People v. Cooper

• Decision Date: 26 January 1982
• Docket Number: Docket No. 45886
• Citation: 314 N.W.2d 554,111 Mich.App. 194
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Debra Lynn COOPER, Defendant-Appellant. 111 Mich.App. 194, 314 N.W.2d 554
• Court: Court of Appeal of Michigan — District of US

Page 554

314 N.W.2d 554

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Debra Lynn COOPER, Defendant-Appellant.

Docket No. 45886.

111 Mich.App. 194, 314 N.W.2d 554

Court of Appeals of Michigan.

Submitted June 8, 1981.

Decided Nov. 16, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 195] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Prosecuting Atty., Janis L. Blough, Chief Appellate Asst. Pros. Atty., and Barbara K. Hamm, Asst. Prosecuting Atty., for the People.

Emery & Devine, Lansing, for defendant.

Before DANHOF, C. J., and CAVANAGH and FREEMAN ^*, JJ.

[111 MICHAPP 196] FREEMAN, Judge.

Defendant appeals by right her conviction by a jury of attempted uttering and publishing, M.C.L. § 750.249; M.S.A. § 28.446 and M.C.L. § 750.92; M.S.A. § 28.287. Although defendant raises several claims of error on appeal, we only address her claim that her prosecution was barred by the constitutional guarantee against double jeopardy.

Defendant and Ivan Horton were jointly charged with uttering and publishing. At their first joint trial, a mistrial was declared with the consent of both defendants. At their second trial, a prosecution witness volunteered testimony concerning a statement by appellant inculpating her codefendant. The trial judge denied a motion by both defendants for dismissal. The following discussion then took place:

"THE COURT: * * * At this point it appears to this Court that the proper remedy is to grant a mistrial in this case, if the Defendants wish. Now, will you discuss that matter with your clients. If they wish a mistrial, I will grant it. If they don't wish the mistrial, then I will handle it with a cautionary instruction to the jury panel. Okay.

"MR. WILLIAMS: Your Honor, may it please the Court on behalf of Defendant Horton I have discussed the Court's comments with him and it is his position at this time that he does desire that the Court grant a mistrial and ask the Court to do so at this point.

"THE COURT: Is that correct, Mr. Horton?

"DEFENDANT HORTON: Yes, Your Honor.

"THE COURT: Mr. Rasmusson?

"MR. RASMUSSON: I have discussed this with Ms. Cooper and her feelings are the same as mine. She doesn't care either way. I don't really have a recommendation to her.

"THE COURT: What does she want to do? She has to make a decision. You don't care either way? Is that correct, Ms. Cooper?

"DEFENDANT COOPER: Yes, Your Honor.

[111 MICHAPP 197] "THE COURT: You are neither for it nor against it, is that correct?

"DEFENDANT COOPER: Yes, sir."

The trial judge then declared a mistrial, stating:

"THE COURT: Because one of the Defendants wants the mistrial and one doesn't want it, being tried together I have no alternative, as I understand the law but to grant the mistrial. Because obviously, one wants it that it is the Court's opinion it has to be granted with double Defendants or two Defendants. You will have to reschedule it, to retry it. Bond continues for Mr. Horton.

"MR. STEEL: Thank you, Your Honor.

"MR. WILLIAMS: Thank you, Your Honor."

Before her third trial, defendant moved for dismissal on double jeopardy grounds. Her motion was denied, she was tried and convicted, and she raises the same claim on appeal.

The Fifth Amendment to the United States Constitution and Article 1, Section 15 of the 1963 Michigan Constitution forbid the state from twice putting a person in jeopardy for the same offense. People v. Alvin Johnson, 396 Mich. 424, 430, 240 N.W.2d 729 (1976). The scope of the constitutional guarantee against double jeopardy is the same under both the United States and Michigan constitutions. Id., 430, fn. 2, 240 N.W.2d 729, In re Ascher, 130 Mich. 540, 545, 90 N.W. 418 (1902). Once a defendant has been placed in jeopardy, unless he or she consents to a mistrial or one is manifestly necessary, the state is precluded from again bringing him or her to trial for the same offense. People v. Alvin Johnson, supra, 396 Mich. 431, 240 N.W.2d 729.

On appeal, defendant claims the judge erred by holding that a mistrial must be declared as to codefendants when one wishes a mistrial and the [111 MICHAPP 198] other one does not. We agree. In People v. Alvin Johnson, supra, Johnson claimed his retrial was barred after a mistrial was declared at the behest of his codefendant. The Court carefully analyzed the need for, or consent to, a mistrial without considering the issue of the codefendant's consent. The analysis made by the Johnson Court strongly suggests that the grant of a mistrial to one codefendant does not constitute manifest necessity for the grant of a mistrial to another one. This view is bolstered by decisions from other jurisdictions which have directly addressed the question. United States v. Alford, 516 F.2d 941 (CA 5, 1975); United States v. Glover, 506 F.2d 291, 298 (CA 2, 1974); Thomas v. Beasley, 491 F.2d 507, 510 (CA 6, 1973), cert. den., 417 U.S. 955, 94 S.Ct. 3083, 41 L.Ed.2d 674 (1974); United States v. Walden, 448 F.2d 925, 929 (CA 4, 1971); Jones v. Commonwealth, 379 Mass. 607, 400 N.E.2d 242 (1980). Courts which have refused to sever joint trials when a mistrial must be declared as to one defendant and have upheld the declaration of a mistrial as to all defendants have based their decision on the complexity of the case. In a complex, multi-defendant case, fairness to all defendants may preclude severance in some circumstances. United States v. Smith, 390 F.2d 420, 422-424 (CA 4, 1968); Oelke v. United States, 389 F.2d 668, 672, fn 5 (CA 9, 1967), cert. den. 390 U.S. 1029, 88 S.Ct. 1420, 20 L.Ed.2d 286 (1968); United States v. Chase, 372 F.2d 453, 465-466 (CA 4), cert. den., 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967).

The present case is not a complex case. There was no showing of complexity before the decision was made to abort the trial for manifest necessity. Although considerable deference will be accorded a trial judge's determination that manifest necessity [111 MICHAPP 199] exists, the determination cannot be upheld where the error could have been cured by a less drastic remedy. People v. Stevens, 91 Mich.App. 422, 428, 283 N.W.2d 763 (1979). In this case, severance would have been an appropriate and adequate remedy. By declaring a mistrial without investigating alternative remedies, the trial judge failed to engage in the scrupulous exercise of judicial discretion required to support a finding of manifest necessity. People v. Benton, 402 Mich. 47, 60, 260 N.W.2d 77 (1977). We conclude that manifest necessity justifying declaration of a mistrial without defendant's consent was not present.

On appeal, the prosecutor claims that retrial was not barred because defendant consented to the second mistrial. We disagree. Here, the trial judge asked defendant's counsel if defendant desired a mistrial. Counsel responded that defendant did not care either way and stated he had no recommendation for his client. The judge then stated the defendant had to make a decision and asked her directly: "You don't care either way? Is that correct, Ms. Cooper?" She said that was correct and the judge stated: "You are...