People v. Lett

644 N.W.2d 743, 466 Mich. 206, 2002 Mich. LEXIS 1038

Opinions

Young, J.

We granted leave to appeal in this case to consider whether defendant is entitled to the reversal of his convictions on the ground that he was retried, following the declaration of a mistrial, in violation of his constitutional right to be free from double jeopardy. We conclude that the trial court did not abuse its discretion in declaring a mistrial and in dismissing the jury where the jury foreperson indicated that the jury members were not going to reach a unanimous verdict and defendant did not object to the declaration of mistrial. We additionally conclude that defendant’s retrial, following the proper declaration of a mistrial, did not violate the constitutional protection against successive prosecutions. Accordingly, we reverse the decision of the Court of Appeals and remand this matter to that Court for consideration of the additional issue that was raised by defendant, but not decided.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 29, 1996, Adesoji Latona, a taxi driver, was fatally shot at a Detroit liquor store. Latona was apparently confronted by a group of men, including defendant, as he entered the liquor store. One of the men, Charles Jones, accused Latona of throwing him out of Latona’s cab, and an argument ensued inside the store. Latona’s girlfriend testified that she saw defendant draw a gun, after which she heard two gunshots. In a statement given to police following the incident, defendant admitted that he was at the party store at the time of the shooting and that he and Jones had fought with Latona inside the store. Defendant further stated that he had retrieved a gun from another friend in the parking lot, and that he went back inside and fired the gun into the air before running back outside. Latona died from two gunshot wounds, one to the head and one to the chest.

Defendant was charged with first-degree murder, MCL 750.316, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant’s first trial, which took place in June 1997 before Detroit Recorder’s Court Judge Helen E. Brown, consumed—from jury selection to closing statements and jury instructions—a total of eight and one-half hours spread out over six days. After approximately four or five hours of deliberation,¹ the jury sent Judge Brown a note which stated: “What if we can’t agree? [M]istrial? [R]etriai? [W]hat?”² Upon receiving the note, Judge Brown called the jury into the courtroom and, with the assistant prosecuting attorney and defense counsel present,³ engaged in the following exchange with the jury foreperson:

The Court: I received your note asking me what if you can’t agree? And I have to conclude from that that that is your situation at this time. So, I’d like to ask the foreperson to identify themselves [sic], please?

Foreperson: [Identified herself.]

The Court: Okay, thank you. All right. I need to ask you if the jury is deadlocked; in other words, is there a disagreement as to the verdict?

Foreperson: Yes, there is.

The Court: All right. Do you believe that it is hopelessly deadlocked?

Foreperson: The majority of us don’t believe that. . .

The Court: (Interposing) Don’t say what you’re going to say, okay?

Foreperson: Oh, I’m sorry.

The Court: I don’t want to know what your verdict might be, or how the split is, or any of that. Thank you. Okay? Are you going to reach a unanimous verdict, or not?

Foreperson: (No response)

The Court: Yes or no?

Foreperson: No, Judge.

The Court: All right. I hereby declare a mistrial. The jury is dismissed.

In November 1997, defendant was retried before a different judge on charges of first-degree murder and felony-firearm. The second jury returned a verdict of guilty of the lesser offense of second-degree murder, MCL 750.317, and guilty as charged of felony-firearm.⁴

In his appeal before the Court of Appeals, defendant, through appellate counsel, raised for the first time the claim that he was retried in violation of the Double Jeopardy Clause of the federal and state constitutions. Defendant argued that Judge Brown had sua sponte terminated the first trial without manifest necessity to do so and without his consent, and that retrial therefore violated his constitutional right to be free from successive prosecutions.

The Court of Appeals panel agreed and reversed defendant’s convictions. The panel opined that defendant had not consented to the declaration of the mistrial, citing People v Johnson, 396 Mich 424, 432; 240 NW2d 729 (1976), repudiated on other grounds in People v New, 427 Mich 482; 398 NW2d 358 (1986), for the proposition that a defendant’s mere silence or failure to object to the jury’s discharge is not “consent.” The panel, turning to defendant’s claim that the declaration of a mistrial was not manifestly necessary, concluded that the trial court’s decision to discharge the jury was not reasonable because it had failed to consider alternatives or to make findings on the record:

