People v. Johnson

Decision Date21 April 1976
Docket NumberNo. 12,12
Citation240 N.W.2d 729,396 Mich. 424
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin JOHNSON, Defendant-Appellant.
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Attorney, Research, Training & Appeals, Arthur N. Bishop (P--10821) Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office, by Norris J. Thomas, Jr., Asst. Defender, Detroit, for defendant-appellant.

WILLIAMS, Justice.

In this case of first impression we consider the impact of a plea of guilty on the constitutional defense of double jeopardy. We hold that the defense of double jeopardy, as it affects whether a trial should have taken place at all, is not waived by a subsequent guilty plea. As this question is dispositive, we do not consider other issues raised by defendant, except we hold that the mere mention of a polygraph test without more does not constitute such manifest necessity as would justify a mistrial. We reverse the Court of Appeals and the trial court, and the defendant is discharged, as he was twice put in jeopardy, contrary to the mandate of the federal and Michigan constitutions.

I--FACTS

Defendant Alvin Johnson's first trial with codefendant Eddie Perkins on the charge of armed robbery, ended in a mistrial when, two days into the trial, Johnson's attorney asked a prosecution witness, a police officer:

'Q. Didn't he (Alvin Johnson) deny he was implicated, involved in the alleged holdup?

'A. Yes, he did.

'Q. Did he also ask you whether or not he could submit to a lie detector test?'

The witness never answered as the prosecutor instantly objected and the jury was excused.

The people moved for a mistrial, maintaining:

'The People would make a motion. Any reference to a lie detector test has to be prejudicial, and I would ask for a mistrial, with reluctance. No reference to a polygraph or lie detector test has been given. There has been no reference to that at all and is absolute grounds for a mistrial.'

Perkins' counsel concurred. Johnson's counsel did not, maintaining, 'All I can say is I didn't realize it was improper.' He also noted, 'I feel kind of small', but never directly commented one way or another on whether he would consent to a mistrial.

The court took the motion under advisement and adjourned until the following day. When court reconvened, the prosecutor withdrew his motion, claiming 'that the inadvertent reference to a polygraph could be corrected by proper instructions from the Court.' Perkins' counsel, however, renewed his motion. 'I feel that the harm done by this statement that was taken hinders any due process.' The trial court granted the mistrial.

Before the second trial began, Johnson' counsel moved for dismissal on the grounds that the trial court abused its discretion in granting the mistrial. He maintained that the mere mention of the word polygraph would not be grounds for ending proceedings, that defendant's silence relative to mistrial signifies neither acceptance nor consent, and that consent must be affirmatively and knowingly given, which did not occur in the case of Johnson or his counsel. Further, he suggested that the court might have granted a mistrial as to defendant Perkins, who requested it, and could have permitted the trial to continue as to defendant Johnson. While the court observed this was a unique idea, the motion was denied.

New counsel for Johnson subsequently moved to dismiss on double jeopardy grounds. The judge denied the motion on the ground of self-induced error by counsel for defendant Johnson.

Shortly after impanelling of the jury for the second trial began, codefendant Perkins pled guilty to an added count of assault with intent to rob and steal while being unarmed, and was endorsed as a witness to testify against Johnson. Johnson then pled guilty to the same added count and was sentenced to 5 to 15 years.

The Court of Appeals granted the prosecutor's motion to affirm the conviction. We granted leave, limited to 'the question of whether the grant of a mistrial over defendant-appellant's objection barred subsequent prosecution under double jeopardy provisions of the federal and state Constitutions'. 392 Mich. 756, 219 N.W.2d 55 (1974).

II--THE PROTECTION AGAINST DOUBLE JEOPARDY

The Fifth Amendment to the United States Constitution 1 and article 1, § 15 of the Michigan Constitution guarantee an individual against twice being put in jeopardy. 2

'The underlying idea (of the protection against double jeopardy) * * * is that the 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.' Green v. United States, 355 U.S. 184, 187--188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957).

Thus once defendant has been placed in jeopardy, 3 unless he or she waives the defense, 4 or a mistrial occurs because of manifest necessity, 5 the state is precluded from bringing him or her to trial again. Even if defendant benefits from a mistrial called for reasons short of those necessary to satisfy the manifest necessity standard, reprosecution is still prohibited. 6 However even 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:

'The important consideration, for purposes of the Double Jeopardy Clasue, is that the defendant retains primary control over the course to be followed * * *', United States v. Dinitz, --- U.S. ---, ---, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (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, 91 S.Ct. 547, 27 L.Ed.2d 543, 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 have been silent. At worst, he did not protest, but he did not assent. Therefore, we find that defendant did not personally consent to the end of the first trial. However, the finding of manifest necessity would still make the second trial permissible.

III--DID MANIFEST NECESSITY EXIST?

A judge has the power to abort a trial before a verdict is reached in order to prevent frustration of the ends of justice. Where 'the ends of substantial justice cannot be attained without discontinuing the trial', Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961), a mistrial declared for such 'manifest necessity' 8 may be declared without defendant's consent, 9 and will not foreclose retrial even if it is over his or her objection. 367 U.S. 364, 368, 81 S.Ct. 1523. Because of its implications, this judicial discretion is properly exercised 'only in very extraordinary and striking circumstances'. United States v. Coolidge, 25 Fed.Cas. No. 14,858, pp. 622, 623, 2 Gall. 364, 365 (D.Mass.1815) cited in Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

'A mere error of law or procedure * * * does not constitute legal necessity.' Curry v. Superior Court, 2 Cal.3d 707, 714, 87 Cal.Rptr. 361, 365, 470 P.2d 345, 349 (1970). '(A) mistrial should not be declared in consequence of mere irregularities which are not prejudicial to the rights of the persons prosecuted.' People v. Watson, 307 Mich. 596, 606, 12 N.W.2d 476, 480 (1944).

The question of whether merely mentioning the term polygraph constitutes more than such a 'mere irregularity' has been considered by our Court of Appeals. In People v. Baker, 7 Mich.App. 471, 476, 152 N.W.2d 43 (1967), Judge, now Chief Justice, Kavanagh, found that references to a polygraph test within the context of a particular case did not constitute reversible error and could be cured by relevant instructions to the jury. 10

Cautionary instructions would be inadequate, the Court of Appeals has suggested, where testimony is admitted regarding refusal to take a polygraph test. People v. Tyrer, 19 Mich.App. 48, 50, 172 N.W.2d 53 (1969).

Particularly helpful is People v. Paffhousen, 20 Mich.App. 346, 350, 174 N.W.2d 69, 70 (1969), where the complaining witness explained she had changed her story because 'you don't fool a polygraph machine'. The trial court denied counsel's motion for a mistrial.

'Defendant contends that the trial court erred in denying his motion for a mistrial. To so hold would be...

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