People v. Lett

• Decision Date: 04 June 2002
• Docket Number: Docket No. 117041, Calendar No. 4.
• Citation: 466 Mich. 206,644 N.W.2d 743
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Reginald John LETT, Defendant-Appellee.
• Court: Michigan Supreme Court

644 N.W.2d 743

466 Mich. 206

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Reginald John LETT, Defendant-Appellee.

Docket No. 117041, Calendar No. 4.

Supreme Court of Michigan.

Argued October 10, 2001.

Decided June 4, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, Detroit, MI, for the people.

State Appellate Defender (by Gail Rodwan) Detroit, MI, for the defendant-appellee.

Jeff Sauter, PAAM President, and Jerrold Schrotenboer, Chief Appellate Attorney, Jackson, MI, amicus curiae in support of the people.

OPINION

YOUNG, J.

We granted leave to appeal in this case to consider whether defendant is entitled to the reversal of his convictions on the ground that he was retried, following the declaration of a mistrial, in violation of his constitutional right to be free from double jeopardy. We conclude that the trial court did not abuse its discretion in declaring a mistrial and in dismissing the jury where the jury foreperson indicated that the jury members were not going to reach a unanimous verdict and defendant did not object to the declaration of mistrial. We additionally conclude that defendant's retrial, following the proper declaration of a mistrial, did not violate the constitutional protection against successive prosecutions. Accordingly, we reverse the decision of the Court of Appeals and remand this matter to that Court for consideration of the additional issue that was raised by defendant, but not decided.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 29, 1996, Adesoji Latona, a taxi driver, was fatally shot at a Detroit liquor store. Latona was apparently confronted by a group of men, including defendant, as he entered the liquor store. One of the men, Charles Jones, accused Latona of throwing him out of Latona's cab, and an argument ensued inside the store. Latona's girlfriend testified that she saw defendant draw a gun, after which she heard two gunshots. In a statement given to police following the incident, defendant admitted that he was at the party store at the time of the shooting and that he and Jones had fought with Latona inside the store. Defendant further stated that he had retrieved a gun from another friend in the parking lot, and that he went back inside and fired the gun into the air before running back outside. Latona died from two gunshot wounds, one to the head and one to the chest.

Defendant was charged with first-degree murder, M.C.L. § 750.316, and possession of a firearm during the commission of a felony (felony-firearm), M.C.L. § 750.227b. Defendant's first trial, which took place in June 1997 before Detroit Recorder's Court Judge Helen E. Brown, consumed-from jury selection to closing statements and jury instructions-a total of eight and one-half hours spread out over six days. After approximately four or five hours of deliberation,¹ the jury sent Judge Brown a note which stated: "What if we can't agree? [M]istrial? [R]etrial? [W]hat?"² Upon receiving the note, Judge Brown called the jury into the courtroom and, with the assistant prosecuting attorney and defense counsel present,³ engaged in the following exchange with the jury foreperson:

The Court: I received your note asking me what if you can't agree? And I have to conclude from that that that is your situation at this time. So, I'd like to ask the foreperson to identify themselves [sic], please?

Foreperson: [Identified herself.]

The Court: Okay, thank you. All right. I need to ask you if the jury is deadlocked; in other words, is there a disagreement as to the verdict?

Foreperson: Yes, there is.

The Court: All right. Do you believe that it is hopelessly deadlocked?

Foreperson: The majority of us don't believe that ...

The Court: (Interposing) Don't say what you're going to say, okay?

Foreperson: Oh, I'm sorry.

The Court: I don't want to know what your verdict might be, or how the split is, or any of that, Thank you. Okay? Are you going to reach a unanimous verdict, or not?

Foreperson: (No response)

The Court: Yes or no?

Foreperson: No, Judge.

The Court: All right. I hereby declare a mistrial. The jury is dismissed.

In November 1997, defendant was retried before a different judge on charges of first-degree murder and felony-firearm. The second jury returned a verdict of guilty of the lesser offense of second-degree murder, M.C.L. § 750.317, and guilty as charged of felony-firearm.⁴

In his appeal before the Court of Appeals, defendant, through appellate counsel, raised for the first time the claim that he was retried in violation of the Double Jeopardy Clause of the federal and state constitutions. Defendant argued that Judge Brown had sua sponte terminated the first trial without manifest necessity to do so and without his consent, and that retrial therefore violated his constitutional right to be free from successive prosecutions.