Recognizing that the doctrine of double jeopardy does not preclude retrial after the discharge of a jury because of inability to agree, our Supreme Court has stated that the inquiry “turns upon [the] determination whether the trial judge was entitled to conclude that the jury in fact was unable to [agree].” People v Duncan, 373 Mich 650, 660-661; 130 NW2d 385 (1964). This has led to the accepted rule that a trial court must consider reasonable alternatives before sua sponte declaring a mistrial and the court should make explicit findings, after a hearing on the record, that no reasonable alternative exists. People v Hicks, 447 Mich 819, 841 (Griffin, J.), 847 (Cavanagh, C.J.); 528 NW2d 136 (1994); People v Benton, 402 Mich 47, 61; 260 NW2d 77 (1977) (Levin, J.); People v Rutherford, 208 Mich App 198, 202; 526 NW2d 620 (1994); People, v Little, 180 Mich App 19, 23-24; 446 NW2d 566 (1989); People v Dry Land Marina, 175 Mich App 322, 327; 437 NW2d 391 (1989).

hi the present case, we must determine whether the trial court reasonably concluded that the jury was deadlocked. Based on the record before us, we are forced to conclude that the court did not reasonably declare a mistrial. The trial court declared a mistrial without a hearing or discussion of any alternatives. No deadlock jury instructions were given much less even considered by the trial court. See CJI2d 3.12. The jury had deliberated only four or five hours in a capital murder case following four days of trial testimony. There was clearly a reasonable alternative in this case, that is, to give the jury a deadlock jury instruction and send it back for further deliberation. See, e.g., Hicks, supra, pp 843-844; Benton, supra, pp 61-62; Rutherford, supra, p 203; Little, supra, pp 27-30.

Because a reasonable alternative existed in this case, an alternative never given consideration by the trial court, the trial court did not engage in a scrupulous exercise of discretion in sua sponte declaring a mistrial. Hicks, supra, p 829, citing United States v Jorn, 400 US 470, 485; 91 S Ct 547; 27 L Ed 2d 543 (1971). Put another way, it was not manifestly necessary for the trial court to have declared a mistrial given the shortness of the jury’s deliberation and the court’s failure to give a deadlock jury instruction. In fact, the trial court never even found on the record that the jury was genuinely deadlocked. Given these circumstances, we are compelled to conclude that retrial violated defendant’s rights against double jeopardy as guaranteed by the United States and Michigan Constitutions. Therefore, defendant’s convictions are reversed. [Slip op, pp 4-5.]

We granted the prosecution’s application for leave to appeal.⁵ Because we conclude that manifest necessity existed to support the mistrial declaration, we reverse.

n. STANDARD OF REVIEW

A constitutional double jeopardy challenge presents a question of law that we review de novo. People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001). Necessarily intertwined with the constitutional issue in this case is the threshold issue whether the trial court properly declared a mistrial. The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is accorded great deference by a reviewing court. Arizona v Washington, 434 US 497, 510; 98 S Ct 824; 54 L Ed 2d 717 (1978).⁶ “At most, . . . the inquiry . . . turns upon determination whether the trial judge was entitled to conclude that the jury in fact was unable to reach a verdict.” Duncan, supra, 373 Mich 661 (emphasis supplied).

III. ANALYSIS

A. DOUBLE JEOPARDY IMPLICATIONS OF RETRIAL FOLLOWING MISTRIAL

Under both the Double Jeopardy Clause of the Michigan Constitution⁷ and its federal counterpart,⁸ an accused may not be “twice put in jeopardy” for the same offense. The Double Jeopardy Clause originated from the common-law notion that a person who has been convicted, acquitted, or pardoned should not be retried for the same offense. See United States v Scott, 437 US 82, 87; 98 S Ct 2187; 57 L Ed 2d 65 (1978); Crist v Bretz, 437 US 28, 33; 98 S Ct 2156; 57 L Ed 2d 24 (1978). The constitutional prohibition against multiple prosecutions arises from the concern that the prosecution should not be permitted repeated opportunities to obtain a conviction:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. [Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).]

