardy barred retrial. On the other hand, the prosecution submitted that the issue was not
the sufficiency of the evidence, but rather that the district court concluded the officers’ conduct
was lawful, erroneously precluded the introduction of evidence and argument on an element of the
offense, and failed to properly instruct the jury. The prosecution further noted that if the circuit
court was to determine that there was insufficient evidence presented to support defendant’s
conviction, it would be making the same mistake as the district court because no evidence was
presented on the element and the issue was not decided by the jury. Accordingly, the prosecution
asserted that the proper remedy was remand for a new trial.
The circuit court issued a written opinion and order, concluding that the district court
erroneously removed the element of whether the officers acted lawfully from the jury. The circuit
court concluded that the proper remedy was to reverse and remand for a new trial because the jury
verdict was overturned on the basis of an instructional error. Accordingly, the circuit court
reversed defendant’s conviction and remanded to the district court for a new trial.
II. ANALYSIS
A. SERVICE AND CIRCUIT COURT JURISDICTION
Defendant first argues that the circuit court erred by concluding that she failed to serve her
claim of appeal and supporting documents on the prosecution. I disagree.
An appeal as of right to the circuit court is governed by MCR 7.104 and must be filed
within 21 days of the entry of a judgment. MCR 7.104(A)(1); See MCR 6.625(A) (directing that
an appeal from a misdemeanor case is governed by subchapter 7.100 of the court rules). “To vest
the circuit court with jurisdiction in an appeal of right, an appellant must file with the clerk of the
3
Additionally, the prosecution noted that the city of Warren was erroneously named as plaintiff
on defendant’s claim of appeal and on the circuit court’s docket sheet.
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circuit court within the time for taking an appeal: (1) the claim of appeal, and (2) the circuit court’s
appeal fees, unless the appellant is indigent.” MCR 7.104(B). The claim of appeal must “name
the parties in the same order as they appear in the trial court, with the added designation ‘appellant’
or ‘appellee.’ ” MCR 7.104(C)(b). With the claim of appeal, the appellant must file, in relevant
part, “proof that a copy of the claim of appeal and other documents required by this subrule were
served on all parties, the trial court or agency, and any other person or officer entitled by law to
notice of the appeal.” MCR 7.104(D)(9). Additionally, the court rules require that an appellant
“must file a brief conforming to MCR 7.212(C) and serve it on all other parties to the appeal.”
MCR 7.111(A)(1)(a).
On June 26, 2018, defendant timely filed a claim of appeal, a motion for a fee waiver, and
a request for a hearing in the circuit court. The claim of appeal erroneously named both “The State
of Michigan” and “The People of the City of Warren” as plaintiff, and only included the city of
Warren’s address. The proof of service on the claim of appeal was blank. The motion for a fee
waiver and request for a hearing only named the “City of Warren” as plaintiff.4
A review of the lower court record shows that the prosecution was never served with
defendant’s claim of appeal or other documents. Despite defendant’s claim that she served the
prosecution via first-class mail, I agree with the circuit court that the record is void of any evidence
supporting her claim. Additionally, this case is designated with the “AR” case code and was
subject to the 16th Circuit Court’s mandatory electronic filing program, which requires that all
court documents be electronically filed in lieu of traditional paper filings. Administrative Order
2010-6, 494 Mich lxvii (2010) (expanding the e-filing program to cover all cases with a “AR”
designation). Accordingly, the circuit court did not err in concluding that the prosecution was not
served with defendant’s claim of appeal or any documents filed thereafter.
At any rate, as both parties agree, defendant’s failure to properly serve her claim of appeal
on the prosecution did not affect the circuit court’s jurisdiction over the appeal. As stated earlier,
defendant filed in the circuit court a claim of appeal and a motion to waive fees. The circuit court
granted the motion to waive fees on July 9, 2018. Therefore, jurisdiction vested in the circuit court
when defendant filed her claim of appeal and her fees were waived. See MCR 7.104(B). This is
true regardless whether defendant properly served the prosecution because the service of process
provisions contained in the court rules are intended to satisfy due process requirements that parties
be notified of pending actions. See MCR 2.105(K)(1) (The service of process provisions “are
intended to satisfy the due process requirement that a defendant be informed of an action by the
best means available under the circumstances. These rules are not intended to limit or expand the
jurisdiction given the Michigan courts over a defendant.”) Therefore, defendant’s defective
service did not divest the circuit court of jurisdiction to enter an order related to her appeal.
