People v. Hamm, Docket No. 43160

Decision Date06 October 1980
Docket NumberDocket No. 43160
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Ernest HAMM, Defendant-Appellant. 100 Mich.App. 429, 298 N.W.2d 896
CourtCourt of Appeal of Michigan — District of US

[100 MICHAPP 431] Bruce T. Leitman, Bloomfield Hills, for defendant-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter R. George, Pros. Atty., for plaintiff-appellee.

[100 MICHAPP 432] Before J. H. GILLIS, P. J., and V. J. BRENNAN and MILLER, * JJ.

V. J. BRENNAN, Judge.

Defendant William Ernest Hamm appeals from conviction of the first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, of his psychiatrist, Dr. Charles Hoyt.

This case has been twice tried in the court below and is now in this Court for a second time. Although long, the history and factual background of this case is not complex. On July 12, 1975, defendant Hamm was charged with first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278, his psychiatrist. Having executed a written waiver of a jury trial, defendant proceeded to a bench trial before Judge Thorburn. During the trial, defendant was found incompetent to stand trial, and the trial court, sua sponte, declared a mistrial. This ruling was appealed to this Court and affirmed. People v. Hamm, 79 Mich.App. 281, 261 N.W.2d 288 (1977).

Defendant was subsequently adjudged competent to stand trial, and a second trial was scheduled for November 6, 1978. On November 2, 1978, the prosecution made a motion to disqualify the presiding judge, which was denied. On November 3, 1978, defense counsel filed a demand for jury trial which was not served upon the prosecutor. On the day of trial, the trial court denied defendant's request to be tried by a jury. The case proceeded to trial, and defendant was found guilty of first-degree murder.

Subsequently, defendant appealed, but prior to his hearing on appeal defendant moved for remand to the trial court for the purpose of moving for a new trial which motion was granted. A [100 MICHAPP 433] remand hearing was held, and the trial judge concluded that defendant's waiver of trial by jury prior to his November 18, 1975, proceeding was not affected by the subsequent declaration of a mistrial and that it was, therefore, proper to deny defendant's motion for withdrawal of his waiver of trial by jury.

On appeal, defendant raises a question of first impression in Michigan. Does the declaration of a mistrial nullify a prior waiver of trial by jury and, thus, restore the option of jury or bench trial in the subsequent retrial? Fortunately we are not without guidance in deciding this question.

We begin with the time-honored premise that the right to jury trial is a high and sacred right, and, thus, the stipulation for the waiver of such right should be strictly construed in favor of preservation of that right. Burnham v. N. Chicago St. R. Co., 88 F. 627 (CA 7, 1898).

"The stipulation to waive a jury and to try the case before the court, only had relation to the first trial. There could be no presumption then that there would ever be a second trial; and therefore it should not be presumed that the parties, in making the stipulation, had in mind any possible subsequent trial after the first, to which the stipulation could refer." Id., 629.

In United States v. Lee, 539 F.2d 606 (CA 6, 1976), defendant waived his right to a jury trial and was found guilty by a magistrate of attempting to board an aircraft while carrying a dangerous concealed weapon. Defendant's appeal from this conviction was successful, and the case was remanded for retrial. Appellant moved to withdraw his waiver in order to have a retrial before a jury in district court. The magistrate overruled defendant's motion, and proceeded as directed by [100 MICHAPP 434] the district court. Holding that defendant's conviction must be reversed because he should have been permitted to withdraw his waiver of a jury trial, the court stated that although there was no precedent deciding the case, two related situations suggested the proper rule.

"The first is where a tribunal grants a new trial in the interests of justice without the intervention of a reviewing court. In this situation, it appears appropriate to hold that waiver of a jury trial or consent to trial by a magistrate should continue in force. F.R.Crim.P. 33 and Magistrates Rule 7, which permit the tribunal to simply vacate the judgment and reopen the original proceedings in an appropriate case, may be construed to require this result. The second situation is when a reviewing court finds error in the conduct of a trial and reverses with directions for a new trial. In that situation the general rule is that a litigant's not bound by his prior waiver of a jury trial. We believe that this appeal is more like the situation where an appellate court has ordered a retrial. Unless the language of a waiver unambiguously states that it will apply in all retrials should they be ordered, a waiver should not continue in effect after the jurisdiction of the court to which it was tendered terminates upon the taking of an appeal." 539 F.2d 608-609.

