People v. Gardner, Docket No. 9716

• Decision Date: 17 January 1972
• Docket Number: Docket No. 9716,No. 1,1
• Citation: 37 Mich.App. 520,195 N.W.2d 62
• Parties: PEOPLE of the State of Michigan, Plaintiff-appellee, v. Henry GARDNER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 62

195 N.W.2d 62

37 Mich.App. 520

PEOPLE of the State of Michigan, Plaintiff-appellee, v. Henry GARDNER, Defendant-Appellant.

Docket No. 9716.

Court of Appeals of Michigan, Division No. 1.

Jan. 17, 1972.

Released for Publication March 9, 1972.

Leave to Appeal Denied April 10, 1972.

Gus Cifelli, Detroit, for defendant-appellant; Kenneth A. Webb, Troy, of counsel.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and HOLBROOK and VanVALKENBURG, ^* JJ.

LESINSKI, Chief Judge.

Defendant Henry Gardner's motion to dismiss the information charging him with first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, was denied by the trial court. This Court stayed proceedings in the court below on this charge, and granted defendant leave to appeal the trial court's denial of his motion.

Defendant was first tried by a jury on this charge along with two other men. At that trial, presided over by Detroit Recorder's Court Judge Elvin Davenport, defense counsel informed the jury that defendant had been on parole when the killing occurred. Defendant's parole officer, William Richardson, was called as a defense witness at that trial. The parole officer testified that defendant 'was making good progress, no arrests and no contacts with the authorities'. He stated that defendant had come to him and told him of defendant's part in the activities surrounding the killing. Further, defendant asked Mr. Richardson to contact the two police officers in charge of the case so that defendant could explain his version of the incident to them.

The trial court concluded this first proceeding by declaring a mistrial, when the jury was unable to reach a verdict after five days of deliberation. Subsequent to that trial, the two codefendant's pled guilty to reduced charges. Defendant proceeded to trial a second time alone.

During the tenth day of defendant's second jury trial, also presided over by Judge Davenport, the prosecution called the arresting officer to testify. The following testimony was elicited from him by the prosecutor on direct examination:

'Mr. Gibbs: Did you have occasion in the month of January of 1969 to arrest Henry Gardner?

'Police Officer: Yes, I did.

'Mr. Gibbs: And that took place where, that arrest?

'Police Officer: At the fourth precinct station, Fort and Green.

'Mr. Gibbs: That arrest was made by surrender of the witness?

'Police Officer: Yes, it was.

'Mr. Gibbs: He came into the precinct?

'Police Officer: Yes, he did.'

The arresting officer was then cross-examined by defense counsel:

'Mr. Cifelli: And your first contact with Mr. Gardner was at the police station?

'Police Officer: Yes, sir.

'Mr. Cifelli: There at the police station, was this in the office?

'Police Officer: Yes sir, it was.

'Mr. Cifelli: He identified himself as Henry Gardner?

'Police Officer: Yes sir, he did.

'Mr. Cifelli: Did he inform you that he had knowledge that the Detroit Police Department was looking for him?

'Police Officer: Yes sir, he did.

'Mr. Cifelli: I have no further questions.'

The prosecutor then asked the first question of redirect examination:

'Mr. Gibbs: Was he in custody of a probation officer at that time?

'Police Officer: He was accompanied by Parole Officer Richardson,

'The Court: Excuse the jury.'

Immediately subsequent to that, the trial judge, on his own motion, declared a mistrial.

Defendant urges that to retry him for first degree murder, in light of the trial court's Sua sponte declaration of a mistrial at the second proceeding, would be to place him twice in jeopardy for the same offense in violation of the Double Jeopardy Clause of the United States and Michigan Constitutions, U.S.Const., Am. V; ¹ Michigan Const. of 1963, art. 1, § 15. Thus, this Court is confronted again with the difficult question of under what circumstances may a defendant be retried, after a trial judge has declared a mistrial on his own motion.

I

The United States Supreme Court has often discussed the rationale behind the Double Jeopardy Clause. Any examination of the constitutional right cannot be divorced from the considerations which led to its conception.

The Supreme Court stated in Green v. United States, 355 U.S, 184, 187--188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957), that:

'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudences and power State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'

Mr. Justice Harlan, Writing for the Court in United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, 553 (1971), ² the Supreme Court's latest pronouncement on double jeopardy, explained the provision in this manner:

'The Fifth Amendment's prohibition against placing a defendant 'twice in jeopardy' represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws.'

This strong policy has led both the U.S. Supreme Court and Michigan courts to declare that a defendant is placed in jeopardy once the jury is impaneled and sworn. Jorn, supra, 400 U.S. at 479, 91 S.Ct. at 554, 27 L.Ed.2d at 553; People v. Tillard, 318 Mich. 619, 29 N.W.2d 111 (1947); People v. Henley, 26 Mich.App. 15, 182 N.W.2d 19 (1970). Once a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. If the jury is discharged without legal justification or defendant's consent before his guilt or innocence has been determined, the discharge 'is equivalent to an acquittal and bars retrial.' Henley, supra, at 27, 182 N.W.2d at 25. See also, People v. Schepps, 231 Mich. 260, 203 N.W. 882 (1925).

This is not to say that any declaration by the trial court of a mistrial without defendant's consent bars all retrial, however. There are well-recognized exceptions to this rule. The classic statement on this subject, recently employed once again by the U.S. Supreme Court in Jorn, supra, was authored by Mr. Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). The Perez holding allowed a defendant in a capital case to be retried after the trial court, Sua sponte, declared a mistrial because the jury was unable to reach a verdict. The Court there stated:

'We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving and verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject, and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and For very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.' 22 U.S. (9 Wheat.) at 580, 6 L.Ed. at 165. (Emphasis supplied.)

The U.S. Supreme Court has applied the Perez standard since its formulation as the standard for determining whether the Double Jeopardy Clause bars retrial, after the trial judge's declaration of a mistrial without the defendant's consent. Jorn, supra, 400 U.S. at 480, 481, 91 S.Ct. at 555, 27 L.Ed. at 554. Michigan courts have also utilized the Perez standard. See In re Earle, 316 Mich. 295, 25 N.W.2d 202 (1946); People v. Schepps, Supra; People v. Sharp, 163 Mich. 79, 127 N.W. 758 (1910); In re Ascher, 130 Mich. 540, 90 N.W. 418 (1902); People v. Henley, Supra; People v. Anglin, 6 Mich.App. 666, 150 N.W.2d 532 (1967).

Thus, there are circumstances in which, because of manifest necessity, it is proper for the trial judge to declare a mistrial. Examples of situations where such a manifest necessity has been found to exist include cases where the jury is unable to agree; ³ where the tactical situation of an army in the field dictates the dismissal of a court-martial; ⁴ where the trial judge discovers that one or more jurors might be biased; ⁵ and where a juror, or defendant becomes ill during trial, making his continued presence impossible. ⁶ In these circumstances, 'a defendant's valued right to have his trial completed by a particular tribunal must * * * be subordinated to the public's interest in fair trials designed to end in just judgments.' Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949).

The exceptions to the applicability of the Double Jeopardy Clause had been narrowly interpreted until the case of Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). Mr. Justice Douglas, dissenting in the Gori opinion, suggested that...