4
The circuit court later determined that the city of Warren was not properly named as a party in
this case. Subsequent electronic filings submitted in the case were served on the attorney
representing the city of Warren, defendant’s appointed counsel, defendant, the court reporter, and
district court clerk. Defendant filed a brief on appeal in the circuit court. She attached two copies
of her claim of appeal, which indicated that the prosecution was served with the claim of appeal
via first-class mail.
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Next, defendant contends that the circuit court did not have jurisdiction to consider the
prosecution’s motion for reconsideration because it was not timely filed. I disagree.
A motion for reconsideration “must be served and filed not later than 21 days after entry
of an order deciding the motion.” MCR 2.119(F)(1); See MCR 7.110 (providing that “[m]otion
practice in the circuit court appeals is governed by MCR 2.119”). In this case, the circuit court
entered an order of acquittal on December 26, 2018. Thirteen days later, on January 10, 2019, the
prosecution filed a motion for reconsideration. The motion was entered into the register of actions
on January 18, 2019. This discrepancy in the date of filing versus the date that the motion was
entered into the register of actions was addressed by the circuit court. The circuit court concluded
that, while the register of actions reflected that the prosecution’s motion was filed on January 18,
2019, the prosecution’s motion was timely electronically filed on January 10, 2019. I agree
because “[r]egardless of the date a filing is accepted by the clerk of the court, the date of filing is
the date submitted.” MCR 1.109(G)(5)(b). Therefore, the circuit court properly concluded that
the prosecution’s motion was timely filed.
B. DOUBLE JEOPARDY
Defendant finally argues that double jeopardy bars retrial because the circuit court initially
concluded that insufficient evidence was presented to support her conviction and entered an order
of acquittal. I disagree.
“A double jeopardy challenge presents a question of law that we review de novo.” People
v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001). Likewise, claims of instructional error and
issues of law arising from jury instructions are reviewed de novo as a question of law. People v
Mitchell, 301 Mich App 282, 285-286; 835 NW2d 615 (2013).
“The United States and Michigan Constitutions prohibit placing a defendant twice in
jeopardy for a single offense.” People v Ackah-Essien, 311 Mich App 13, 31; 847 NW2d 172
(2015); US Const, Am V; Const 1963, art 1 § 15. The Double Jeopardy Clauses in the United
States and Michigan Constitutions are construed consistently with each other. People v Szalma,
487 Mich 708, 716; 790 NW2d 662 (2010). “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 Torres, 452 Mich 43, 63; 549 NW2d 540 (1996). Our Supreme Court explained that the
Double Jeopardy Clause provides the following protections: (1) protection “against a second
prosecution for the same offense after acquittal[;]” (2) protection “against a second prosecution
for the same offense after conviction[;]” and (3) protection “against multiple punishments for the
same offense.” Id. at 64 (quotation marks and citations omitted). “The interests underlying these
protections are quite similar. When a defendant has been once convicted and punished for a
particular crime, principles of fairness and finality require that he not be subjected to the possibility
of further punishment by being again tried or sentenced for the same offense.” United States v
Wilson, 420 US 332, 343; 95 S Ct 1013; 43 L Ed 2d 232 (1975). “By contrast, where there is no
threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not
offended.” Id. at 344.
Generally, the Double Jeopardy Clause does not prohibit the retrial of a defendant whose
conviction was set aside as the result of an error that occurred at trial. People v Setzler, 210 Mich
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App 138, 139-140; 533 NW2d 18 (1995). However, if a defendant’s conviction is reversed due to
insufficient evidence, “double jeopardy bars reprosecution where the elements of the subsequent
crime charged are identical to the elements of the original crime charged.” Id. at 140. Moreover,
the Double Jeopardy Clause bars retrial following a court-decreed mid-trial acquittal, even if the
acquittal is based upon an egregiously erroneous foundation. Evans v Michigan, 568 US 313, 318;
133 S Ct 1069; 185 L Ed 2d 124 (2013). In Evans, the trial court entered a midtrial directed verdict
of acquittal based upon its view that the prosecution failed to present sufficient evidence of a
particular element of the charged offense. Id., 568 US at 315. However, the “unproven ‘element’
was not actually” required for a conviction. Id. The United States Supreme Court held that the
midtrial acquittal constituted an acquittal on the merits even though it was based on the “erroneous
addition of a statutory element . . . .” Id. Nonetheless, and importantly to the instant case, the
Supreme Court noted that “[i]f a court grants a motion to acquit after the jury has convicted, there
is no double jeopardy barrier to an appeal by the government from the court’s acquittal, because
reversal would result in reinstatement of the jury verdict of guilty, not a new trial.” Id. at 330 n 9.
