Michigan Supreme Court 

# Order
Lansing, Michigan

October 13, 2006 Clifford W. Taylor, Chief Justice 131001 Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellee, Justices

v SC: 131001 COA: 256439 Saginaw CC: 95-010303-FC GABRIEL FERRIS, Defendant-Appellant.

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On order of the Court, th e application for leave to a ppeal the February 28, 2006 judgment of the Court of Appeals is cons idered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

T AYLOR , C.J., concurs and states as follows:

I concur in the order denying leave to appeal. Even if the evidence was erroneously admitted under MRE 40 4(b) and MRE 403, defendant has not met his burden of showing that the error was outcome determin ative in light of the other evidence against him. People v Lukity , 460 Mich 484, 495-496 (1999).

C AVANAGH , J., would grant leave to appeal.

K ELLY , J., dissents and states as follows:

I would grant leave to appeal . It appears to me that the trial court and the Court of Appeals refused to apply the law of the cas e doctrine. This Cour t should g rant leave to appeal to clarify this importa nt doctrine for the lower courts.

As a general rule, an appellate court’s final determination on a matter of law binds both the lower court on remand and the a ppellate courts on subsequent appeals of the case. Grievance Administrator v Lopatin , 462 Mich 235, 259-260 (2000). The law of the case doctrine is intend ed to promote efficiency, comity , and finality in the law. Locricchio v Evening News Ass’n , 438 Mich 84, 109 (1991). The doctrine is also a2

recognition that an appellate co urt lacks jurisdiction to modify its own judgment in a particular case except on rehearing. Johnson v White , 430 Mich 47, 53 (1988). This Court has recognized its importan ce for well over 100 years. See Pierce v Underwood

, 112 Mich 186 (1897); Mynning v Detroit, L & N R Co , 67 Mich 677 (1888).

But, of course, there are excep tions to the doctrine, as there are to most general rules. If a case involves an individual’s cons titutional rights, the “doctrine must yield to a competing doctrine: the requirement of independent review of constitutional facts.” Locricchio , 438 Mich 109-110. The Court of Appeals has also recognized an exception for instances where there is an in tervening change in the law. Freeman v DEC Int’l

, Inc, 212 Mich App 34, 38 (1995). 1 It is the latter exception that the Court of Appeals applied in this case. But the ex ception was inapplicable.

A jury convicted defendant of first-degree felony murder. On appeal, the Court of Appeals reversed the co nviction and remanded the ma tter for a new trial. People v Ferris , unpublished opinion per curi am of the Court of Appeal s, issued August 6, 1999 (Docket No. 193744). It found that the tria l court improperly admitted evidence at trial of defendant’s prior abuse of his former s pouse. The Court of Appeals reached this conclusion for two reasons. First, it found the evidence inadmissible under MRE 404(b)(1) as interpreted by this Court in People v VanderVliet , 444 Mich 52 (1993), and People v Golochowicz , 413 Mich 298 (1982). Ferris
, supra, slip op pp 4-5. Second, it concluded that, even if the evidence were ad missible under MRE 4 04(b)(1), it would be inadmissible under MRE 403. The Court of Appeals found that its probative value substantially outweighed th e unfair prejudice it caused. Id ., p 5.

On remand, the second trial resulted in a mistrial. At th e third trial, the prosecution sought and was permitted to use the same pr ior-bad-acts evidence that the Court of Appeals had rejected. The third jury convicted d efendant of first-degree felony murder. On appeal, defenda nt argued that the law of the case barred the bad-acts evidence. A second Court of Appeals panel fo und that this Court’ s intervening decision in People v Sabin ( After Remand ), 463 Mich 43 (2000), su fficiently changed the law

