People v. Dry Land Marina, Inc., Docket No. 98771

• Decision Date: 10 April 1989
• Docket Number: Docket No. 98771
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. DRY LAND MARINA, INC., Defendant-Appellant, and James E. Geerlings, Herbert F. Postma, Jr., Randy F. Postma, and Marc Vandenbosch, Defendants. 175 Mich.App. 322, 437 N.W.2d 391
• Court: Court of Appeal of Michigan — District of US

Page 391

437 N.W.2d 391

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. DRY LAND MARINA, INC., Defendant-Appellant and James E. Geerlings, Herbert F. Postma, Jr., Randy F. Postma and Marc Vandenbosch, Defendants.

Docket No. 98771.

175 Mich.App. 322, 437 N.W.2d 391

Court of Appeals of Michigan.

Submitted March 4, 1988.

Decided Feb. 23, 1989.

Released for Publication April 10, 1989.

[175 MICHAPP 323] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and E. David Brockman and Paul L. Bricker, Asst. Attys. Gen., for the people.

Warner, Norcross & Judd by Harold S. Sawyer and Steven J. Vander Ark, Grand Rapids, for defendant-appellant on appeal.

Before SULLIVAN, P.J., and MacKENZIE and SCHNELZ, ^* JJ.

MacKENZIE, Judge.

Dry Land Marina (hereafter defendant), a retail seller of watercraft, was charged with eight counts of sales tax fraud, M.C.L. Sec. 205.27; M.S.A. Sec. 7.657(27). Four of defendant's officers/salesmen were also charged with aiding and abetting tax fraud. Following a jury trial, defendant was convicted on five counts and all of the individual defendants were acquitted. Defendant was sentenced to pay a $5,000 fine on each conviction. Defendant appeals as of right. We affirm.

At issue in this case is the manner in which the trial court resolved a situation which arose when, during jury deliberations, a juror became ill. Trial began on September 15, 1986, with the selection of fourteen jurors. On October 7, 1986, following ten days of testimony, the court instructed the fourteen jurors and then selected two alternates. The [175 MICHAPP 324] twelve jurors subsequently deliberated for approximately one hour.

The jury resumed deliberations the following morning, October 8. The court excused the jury for the day at 2:30 p.m., in part because one of the jurors, who had broken her arm the preceding weekend, told the court she was not feeling well. The ailing juror was instructed to return in the morning or call.

The following morning, October 9, the juror in question failed to appear or contact the court. When the clerk advised that she had seen the juror in the courthouse, she was summoned and questioned. The juror explained that she was at the courthouse to appear in court with a friend whom she had bailed out of jail the previous night. She indicated that she was having circulatory problems in her hand, that her hand was discolored, that she had an appointment to see her doctor that afternoon, that the painkillers she was taking made her groggy, and that there was a possibility she would have to undergo an operation within two to three weeks. The court decided, over defense objection, to permanently excuse the juror and seat one of the alternates.

The court then conducted a voir dire examination of the alternate jurors. Both indicated that they followed the court's instructions as given when they were excused and had not discussed the case with anyone. When both reaffirmed their ability to judge the case fairly, one was selected by lot to replace the ailing juror. The jury was instructed to begin deliberations anew.

That afternoon, the prosecutor trying the case discovered that after the replacement juror had been selected as an alternate she spoke with another prosecutor. On the record the following day, the second prosecutor stated that, although the [175 MICHAPP 325] conversation began on an unrelated topic, the juror expressed her disappointment in being excused and expressed an opinion that the defendants were not guilty. The replacement juror remained impaneled.

The jury reached its verdict on October 13, 1986. As previously noted, the individual defendants were all acquitted. Defendant was acquitted on two counts and convicted on five counts. The court had earlier dismissed the remaining count against defendant.

On appeal, defendant challenges both the trial court's decision to discharge the ailing juror and its decision to seat an alternate after jury deliberations had begun.

We first consider the trial court's decision to discharge the ailing juror. A criminal defendant is placed in jeopardy once the jury is impaneled and sworn. At that point he has a constitutional right to have his case completed and decided by that tribunal. United States v. Jorn, 400 U.S. 470, 479, 484, 91 S.Ct. 547, 554, 556-57, 27 L.Ed.2d 543 (1971); People v. Gardner, 37 Mich.App. 520, 526, 195 N.W.2d 62 (1972), lv. den. 387 Mich. 771 (1972). A discharge of the jury, without legal justification or the defendant's consent, before it has reached final verdict, operates as a dismissal of the charges and bars retrial. Gardner, supra, at p. 526, 195 N.W.2d 62.

