People v. Dawson

Citation427 N.W.2d 886,431 Mich. 234
Decision Date24 August 1988
Docket NumberDocket No. 79479,N
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Charles DAWSON, Defendant-Appellee. ov. Term. 431 Mich. 234, 427 N.W.2d 886
CourtSupreme Court of Michigan

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., Michael H. Dzialowski, Asst. Pros. Atty., Kalamazoo, for people.

Milton J. Marovich, P.C., Kalamazoo, John R. Scholten, on brief, Okemos, for Dawson.

OPINION

LEVIN, Justice.

The double jeopardy provisions of the Michigan 1 and federal 2 constitutions protect an accused from being twice put in jeopardy for the same offense. "Being twice put in jeopardy" includes being subjected to a retrial after the initial prosecution ends in a mistrial. 3 An exception to the double jeopardy bar has been made, and retrials allowed, where the prosecutorial or judicial errors requiring the mistrial appear to have been innocent 4 or were beyond the prosecutor's control. 5 A general exception has also been made where the mistrial was granted on the defendant's motion or with his consent. 6 Where prosecutorial conduct provoked the defendant's motion for mistrial, however, the Double Jeopardy Clause has sometimes been held to bar retrial. 7

This appeal presents the question when, where the court finds that prosecutorial conduct provoked a defendant's motion for mistrial, the double jeopardy provision bars retrial. We adopt the federal standard and hold that retrial is barred where the prosecutor intended to goad the defendant into moving for a mistrial.

In this case, counsel for the people conceded at oral argument in this Court that the trial prosecutor intended to bring about a mistrial. But for such concession, we would remand to the trial court for a factual determination. We affirm the result arrived at by the Court of Appeals reversing Robert Dawson's conviction.

I

Dawson was charged with assault with intent to commit sexual penetration. 8 The crime was alleged to have occurred early in the morning of June 28, 1981, 9 in Kalamazoo. The prosecutor alleged that Dawson lured complainant Mark Nelson to Dawson's home and that, when Nelson became uneasy and left, Dawson forced him at knife point to a small park near Dawson's home, where Dawson attempted to force Nelson to submit to anal intercourse. According to the prosecution, Nelson managed to struggle free and escape to a nearby street, where he was first struck by a truck and then taken to a hospital by passers-by. The prosecution's only evidence that Dawson assaulted Nelson was Nelson's testimony.

Dawson denied assaulting Nelson. He claimed that Nelson paid him to submit to sexual contact, and that Nelson suggested using the park. When Dawson was unable to complete the act, Nelson became hysterical and ran away.

The prosecutor first called Terry Sweeney, who had accompanied Dawson earlier in the evening in question. There was no substantive direct or cross-examination. The prosecutor then called Detective Robert Gay of the Kalamazoo police. Again there was no direct examination. On cross-examination, Detective Gay stated that he had found no signs of any struggle when searching the area where Nelson claimed he had struggled with Dawson. On redirect examination, Detective Gay stated, to the prosecutor's apparent surprise, 10 that he had not recovered any evidence at all from the park.

The prosecutor next called Nelson. Nelson was twenty-three years old at the time of the original trial, twenty-two at the time of the alleged assault. Nelson testified that on the evening in question he was sitting alone watching television in his girl friend's ground floor apartment. Two men came to the door. Nelson testified that one, Dawson, said that they had been walking by and had seen the gymnastics photos which Nelson's girl friend had on the walls of her apartment. Nelson said that he invited them inside. Nelson said that they remained for a total of fifteen minutes, that each of the three men drank one or two beers, and that they talked generally of their work and of sports. Nelson testified that he and Dawson then left together. 11

Nelson testified that he left with Dawson because he had run out of beer, and that Dawson had suggested that they go to the house of a friend of Dawson's, obtain some beer there, and return to Nelson's girl friend's apartment. Nelson agreed. With his right leg encased in a cast from ankle to hip, 12 Nelson proceeded on crutches to what he thought was Dawson's friend's house, which was approximately a ten-minute walk from the apartment.

Nelson said that Dawson unlocked the door and went inside, with Nelsonfollowing. 13 3] Dawson then went down into the basement for several minutes. When he returned he asked Nelson if he wanted to see the basement. Nelson said no and further told Dawson that he was going back to the apartment. Nelson testified that he then walked out of the door. 14

According to Nelson, after he had taken just several steps (still using his crutches) Dawson "grabbed [him] by the back of [his] collar and had [a] knife in [his] back and said 'Keep walking and shut up.' " 15 Nelson said that he then dropped his crutches and hobbled along in front of Dawson.

