PEOPLE OF MI V EDWARD ARTHUR HART
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 8, 2010
Plaintiff-Appellee,
v
No. 288216
Wayne Circuit Court
LC No. 07-007134-FC
EDWARD ARTHUR HART,
Defendant-Appellant.
Before: GLEICHER, P.J., and FITZGERALD and WILDER, JJ.
PER CURIAM.
Defendant appeals as of right his conviction on two counts of child sexually abusive
activity, MCL 750.145c(2), and one count of using a computer to commit possession of child
sexually abusive material, MCL 752.797(3)(d), following a jury trial in Wayne Circuit Court.
We affirm.
Defendant argues that this Court erred when it reversed the lower court’s suppression of
evidence in its January 24, 2008 order, and that upon de novo review, the evidence should have
been suppressed. Defendant argues that the suppression of defendant’s computer and two disks
that contained evidence of child pornography was proper because the evidence was seized in
violation of the Fourth Amendment. Defendant further argues that the doctrine of the law of the
case should not apply because applying the doctrine would deprive him of an independent review
of his constitutional claim. We disagree.
This Court reviews de novo “whether the law of the case doctrine applies.” Manske v
Dep’t of Treasury, 282 Mich App 464, 467; 766 NW2d 300 (2009). The law of the case doctrine
“holds that a ruling by an appellate court on a particular issue binds the appellate court and all
lower tribunals with respect to that issue.” Sinicropi v Mazurek, 279 Mich App 455, 465; 760
NW2d 520 (2008). “[A] question of law decided by an appellate court will not be decided
differently on remand or in a subsequent appeal in the same case.” Id. The law of the case
applies to issues actually decided either implicitly or explicitly. Grievance Adm’r v Lopatin, 462
Mich 235, 260; 612 NW2d 120 (2000). If a defendant has an objection to the decision of the
appellate court, “his redress is an application for rehearing to the deciding court or an appeal to a
still higher tribunal.” People v Whisenant, 384 Mich 693, 702; 187 NW2d 229 (1971). The law
of the case “need not be applied to create an injustice or where a prior decision is clearly
erroneous.” People v Wells, 103 Mich App 455, 463; 303 NW2d 226 (1981). “Two exceptions
to the doctrine exist: (1) when the decision would preclude the independent review of
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constitutional facts and (2) when there has been an intervening change of law.” Webb v Smith,
224 Mich App 203, 209; 568 NW2d 378 (1997), citing MS Dev, Inc v Auto Plaza of Woodhaven
(After Remand), 220 Mich App 540, 548; 560 NW2d 62 (1996), rev’d on other grounds 456
Mich 935 (1998).
The law of the case doctrine applies. This Court explicitly ruled on the validity of the
search and seizure of the evidence and reversed the trial court’s order suppressing the evidence.
People v Edward Hart, unpublished order of the Court of Appeals, entered January 24, 2008
(Docket No. 281813). Defendant’s avenue of redress from that order was to apply for rehearing
or appeal to the Michigan Supreme Court. Whisenant, 384 Mich at 702. Defendant did neither.
Rather, defendant now seeks to have this Court reconsider its own ruling on the grounds that to
apply the law of the case would deny defendant independent review of the constitutional issue.
This is not the case. The constitutional issue and facts defendant seeks to have reviewed are the
same as this Court reviewed in issuing the January 24, 2008 order. Defendant does not argue
that this Court previously failed to consider relevant facts relating to the search and seizure or
that the facts this Court considered have changed. Also, there has been no intervening change in
the law. Therefore, this Court is bound by its January 24, 2008 order and will not revisit the
decision regarding the admissibility of the challenged evidence.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Kurtis T. Wilder
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