People v. Riemersma

• Decision Date: 07 April 1981
• Docket Number: Docket No. 78-3156
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger Wayne RIEMERSMA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 340

306 N.W.2d 340

104 Mich.App. 773

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger Wayne RIEMERSMA, Defendant-Appellant.

Docket No. 78-3156.

Court of Appeals of Michigan.

April 7, 1981.

Released for Publication June 16, 1981.

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 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:

" '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 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 the following rationale for deferring to the trial judge's determination of a hung jury:

"Moreover, in this situation there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not 'manifest necessity' justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his 'valued right to have his trial completed by a particular tribunal.' But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate court views the 'necessity' for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of an erroneous ruling, would employ coercive means to break the apparent deadlock. Such a rule would frustrate the public interest in just judgments. The trial judge's decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court." (Footnotes omitted.) 434 U.S. 509-510, 98 S.Ct. 832-33.

See also People v. Bennett, 84 Mich.App. 408, 413, 269 N.W.2d 618 (1978), People v. Hoffman, 81 Mich.App. 288, 265 N.W.2d 94 (1978). Here, the trial judge did everything in his power, including rereading of requested testimony, to assist the jury in reaching a verdict. Distinguish People v. Blackburn, 94 Mich.App. 711, 290 N.W.2d 61 (1980). In summary, defendant's double jeopardy claim is denied.

Defendant next alleges that the trial court erred in denying a defense motion for a directed verdict of acquittal premised on the alleged insufficient evidence of the intent to commit another felony (larceny) incident to a burglary conviction. The requisite legal standard is whether the evidence presented by the prosecution up to the time the motion is made, viewed in the light most favorable to the prosecution, justified a reasonable factfinder in concluding that the requisite elements of the crime were proved beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979).

Complainant testified at trial that she left home at approximately 6:10 p. m. on February 16, 1977, and, upon returning about one hour later, got out of her car and noticed someone about six feet away from her front door. When she entered her home, she observed glass all over the landing. She testified that the bottom window above the doorknob of the door had been broken and that the front and storm doors, which had not been used all winter, had been unlocked and opened. Complainant testified that she noticed a set of footprints in the snow which she was sure belonged to the person whom she had seen when she had arrived home.

Assuming that defendant was the person who broke into complainant's house, which will be discussed infra, a logical inference may be drawn that he did so, while the occupants were away, for the purpose of committing a larceny, but was interrupted by complainant before he could remove anything.

Intent to steal in a breaking and entering is difficult, if not impossible, to prove by direct evidence, and, thus, may be established by inferences from circumstantial evidence. People v. Williams, 94 Mich.App. 406, 414-418, 288 N.W.2d 638 (1979). Defendant's contention that the record is equally compatible with the notion that the perpetrator broke in for shelter or to use bathroom facilities is not a logical conclusion based on the evidence that the house where defendant was staying was only a short distance from the area and defendant took a rather circular route home. In summary, a reasonable factfinder could find, based on the evidence, that the intent element was established beyond a reasonable doubt.

Defendant argues that there was insufficient evidence of identification implicating him as the perpetrator of the offense. See People v. Hampton, supra. The thrust of defendant's argument is that, since tracking dog evidence was the only evidence inculpating defendant, his conviction must be reversed. People v. McPherson, 85 Mich.App. 341, 271 N.W.2d 228 (1978).

The record negates this contention. Complainant testified that she observed the figure of a man near the front of her home around dusk on the evening in question. Defendant was stopped shortly thereafter walking in the area and was questioned by a police officer. That officer testified that he did not mention the breaking and entering to defendant nor was it discussed over the police radio. Yet, when the tracking dog led police to the door of defendant's residence, defendant stated that he believed he was being questioned "about the house B&E". Defendant was brought to the scene where his bootprint was compared to footprints in the snow which complainant was sure were made by the person she had observed. A police officer testified that it was a perfect match. We conclude that sufficient circumstantial evidence was introduced ...