Double jeopardy; Whether the circuit court found that the prosecution had failed to put forward sufficient evidence that defendant’s arrest was lawful; Distinguishing People v Lynn & People v Reed

On remand from the Michigan Supreme Court, the court held that “the circuit court, on reconsideration, did not find that the prosecution had failed to put forward sufficient evidence that defendant’s arrest was unlawful.” Thus, it affirmed the circuit court and remanded to the district court. The issue was “whether the circuit court found that the prosecution had failed to put forward sufficient evidence that the defendant’s arrest was lawful.” The court held that “the circuit court did not resolve the lawfulness element of the charged offense. In its opinion and order, the circuit court stated that a new trial was warranted ‘[b]ecause the trial judge took that necessary element away from the jury.’ The circuit court added that the verdict must be ‘overturned because of instructional error’ and that the district court ‘usurped the jury’s fact-finding function.’” It cited Lynn and Reed. “Neither of those cases involved an acquittal, legally insufficient evidence, or otherwise implicated double jeopardy. Importantly, the circuit court expressly declined to ‘determine[] that the actions of the officers in this case were not lawful.’” Thus, because the circuit court concluded that “a new trial was warranted because of instructional error, not legally insufficient evidence, double jeopardy does not bar retrial.” It was true “the circuit court noted near the end of its opinion and order that ‘[t]he insufficiency of the evidence on the element of proving that the officers were in the lawful performance of their duties arises from the error of the court and not from any wrongdoing on the part of the prosecution.’” While this statement explicitly referenced the “insufficiency of the evidence,” it was “clear from context that the circuit court used that phrase only to respond to defendant’s position that the case should be dismissed and not to convey that the circuit court evaluated the prosecution’s evidence on the challenged element and found it wanting. Again, the circuit court expressly declined to ‘determine[] that the actions of the officers in this case were not lawful.’” For these reasons, the court determined that “the circuit court did not find that the prosecution had failed to put forward sufficient evidence that defendant’s arrest was lawful. Instead, the circuit court merely determined that the lawfulness element of the offense was improperly removed from the jury’s consideration through instructional error. Consequently, because the opinion and order was not an ‘acquittal’ for the purposes of double jeopardy,” a retrial was not barred on that basis.