People v. Grimmett

Decision Date29 November 1972
Docket NumberA,No. 3,3
Citation388 Mich. 590,202 N.W.2d 278
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. George GRIMMETT, Defendant-Appellant. pril Term.
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Daniel S. Seikaly, Asst. Defender, Detroit, Calvin Schrotenboer, Research Asst. on brief, for defendant-appellant.

Before the Entire Bench (except BLACK, J.).

SWAINSON, Justice.

On December 22, 1966, three men held up a small grocery store in the city of Detroit. During the course of the robbery, the owner, Shaker Aubrey, was killed, and a customer, John Kubon, was wounded by a bullet which struck him in the back. Defendant Grimmett was arrested on December 26, 1966, and on December 27, 1966, was charged with the murder of Mr. Aubrey.

A jury trial commenced on January 22, 1968, in Recorder's Court for the city of Detroit. On January 24, 1968, defendant's counsel informed the court that defendant wished to plead guilty to second degree murder, and that it was his opinion that the information charged murder in the second degree. The prosecutor disagreed with defense counsel's assertion and contended that the information charged first degree murder. 1 In his opening statement to the jury, the prosecutor stated that he intended to prove the crime was premeditated.

The trial court allowed the prosecutor to amend the information to charge first degree murder by adding the words 'and with premeditation.' Defendant's objection to this amendment was overruled. The trial court, believing that M.C.L.A. § 767.76; M.S.A. § 28.1016, 2 required the dismissal of the jury when as information was amended, discharged the jury.

A new trial on the first degree murder charge was commenced on September 29, 1969. On October 4, 1969, a jury found defendant guilty of manslaughter. He was sentenced to 14 years, 14 months to 15 years, with no recommendation.

On August 1, 1968, defendant was arraigned on the charge of assault with intent to commit murder resulting from the wounding of the customer, John Kubon. This was after the jury in the first trial on the murder charge had been discharged and prior to the commencement of the second trial on that charge. On December 17, 1968, defendant's trial on this second charge began before another jury in Recorder's Court. On December 20, 1968, defendant was found guilty of assault with intent to commit murder and was sentenced to life imprisonment. The Court of Appeals affirmed the conviction on the charge of assault with intent to commit murder. 27 Mich.App. 509, 183 N.W.2d 839. A separate panel of the Court of Appeals affirmed defendant Grimmett's conviction of manslaughter. 29 Mich.App. 609, 185 N.W.2d 829. We granted leave to appeal in both cases. 384 Mich. 833.

Defendant raises, and the prosecution accepts, five issues on appeal, four of which are listed below:

1. Whether the dismissal of the jury in the first trial was by the court Sua sponte and not justified by 'manifest necessity,' or whether the dismissal of the jury was with the consent of the defendant?

2. Whether defendant was deprived of his right to a speedy trial where he was arrested and placed in custody on December 26, 1966, and a warrant and complaint did not issue until July 30, 1968?

3. Whether defendant was unconstitutionally placed in jeopardy twice by the multiple prosecutions launched against him arising out of the same criminal episode?

4. Whether it was improper for the trial judge at the assault sentencing to consider in the determination of punishment a factor, which at that time constituted an arrest for a crime for which defendant had not been convicted nor was subsequently convicted?

Defendant contends that the double jeopardy provisions of the Fifth Amendment should have prohibited his second trial after the judge dismissed the jury in the first trial. The purpose behind the double jeopardy provision of the Fifth Amendment 3 was stated by the United States Supreme Court in Green v. United States, 355 U.S. 184, 187--188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), as follows:

'(T)he 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.'

The double jeopardy provision of the Fifth Amendment is now applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In addition, the Michigan Constitution 1963, art. 1, § 15, 4 prevents a defendant from being placed in double jeopardy.

The provision forbidding double jeopary does not prevent a retrial under any circumstances. Two types of situations are recognized where a second trial is permitted. First, in those situations where 'manifest necessity' 5 requires it and, second, in those cases where the defendant consents to a mistrial.

It is difficult to precisely define what constitutes 'manifest necessity.' Examples include the failure of the jury to reach a verdict, United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), and misconduct of a member of the jury, In re Ascher, 130 Mich. 540, 90 N.W. 418 (1902). However, in the present case, the prosecutor does not contend that there was 'manifest necessity' for the dismissal of the jury. The prosecutor contends there is no double jeopardy because defendant requested and consented to a new jury.

Waiver is defined in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), as 'an intentional relinquishment or abandonment of a known right or privilege.' The court added, "courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and * * * we 'do not presume acquiescence in the loss of fundamental rights." Thus, waiver consists of two separate parts: 1) a specific knowledge of the constitutional right; and 2) an intentional decision to abandon the protection of the constitutional right. Both of these elements must be present and if either is missing there can be no waiver and no finding of consent.

The difficulty arose in this case because the trial judge felt bound by M.C.L.A. § 767.76; M.S.A. § 28.1016, to discharge the jury. This statute reads:

'No indictment shall be quashed, set aside or dismissed or motion to quash be sustained or any motion for delay or sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court shall in its discretion permit. The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury. In case a jury shall be discharged from further consideration of a case under this section, the accused shall not be deemed to have been in jeopardy. No action of the court in refusing a continuance or postponement under this section shall be reviewable except after motion to and refusal by the trial court to grant a new trial therefor and no writ of error or other appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court shall find that the accused was prejudiced in his defense or that a failure of justice resulted.'

It is clear that the trial court was incorrect in its interpretation of the law. The statute provides: 'the accused shall on his motion be entitled to a discharge of the jury.' The statute does not permit the trial judge on his own motion to discharge the jury. Moreover, the statute provides that the discharge of the jury occurs after the amendment to the information. In this case, the trial court dismissed the jury before the amendment was made.

It is apparent from a reading of the colloquy between court and counsel that defendant's counsel also misunderstood M.C.L.A. § 767.67; M.S.A. § 28.1016:

'MR. SHERMAN (Defendant's counsel): I am not arguing the constitutionality of the Michigan Statutes. I call your attention to this. But, Your Honor, as to whether or not they have the right to amend--

'THE COURT: (Interposing) You can argue the constitutionality of the Michigan statute. I think the Michigan statute is safe from constitutional defect by the requirement--

'MR. SHERMAN: (Interposing) Yes, that's right, Your Honor.

'THE COURT: (Continuing)--that I discharge the Jury and give you an opportunity to meet the amendment to the indictment and have another trial.

'MR. SHERMAN: That's right. * * * I agree with Your Honor that the Michigan Statutes--Where we raise the question and they want to amend to substance, we have got to have a new Jury.' (Emphasis added.)

The prosecutor contends that defense counsel by his actions did in fact make a motion for discharge of the jury and, thus, defendant did consent to...

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