306 N.W.2d 340 (Mich.App. 1981), 78-3156, People v. Riemersma

Docket Nº:Docket No. 78-3156.
Citation:306 N.W.2d 340, 104 Mich.App. 773
Opinion Judge:Before R B BURNS, P J, and MacKENZIE and KALLMAN, JJ
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger Wayne RIEMERSMA, Defendant-Appellant.
Judge Panel:Before R. B. BURNS, P.J., and MacKENZIE and KALLMAN, [*] JJ.
Case Date:April 07, 1981
Court:Court of Appeals of Michigan

Page 340

306 N.W.2d 340 (Mich.App. 1981)

104 Mich.App. 773

PEOPLE of the State of Michigan, Plaintiff-Appellee,


Roger Wayne RIEMERSMA, Defendant-Appellant.

Docket No. 78-3156.

Court of Appeals of Michigan.

April 7, 1981

Page 341

Released for Publication June 16, 1981.

Page 342

[104 Mich.App. 776] Jack E. Frost, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., David J. Buter, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and MacKENZIE and KALLMAN, [*] JJ.

MacKENZIE, Judge.

On May 3, 1978, defendant was convicted by a jury of breaking and entering with the intent to commit larceny, contrary to M.C.L. § 750.110; M.S.A. § 28.305. Subsequent to that conviction, the prosecutor filed a supplemental information charging defendant as a second felony offender, M.C.L. § 769.10; M.S.A. § 28.1082, and defendant was convicted on that charge in a bench trial on June 28, 1978. Defendant was sentenced to a term [104 Mich.App. 777] of 5 to 22 1/2 years imprisonment and appeals as of right.

Initially, defendant contends that his right to be free from being twice placed in jeopardy for the same offense was violated by retrial after the first trial ended in mistrial. Clearly, neither defendant nor defense counsel consented to the mistrial on the record, therefore, resolution of the question depends on whether manifest necessity caused the declaration of mistrial. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

In Arizona v. Washington, the Supreme Court held that the prosecutor has the burden of demonstrating manifest necessity for any mistrial declared over defendant's objection. 434 U.S. 505, 98 S.Ct. 830. An important factor to consider is the reason for the declaration of mistrial:

Page 343

" 'The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where "bad-faith conduct by judge or prosecutor" ... threatens the "(h) arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant.'

"Thus, the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.

"At the other extreme is the mistrial premised upon the trial judge's belief that the jury is unable to reach a verdict, long considered the classic basis for a proper mistrial. The argument that a jury's inability to agree establishes reasonable doubt as to the defendant's guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the [104 Mich.App. 778] courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws." (Footnotes omitted.) Arizona v. Washington, supra, 434 U.S. 508-509, 98 S.Ct. 831-32, quoting United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

Notably, the trial judge herein declared a mistrial based on his assessment of a jury deadlock. Following jury deliberations for three and one-half hours, the jury foreman informed the judge that the rereading of testimony did not move either position of the members of the jury. The foreman stated it was very doubtful that a verdict could be reached and that "(i)t looks like a deadlock situation as I see it". In response to the court's question of whether further deliberations would be helpful, the foreman said, "I don't think that a continuation of our deliberations today would, in effect, be helpful in reaching a verdict". Although the judge's decision to declare a mistrial seemed to be based in part on the fact that it was the end of the jury term, he apparently weighed the probability of whether the jurors could reach a verdict by staying over and decided further deliberations would not be helpful. When the trial judge considers the appropriate factors, it is not our function to second-guess him. Similarly, in Arizona v. Washington, supra, the trial judge did not state expressly on the record that he had found manifest necessity to declare a mistrial. Nevertheless, his decision was upheld by the Supreme Court, which found that the record reflected the high degree of necessity necessary for a declaration of a mistrial.

Further, the Supreme Court gave...

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