People v. Wilcox

456 N.W.2d 421, 183 Mich. App. 616

• Court: Michigan Court of Appeals
• Decided: May 7, 1990
• Docket: Docket 114526
• Status: Published

Opinions

Reilly, J.

Defendant Sabrina Wilcox was charged with possession of marijuana with intent to deliver, MCL 333.7401(2)(c); MSA 14.15 (7401X2) (c). In mid-trial the trial judge dismissed the charge because he wanted this Court to render an advisory opinion on a question involving an arrest without a warrant. The prosecutor now appeals as of right subject to the double jeopardy prohibition of MCL 770.12(1); MSA 28.1109G).¹ We are constrained to affirm the dismissal, but for reasons other than those stated by the trial court. Further, the dismissal shall be with prejudice.

The dispositive issue on appeal is whether reinstatement of the charge against defendant is barred by the constitutional prohibition against double jeopardy. US Const, Am V; Const 1963, art 1, § 15. A preliminary statement of the operative facts is necessary to our discussion.

On November 30, 1988, trial in the instant action commenced in a normal manner with the impaneling of a jury. Detroit Police Officer Keith Terry was the third prosecution witness. He testified that on July 1, 1988, he observed a confidential police informant make a controlled purchase of cocaine at 4438 Lakepointe in the City of Detroit. The cocaine was purchased from an individual named "Tim.” No arrests were made at that time.

On July 6, 1988, Terry secured a search warrant for the above residence. On July 7, 1988, several police officers executed the search warrant and arrested defendant, who was seen holding a cookie tin which, upon examination, was found to contain eight baggies of marijuana along with $203 in United States currency.

During a lengthy discourse initiated by the trial judge, Terry stated that he would not have been able to enter the house and arrest "Tim” immediately following the informant’s purchase of cocaine because he would have needed a search warrant. Terry added that it is departmental policy to obtain a search warrant under such circumstances because (1) the informant would not be required to sign a complaint and reveal his identity, (2) additional officers could then be provided to assist as a precautionary safety measure, and (3) the officers would be permitted to search the entire house for hidden narcotics. In response, the trial court stated that Terry should have entered the house without a warrant and arrested "Tim” immediately following the informant’s purchase of cocaine. The trial judge then sua sponte dismissed the case because he wanted an advisory opinion from an appellate court on the narrow issue whether a police officer can enter a private residence to make an arrest without a warrant of an individual who has just completed a narcotics sale to an informant.

We believe the trial court erred when it dismissed the charge in an effort to obtain an advisory opinion regarding an issue which has no bearing on defendant’s guilt or innocence or the presentation of proofs with respect to the crime charged. A judge should not sua sponte declare a mistrial and dismiss the case without first considering viable alternative measures to cure a defect in the proceedings, United States v Jorn, 400 US 470, 483-485; 91 S Ct 547; 27 L Ed 2d 543 (1971), unless the examination of alternatives would be futile. United States v Grasso, 552 F2d 46, 52, n 2 (CA 2, 1977). Moreover, this Court does not ordinarily render advisory opinions and we do not believe that this unrelated issue warrants such an opinion in this case. People v Gonzales, 349 Mich 572; 84 NW2d 753 (1957); Gracey v Grosse Pointe Farms Clerk, 182 Mich App 193; 452 NW2d 471 (1989).

However, we must still decide whether reinstatement of charges against defendant, following dismissal under these circumstances, is barred by the constitutional prohibition against double jeopardy.

The United States and Michigan Constitutions prohibit a defendant from being placed in double jeopardy. US Const, Am V; Const 1963, art 1, § 15. When a trial judge’s sua sponte dismissal in the original proceeding is ordered after jeopardy has attached, retrial is not prevented by the double jeopardy prohibitions in two circumstances: (1) where the defendant consents to the order of dismissal or (2) where the dismissal was required by manifest necessity. People v Little, 180 Mich App 19, 22; 446 NW2d 566 (1989).

Our review of the lower court record leads us to conclude that the qualified consent given by defense counsel does not suffice to avoid double jeopardy. After the trial court made its ruling dismissing the case, defense counsel agreed to the dismissal subject to any rights his client might have against reinstatement of charges which would result in double jeopardy. In response, the trial judge stated that the record was protected for purposes of appeal. Such conditional consent when the defense counsel had no control over the course to be followed cannot be construed as a waiver of the prohibition against double jeopardy. United States v Dinitz, 424 US 600, 607-609; 96 S Ct 1075; 47 L Ed 2d 267 (1976); People v Benton, 402 Mich 47, 54; 260 NW2d 77 (1977) (opinion of Levin, J.). Accordingly, we must determine whether the doctrine of manifest necessity bars retrial.

It is difficult to precisely define what constitutes "manifest necessity.” Examples include the failure of the jury to agree upon a verdict, misconduct on the part of a juror, or an incurable defect in an indictment or the proceedings. Benton, supra, pp 56-57. An important consideration is whether the nature of the defect perceived by the judge was such that, if a guilty verdict had been rendered, the conviction would have had to have been reversed on appeal. Benton, supra, pp 56-57, 59.

We do not believe that there was any defect in the proceedings precipitating the dismissal, let alone a defect which would have mandated the reversal of defendant’s conviction on appeal. We are unwilling to extend the doctrine of "manifest necessity” to include a situation where a trial judge seeks an advisory opinion on an issue having no bearing on the presentation of the proofs or the outcome of the case. Consequently, the reinstatement of criminal charges against defendant is barred by the constitutional prohibition against double jeopardy. The prosecutor’s appeal is barred as well.

The order of dismissal is affirmed. The case is remanded for entry of an order dismissing the charge with prejudice.

R. B. Burns, J., concurred.

1 (1) The people of this state may take an appeal of right in a criminal case, if the protection against double jeopardy under section 15 of article I of the state constitution of 1963 and amendment V of the constitution of the United States would not bar further proceedings against the defendant, from either of the following:

(a) A final judgment or final order of the circuit court or recorder’s court, except a judgment or order of the circuit court or recorders’s court on appeal from any other court.

(b) A final judgment or order of a court or tribunal from which appeal of right has been established by law.