People v. Echavarria

• Decision Date: 08 January 1999
• Docket Number: Docket No. 203373
• Citation: People v. Echavarria, 233 Mich.App. 356, 592 N.W.2d 737 (Mich. App. 1999)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Celso ECHAVARRIA, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 737

592 N.W.2d 737

233 Mich.App. 356

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Celso ECHAVARRIA, Defendant-Appellant.

Docket No. 203373.

Court of Appeals of Michigan.

Submitted Dec. 3, 1998, at Detroit.

Decided Jan. 8, 1999, at 9:05 a.m.

Released for Publication March 23, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Karen M. Woodside, Assistant Prosecuting Attorney, for the people.

Karri Mitchell, Pontiac, for the defendant.

Before: DOCTOROFF, P.J., and SAWYER and FITZGERALD, JJ.

PER CURIAM.

Defendant was charged with possession with intent to deliver 650 or more grams of cocaine, M.C.L. § 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), and possession with intent to deliver marijuana, M.C.L. § 333.7401(2)(c); MSA 14.15(7401)(2)(c). Defendant's first trial ended in a mistrial. On retrial, a jury found defendant guilty of possession of 650 or more grams of cocaine, M.C.L. § 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i). He was sentenced to life in prison. Defendant now appeals as of right. We affirm.

Defendant first argues that his retrial violated his double jeopardy rights. We disagree. This issue presents a question of constitutional law, which we review de novo. People v. White, 212 Mich.App. 298, 304-305, 536 N.W.2d 876 (1995).

At defendant's first trial, the jury returned a verdict of guilty of possession of 650 or more grams of cocaine. However, during the polling of the jurors, the sixth juror to be polled stated: "It wasn't really my verdict. I didn't--there were things that wasn't [sic] clear with me." The trial judge then directed the court clerk to continue the polling of the remaining jurors, all of whom indicated their agreement with the guilty verdict. After explaining that a verdict in a criminal case must be unanimous, the following exchange took place between the trial judge and the dissenting juror:

Court: I mean, the jurors sent back a note saying we have reached a verdict. You had reached a verdict. As I said, it should be the individual judgment of each juror. You were part of the jury. Now, is there some problem?

Juror: Well, yes, there's a problem and they were trying to explain it to me over and over and over. I just didn't understand the possession. Just because something was in a house, that doesn't mean that someone knew it was there. That's how I felt. So, I don't know how to explain it. They explained it to me--

Court: You don't have to tell me how they explained it to you or how you explained it to them.

The trial judge then sent the jury into the jury room and ordered the jurors not to discuss the case. Subsequently, the following exchange occurred between the court and counsel:

Defense Counsel: And I'm glad she decided to be a strong woman and to be honest with this Court and says [sic] what she believed. Just because it's in the house, doesn't mean it's his. That's her belief and that's probably what she was trying to advocate back there and this is what she told the Court. That's not her verdict and it had to be unanimous. And now, to--and she's already told the Court--for the Court--her position. Just because it's in the house, doesn't mean that he had--that he knows it's there. And that's her position. And as far as I'm concerned, it's a mistrial.

We cannot send them back in now and say well twist, let's twist the arm some more and try to make her believe that because something is in the house it--they got [sic] to know about it or it's theirs.

Court: Mr. Rollstin?

Prosecutor: Judge, there's no basis for a mistrial here. And what the Court should do is instruct them to continue deliberating. And what you've got is a situation where the jurors are not unanimous and they should go back in there and continue deliberating. If they tell you they can't reach a verdict, then we cross that bridge when we get there.

The trial judge informed counsel that he intended to research the issue overnight, and that he would order the jury to return the following morning. The trial judge then stated, apparently to defense counsel, "Your motion for a mistrial is taken under advisement and may be granted tomorrow."

The following morning, the trial judge explained that, pursuant to MCR 6.420, the court erred in allowing the polling to continue after one of the jurors expressed disagreement with the verdict. The trial judge stated, "I think based on that and the Wilson ¹ case, the defense's motion for a mistrial must be granted." The following exchange then occurred:

Prosecutor: Now, I understand the Court's position, but I think you also have to--if you're going to declare the mistrial, you have to explain to Mr. Echavarria his options, and the court rule talks about his consent, the defendant's consent. I think that ought to be taken on the record, if that's going to be done.

