People v. Johnson, Docket No. 20166

• Decision Date: 10 June 1975
• Docket Number: Docket No. 20166,No. 2,2
• Citation: 62 Mich.App. 63,233 N.W.2d 188
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Belen JOHNSON, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 188

233 N.W.2d 188

62 Mich.App. 63

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Belen JOHNSON, Jr., Defendant-Appellant.

Docket No. 20166.

Court of Appeals of Michigan, Division No. 2.

June 10, 1975.

Released for Publication Oct. 1, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and D. E. HOLBROOK, Jr., and O'HARA, ^* $ JJ.

O'HARA, Judge.

On October 2, 1973, Belen Johnson, Jr., defendant in this case, was arraigned in Lenawee County Circuit Court on a charge of possession of heroin with intent to deliver in violation of M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1) (a). Defendant was tried before a jury on that charge on November 14 and 15, 1973. That proceeding ended in a mistrial when the prosecution failed to produce an indorsed res gestae witness to the transaction in question and the court held that due diligence had not been exercised in producing that witness. The witness which the prosecutor failed to provide was a confidential informant who had arranged the transfer of heroin in question.

On December 6 and 7, 1973, defendant was retried. Defendant was convicted by a jury of one count of possession of heroin with intent to deliver. On January 30, 1974, defendant was sentenced to serve from 7 to 20 years in prison. He appeals of right.

The defendant first argues this his reprosecution was barred by the double jeopardy clause ¹ where the prosecutor did not produce a res gestae witness and defense counsel moved for a mistrial but defendant did not Personally make an explicit waiver of his double jeopardy rights on the record.

Because this issue raises several subpoints we will discuss them Seriatim.

The defendant's failure to object to initiation of his second trial on double jeopardy grounds was not fatal. In People v. Bower, 3 Mich.App. 585, 589, 143 N.W.2d 142, 144 (1966), this Court stated:

'The double jeopardy issue was not raised by the defendant's counsel prior to the taking of the plea in the circuit court. But in Henry v. State of Mississippi (1965), 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, the United States Supreme Court announced that it would not find a waiver of a Federal constitutional right solely because of a defendant's counsel's procedural default in timely raising the question. Now we do not intend this opinion to go beyond Henry, supra, but feel constrained to follow that case inasmuch as a Federal constitutional right is involved. Since the proceedings in circuit court terminated in a plea, there can be no question of a waiver based upon 'deliberate choice of strategy.' Under the circumstances, absent a deliberate act of the defendant, the procedural default in failing to raise the issue of former jeopardy at the proper time does not result in the waiver of this right.'

See also People v. Hall, 24 Mich.App. 509, 180 N.W.2d 363 (1970), Lv. granted, 391 Mich. 786 (1974).

In People v. Grimmett, 388 Mich. 590, 598, 202 N.W.2d 278 (1972), the Michigan Supreme Court recognized that there were '(t)wo types of situations' where a second trial was permissible as against double jeopardy contentions. The first of these was those situations covered under the rubric of 'manifest necessity' and the second classification was in those cases where the defendant consented to the declaration of a mistrial. See also United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), and People v. Gardner, 37 Mich.App. 520, 195 N.W.2d 62 (1972).

The mistrial in the instant case, as noted heretofore, was granted under category two, I.e., a termination of the trial pursuant to the request of the defendant.

That the waiver of a constitutionally guaranteed right must be made voluntarily, intelligently and knowingly is undisputed. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); People v. Grimmett, supra. When a defendant moves for a mistrial he is ordinarily assumed to remove any bar to reprosecution even though his motion is necessitated by prosecutorial or judicial error, although a different result may be reached if it is attributable to prosecutorial or judicial overreaching. United States v. Jorn, supra.

Prior to the declaration of a mistrial by the circuit judge, the importance of the confidential informant to defendant's case was stated for the record in the strongest possible terms by defense counsel. Defense counsel asserted he had counted on the informant's presence at trial, and as a result had asked certain questions and opened certain doors which, without the informer's testimony, would be seriously prejudicial to defendant. There then followed this enlightening colloquy between defense counsel and the trial judge:

'The Court: What's your solution?

