Opinion
Docket No. 77-2839.
Decided August 21, 1978. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.
Victor A. Gold, for defendant.
On May 6, 1976, defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to a term of 10 to 15 years in prison, and appeals as of right.
The main issue raised on appeal is whether reprosecution of the defendant following the trial judge's sua sponte declaration of a mistrial after the jury was sworn was violative of the double jeopardy clause. We hold that it was and that the information should be dismissed. As this question is dispositive, we do not consider the other issues raised by defendant.
Defendant was first brought to trial on September 4, 1975. On the following day, immediately prior to the completion of the jury selection process, one of the members of the jury panel asked to be and was excused by the trial judge apparently because she had observed the defendant conversing at length with one of the other panel members. Another member of the panel was then qualified as juror No. 14, and the jury was impaneled and sworn by the court.
Following the swearing of the jury, the prosecutor requested and was allowed to interrogate the complaining witness out of the presence of the jury. During the hearing, the complainant positively identified the defendant as the person who had robbed him. The complainant testified that defendant had approached him three or four times out of court prior to trial, had admitted the robbery and had offered to pay back the money taken to avoid going to court. Complainant further testified that defendant had told him that his brother was in the Mafia, and that he didn't want his brother to go after the complainant.
Following this hearing, the trial court declared a mistrial based on the defendant's alleged conversations with the juror and with complainant. Defense counsel vigorously opposed the mistrial.
Once a jury is impaneled and sworn a defendant is placed in jeopardy. United States v Jorn, 400 U.S. 470, 479; 91 S Ct 547, 554; 27 L Ed 2d 543, 553 (1971), People v Tillard, 318 Mich. 619; 29 N.W.2d 111 (1947), People v Gardner, 37 Mich. App. 520; 195 N.W.2d 62 (1972). When a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. Unless he consents to the trial's interruption, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again. People v Alvin Johnson, 396 Mich. 424; 240 N.W.2d 729 (1976).
In People v Benton, 402 Mich. 47; 260 N.W.2d 77 (1977), Justice LEVIN analyzed the concept of manifest necessity as enunciated in United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824):
" Jorn requires that the judge consider viable alternative curative measures before sua sponte declaring a mistrial. As stated in Dinitz, quoting from Jorn, in the absence of a motion by a defendant for a mistrial, `the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings'.
United States v Jorn, 400 U.S. 470; 91 S Ct 547; 27 L Ed 2d 543 (1971).
United States v Dinitz, 424 U.S. 600; 96 S Ct 1075; 47 L Ed 2d 267 (1976).
"In Illinois v Somerville, 410 U.S. 458, 464, 471; 93 S Ct 1066; 35 L Ed 2d 425 (1973), the Court ruled that there was manifest necessity where under local law a defect in the indictment was not curative by amendment and could not be waived by the defendant's failure to object: `A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction * * * would have to be reversed on appeal due to an obvious procedural error in the trial.'
"The United States Court of Appeals for the Second Circuit reconciled Somerville and Jorn in these terms:
"` Somerville holds, then, that the double jeopardy clause will not bar retrial even though the examination of alternatives mandated by Jorn is not undertaken if to do so would be futile because clearly no reasonable alternative existed.' United States v Grasso, 552 F.2d 46, 52, fn 2 (CA 2, 1977)." 402 Mich at 57-58 (original footnotes omitted).
In the instant case, the declaration of a mistrial did not involve an obvious procedural error or "a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties". Thus, we must consider whether a "scrupulous exercise of judicial discretion" would have revealed a less drastic remedy than declaration of a mistrial. United States v Jorn, supra, pp 484-485.
Illinois v Somerville, 410 U.S. 458, 471; 93 S Ct 1066; 35 L Ed 2d 425 (1973).
Two grounds were cited by the trial court as necessitating a mistrial. The court indicated that the conversation with the juror, standing alone, might have caused it to hesitate, but combined with the threat against the complainant, there was a sufficient basis to declare a mistrial.
We fail to perceive how the alleged threat by defendant could have necessitated a mistrial. The declaration of a mistrial and the subsequent second trial did not alter the fact that the complainant had been threatened, if in fact he had been threatened. Furthermore, complainant testified that the alleged threat had been made a year before the trial, and that nothing had happened since that time. In addition, the witness testified at both the preliminary examination and at the hearing after the jury was sworn that he was positive of the identity of the defendant as the person who had robbed him. We conclude that there was no manifest necessity to declare a mistrial based on this ground.
The other basis for the mistrial, the alleged improper contact between defendant and a member of the jury, also does not rise to the level of manifest necessity.
Fourteen jurors were impaneled in the first trial. MCL 768.18; MSA 28.1041, which provides for the impaneling of 14 jurors, states in pertinent part:
"Should any condition arise during the trial of the cause which in the opinion of the trial court justifies the excusal of any of the jurors so impaneled from further service, he may do so and the trial shall proceed, unless the number of jurors be reduced to less than 12."
In the instant case, the trial judge should have examined the remaining 13 jurors to determine if they had been prejudiced by contact with the defendant or by the juror who had spoken with defendant. If there had been no prejudice, the trial judge could have dismissed the juror who had spoken with defendant and continued with the remaining 13 jurors. People v Fountain, 392 Mich. 395; 221 N.W.2d 375 (1974), People v Bell, 74 Mich. App. 270; 253 N.W.2d 726 (1977).
The cases which the prosecutor cites for the proposition that disqualification of a juror is an occurrence in which there is manifest necessity for a mistrial do not involve alternate jurors. In addition, we note that defendant could have stipulated to a jury trial with less than 12 jurors after the trial had begun. People v Rabin, 317 Mich. 654; 27 N.W.2d 126 (1974), People v Jerome I Smith, 21 Mich. App. 717; 176 N.W.2d 430 (1970).
This Court accords considerable deference to a trial judge's determination of whether there is manifest necessity justifying declaration of a mistrial. People v Alvin Johnson, supra, p 437. However, before a trial judge sua sponte declares a mistrial, he or she should make explicit findings, after a hearing on the record, that no reasonable alternative exists. This was not done in the instant case.
We conclude that there was no manifest necessity to declare a mistrial and that because defendant did not consent to the mistrial, jeopardy attached in the first trial. Since the second trial placed defendant in jeopardy for a second time, in violation of his constitutional right, the conviction may not stand and defendant must be released.
Reversed.