* * *

Court: Well, it was the defense's motion for a mistrial, so, I take it with that, that it was with Mr. Echavarria's consent for the mistrial, is that correct, Mr. Mitchell?

Defense Counsel: Well, Judge, I don't want to indicate that it's--I indicated that I asked for a mistrial because of the jurors--what the juror--what the jury said--what the juror said, juror number eight.

Now, whether or not--it's not--it's not with our "consent" per se. My position is that it has to be declared because of that. So, I don't want--no, it's not with our consent. It has to be declared because of what happened and because of what the case law says.

* * *

Court: So, the question again is, is that with your consent?

Defense Counsel: No, Judge.

The prosecutor then argued that, pursuant to MCR 6.420, if defendant did not consent to a mistrial, then a mistrial could only be declared if manifest necessity existed. The prosecutor asked whether the court had made a finding of manifest necessity. In response, the court stated:

Court: As I said earlier, I think based on these circumstances a mistrial is in order and I stand by that based on the court rule and the case law.

* * *

I do think that the Court continuing the polling, coupled with my inquiry of that jury [sic] after the side bar with all the attorneys, and at the side bar before the additional inquiry is made, the defense moved for a mistrial at that point. That the additional inquiry coupled with the continuation of the polling will result in the manifest necessity, which would declare a mistrial.

Defense Counsel: Thank you, Judge. Are we going to get another date today?

Court: And this was yesterday, as I said, for defendant's motion. So, I think that takes care of the manifest necessity. I'll give you a date right now.

MCR 6.420(C), which governs the polling of a jury in a criminal trial, provides:

Before the jury is discharged, the court on its own initiative may, or on the motion of a party must, have each juror polled in open court as to whether the verdict announced is that juror's verdict. If polling discloses the jurors are not in agreement, the court may (1) discontinue the poll and order the jury to retire for further deliberations, or (2) either (a) with the defendant's consent, or (b) after determining that the jury is deadlocked or that some other manifest necessity exists, declare a mistrial and discharge the jury.

If a juror expresses disagreement with the verdict when the jury is polled, the jury must be sent out for further deliberations. MCR 2.512(B)(3); People v. Booker (After Remand), 208 Mich.App. 163, 168, 527 N.W.2d 42 (1994). Here, it is clear that the trial court erred in failing to discontinue the polling and in failing to send the jury out for further deliberations. Id. The trial court further erred in questioning the dissenting juror regarding the nature of her disagreement with the verdict. Id. at 169, 527 N.W.2d 42. The continuation of the polling and the subsequent questioning of the dissenting juror were improper because of their potentially coercive effect. Id. See Staff Comment to MCR 6.420. The trial court declared a mistrial on the basis of its errors in continuing the polling of the jury and questioning the dissenting juror. Defendant does not argue that the declaration of a mistrial was improper, but argues that his retrial was barred by double jeopardy principles.

The United States and Michigan Constitutions prohibit a defendant from being twice placed in jeopardy for the same offense. US Const, Ams V, XIV; Const 1963, art 1, § 15; People v. Dawson, 431 Mich. 234, 250, 427 N.W.2d 886 (1988). When a mistrial is declared, retrial is permissible under double jeopardy principles where manifest necessity required the mistrial or the defendant consented to the mistrial and the mistrial was caused by innocent conduct on the part of the prosecutor or judge, or by factors beyond their control. People v. Mehall, 454 Mich. 1, 4, 557 N.W.2d 110 (1997); Dawson, supra at 252-253, 427 N.W.2d 886.

Here, defendant's retrial did not violate double jeopardy principles because the mistrial was granted on the basis of manifest necessity. Manifest necessity is not a precisely defined concept and must be determined case by case. Booker, supra at 172, 527 N.W.2d 42. Manifest necessity "appears to refer to the existence of sufficiently compelling circumstances that would otherwise deprive the defendant of a fair trial or make its completion impossible." People v. Rutherford, 208 Mich.App. 198, 202, 526 N.W.2d 620 (1994). Therefore, "[a] trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial." Illinois v. Somerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

This Court has found manifest necessity to exist under circumstances similar to those of the instant case. In...