From this fundamental idea, the United States Supreme Court has over the years developed a body of double jeopardy jurisprudence that recognizes, among other related rights,⁹ an accused’s “valued right to have his trial completed by a particular tribunal . . . .” Wade v Hunter, 336 US 684, 689; 69 S Ct 834; 93 L Ed 974 (1949); see also Washington, supra, 434 US 503; Illinois v Somerville, 410 US 458, 466; 93 ; 35 L Ed 2d 425 (1973). Jeopardy is said to “attach” when a jury is selected and sworn, see Somerville, supra, 410 US 467; Hicks, supra, 447 Mich 827, n 13 (Griffin, J.), and the Double Jeopardy Clause therefore protects an accused’s interest in avoiding multiple prosecutions even where no determination of guilt or innocence has been made. See Scott, supra, 437 US 87-92; Crist, supra, 437 US 33-34. It is this interest that is implicated when the trial judge declares a mistrial, thereby putting an end to the proceedings before a verdict is reached. Scott, supra, 437 US 92; Crist, supra, 437 US 33-34. However, the general rule permitting the prosecution only one opportunity to obtain a conviction “ ‘must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.’ ” Washington, supra, 434 US 505, n 11, quoting Wade, supra, 336 US 689.

“[I]t is axiomatic that retrial is not automatically barred whenever circumstances compel the discharge of a factfinder before a verdict has been rendered.” Hicks, supra, 447 Mich 827 (Griffin, J.). It is well settled, for instance, that where a defendant requests or consents to a mistrial, retrial is not barred unless the prosecutor has engaged in conduct intended to provoke or “goad” the mistrial request. See Oregon v Kennedy, 456 US 667, 675-676; 102 S Ct 2083; 72 L Ed 2d 416 (1982); United States v Dinitz, 424 US 600, 608; 96 S Ct 1075; 47 L Ed 2d 267 (1976); Hicks, supra, 447 Mich 828 (Griffin, J.). Additionally, retrial is always permitted when the mistrial is occasioned by “manifest necessity.” Kennedy, supra, 456 US 672; Washington, supra, 434 US 505; Hicks, supra, 447 Mich 828 (Griffin, J.).

The concept of “manifest necessity” was introduced in United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824), in which the Court addressed the propriety of the retrial of an accused following the discharge of a deadlocked jury without the accused’s consent. Noting that in such a case the accused has not been convicted or acquitted, the Court held that the declaration of a mistrial under these circumstances poses no bar to a future trial. Id. at 580. However, the Court indicated that trial courts are to exercise caution in discharging the jury before a verdict is reached:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests in this, as in other cases, upon the responsibility of the Judges, under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject, in the American Courts; but, after weighing the question with due deliberation, we are of opinion, that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial. [Id. (emphasis supplied).]

Footnotes

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[10]

As noted in Richardson v United States, 468 US 317, 323-324; 104 S Ct 3081; 82 L Ed 2d 242 (1984), “[i]t has been established for 160 years, since the opinion of Justice Story in [Perez], that a failure of the jury to agree on a verdict was an instance of ‘manifest necessity’ which permitted a trial judge to terminate the first trial and retry the defendant, because ‘the ends of public justice would otherwise be defeated.’ ” See also Washington, supra, 434 US 509 (“the mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict [has been] long considered the classic basis for a proper mistrial”); Kennedy, supra, 456 US 672 (“the hung jury remains the prototypical example” of a situation meeting the “manifest necessity” standard); People v Thompson, 424 Mich 118, 128; 379 NW2d 49 (1985) (“we have consistently held that retrial after a mistrial caused by jury deadlock does not violate the Michigan Constitution or the United States Constitution”); Duncan, supra, 373 Mich 660, quoting People v Parker, 145 Mich 488, 499; 108 NW 999 (1906) (Michigan case law has without exception recognized that “the doctrine of former jeopardy does not pre elude retrial after discharge of a jury ‘for inability to agree, or for some other overruling necessity’ ”).

Defendant nevertheless contends, and the Court of Appeals agreed, that his retrial constituted a violation of his constitutional right to be free from successive prosecutions because the trial court precipitously declared a mistrial without manifest necessity to do so. We disagree and hold that the Double Jeopardy Clause did not bar defendant’s second trial or convictions.

B. MANIFEST NECESSITY

The Court of Appeals concluded that the trial court abused its discretion in discharging the jury without first examining alternatives, such as providing a “hung jury” instruction, and without conducting a hearing or making findings on the record. We hold that, because the record provides sufficient justification for the mistrial declaration, the trial court did not abuse its discretion in dismissing the jury.