'Mr. Simon: Mistrial.

'The Court: You moving for a mistrial?

'Mr. Simon: Yes, sir.

'(The Court): All right, we'll declare a mistrial and set it as an alternate December 6th * * *'.

Incontestably, the record in the instant case clearly manifests the desire of defense counsel to terminate the proceedings and forgo any right defendant might have to proceed to judgment before the involved jury. However, defendant claims that this does not suffice to evidence a waiver of his right not to be twice placed in jeopardy for the same offense. There must, he contends, be an of-record waiver of this right by defendant Himself. Any purported waiver of defendant's rights not complying with this procedure necessarily must, it is alleged, give way as being inconsistent with applicable case law limitations vis-a-vis waiver of constitutional rights.

The defendant, in effect, attempts to place the waiver of the double jeopardy bar in the class of rights which may be waived only by defendant and not by his counsel. In People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969), this Court stated that some rights are so essential that an attorney cannot waive them for a defendant. Given as examples of such rights were the right to a jury trial (M.C.L.A. § 763.3; M.S.A. § 28.856, Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930)), and the right to counsel (Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962)). In Degraffenreid, this Court held that the right to have a court suppress illegally seized evidence is not a right which historically has been so completely protected that it can be waived only by the defendant personally. We think that the decision by defense counsel to seek a mistrial falls within the same general category.

Particularly significant, in our view, is certain language found in People v. Grimmett, supra, which implicitly recognizes that defense counsel can, in fact, waive a defendant's double jeopardy rights under proper circumstances. Witness this excerpt from Grimmett, 388 Mich. at 601, 202 N.W.2d at 283:

'Defendant never made any formal motion to discharge the jury. The prosecutor contends that although there was no formal motion, there was an informal motion which allowed defendant to waive this right. However, in view of the fact that defendant's attorney was mistaken in his view of the law, it is obvious that defendant could not consciously waive the right to object to the discharge of the jury. A close reading of the record reveals that defendant's counsel made no motion of any type to discharge the jury, and that the motion to discharge was made by the trial court sua sponte. No waiver can be inferred from the actions of defendant's counsel.'

To like effect is certain language contained in the Chief Judge's well-written opinion in People v. Gardner, supra:

'We do not find it necessary to determine whether the trial judge should have granted a mistrial or cured the error with an instruction, had defendant moved here for a mistrial. It is significant that defendant; unlike defendants (in certain other cited cases), did not move for a mistrial.' 37 Mich.App. at 534, 195 N.W.2d at 69.

We also note that in the leading case of People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973), the Supreme Court stated that where the prosecution failed to produce a res gestae witness at trial the remedy in future cases was that a defendant should move at the trial level for a new trial. The Court did not dismiss the charges and did not deem reprosecution barred by the double jeopardy doctrine. ² It is evident therefore that failure to produce res gestae witnesses will normally result in a new trial and not in a dismissal. Thus double jeopardy did not bar reprosecution in the case at bar. ³

The next assignment of error which we discuss is thus stated by defendant-appellant:

'THE PROSECUTOR'S UNJECTION OF THE FACT THAT APPELLANT WAS INVOLVED IN ANOTHER PENDING NARCOTICS CASE, AND THE PROSECUTOR'S SUBSEQUENT IMPROPER QUESTIONING OF APPELLANT REGARDING THE FACTS UNDERLYING THAT CASE, DEPRIVED APPELLANT OF A FAIR TRIAL.'

For reasons that will become apparent to the reader this issue requires that we discuss some of the relatively complex factual underpinning of the present case.

During the course of the trial, as part of the people's case in chief, there had been testimony which inculpated both defendant and one Louis Cuellar, a cousin of the defendant. On cross-examination of the officer in charge of the investigation, he testified in response to questions by defense counsel that the narcotics investigation herein was primarily in response to tips concerning alleged heroin traffic in the area. The apparent purpose of defense counsel pursuing this risky line of inquiry was to establish that defendant's involvement was incidental to that of Cuellar's and that he accordingly could not be held culpable for a transaction in which he, in effect was a mere dupe or innocent agent. Not surprisingly the...