People v. Sierb

581 N.W.2d 219, 456 Mich. 519

• Court: Michigan Supreme Court
• Decided: March 17, 1998
• Docket: 107551, Calendar No. 9
• Status: Published

Opinions

Boyle, J.

The trial court granted defendant’s motion to dismiss with prejudice charges of burning real and insured property following the second declaration of a mistrial because of jury inability to agree on a verdict. We granted leave to appeal to determine whether the trial court correctly inferred this remedy from the substantive Due Process Clause of the constitution. We hold that the due process guarantees of the Michigan and United States Constitutions, Const 1963, art 1, § 17, and US Const, Am XIV, do not create a right to preclude retrial of this defendant in these circumstances. We reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings.

i

The defendant was charged and bound over on one count of burning real property, MCL 750.73; MSA 28.268, and one count of burning insured property, MCL 750.75; MSA 28.270, following a fire that damaged his business in Garden City hi June, 1990. Trial began in June, 1993, and a mistrial was declared after the jury was unable to reach a verdict. In February, 1994, a second trial was commenced against the defendant in which substantially the same evidence was offered. Again, the jury was unable to reach a verdict, and a mistrial was declared.¹

The defendant moved for dismissal of the charges. Acknowledging that the earlier mistrials had not been the result of procedural or substantive errors in the trial process, defendant contended that retrial after two hung juries would be so fundamentally unfair that it would violate the constitutional guarantee of due process. The trial court agreed and dismissed the charges with prejudice.²

The Court of Appeals affirmed in a two-to-one decision.³ It reasoned that the emotional and financial strain of a third trial would weigh so heavily on defendant that it would violate the defendant’s right to due process.⁴ We granted leave to appeal.⁵

n

On appeal, defendant argues only that the due process guarantees of the state and federal constitutions preclude a third trial on these charges.⁶ The standard of review is de novo with regard to questions of law. People v Carpentier, 446 Mich 19; 521 NW2d 195 (1994).

The Fourteenth Amendment to the United States Constitution and Const 1963, art 1, § 17 guarantee that no state shall deprive any person of “life, liberty or property, without due process of law.”⁷ Textually, only procedural due process is guaranteed by the Fourteenth Amendment; however, under the aegis of substantive due process, individual liberty interests likewise have been protected against “ ‘certain government actions regardless of the fairness of the procedures used to implement them.’ ” Collins v City of Harker Heights, 503 US 115, 125; 112 S Ct 1061; 117 L Ed 2d 261 (1992), quoting Daniels v Williams, 474 US 327, 331; 106 S Ct 662; 88 L Ed 2d 662 (1986).⁸ The underlying purpose of substantive due process is to secure the individual from the arbitrary exercise of governmental power.⁹ The defendant has failed to distinguish between the Michigan and federal due process provisions and has not argued that the Michigan provision should be interpreted differently from its federal counterpart. We interpret the state provision as coextensive with the federal provision for purposes of this appeal. Absent definitive differences in the text of the state and federal provision, common-law history that dictates different treatment, or other matters of particular state or local interest, courts should reject the “unprincipled creation of state constitutional rights that exceed their federal counterparts.” Sitz v Dep’t of State Police, 443 Mich 744, 763; 506 NW2d 209 (1993).¹⁰

in

The defendant relies on five cases in support of the contention that retrial would violate the substantive guarantees of due process: United States v Ingram, 412 F Supp 384 (D DC, 1976), State v Witt, 572 SW2d 913 (Tenn, 1978), State v Moriwake, 65 Hawaii 47; 647 P2d 705 (1982), State v Abbati, 99 NJ 418; 493 A2d 513 (1985), and People v Thompson, 424 Mich 118; 379 NW2d 49 (1985). However, none of these cases except Thompson addresses the Due Process Clause in the context of a retrial after a properly declared mistrial,¹¹ and Thompson does so only in dicta.¹² The prosecutor may not abort a trial over a defendant’s objection absent manifest necessity, People v Dawson, 431 Mich 234, 252; 427 NW2d 886 (1988), retry a defendant on higher charges after mistrial in an effort to penalize the defendant, People v Ryan, 451 Mich 30; 545 NW2d 612 (1996), nolle prosequi charges at trial without leave of court, MCL 767.29; MSA 28.969, or retry a defendant after having one full and fair opportunity at obtaining a conviction. Dawson, supra at 250.

