People v. Hoffman, Docket No. 30262

• Citation: 265 N.W.2d 94,81 Mich.App. 288
• Decision Date: 07 February 1978
• Docket Number: Docket No. 30262
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert R. HOFFMAN, Defendant-Appellant. 81 Mich.App. 288, 265 N.W.2d 94
• Court: Court of Appeal of Michigan — District of US

Page 94

265 N.W.2d 94

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert R. HOFFMAN, Defendant-Appellant.

Docket No. 30262.

81 Mich.App. 288, 265 N.W.2d 94

Court of Appeals of Michigan.

Feb. 7, 1978.

Released for Publication April 26, 1978.

[81 MICHAPP 290] Paul E. Lincolnhol, Lansing, for defendant-appellant.

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

Before RILEY, P. J., and J. H. GILLIS and MAHER, JJ.

RILEY, Judge.

Defendant appeals, by leave granted, his 1964 conviction of first-degree murder and corresponding sentence of life imprisonment. We affirm.

I

Charged with murdering his ex-wife, defendant first came to trial in February, 1964. During the trial, the court, for reasons unexplained by the present record, excluded a Reverend Schuurmans as a defense witness. Later, during defense examination of witness Geraldine Wilson, defendant's sister, Reverend Schuurmans became the subject of discussion:

"Q. (MR. KEYWORTH, DEFENSE ATTORNEY ) Now, you say you talked with other people. Did you and any other member of your family make an effort to get outside help other than the ones that we have discussed here?

"A. Yes, we did.

"Q. And where did you try to seek help?

"A. I went to Reverend Schuurmans and he went to the Prosecutor's office."

At that point the prosecutor objected, sought and secured the jury's removal, and then requested a mistrial "based on the actions of this [81 MICHAPP 291] witness in injecting evidence that is absolutely immaterial, irrelevant, and incompetent, and which has been formally excluded by this court in her presence, and I ask that she be cited for contempt".

While defendant's other attorney, Benjamin Watson, originally seemed to resist the motion for mistrial, his views changed following an in-chambers conference ¹ with the trial judge:

"THE COURT: All right. I understand you have something to say, Mr. Watson?

"MR. WATSON: I did tell the court informally in chambers that we would not oppose the Prosecutor's motion, and indeed would concur in it.

"We deplore the incident that led to the making of the motion. We do not think it is as serious as Mr. Farhat (the prosecuting attorney) seems to think. But if he feels the way he does about it, why, we would not challenge his right to make the motion and we would concur in it.

"THE COURT: Do you have anything to say at this time, Mr. Farhat?

"MR. FARHAT: No.

"THE COURT: All right. Inasmuch as both sides have made a motion for a mistrial, the court is going to grant it."

Upon the jury's return to the courtroom, the judge informed them of his ruling:

"THE COURT: Ladies and gentlemen of the jury: you were asked to leave the courtroom just a few minutes ago before this court took a recess, or asked you to leave.

"During your absence a motion was made by the Prosecuting Attorney that the court declare a mistrial in this case. A mistrial means that the case is ended.

[81 MICHAPP 292] "That motion was concurred in by Mr. Watson and Mr. Keyworth, the attorneys for the defendant, and the motion was granted."

Later retried and convicted, defendant unsuccessfully pursued appellate relief. People v. Hoffman, 24 Mich.App. 244, 180 N.W.2d 99 (1970), lv. den. 383 Mich. 820 (1970).

On January 14, 1977, a panel of this Court, in response to defendant's complaint for habeas corpus, treated the matter as an application for delayed appeal and granted same.

II

Defendant's renewed attack on his conviction relies entirely on the double jeopardy clauses of the state and Federal constitutions. ² Const.1963, art. 1, § 15 and U.S.Const., Am.V. Citing People v. Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976), and People v. Gardner, 37 Mich.App. 520, 195 N.W.2d 62 (1972), he argues initially that manifest necessity did not require the trial court's declaration of a mistrial. We agree. The error, if any, in witness Wilson's isolated comment regarding Reverend Schuurmans' visit to the prosecutor a non-responsive answer to a proper question by defense counsel could have been cured by a cautionary instruction. See People v. Kelsey, 303 Mich. 715, 717, 7 N.W.2d 120 (1942). If a single reference to a polygraph test does not compel the granting of a mistrial, Johnson, supra, 396 Mich. at 437, 240 N.W.2d 729, witness [81 MICHAPP 293] Wilson's brief remark clearly did not merit such drastic action.

III

Defendant also maintains that Johnson, supra, requires a showing either that defendant personally consented to the mistrial or that he exerted primary control in the decision to accede to the prosecutor's mistrial motion. Claiming that the record satisfies neither requirement, he seeks release from confinement on grounds of double jeopardy.