The majority opinion, in its footnote 6, recognizes these principles, citing Smith v Massachusetts,
543 US 462, 467; 125 S Ct 1129; 160 L Ed 2d 914 (2005) and People v Jones, 203 Mich App 74,
79 n 1; 512 NW2d 26 (1993).
In the instant case, the Double Jeopardy Clause does not prohibit the prosecution from
retrying defendant. There are two different rulings in this case that require differentiation: the
circuit court’s reversal of its own order of acquittal, and its subsequent order remanding for a new
trial based on evidentiary and instructional error. The majority appears to conflate these aspects
of the case. Defendant was convicted by a jury for resisting and obstructing a police officer in the
district court. She then appealed her conviction to the circuit court. The circuit court, acting as an
intermediate appellate court, entered an order of acquittal after apparently concluding that the jury
was improperly instructed and that the evidence was insufficient to support defendant’s conviction.
The prosecution moved for reconsideration of that order, arguing that it had not been served
defendant’s claim of appeal and that the proper remedy for instructional error was to remand for
retrial. After determining that defendant failed to serve the claim of appeal on the prosecution, the
circuit court vacated its order of acquittal. The prosecution was permitted to seek reconsideration
of the order of acquittal because the circuit court was sitting as an appellate court reviewing
defendant’s jury conviction. See Evans, 568 US at 330 n 9. Moreover, the circuit court had the
authority to reverse its prior order of acquittal on reconsideration. MCR 7.114(D); MCR 2.119(F).
See also People v Walters, 266 Mich App 341, 349-350; 700 NW2d 424 (2005) (the circuit court,
sitting as an appellate court, has the inherent ability to reconsider a judgment or order under MCR
2.119(F)). The acquittal had not yet become “final” because the prosecution could appeal to a
higher appellate court. See People v Oros, 502 Mich 229, 234; 917 NW2d 559 (2018) (overruling
this Court’s decision concluding that the evidence was insufficient to support a conviction for first-
degree premeditated murder and reinstating the defendant’s first-degree murder conviction).
Additionally, because defendant was convicted by a jury and the verdict was set aside by the circuit
court acting as an appellate court, double jeopardy did not preclude reinstatement of the jury
verdict. Evans, 568 US 330 n 9; Smith, 543 US 467.5 In sum, after the circuit court properly set
5
In its written opinion on defendant’s delayed application, the circuit court concluded that because
the lawfulness of the officers’ conduct was an element of the charged offense and the parties were
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aside its order of acquittal on appeal and ordered defendant to file a delayed application,
defendant’s conviction was logically reinstated until the delayed application was considered and
decided.
After defendant filed her delayed application to appeal, the circuit court ultimately agreed
with the parties that the district court erred by prohibiting evidence related to the lawfulness of the
officers’ actions. See People v Moreno, 491 Mich 38, 52; 814 NW2d 624 (2012) (stating that the
prosecution must establish that the officers’ actions were lawful in a case in which the defendant
is charged with resisting or obstructing a police officer). The circuit court then set aside
defendant’s conviction, and remanded the case to the district court for retrial based on the
evidentiary and instructional error. The Double Jeopardy clause, as previously stated, does not
prohibit the retrial of a defendant whose conviction was set aside as the result of an error that
occurred at trial. Setzler, 210 Mich App 139-140. Therefore, the circuit court’s remand for a new
trial was the proper remedy upon deciding defendant’s delayed application for leave to appeal.
To summarize, I respectfully suggest that the majority conflated two separate principles:
the circuit court appellate error in entering an order of acquittal, which was subsequently remedied
by the circuit court itself, and the circuit court remanding for a new trial. Because post-conviction
orders of acquittal are subject to reversal and reconsideration, reversal of the order of acquittal was
appropriate. And, because pre-trial legal errors entitle a defendant to a new trial, remand for a new
trial was also appropriate.
/s/ Jane M. Beckering
prohibited from presenting evidence in that regard, “if this court determined the actions of the
officers in this case were not lawful, this court would be committing the same error [as the district
court] in usurping the jury’s function.” See People v Kowalski, 489 Mich 48; 501; 803 NW2d 200
(2011) (“A criminal defendant has a constitutional right to have a jury determine his or her guilt
from its consideration of every essential element of the charged offense.”).
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