Neither the cases cited nor our independent research supports the proposition that the protections of substantive due process require recognition of a remedy for the harm incident to one or more mistrials.¹³ Some courts have declared the inherent authority to preclude retrials following mistrials attributable to jury deadlock. However, we reject the rationale that the administration of justice confers authority on this Court to allocate resources available to law enforcement, Abbati, supra at 429, or to assess the relative priority of discrete charges in a given community.

iv

The United States Supreme Court has declined to expand substantive due process as an independent source of limitation on government.

In Hurtado v California, 110 US 516, 527; 4 S Ct 111; 28 L Ed 232 (1884), it was held that the Fourteenth Amendment Due Process Clause did not make applicable to state governments the Fifth Amendment’s requirement of indictment and presentment to a grand jury. The Court posited that Fourteenth Amendment due process encompassed only those safeguards not specifically found in the Bill of Rights. 1 LaFave & Israel, Criminal Procedure (2d ed), § 2.4(b), p 55. However, the Court eventually concluded that the Fourteenth Amendment incorporated and made applicable to the states numerous protections contained in the Bill of Rights.¹⁴

Other than in matters relating to marriage, family, procreation, and the right to bodily integrity, the Court has been reluctant to expand the scope of substantive due process beyond the explicit textual source of constitutional protection. Albright v Oliver, 510 US 266, 272; 114 S Ct 807; 127 L Ed 2d 114 (1994). Rather than approaching issues of restriction of government authority in areas of criminal proceedings from the unstructured perspective of “whether, in the view of the Court, the governmental action in question was ‘arbitraiy,’ ” id., the Court has deemed restriction of government authority appropriately encompassed by the remedy the framers of the Bill of Rights created.

Although it is unclear at this stage whether the Court will ultimately conclude that substantive due process has been supplanted by specific provisions of the Bill of Rights, see Lewis v Sacramento Co, 98 F3d 434 (CA 9, 1996), cert gtd 520 US 1250; 117 S Ct 2406; 138 L Ed 2d 173 (1997), it is clear that the Court will not rely on substantive due process to sanction new remedies that duplicate the protections of specific constitutional provisions. Thus, in Graham v Connor, 490 US 386; 109 S Ct 1865; 104 L Ed 2d 443 (1989), the Court refused to recognize a constitutional remedy under 42 USC 1983 on the basis of the assertion that the use of excessive force in making an arrest constituted a violation of substantive due process. The Court held that the remedy for a claim of excessive force during arrest must be determined with reference to the Fourth Amendment as the explicit constitutional standard protecting the asserted interest, rather than the abstract claim of a violation of substantive due process.¹⁵

In Collins v Harker Heights, supra, the Court again underscored its reluctance to expand the doctrine of substantive due process, explaining:

As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. lid. at 125.]

[16]

In Albright v Oliver, supra at 268-271, the Court similarly declined to recognize a substantive right of due process to be free from criminal prosecution except upon probable cause. Because the first step in alleging a constitutional violation is to identify the specific right infringed, the Court began by reiterating that substantive due process rights have for the most part accorded to “matters relating to marriage, family, procreation, and the right to bodily integrity.” Id. at 272. Although the lead opinion was signed by only a plurality of the justices, a majority of the Court joined in the rationale limiting the scope of substantive due process on the ground that

[w]here a particular amendment “provides an explicit textual source of constitutional protection” against a particular sort of government behavior, “that Amendment, not the more generalized notion of ‘substantive due process’ must be the guide for analyzing th[e] claims.” [Id. at 273, quoting Graham v Connor, supra at 395.][17]

