People v. Cadle , 209 Mich. App. 467 ( 1995 )

209 Mich. App. 467 (1995) 531 N.W.2d 761

PEOPLE
v.
CADLE

Docket Nos. 180431, 180432, 180433.

Michigan Court of Appeals.

Submitted November 22, 1994, at Lansing. Decided March 21, 1995, at 9:25 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Carl Marlinga, Prosecuting Attorney, Robert John Berlin, Chief Appellate Attorney, and Eric J. Kaiser, Chief Trial Attorney, for the people.

State Appellate Defender (by Susan J. Smith), for Henry O. Cadle.

Michael J. Brady, for Richard B. Amo.

Martin J. Beres, for Raymond Valin.

Before: HOOD, P.J., and MURPHY and FITZGERALD, JJ.

ON REMAND

PER CURIAM.

This case is before us on remand from the Supreme Court. 447 Mich. 958 (1994). In a previous decision, People v Cadle, 204 Mich. App. 646; 516 NW2d 520 (1994), we reversed defendants' convictions, finding, inter alia, that the trial court erred in denying their motions for severance based on antagonistic defenses. In lieu of granting the prosecutor's application for leave to appeal, the Supreme Court remanded the matter for our reconsideration in light of the Court's decision in People v Hana, 447 Mich. 325; 524 NW2d 682 (1994). Upon reconsideration, we find that the trial court did not abuse its discretion in denying severance.

In Hana, our Supreme Court held that People v Hurst, 396 Mich. 1; 238 NW2d 6 (1976), relied upon in our prior opinion, has been erroneously applied by panels of this Court as mandating severance whenever antagonistic defenses are alleged. Instead, the Court held that

pursuant to MCL 768.5; MSA 28.1028, and MCR 6.121(D), the decision to sever or join defendants lies within the discretion of the trial court. Severance is mandated under MCR 6.121(C) only when a defendant provides the court with a supporting affidavit, or makes an offer of proof, that clearly, affirmatively, and fully demonstrates that his substantial rights will be prejudiced and that severance is the necessary means of rectifying the potential prejudice. [Hana, supra at 346.]

The Court pointed out that the defenses must be not only inconsistent, but also mutually exclusive or irreconcilable. This cannot be said of the defenses in the case at hand, which in many respects are quite similar to that involving Durid Hana.

We therefore conclude that the trial court did not abuse its discretion in refusing to grant defendants' motions for severance.

This does not totally change the result of our prior opinion, however. In light of the fact that the scope of an appeal on remand is limited by the remand order, law of the case prevents our reconsideration of our prior holding that the prosecutor's failure to produce the alleged informant was a violation of due process. 204 Mich. App. 650-651. See People v Jones, 394 Mich. 434; 231 NW2d 649 (1975).

Reversed in accordance with that part of our prior opinion. We do not retain jurisdiction.