Wayne County Prosecuting Attorney v. Detroit Recorder's Court Judge

235 N.W.2d 799, 64 Mich. App. 408, 1975 Mich. App. LEXIS 1278

• Court: Michigan Court of Appeals
• Decided: September 22, 1975
• Docket: Docket 18907
• Status: Published

Opinions

R. B. Burns, J.

Plaintiff brings an original civil action seeking a writ of superintending control and requesting us to vacate a judgment of the court below and declare a mistrial.

Plaintiff’s complaint evolves from the actions of a Recorder’s Court Judge in the case of People v Hibbitt, Recorder’s Court No. 73 00649. On the evening of May 31, 1973, the jury informed the court that it had reached a verdict. The judge excused the jury until the next morning, at which time the foreman announced to the court that they had found the defendant not guilty by reason of insanity. One juror remained seated during the swearing, and indicated upon the poll of the jury that she did not agree with the verdict. After eliciting the information that she had voted with the majority on the preceding evening, the court bound her to this previous vote over the strenuous objection of the prosecutor. The court then accepted the verdict, excused the jury, and committed the defendant to the care of the Department of Mental Health.

It is apparent from the great weight of authority that it was clearly erroneous for the court below to accept this nonunanimous verdict. There was no stipulation in this case pursuant to GCR 1963, 512.1 that a stated majority less than unanimity would be allowed to render a verdict. The clear language of GCR 1963, 512.2 provides that "If any juror expresses disagreement on such poll * * * the jury shall be sent out for further deliberation * * * ”. In People v Fleish, 306 Mich 8, 14; 9 NW2d 905, 907 (1943), the Supreme Court stated that a juror could recant a previous assent to a verdict at any time prior to his express in-court assent at the polling. See also People v Pizzino, 313 Mich 97, 105; 20 NW2d 824, 827 (1945), Stewart v People, 23 Mich 63, 78 (1871). The court should have instructed the jury to deliberate further or in the alternative determined if the jury was unable to reach a verdict.

Under GCR 1963, 820.1(7), this Court, in its discretion, may "[g]ive any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, as the case may require * * * >>

It is obvious that we cannot instruct the jury to deliberate further. However, we can determine that the jury could not reach a verdict and order a mistrial.

The Court hereby sua sponte declares a mistrial because the jury was unable to reach a verdict. The cause will be remanded to the trial court for a new trial.

Reversed and remanded for a new trial.

Danhof, P. J., concurred.