The constitutional concept of manifest necessity does not require that a mistrial be “necessary” in the strictest sense of the word. Rather, what is required is a “high degree” of necessity. Washington, 434 US 506-507. Furthermore, differing levels of appellate scrutiny are applied to the trial court’s decision to declare a mistrial, depending on the nature of the circumstances leading to the mistrial declaration. At one end of the spectrum is a mistrial declared on the basis of the unavailability of crucial prosecution evidence, or when the prosecution is using its resources to achieve an impermissible tactical advantage over the accused. The trial judge’s declaration of a mistrial under those types of circumstances will be strictly scrutinized. Id. at 508. At the other end of the spectrum is the mistrial premised on jury deadlock, “long considered the classic basis for a proper mistrial.” Id. at 509.¹¹ The trial judge’s decision to discharge a jury when he concludes that it is deadlocked is entitled to great deference. Id. at 510.

As the United States Supreme Court has opined:

[T]here are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not “manifest necessity” justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his “valued right to have his trial completed by a particular tribunal.” But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate court views the “necessity” for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of an erroneous ruling, would employ coercive means to break the apparent deadlock. Such a rule would frustrate the public interest in just judgments. The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court. [Id. at 509-510.]

Therefore, the mere fact that the reviewing court would not have declared a mistrial under the circumstances of this case does not mean that retrial is necessarily barred. The issue is not whether this Court would have found manifest necessity, but whether the trial court abused its discretion in finding manifest necessity.¹²

Consistent with the special respect accorded to the court’s declaration of a mistrial on the basis of jury deadlock, this Court has never required an examination of alternatives before a trial judge declares a mistrial on the basis of jury deadlock¹³; nor have we ever required that the judge conduct a “manifest necessity” hearing or make findings on the record. In fact, we long ago stated that, “[a]t most, . . . the inquiry in [such a case] turns upon determination whether the trial judge was entitled to conclude that the jury in fact was unable to reach a verdict” Duncan, supra, 373 Mich 661 (emphasis supplied). Moreover, the United States Supreme Court has expressly indicated that the failure of a trial judge to examine alternatives or to make findings on the record before declaring a mistrial does not render the mistrial declaration improper. Instead, where the basis for a mistrial order is adequately disclosed by the record, the ruling will be upheld. Washington, supra, 434 US 515-517.¹⁴

Although we acknowledge that the “deadlocked jury” instruction, CJI2d 3.12, might have appropriately been given to the jury in this case, the fact remains that defendant did not request that this instruction be given.¹⁵ We are not aware of any requirement that a trial court sua sponte instruct a deadlocked jury to resume deliberations. Moreover, we remain cognizant of the significant risk of coercion that would necessarily accompany a requirement that a deadlocked jury be forced to engage in protracted deliberations. See Washington, supra, 434 US 509-510; People v Hardin, 421 Mich 296; 365 NW2d 101 (1984).¹⁶

We conclude that the judge did not abuse her discretion in declaring a mistrial under the circumstances of this case. The jury had deliberated for at least four hours following a relatively short, and far from complex, trial. The jury had sent out several notes over the course of its deliberations, including one that appears to indicate that its discussions may have been particularly heated. Most important here is the fact that the jury foreperson expressly stated that the jury was not going to reach a verdict.¹⁷ We conclude that, in the absence of an objection by either party, the declaration of a mistrial in this case constituted a proper exercise of judicial discretion. Accordingly, manifest necessity for the jury’s discharge existed, and defendant’s retrial did not constitute a constitutionally impermissible successive prosecution.

C. RESPONSE TO THE DISSENT

Our dissenting colleague opines that “the majority eviscerates established precedent requiring that trial judges exert reasonable efforts to avoid a mistrial.” Post at 225. We disagree. In holding that double jeopardy considerations did not preclude defendant’s retrial, we have merely set forth the unremarkable proposition that the failure of the jury to agree on a verdict is an instance of manifest necessity, allowing the trial court to declare a mistrial, discharge the jury, and retry the defendant.

Although the dissent ostensibly agrees that “no specific inquiry into alternatives to declaring a mistrial is required,” post at 227, the dissent nevertheless points out that the trial court did not poll the jurors, did not give a deadlocked jury instruction, and did not ask defense counsel for his thoughts. Post at 228. These, of course, would have been alternatives to declaring a mistrial. However, this Court has never required the trial court to explain why it chose to declare a mistrial on the basis of jury deadlock, rather than poll the jury, give a deadlocked jury instruction, or ask defense counsel for his thoughts. As we have explained above, the United States Supreme Court has specifically rejected such a requirement. See Washington, supra, 434 US 516-517:

The absence of an explicit finding of “manifest necessity” appears to have been determinative for the District Court and may have been so for the Court of Appeals. If those courts regarded that omission as critical, they required too much. Since the record provides sufficient justification for the state-court ruling, the failure to explain that ruling more completely does not render it constitutionally defective.