1 I would note that there is conflicting law on whether this exception to the law of the case doctrine is properly reco gnized in Michigan. See People v Russell , 149 Mich App 110, 117-118 (1985) . There is also a strong argument that this exception contradicts the often repeated rule that the law of the cas e doctrine applies regardless of the correctness of the prior determination. Driver v Hanley ( After Remand ), 226 Mich App 558, 565 (1997); Reeves v Cincinnati, Inc ( After Remand ), 208 Mich App 556, 559 (1995); Muilenberg v Upjohn Co , 169 Mich App 636, 641 (1988); see also Damon v DeBar , 94 Mich 594 (1893). The conflict presents yet a nother reason for this Court to grant leave to appeal in this case. The bench, the bar, a nd the people of Michigan deserve clarity on the proper exceptions to the fundamental doctrine of the law of the case.3

regarding MRE 404(b) to make the law of the case doctrine no longer controlling. The Court concluded:

In this Court’s previous opin ion, the majority analyzed the admissibility of defendant's ex-wife’s other acts testimon y under the test stated in VanderVliet

, supra , but did not have the benefit of the clarifications provided by Sabin . We agree with the trial court that Sabin represented a significant in tervening development of the law applicable to MRE 404(b), which removed this issue from the application of the law of the case doctrine. Therefore, the tria l court could properly reconsider the admissibility of the ot her acts evidence. [ People v Ferris , unpublished opinion per curium of the Court of Appeals, issued Fe bruary 28, 2006 (Docket No. 256439), slip op p 8.]

The flaws in this reasoning are glaring. First, a mere “clarification” of existing law has never been held sufficient to disregard the law of the case. Sabin did not overrule VanderVliet . Far from it, Sabin relied and built on that decision. Sabin is merely an extension of VanderVliet . If a clarification of th e law constitutes sufficient grounds to disregard the law of the case doc trine, then that well-accepted doctrine is rendered a shadow of its former self.

Second, and most importantly, the sec ond Court of Appeals panel failed to address the first panel’s ruling regarding MR E 403. The first panel specifically found that the evidence was inad missible under MRE 403 reg ardless of whether it was admissible under MRE 404(b). The second pane l paid no attention to this ruling. In fact, it failed even to di scuss the law of the case as it related to MRE 403. Sabin assuredly did not change MRE 403. The law on this evidentiary rule remained the same. This fact mandates that the law of the case doctrine be followed. Lopatin , 462 Mich 259-260.

Chief Justice Taylor claims that the lo wer courts’ disregard for the law of the case doctrine was harmless. I cannot agree. The only other eviden ce against defendant was circumstantial at best and fa r from substantial. Adding to this is the fact that the inadmissible prior-bad-acts ev idence was overwhelmingly di stracting. It must be remembered that the first Court of Appeal s panel found that th e admission of that evidence created substantial prejudice. This Court has now inexplicably transformed this substantial prejudice into harmless error.

Moreover, it is not clear that a harmless err or analysis should be applied to an issue governed by the law of th e case. This Court has specifi cally stated that the law of the case doctrine removes the juri sdiction of the lower courts to readdress the issue. Johnson , 430 Mich 53. Hence, in this case, if the trial court and the Court of Appeals both lacked jurisdiction to allow the admission of the evidence, its admission is arguably_______________________________________ __ 4

structural error. Structural errors require automatic reversal and canno t be subjected to a harmless error analysis. People v Duncan , 462 Mich 47, 51 (2000). But I would note that some courts have applie d a harmless error analysis to a law of the case issue. See United States v Jiminez-Lopez , 437 F2d 791 (C A 9, 1971), and State v Bradford

, ___Ohio App 3d _ __; 2005 WL 1009821 (2005), lv pending 106 Ohio St 3d 1532 (2006). The uncertainty about whether a harmless error analysis may be applied to failures to follow the law of th e case is yet another reason for this Court to grant leave to appeal.

In its silence, the majority of this Cour t condones the error of the second Court of Appeals panel. I call on it to explain what ju stifies ignoring the law of the case in this matter. Two significant legal questions exis t: (1) what degree of change in the law suffices to permit dis regarding the law of the case doctrin e and (2) can a failure to apply the doctrine be a harmless error. This Court should grant l eave to address these problems. I must dissen t from the majority’s deci sion not to do so.

t1010 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

October 13, 2006
Clerk