V

The contention that the Court should infer a remedy precluding retrial because of “the anxiety, stress, humiliation, and cost to the defendant of continual reprosecution where no new evidence exists”¹⁸ is a general claim of governmental unfairness. “Every prosecution ... ‘is a public act that may seriously . . . disrupt [the defendant’s] employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends,’ ” Albright, supra at 296 (Stevens, J., dissenting), quoting United States v Marion, 404 US 307, 320; 92 S Ct 455; 30 L Ed 2d 468 (1971).¹⁹ Further, if recognized, guidelines for responsible decision making in applying the new remedy would be scarce and open-ended. If three trials are too many under substantive due process, why are not two? It could follow that either any retrial after a mistrial is barred as a violation of substantive due process, or that the theory as applied would result in arbitrary assertion of judicial authority.

VI

The relationship between federal and state governments and that of the state judiciary to its coordinate branches are obviously different. The common concern is the reach and contours of assertion of the power to declare “arbitrary” the conduct of government actors. While the focus of this Court’s concern regarding expansive interpretation of our authority has been expressed in terms of separation of powers, rather than the powers reserved for the states under the Tenth Amendment, we have also cautiously responded to requests to recognize new remedies that would limit the authority of the executive or legislative branches of government. We declined the invitation to expand judicial authority in People v Mateo, 453 Mich 203, 211; 551 NW2d 891 (1996). There, we abstained from deciding whether the harmless error statute was a legislative attempt to supplant judicial authority. We refused to require compliance with sentencing guidelines because the Legislature had not mandated such compliance, People v Milbourn, 435 Mich 630, 656-657; 461 NW2d 1 (1990), and rejected the claim that circuit courts have the authority to nolle prosequi a case. People v Curtis, 389 Mich 698, 711; 209 NW2d 243 (1973). “[A]s long as jeopardy has not attached, or the statute of limitations not run, our law permits a prosecutor to reinstate the original charge on the basis of obtaining a new indictment and thus beginning the process anew.” Id. at 706. See also People v Gallego, 430 Mich 443, 452; 424 NW2d 470 (1988) (enforcing an unauthorized promise by the police not to prosecute would undermine the prosecutorial function); Employees & Judge of the Second Dist Court v Hillsdale Co, 423 Mich 705, 723; 378 NW2d 744 (1985) (an administrative order to compel funding in excess of appropriations is an improper exercise of judicial power); Genesee Co Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974) ; Genesee Co Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972). Const 1963, art 3, § 2 provides:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

We hold that in dismissing this case in the circumstances here presented, the trial judge violated the doctrine of separation of powers.

The amorphous claim endorsed by the trial court and the Court of Appeals would inevitably call for courts to decide what policy of retrial is best for all the people of Michigan. In words equally appropriate to the relationship between the branches of state government and our citizens, Judge Easterbrooke has observed:

Which policy is best for the people ... is a complex question, answered different ways at different times in this nation (and in dramatically different ways by different nations today) — but it is a question about moral and efficient law enforcement for the people to debate and resolve. It is not a question whose only answer must be given by the judicial branch on the basis of “substantive due process.” [Mays v East St Louis, 123 F3d 999, 1003 (CA 7, 1997).]

Finally, absent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor. Nor has the case been made that harm to an interest not addressed by specific provisions of the Bill of Rights requires a new remedy. Whatever the reach of substantive due process, this claim does not approach the threshold.²⁰ In this context, we find no historical, textual, or empirical foundation that requires inferring a new remedy from the penumbras of substantive due process.

vn

For the reasons stated, we hold that the reprosecution of this defendant is not a violation of the due process guarantees of the Michigan and United States Constitutions, Const 1963, art 1, § 17, and US Const, Ana XIV. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings.

Mallett, C.J., and Brickley, Weaver, and Taylor, JJ., concurred with Boyle, J.

1 In the first trial, the jury voted either ten to two in favor of conviction or eight to four in favor of conviction. In the second trial, the jury was evenly divided, with six jurors voting in favor of conviction and six jurors voting in favor of acquittal. While the defendant submits that the juror votes are material to our result, we decline the invitation to decide the issue on this basis. Neither this Court nor any other court has obligated jurors to disclose their votes other than in the context of confirming that they agree with a verdict reported as unanimous. It follows that we have not recognized a right on behalf of either the prosecution or the defense to such information.

