Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

June 28, 2010 

Rehearing No. 563 

1 December 8 

136648 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v SC: 136648 

 COA: 277012 

Wayne CC: 06-013878-01 

EDWIN DEWAYNE RICHMOND, 

Defendant-Appellant. 

______________________________________ 

On order of the Court, the prosecution’s motion for rehearing of this Court’s 

opinion, 486 Mich 29 (2010), is GRANTED in part. We grant the prosecution’s request 

for clarification about how it may proceed against defendant in light of this Court’s 

decision. 

The prosecution may refile the charges against defendant and, if necessary, file an 

interlocutory appeal to challenge the underlying suppression ruling. As the dissent in 

Richmond explained, the circuit court’s suppression ruling is subject to correction 

because of the intervening change in the law occasioned by our decision in People v 

Keller, 479 Mich 467 (2007). Slip op at 3-4. See also Freeman v DEC Int'l, Inc, 212 

Mich App 34, 38 (1995) (exception to law of the case doctrine); People v Johnson, 191 

Mich App 222, 225 (1991) (exception to collateral estoppel doctrine). This Court’s 

opinion vacates the Court of Appeals’ decision, which corrected the circuit court’s ruling 

in light of Keller, on jurisdictional grounds, not on the merits. 

The prosecutor’s original decision to dismiss the case to seek appellate review 

was, at most, a procedural misstep that did not reach the merits of her case. Moreover, 

we note that the prosecutor has non-frivolous arguments such that she can appropriately 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

June 28, 2010 

 

2

seek to reinstate her case. The comments to MRPC 3.1 define “frivolous” as “an action 

taken primarily for the purpose of harassing or maliciously injuring a person.” In light of 

the intervening change in the law in Keller, in view of the fact that the prosecutor has 

received a unanimous Court of Appeals decision in her favor, and in view of the 

clarifying nature of the instant decision, we believe that reasonable arguments remain 

available to the prosecutor to explain why reinstatement of charges under these 

circumstances is appropriate. 

 In all other respects, the motion for rehearing is DENIED. 

 CORRIGAN, J. (concurring in part and dissenting in part). 

 I would grant the prosecution’s motion for rehearing, and upon rehearing, would 

affirm for the reasons stated in my dissenting opinion in People v Richmond, 486 Mich 

29, 42 (2010). As the prosecutor suggests in her motion for rehearing, the majority 

opinion in Richmond creates an absurd situation: a prosecutor may accept a dismissal of 

charges but may not move for such a dismissal without rendering the case “moot.” When 

a prosecutor maintains legally cognizable and live interests that can be vindicated only 

through appellate review, whether a claim is “moot” does not arbitrarily turn on whether 

the prosecutor, rather than the defendant or the trial court, moves to dismiss the case. 

 I concur in the Court’s order of clarification, however, because I agree that the 

prosecution may proceed in the manner explained in the order. The prosecutor clearly 

has a non-frivolous case that she rightfully wishes to pursue. Thus, where double 

jeopardy grounds do not bar it, this order preserves a prosecutor’s statutory right of 

appeal and ensures that the administration of justice will not be forever thwarted by the 

rule created in Richmond. 

 KELLY, C.J. and CAVANAGH, JJ., would deny rehearing.