The discharge of the ailing juror in the present case occurred after the jury had deliberated for approximately four hours. According to defendant, absent a finding of "manifest necessity" by the court to justify excusing the juror, the discharge operated as a dismissal with prejudice of all charges against the defendants.

The trial court's decision to remove a juror will only be reversed when there has been a clear abuse of discretion. People v. Van Camp, 356 Mich. [175 MICHAPP 326] 593, 604-605, 97 N.W.2d 726 (1959); People v. Mason, 96 Mich.App. 47, 49-50, 292 N.W.2d 480 (1980). As reiterated by this Court many times, a trial court abuses its discretion when it makes a determination that is so grossly violative of fact and logic that it defies reason and amounts to passion or bias. Spalding v. Spalding, 355 Mich. 382, 384, 94 N.W.2d 810 (1959). We conclude that the decision of the trial court to excuse the ailing juror constituted a proper exercise of judicial discretion supported by fact and logic. The juror had a real or imagined physical disability and was obviously reluctant to cooperate, as evidenced by her failure to appear or call the court that morning. Defendant had a definite fundamental interest in retaining the composition of the jury as originally chosen to finally decide its case. However, defendant's equally fundamental right to have a fair and impartial jury decide its case was protected by removing a juror who was either too ill to serve or unwilling to cooperate.

Furthermore, defendant's contention that a finding of manifest necessity by the trial court is required to discharge the juror misconstrues the intent of that concept. Manifest necessity is a standard enunciated in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), which governs a trial court's discretion to declare a mistrial over defendant's objection. Courts are vested as a matter of law with the authority to discharge a jury from rendering a verdict, when, under all the circumstances, there is a manifest necessity to do so in order to further the ends of public justice. Id., at p. 580. A classic example of manifest necessity requiring discharge of the jury is a hung jury.

In United States v. Jorn, supra, the United States Supreme Court held that, absent defendant's motion for, or consent to, a mistrial, the [175 MICHAPP 327] Perez manifest necessity doctrine stands as a command to the trial court not to foreclose the defendant's valued right to have that particular jury decide his case until, in "scrupulous exercise" of judicial discretion, it determines that justice will not be served by continuing the proceedings to conclusion. Id. The court must consider viable alternative measures to declaring a mistrial.

In accord with these authorities, the Michigan Supreme Court has also held that the trial court must exercise its power to declare a mistrial with great caution and employ less drastic alternatives which would be revealed by the scrupulous exercise of judicial discretion. People v. Benton, 402 Mich. 47, 60-61, 260 N.W.2d 77 (1977). Before a court declares a mistrial on its own initiative, it should conduct a hearing on the record to thoroughly consider the situation and make explicit findings that no reasonable alternative exists. Id., at p. 61, 260 N.W.2d 77.

Based on the foregoing, it may be concluded that the policy of protecting defendant's right to have its case decided by the jury as chosen is protected by avoiding a mistrial if reasonable alternatives exist. For the reasons stated below, we think it was reasonable for the court to call back an alternate juror. The fact that other reasonable alternatives existed, and that one or more of these alternatives may have been better than that chosen by the trial court, does not render its decision an abuse of discretion which requires reversal of defendant's conviction.

The remaining question is whether the court's decision to seat an alternate juror after deliberations began constituted error requiring reversal. We hold that it did not.

MCR 6.102(A) provides:

[175 MICHAPP 328] "Alternate Jurors. The court may direct that 13 or more jurors may be impaneled to sit in a felony case. After the instructions to the jury have been given and the case submitted, the names of the jurors must be placed in a container and names drawn from it to reduce the number of jurors to 12, who shall constitute the jury. The persons eliminated in this manner must be discharged from the case after the jury retires to consider its verdict."

This rule clearly and unambiguously mandates that once alternate jurors are selected they must be discharged from the case and the remaining twelve jurors are the panel that will decide the defendant's case. It is thus clear that the trial court's decision in the present case to remove a juror on account of illness after deliberations had begun was in violation of MCR 6.102(A).

Defendant contends that the error per se requires reversal. We disagree. In reaching this conclusion, we are guided by decisions of several circuits of the United States Court of Appeals considering F.R.Crim.P. 24(c), the federal rule after which MCR 6.102(A) was patterned. F.R.Crim.P. 24(c) provides:

"The court may direct that not more than 6 jurors in addition to the regular jury...