People v. Benton

• Decision Date: 28 November 1977
• Docket Number: No. 10,10
• Citation: 260 N.W.2d 77,402 Mich. 47
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred BENTON, Defendant-Appellant. 402 Mich. 47, 260 N.W.2d 77
• Court: Michigan Supreme Court

Page 77

260 N.W.2d 77

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred BENTON, Defendant-Appellant.

No. 10.

402 Mich. 47, 260 N.W.2d 77

Supreme Court of Michigan.

Nov. 28, 1977.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Research, Training & Appeals, Ronald P. Weitzman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Carl Ziemba, Detroit, for defendant-appellant.

LEVIN, Justice.

The issue is whether re-prosecution of the defendant following the trial judge's sua sponte mid-trial declaration of a mistrial was violative of the Double Jeopardy Clause. ¹ We hold that it was and that the information should be dismissed.

I

Fred Benton was charged with armed robbery. The first trial commenced July 30, 1973. On the first day of that trial after the prosecution had called all the witnesses who were to testify at the second trial, with the exception of the officer in charge of the case, who at the second trial testified solely with regard to unsuccessful efforts to produce two res gestae witnesses the people called Tommy McBride. McBride had also been charged with the commission of the offense but was not bound over for trial.

The prosecutor's direct examination was devoted entirely to eliciting a statement made by McBride to the police. McBride recognized his signature on the statement, but could not recall making it. He said that he was under the influence of narcotics during and immediately after his arrest. The statement inculpated Benton and was read into the record in the form of a question. ² There was no objection by defense counsel.

Cross-examination explored the extent of McBride's drug intoxication at the time the statement was made. On redirect, McBride asserted that the statement was untrue. The truth was that a man had run up to the car in which, immediately after the robbery, he and Benton were seated and threw a pistol and wallet into the back seat of the car. ³

At the beginning of the second day of trial, the judge, sua sponte, declared a mistrial. She said that the prosecutor had improperly impeached McBride, that McBride's testimony was prejudicial to Benton and that a cautionary instruction would not be efficacious.

Benton's second trial began October 1, 1973. His motion to dismiss on the ground that he had previously been placed in jeopardy on the same charge was denied. He was convicted and the Court of Appeals affirmed.

II

It is established that if the defendant himself moves for or consents to the declaration of a mistrial he will ordinarily be deemed to have waived any double jeopardy claim. In determining whether the defendant has consented to a mistrial, the United States Supreme Court declared, in a case where the defendant's mistrial motion was assertedly occasioned by judicial error, ⁴ that "(t)he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed." United States v. Dinitz, 424 U.S. 600, 607-609, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976). This Court, on the authority of Dinitz, has declared that the defendant must "do something positively in order to indicate he or she is exercising that primary control." ⁵ Defendant's silence or failure to object to a declaration of mistrial does not constitute the requisite affirmative showing on the record. ⁶

In the instant case, there is no indication that Benton or his counsel consented to a mistrial and there is substantial evidence that his counsel objected. In declaring a mistrial, the judge relied on United States v. Compton, 365 F.2d 1 (C.A.6, 1966), where counsel for a witness called by the government had advised the court that the witness would claim the Fifth Amendment privilege against self-incrimination and, over objection, the government read into the record in the form of a question a purported statement given by the witness to the FBI. It appears that counsel for Benton may have argued that Compton was distinguishable because McBride had not asserted his Fifth Amendment privilege: "I just wanted the Court to note my objection raised yesterday as to this Fifth Amendment argument." ⁷

In declaring a mistrial, the judge in the instant case said:

"And the Court is mindful, also, of the case of People v. Grimmett (388 Mich 590; 202 NW2d 278 (1972)), where it indicated that, at least in general terms, if a mistrial were declared without the consent of the defendant that the defendant could not be tried under the abiding principle of double jeopardy."

It is apparent that the judge was aware that she was declaring a mistrial without Benton's consent and that, indeed, her action gave rise to an arguable defense of double jeopardy. She concluded, nevertheless, that she would declare a mistrial because the circumstances caused "the Court to feel it was manifestly necessary to declare a mistrial in this cause because (of) the plain error which erroneously did occur."

III

The governing standard, manifest necessity, was enunciated in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824): "(T)he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." ⁸

"Manifest necessity" has escaped precise formulation. ⁹ Indeed, the United States Supreme Court has followed an uncertain course in applying Perez. In Gori v. United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 1527, 6 L.Ed.2d 901 (1961), the Court declared that a sua sponte mistrial did not bar retrial if the mistrial had been declared "in the sole interest of the defendant." Subsequently the Court declared that the Gori test "does not adequately satisfy the policies underpinning the double jeopardy provision". ¹⁰ United States v. Jorn, 400 U.S. 470, 483, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971).

Jorn requires that the judge consider viable alternative curative measures before sua sponte declaring a mistrial. ¹¹ 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.' "

In Illinois v. Somerville, 410 U.S. 458, 464, 471, 93 S.Ct. 1066, 1070, 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 curable 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." ¹²

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, n. 2 (C.A.2, 1977). ¹³

We turn to a consideration of whether the nature of the defect in the proceedings was such that if a guilty verdict had been rendered at the first trial the conviction "would have (had) to be reversed on appeal" (Somerville, supra, 410 U.S. p. 464, 93 S.Ct. p. 1070) ¹⁴ and whether, if the defect was not so pervasive, a "scrupulous exercise of judicial discretion" would have revealed a less drastic remedy than declaration of a mvstrial (Jorn, supra, 400 U.S. pp. 484-485, 91 S.Ct. 547).

IV

The procedural defect here would not have required reversal had Benton been convicted at the first trial.

While a prosecutor is obliged to call res gestae witnesses and, therefore, does not vouch for their credibility and may impeach them "the same as though such witnesses had been called by the respondent," M.C.L.A. § 767.40a; M.S.A. § 28.980(1), the prosecutor is not obliged to call an accomplice. ¹⁵ "Absent (such) obligation, a witness thus called becomes the people's witness and subject to the settled rules concerning the examination of any witness voluntarily called by either party." ¹⁶

McBride, along with Benton, had been charged with commission of the armed robbery and, therefore, may properly be characterized an accomplice. (If he is not regarded an accomplice, what occurred would, because of the prosecutor's undoubted right to impeach res gestae witnesses whom he is obliged to call, have been less objectionable.)

Proceeding on the assumption that McBride was an accomplice, the prosecutor could not properly impeach him (his own witness) by use of a prior statement, ¹⁷ and the error was compounded by launching the impeachment without a foundation in the form of inconsistent direct testimony.

In affirming Benton's conviction, the Court of Appeals said that if a mistrial had not been declared and Benton had been found guilty he "would certainly have assigned such a failure as error on appeal" (emphasis supplied). The accuracy of that assumption is debatable; be that as it may, manifest necessity does not arise because the defendant may, providently or improvidently, assign error.

The history of adjudication in the Court of Appeals demonstrates that if Benton had been convicted at the first trial it is unlikely that his conviction would have been reversed because of the defect perceived by the judge. In People v. Coates, 40 Mich.App. 212, 214, 198 N.W.2d 837 (1972), and People v. St. Onge, 63 Mich.App. 16, 18-19, 233 N.W.2d 874 (1975), the Court of Appeals, recognizing that it is improper for a prosecutor to impeach an...