Johnson, a case where neither defendant nor his counsel requested or consented to a mistrial, ostensibly derived its holding from United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

In Dinitz, three attorneys, Messrs. Wagner, Meldon and Baldwin, represented defendant. During the opening statement (conducted by Wagner), the trial court ejected Wagner from the courtroom for obstreperous conduct, but allowed defendant's other counsel to remain.

"The next morning, Meldon told the judge that the respondent wanted Wagner and not himself or Baldwin to try the case. The judge then set forth three alternative courses that might be followed (1) a stay or recess pending application to the Court of Appeals to review the propriety of expelling Wagner, (2) continuation of the trial with Meldon and Baldwin as counsel, or (3) a declaration of a mistrial which would permit the respondent to obtain other counsel. Following a short recess, Meldon moved for a mistrial, stating that, after 'full consideration of the situation and an explanation of the alternatives before him, (the respondent) feels that he would move for a mistrial and that this would be in his best interest.' * * * The government prosecutor[81 MICHAPP 294] did not oppose the motion. The judge thereupon declared a mistrial, expressing his belief that such a course would serve the interest of justice." 424 U.S. at 604-605, 96 S.Ct. at 1078, 47 L.Ed.2d at 272.

In reversing the Fifth Circuit Court of Appeals, which had accepted Dinitz's double jeopardy claims, the Supreme Court observed:

"The Court of Appeals viewed the doctrine that permits a retrial following a mistrial sought by the defendant as resting on a waiver theory. The court concluded, therefore, that 'something more substantial than a Hobson's choice' is required before a defendant can 'be said to have relinquished voluntarily his right to proceed before the first jury.' See (United States v. Dinitz, 5 Cir.) 492 F.2d (53), at 59. The court thus held that no waiver could be imputed to the respondent because the trial judge's action in excluding Wagner left the respondent with 'no choice but to move for or accept a mistrial.' Ibid. But traditional waiver concepts have little relevance where the defendant must determine whether or not to request or consent to a mistrial in response to judicial or prosecutorial error. See United States v. Jorn, 400 U.S. (470) at 484-485, n. 11, 91 S.Ct. (547) at 556-557, 27 L.Ed.2d (543) at 556 (1971); United States v. Jamison, 164 U.S.App.D.C. 300, 305-306, 505 F.2d 407, 412-413 (1974). In such circumstances, the defendant generally does face a 'Hobson's choice' between giving up his first jury and continuing a trial tainted by prejudicial judicial or prosecutorial error. The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed in the event of such error. 11 [81 MICHAPP 295] 424 U.S. at 608-610, 96 S.Ct. at 1080-1081, 47 L.Ed.2d at 274-275. (Footnote 10 omitted; emphasis supplied.)

The Johnson Court, in apparent obeisance to the rule espoused in Dinitz, supra, opined:

"(E)ven where the mistrial was improperly declared, it is not a bar to retrial if the action was taken with defendant's consent. State v. Fenton, 19 Ariz.App. 274, 276, 506 P.2d 665, 667 (1973).

"Mere silence or failure to object to the jury's discharge is not such consent, 19 Ariz.App. 274, 276, 506 P.2d 665, 667. 7

"In a very recent case in which defense counsel himself requested a mistrial, the United States Supreme Court has addressed this point as follows:

[81 MICHAPP 296] 'The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed * * * ', United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (275) (1976),

and the defendant must therefore do something positively in order to indicate he or she is exercising that primary control. Further,

" 'The circumstance that it is defense counsel who initiates the court's inquiry into a matter which ultimately results in an order of mistrial does not ipso facto transform counsel's expression of concern into an implied consent to such drastic ruling.' People v. Compton, 6 Cal.3d 55, 62, 98 Cal.Rptr. 217, 221, 490 P.2d 537, 541 (1971).

" '(A)n appellate court's assessment of which side benefited from the mistrial ruling does not adequately satisfy the policies underpinning the double jeopardy provision' United States v. Jorn, 400 U.S. 470, 483, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971). Thus, in the absence of brightline rules deliberately eschewed by the United States Supreme Court, 400 U.S. 470, 486, we must first look to whether in the exercise of that control of the course of his own trial, highlighted by Dinitz, defendant Alvin Johnson approved termination of the proceedings.

"It is not difficult to require a trial court to inquire whether defendant consents. Therefore, in the absence of an affirmative showing on the record, this Court will not presume to find such consent.

"There was no such affirmative showing in this case. At best, defense counsel may be said to...