2 The trial court concluded that retrial would be fundamentally unfair because 1) two prior trials had resulted in jury deadlock, 2) the prosecutor had no new evidence to offer against the defendant, 3) the likelihood of a third hung jury was high because there was no new evidence against the defendant, and 4) retrial would be an inefficient use of judicial resources.

3 219 Mich App 127; 555 NW2d 728 (1996).

4 The dissenting judge agreed that due process guarantees may require dismissal of the charges against a defendant over the prosecutor’s objection under certain circumstances, but argued that this defendant’s right to due process would not be violated to such a degree that dismissal was justified. Id. at 136.

5 454 Mich 873 (1997).

6 Defendant concedes that his rights under the Double Jeopardy Clause have not been violated by the repeated trials. See Richardson v United States, 468 US 317; 104 S Ct 3081; 82 L Ed 2d 242 (1984); People v Thompson, 424 Mich 118, 125; 379 NW2d 49 (1985).

7 The express language of the Fourteenth Amendment of the United States Constitution provides:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law ....

Const 1963, art 1, § 17 provides:

No person shall be . . . deprived of life, liberty or property, without due process of law.

8 For further recognition that the Due Process Clause of the Fourteenth Amendment confers both substantive and procedural rights, see United States v Salerno, 481 US 739, 746; 107 S Ct 2095; 95 L Ed 2d 697 (1987).

9 See Foucha v Louisiana, 504 US 71, 78; 112 S Ct 1780; 118 L Ed 2d 437 (1992); see also Fallon, Some confusions about due process, judicial review, and constitutional remedies, 93 Col L R 309, 310 (1993).

10 Factors to be considered when determining whether a state constitutional provision affords protection different from its federal counterpart include “1) the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest.” Sitz, supra at 763, n 14.

11 In Ingram, supra, the court held that dismissal of an indictment after the defendant’s second mistrial was required in the “interests of justice” as “simply a matter of fair play.” Id. at 385-386. The Due Process Clause was not addressed by the court.

In Witt, supra, the Tennessee Supreme Court barred retrial of a defendant whose indictments for first-degree murder were dismissed after three juries failed to reach unanimous verdicts. After finding that the constitutional right to due process was not involved, the court relied on the trial courts’ “inherent authority” to terminate prosecutions in the exercise of “sound judicial discretion.” Id. at 917.

Likewise, in Moriwake, supra, the Due Process Clause was not addressed when the court concluded that judges have inherent power to dismiss an indictment with prejudice over the objection of the prosecution where two mistrials were declared because the respective juries were unable to reach verdicts. Id. at 56.

Lastly, in Abbati, supra, the court did address the Due Process Clause, but rested its decision on the trial court’s inherent right to dismiss an indictment with prejudice over the prosecutor’s objection.

12 In Thompson, the defendant’s third trial resulted in a conviction for felony murder after the defendant’s first conviction was reversed and a second trial ended in a mistrial. On appeal, the defendant argued that retrial after a mistrial violated the Double Jeopardy Clause of the Michigan Constitution, art 1, § 15 or the Due Process Clauses of the state and federal constitutions. We held that neither constitutional provision was violated, while observing that “there may be cases in which repeated retrials after repeated jury deadlock might be so fundamentally unfair as to violate the due process guaranteed by Const 1963, art 1, § 17, or the Fourteenth Amendment to the United States Constitution . . . .” Id. at 133.

13 See People v Cummings, 47 Ill App 3d 578, 581; 362 NE2d 415 (1977) (the number of trials is not a violation of due process unless it also places the defendant in double jeopardy); Ex Parte Anderson, 457 So 2d 446 (Ala, 1984) (the defendant’s due process rights were not breached by a fourth trial on capital murder charges when three earlier trials each resulted in mistrial); State v Paige, 256 NJ Super 362, 370; 607 A2d 164 (1992) (a third trial, where two juries had failed to reach a verdict and where no new evidence was offered against the defendant, did not violate the principles of fundamental fairness). We are not aware of any United States Supreme Court or federal Court of Appeals decision that has held that retrial after a properly declared mistrial where no new evidence is offered violates the federal Due Process Clause.