The instant case does not fall into either category. Although there was a reviewing court here, that court did not find that the trial court committed error when it declared a mistrial, Hamm, supra, and, in fact, this Court affirmed the trial court's findings. A new trial was granted, however.

A comparable factual situation existed in United States v. Lutz, 420 F.2d 414 (CA 3, 1970). In Lutz, the prosecutor and the defense counsel, with the approval of the trial judge, waived jury trial pursuant to rule 23(a) of the Federal Rules of Criminal Procedure. Subsequently, a mistrial was declared.[100 MICHAPP 435] At the second trial, the prosecutor refused to waive the jury. The court held that the prosecution was not bound by its first waiver. "The waiver referred to the earlier trial, before another judge. Once a mistrial was declared each party was free to assert or waive his rights." 420 F.2d 414, 416.

In United States v. Mischlich, 310 F.Supp. 669 (D.N.J., 1970), the court was faced with whether a defendant who had implicitly consented to venue in his first trial was precluded from raising this defense in his second trial necessitated when the first trial ended in a mistrial. In arriving at its decision, the court undertook an examination of the legal effect of a mistrial.

"The declaration of a mistrial renders nugatory all trial proceedings with the same result as if there had been no trial at all. See 58 C.J.S. Mistrial at 833-834 (1948). The situation which exists is analogous to that which results from an appellate reversal and remand for new trial. See 5 Am.Jur.2d Appeal and Error § 955 at 382 (1962). The parties are returned to their original positions, and, at the new trial, can introduce new evidence and assert new defenses not raised at the first trial." 310 F.Supp. 669, 672.

We believe this is the correct resolution to the question raised. When Mr. Hamm initially waived his right to a trial by jury, that waiver only had relation to the first trial. There could be no presumption at the time of the waiver that there would ever be a second trial. When this Court affirmed the trial judge's declaration of mistrial and remanded for a second trial, the parties were returned to their original positions, and defendant's original waiver of a jury trial was nullified. To decide otherwise would require us to read the original jury waiver as applying in all retrials, should they be ordered. This we decline to do.

[100 MICHAPP 436] Because of the foregoing disposition, we find a lengthy discourse on the other issues raised to be unnecessary. Some comment, however, is appropriate as they may arise again on retrial.

Defendant contends that he was prejudiced by the People's failure to call Dr. Michael Short, M.D., and Dr. Newton Jackson, Ph.D., psychiatric witnesses listed on the prosecution's notice of rebuttal witnesses. At trial defense counsel did not know that Dr. Short had found defendant not criminally responsible. 1 We reject defendant's argument that M.C.L. § 768.20a(7); M.S.A. § 28.1043(1)(7) 2, requiring the prosecutor to file notice of rebuttal witnesses to the defense of insanity, is analogous to the statute requiring the prosecution to endorse res gestae witnesses. M.C.L. § 767.40; M.S.A. § 28.980. The purpose of the notice of rebuttal is to give defendant notice that expert witnesses may be called and to aid the prosecutor in rebutting the defense of insanity. It is not to insure that the whole of the res gestae is produced and to protect the accused against the suppression of testimony favorable to him. We also reject defendant's argument that he was precluded from offering the testimony of these witnesses himself. The controlling[100 MICHAPP 437] statute at the time in question was M.C.L. § 768.20; M.S.A. § 28.1043, 3 which vested the trial judge with discretion to permit defendant to introduce the testimony of these rebuttal witnesses.

We do find merit in defendant's argument, however, that the prosecutor has an affirmative duty to produce all witnesses that he knows can offer evidence to substantiate defendant's claim of innocence.

In an early Michigan case, the Supreme Court stated:

"(A)nd the State has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons. But surely the State has no such interest; its interest is that accused parties shall be acquitted unless upon all the facts they are seen to be guilty; and if there...

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