The two proceeded alongside some railroad tracks. Along one side of the tracks was a creek. Nelson testified that he thought that if he could reach the creek, he could break his cast and run away from Dawson. Nelson said that he struggled with Dawson 16--who still had hold of his collar and had a knife stuck into his back--escaped and ran into the creek. Dawson was right behind. Nelson said that his cast did break at the ankle and knee.

Nelson said that he and Dawson struggled in the creek. Dawson choked Nelson 17 and told him that if he made any noise, Dawson would kill him. Nelson said that while Dawson was choking him he was also cutting Nelson with the knife. Nelson testified that he was cut on his thumb, neck, and back. Nelson said that Dawson was also trying to get Nelson's pants off. Nelson repeatedly testified that Dawson did not say why he wanted to get Nelson's pants off.

Nelson testified that he then grabbed the knife (which had ended up in the weeds) and "grabbed a hold [sic] of this tree and pushed away from [Dawson] and took off from [Dawson]." Nelson ran across a little field toward a street. Dawson "took a dive" at Nelson, but Nelson rolled away and went into the street to try and wave someone down. Nelson said that he tried waving down a truck, but the truck did not stop. Nelson fell back against the curb, and the truck ran over his cast. A young man and young woman driving home from a late-night date saw Nelson, offered help, and took him to the hospital.

Defense counsel then began his cross-examination. Nelson said that Dawson came to the door of the apartment at approximately 8:00 p.m. Nelson then said that, contrary to his earlier testimony, both Dawson and Dawson's friend (Terry Sweeney) stayed for some fifteen minutes in the apartment. Dawson and his friend were "jumping around doing something," putting on some kind of a play fight. Dawson's friend then left, and just Nelson and Dawson drank beer. Nelson then reasserted that the only reason he agreed to go on crutches over to what he thought was Dawson's friend's house was to obtain some more beer. Nelson acknowledged that there was a store selling beer directly across the street from the apartment.

Nelson said that approximately a half-hour to forty minutes elapsed between meeting Dawson and being taken to the hospital. After pressing by defense counsel, he expanded this estimate to an hour. 18

Nelson made a number of denials. He denied that he initiated contact with Dawson. He denied that Dawson and his friend left the apartment, bought some beer, and then returned. He first denied that Dawson returned after leaving with his friend, 19 but then said that Dawson did leave with his friend and then returned alone. He denied paying Dawson for sexual contact.

Nelson stated for the first time that his girl friend had returned to the apartment while Dawson was still there. Nelson maintained his original version that he had been cut a number of times on the neck, even though the photograph taken at the hospital did not show such cuts. 20

On redirect examination, Nelson returned to his direct examination testimony that Dawson did not leave the apartment and then return, but rather that Dawson and his friend arrived, the friend left, and then Nelson left with Dawson. Nelson for the first time said that when Dawson was trying to pull Nelson's pants down, Dawson told Nelson that the reason he wanted to do so was to force Nelson into having anal intercourse. 21 Nelson was then excused.

After calling Officer Cristopher Sorrentino of the Kalamazoo Police, who gave no substantive testimony, the prosecution called Toni Hramika, Nelson's girl friend and the tenant of the apartment where Nelson and Dawson met. Hramika worked at a restaurant near her apartment. The night of the alleged assault, she returned home between 7:00 and 9:00 p.m. Nelson was there, sitting outside the front door drinking beer with Dawson. Hramika said, contrary to Nelson's testimony, that Nelson and Dawson went across the street, bought beer at the store there, and then returned to the apartment. Hramika overheard them discussing going over to Dawson's house. 22 Contrary to Nelson's testimony that the only reason he left with Dawson was to obtain some beer, Hramika testified that she heard Nelson and Dawson discussing going over to Dawson's house to obtain marijuana.

Nelson said that he would be back in fifteen minutes, but he was not. Hramika had made plans to spend the night at a girl friend's apartment. She waited for Nelson for half an hour and then left. She repeatedly called her apartment from her girl friend's, and Nelson finally answered between 11:15 and 11:45 p.m. Hramika said...

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