For an accounting of cases that have held that retrial after a properly declared mistrial did not violate substantive due process guarantees but would violate general principles of “fairness,” see Ingram, supra at 385 (making no reference to the Due Process Clause, the court concluded that the question was simply a matter of fair play); Witt, supra at 917 (after expressly stating that the Due Process Clause was not applicable to the case, the court held that requiring defendants to face juries with the continuing prospect of no verdict offends traditional notions of fair play and substantial justice); United States v Rossoff, 806 F Supp 200, 202 (CD Ill, 1992) (without explicitly relying on the Due Process Clause, the court held that an indictment may be dismissed with prejudice if a court determines that retrial is against the concept of fundamental fairness).

14 See Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961) (the Fourth Amendment’s exclusionary rule was made applicable to the states), Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (the Sixth Amendment’s right to counsel was made applicable to the states), Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964) (the Fifth Amendment’s privilege against self-incrimination was made applicable to the states), Klopfer v North Carolina, 386 US 213; 87 S Ct 988; 18 L Ed 2d 1 (1967) (made applicable the Sixth Amendment speedy trial right), Washington v Texas, 388 US 14; 87 S Ct 1920; 18 L Ed 2d 1019 (1967) (made applicable the right to compulsory process), Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968) (made applicable the Sixth Amendment right to trial by jury), and Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969) (applied the Double Jeopardy Clause of the Fifth Amendment to the states). For an overview of the rights that have been incorporated and the rationale for incorporation, see Tribe, American Constitutional Law (2d ed), § 11-2, p 772.

15 The Court held:

Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims. [Graham, supra at 395.]

16 In Collins, the Court rejected the petitioner’s claim under 42 USC 1983 that municipal employees had a right under the Fourteenth Amendment Due Process Clause to be free from unreasonable risks of harm in the workplace. The Court noted its reluctance to expand the doctrine of substantive due process, stating that Congress intended the Due Process Clause to prevent the government from arbitrarily exercising its power, not to guarantee minimal levels of safety and security in the workplace. Id. at 126.

17 See Wells, Constitutional torts, common-law torts, and due process of law, 72 Chi-Kent L R 617, 643 (1997) (the Court in Graham, Albright, and Collins does not propose to abandon substantive due process, only to avoid it whenever possible).

18 219 Mich App 134.

To support his position defendant relies on Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957), in which the Supreme Court stated:

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.

The rationale of Green is inapposite because Green involved not a case of continuing jeopardy, as is involved here, but rather a case of double jeopardy. Moreover, the Supreme Court expressly recognized that jeopardy does not bar a second trial under circumstances where a jury has failed to reach a verdict, stating:

At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where “unforeseeable circumstances . . . arise during (the first) trial making its completion impossible, such as the failure of a jury to agree on a verdict.”

19 See also United States v MacDonald, 456 US 1; 102 S Ct 1497; 71 L Ed 2d 696 (1982), in which the Court identified the interests served by the Speedy Trial Clause of the Sixth Amendment. The Court stated:

“Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” . . . The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. . . . Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. [Id. at 8-9.]

20 We take judicial notice of the facts of People v Fisher, 220 Mich App 133; 559 NW2d 318 (1996), in which the defendant was tried four times before pleading no contest to charges that he murdered his wife. The defendant was twice found guilty of the death of his wife, who was found wrapped with duct tape in their home. Both convictions were overturned. People v Fisher, 439 Mich 884 (1991). In the defendant’s third trial, a mistrial was declared when the jurors were unable to reach a verdict. In a fourth trial, yet another mistrial was declared because of jury deadlock. The defendant entered a plea of no contest as the prosecutors prepared to try the defendant a fifth time. Were the retrial of the respondent in the instant case foreclosed because of substantive due process guarantees, arguably all retrials where two mistrials were previously declared and where no new evidence was offered against the accused would also be foreclosed.