People v. Bowman
| Decision Date | 26 October 1971 |
| Docket Number | Docket No. 8088,No. 3,3 |
| Citation | 194 N.W.2d 36,36 Mich.App. 502 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daryl Duane BOWMAN, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Patrick J. Wilson, Running, Wise & Wilson, Traverse City, for defendant-appellant.
Frank J., Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stewart H. Freeman, Asst. Sol. Gen., for plaintiff-appellee.
Before FITZGERALD, P.J., and BRONSON and T. M. BURNS, JJ.
Defendant was tried before a jury from July 28 to July 30, 1969, in the Circuit Court for the County of Wexford on a charge of first-degree murder. 1 The victim was Ronald Cronk, 19, a Ferris State College student, who had left Big Rapids to hitchhike home for the Thanksgiving recess. Death was caused by multiple wounds to the head, neck and chest.
Defendant was found guilty as charged and sentenced to life imprisonment on August 15, 1970. He appeals as of right, raising significant issues.
The trial which led to defendant's conviction was his second trial on this charge, an earlier attempted trial on April 17 and 18, 1969, ending in a mistrial. Defendant claims that upon the termination of the first trial he should have been discharged since any subsequent trial would constitute double jeopardy, prohibited by the Fifth Amendment of the United States Constitution and by our own Constitution of 1963, Art. 1, § 15.
Primarily, defendant bases his claim on the premise that once his motion for a mistrial was denied, it could no longer be interpreted as his consent to a mistrial, and as no manifest necessity for a mistrial existed when it was ultimately declared, former jeopardy had attached to the defendant, was not waived, and precluded any second trial. Defendant did raise this objection below prior to the second trial and the trial court ruled against this claim. The question now comes to this Court.
Records available to us on appeal reveal that the prosecutor was prepared to present the People's case at the first trial, although he apparently was both inexperienced and suffering the effects of a bad cold. Whatever the reason, his opening statement was less than auspicious, emphasized by the fact that the trial judge twice encouraged the prosecutor to amend his statements. The attempted additional statements produced no improvement in the situation. Defendant objected that the prosecutor failed to establish in his statements all of the requisite elements to prove the crime charged, and later also objected to the court's interference with the conduct of the prosecutor's argument. After this bad start, the first day's proceedings continued with testimony from the prosecution's first witness.
On the following day, the Court and counsel met in chambers where the defense renewed its earlier objections and moved for a mistrial. The motion was denied. A few minutes later, while still in chambers, the following occurred:
'(At this point a discussion was held off the record at the request of the prosecutor.)
'THE COURT: Well, if you want to concur, on that basis I'll grant the mistrial.'
'(After some further discussion court and counsel returned to the courtroom.)'
The court then discharged the jury as follows:
'Ladies and gentlemen of the jury, the Court has been hearing a motion for the past half hour.
'Counsel for the defense has made a motion for a mistrial and the prosecuting attorney has concurred that some of the procedure questions may have been such as to perhaps have prejudiced the prosecution of the case, and he concurred in the defendant's request for a mistrial; and I'm accordingly declaring a mistrial, discharging you, and the matter will be rescheduled for trial at another date.'
We note that these occurrences were not objected to by the defendant and he did not at any time indicate a desire to withdraw his motion for a mistrial.
There is nothing in the record of this first trial to indicate a Manifest necessity for a mistrial which would then justify such action by the court, even in absence of the defendant's consent. People v. Anglin (1967), 6 Mich.App. 666, 150 N.W.2d 532. The objections raised by defendant and upon which his motion for a mistrial was based were substantially without merit. However, where a mistrial is declared with the defendant's consent, he may not later complain that the grounds for declaring the mistrial were false or inadequate. People v. Fochtman (1924), 226 Mich. 53, 197 N.W. 166; People v. Henley (1970), 26 Mich.App. 15, 182 N.W.2d 19; Gori v. United States (1961), 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901.
Consequently, we are faced with the question as to whether or not the defendant manifested his consent to the mistrial. Of course such consent which would in fact waive a fundamental constitutional right must be clear and unequivocal. People v. Iaconis (1971), 29 Mich.App. 443, 185 N.W.2d 609; People v. Brown (1970), 23 Mich.App. 528, 179 N.W.2d 58. The fact that the defendant was the party who initially moved for a mistrial certainly seems to indicate a clear and unequivocal consent to waiving his claim of double jeopardy. But since his original motion was denied, the defendant now claims that the denial operates as a discharge of this waiver; and when the motion was finally granted, this was at the request of the prosecutor so that the defendant's consent can no longer be implied.