Further, even the dissent in Washington recognized that, where the necessity for a mistrial is “manifest on the face of the record,” the trial court does not have to make findings of necessity on the record to justify the declaration of a mistrial. Id. at 526.

In this case, the record provides sufficient justification for the trial court’s declaration of a mistrial, and thus there was no need for the trial court to articulate a rationale on the record. The reasons were plain and obvious: the jury foreperson indicated that the jury was not going to be able to reach a unanimous verdict.

IV. CONCLUSION

The trial court did not abuse its discretion in declaring a mistrial, in the absence of objection by either party, where the jury expressly indicated that it was deadlocked. Accordingly, defendant’s retrial did not violate the constitutional bar against successive prosecutions. We therefore reverse the decision of the Court of Appeals and remand this matter to that Court for consideration of the additional issue that was raised by defendant, but not decided. We do not retain jurisdiction.

Corrigan, C.J., and Weaver, Taylor, and Markman, JJ., concurred with Young,

1

The jury deliberated from approximately 3:24 p.m. to 4:00 p.m. on June 12, 1997, and ended its deliberations at 12:45 p.m. on June 13, 1997.

2

During its deliberations, the jury sent out seven notes. Most of the notes were routine requests for evidence, instructions, and breaks. However, one note, sent out early on the second day of deliberations, stated that the jurors had “a concern about our voice levels disturbing any other proceedings that might be going on,” indicating that perhaps the deliberations had already become somewhat acrimonious.

3

We are unable to discern from the trial transcript whether any off-the-record discussion took place between Judge Brown and counsel before the jury was called into the courtroom concerning any proposed response to the jury’s note.

4

The second jury deliberated for approximately three hours and fifteen minutes before delivering its verdict.

5

463 Mich 939 (2000).

6

See Huss v Graves, 252 F3d 952, 956-957 (CA 8, 2001) (a case involving the sua sponte declaration of a mistrial in a bench trial, contrary to both the prosecution’s and the defendant’s motions for entry of verdict of not guilty by reason of insanity, was “not similar to those [cases] in which a mistrial is declared when a jury is unable to reach a verdict, a situation in which a finding of manifest necessity is almost always justified”) (emphasis supplied).

7

Const 1963, art 1, § 15. Our constitution provides no greater protection than does the federal constitution with respect to retrial following a mistrial caused by jury deadlock. People v Thompson, 424 Mich 118, 125-129; 379 NW2d 49 (1985).

8

US Const, Am V, made applicable to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 C St 2056; 23 L Ed 2d 707 (1969).

9

The Double Jeopardy Clause has often been described, in simple terms, as embodying three separate guarantees: protection against' a second prosecution for the same offense following acquittal, protection against a second prosecution for the same offense following conviction, and protection against multiple punishments for the same offense. See Ohio v Johnson, 467 US 493, 497; 104 S Ct 2536; 81 L Ed 2d 425 (1984); Justices of Boston Municipal Court v Lydon, 466 US 294, 306-307; 104 S Ct 1805; 80 L Ed 2d 311 (1984); Herron, supra, 464 Mich 599; People v Vincent, 455 Mich 110, 120, n 5; 565 NW2d 629 (1997). However, as the Court noted in Crist, supra, 437 US 32, the “deceptively plain language” of the Double Jeopardy Clause “has given rise to problems both subtle and complex . . . .”

10 Interestingly, in Crist, supra, 437 US 34, n 10, the Court questioned whether the Perez Court was actually deciding a constitutional question, or was rather “simply settling a problem arising in the administration of federal criminal justice.” See also id. at 44-45 (Powell, J., dissenting) (“[a]s both Justices Washington and Story believed that the Double Jeopardy Clause embraced only actual acquittal and conviction, they must have viewed Perez as involving the independent rule barring needless discharges of the jury”). However, the majority, declining to upset 150 years of settled Fifth Amendment jurisprudence, stated that “to cast such a new light on Perez at this late date would be of academic interest only.” Id. at 34, n 10.