Michigan courts apparently have not had an opportunity to decide what effect a denial has upon a motion for a mistrial and whether such denial forecloses defendant's consent to a mistrial when ultimately granted. Fochtman, supra, does, however, quote approvingly from a Georgia case wherein an analogous situation was presented. In Brown v. State (1900), 109 Ga. 570, 34 S.E. 1031, defendant's demurrer to the affidavit and accusation was initially denied and the defendant ordered to trial. After the State had introduced one witness, the court reconsidered the demurrer, reversed its former ruling and quashed the accusation, all without defendant's objection. Defendant's double jeopardy claim, raised at a second trial for the same offense, failed. His conviction at the second trial was affirmed on the holding that since the defendant made the initial motion and remained silent when it was finally granted, he could not 'question the propriety of a ruling which he himself invoked.' See, also Selman v. State (Alaska 1965), 406 P.2d 181; Blocher v. State (1912), 177 Ind. 356, 98 N.E. 118; Cambron v. State (1922), 191 Ind. 431, 133 N.E. 498; Matter of Kamen v. Gray (1950), 169 Kan. 664, 220 P.2d 160; State v. Wolak (1960), 33 N.J. 399, 165 A.2d 174; People v. Montlake (1918), 184 App.Div. 578, 172 N.Y.S. 102.
We are not unmindful that there are cases reaching contrary results upon similar fact situations. Cody v. State (1963), 237 Ark. 15, 371 S.W.2d 143; Cardenas v. Superior Court of Los Angeles County (1961), 56 Cal.2d 273, 14 Cal.Rptr. 657, 363 P.2d 889; State ex rel. Manning v. Himes (1943), 153 Fla. 711, 15 So.2d 613; State v. Grayson (Fla.1956), 90 So.2d 710; State v. Stiff (1924), 117 Kan. 243, 234 P. 700, reh. 118 Kan. 208, 234 P. 700; Sussman v. District Court of Oklahoma County (Okl.Cr.1969), 455 P.2d 724; People v. McGrath (1911), 202 N.Y. 445, 96 N.E. 92; Matter of Gershon v. Sardonia (1966), 50 Misc.2d 423, 270 N.Y.S.2d 729. Some of these cases, however are distinguishable by the added consideration that the defendant objected to the mistrial or attempted to withdraw his motion. In others, the motion was granted only to benefit the prosecutor, or as a result of the prosecutor's misconduct.
We do not doubt that in this case the prosecutor, with his poor health and his less than laudatory beginning, was happy to concur with the defendant's motion, but we cannot infer from this that the motion became his or was only for his benefit. If the defendant wished to proceed, he could have objected or he could have withdrawn his motion.
The prosecutor was quite prepared, our record shows, to continue, had the defense so desired. From what the trial judge told the jury, we may conclude that in his mind it was the defense motion that was being considered, that it was because of the defense motion that a mistrial was granted. The in-chambers conference was precipitated by the defendant in order to consider his motion for a mistrial. When it was over the mistrial was granted. All these factors indicate to this Court that the first trial was ended with the defendant's consent.
At this point, we are constrained to report, an assistant attorney general was assigned by the State to conduct the second trial. The necessity for this action may shed some light on the sagacity of the proposal for full-time prosecutors on a judicial circuit basis in the state's less densely populated areas.
We acknowledge the merit in the defendant's fear that by holding that a denial has no effect, any motion made by a defendant might be granted to his detriment at some later stage of the proceedings when his fortunes have changed. This, if allowed, would certainly dampen the efforts of the defendant's counsel to protect his client, making him fearful that any motion for a mistrial, though denied, may return to haunt him when the court decides to reverse its decision (perhaps because a prosecutor's case has not gone as well as it might have), and force the defendant into a second trial on a theory that the court was only finally doing what the defendant asked him to do.
We do not have that situation here. The position of the parties had not substantially changed between the denial of the motion and its allowance just a few moments later. Reality dictates that trial judges often must make rapid decisions and should be allowed an opportunity to change their minds, so long as the parties are not prejudiced thereby. Here, the trial...
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