The Court of Appeals panel agreed and reversed defendant's convictions. The panel opined that defendant had not consented to the declaration of the mistrial, citing People v. Johnson, 396 Mich. 424, 432, 240 N.W.2d 729 (1976), repudiated on other grounds in People v. New, 427 Mich. 482, 398 N.W.2d 358 (1986), for the proposition that a defendant's mere silence or failure to object to the jury's discharge is not "consent." The panel, turning to defendant's claim that the declaration of a mistrial was not manifestly necessary, concluded that the trial court's decision to discharge the jury was not reasonable because it had failed to consider alternatives or to make findings on the record:

Recognizing that the doctrine of double jeopardy does not preclude retrial after the discharge of a jury because of inability to agree, our Supreme Court has stated that the inquiry "turns upon [the] determination whether the trial judge was entitled to conclude that the jury in fact was unable to [agree]." People v. Duncan, 373 Mich. 650, 660-661, 130 N.W.2d 385 (1964). This has led to the accepted rule that a trial court must consider reasonable alternatives before sua sponte declaring a mistrial and the court should make explicit findings, after a hearing on the record, that no reasonable alternative exists. People v. Hicks, 447 Mich. 819, 841, 528 N.W.2d 136 (GRIFFIN, J.), 847 (CAVANAGH, C.J.); 447 Mich. 819, 528 N.W.2d 136 (1994); People v. Benton, 402 Mich. 47, 61, 260 N.W.2d 77 (1977) (LEVIN, J.); People v. Rutherford, 208 Mich.App. 198, 202, 526 N.W.2d 620 (1994); People v. Little, 180 Mich.App. 19, 23-24, 446 N.W.2d 566 (1989); People v. Dry Land Marina, 175 Mich.App. 322, 327, 437 N.W.2d 391 (1989).

In the present case, we must determine whether the trial court reasonably concluded that the jury was deadlocked. Based on the record before us, we are forced to conclude that the court did not reasonably declare a mistrial. The trial court declared a mistrial without a hearing or discussion of any alternatives. No deadlock jury instructions were given much less even considered by the trial court. See CJI2d 3.12. The jury had deliberated only four or five hours in a capital murder case following four days of trial testimony. There was clearly a reasonable alternative in this case, that is, to give the jury a deadlock jury instruction and send it back for further deliberation. See, e.g., Hicks, supra, pp. 843-844, 528 N.W.2d 136; Benton, supra, pp. 61-62; Rutherford, supra, p. 203, 526 N.W.2d 620; Little, supra, pp. 27-30, 446 N.W.2d 566.

Because a reasonable alternative existed in this case, an alternative never given consideration by the trial court, the trial court did not engage in a scrupulous exercise of discretion in sua sponte declaring a mistrial. Hicks, supra, p. 829, 528 N.W.2d 136, citing United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Put another way, it was not manifestly necessary for the trial court to have declared a mistrial given the shortness of the jury's deliberation and the court's failure to give a deadlock jury instruction. In fact, the trial court never even found on the record that the jury was genuinely deadlocked. Given these circumstances, we are compelled to conclude that retrial violated defendant's rights against double jeopardy as guaranteed by the United States and Michigan Constitutions. Therefore, defendant's convictions are reversed. [Slip op, pp. 4-5.]

We granted the prosecution's application for leave to appeal.⁵ Because we conclude that manifest necessity existed to support the mistrial declaration, we reverse.

II. STANDARD OF REVIEW

A constitutional double jeopardy challenge presents a question of law that we review de novo. People v. Herron, 464 Mich. 593, 599, 628 N.W.2d 528 (2001). Necessarily intertwined with the constitutional issue in this case is the threshold issue whether the trial court properly declared a mistrial. The trial judge's decision to declare a mistrial when he considers the jury deadlocked is accorded great deference by a reviewing court. Arizona v. Washington, 434 U.S. 497, 510, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).⁶ "At most,... the inquiry ... turns upon determination whether the trial judge was entitled to conclude that the jury in fact was unable to reach a verdict." Duncan, supra, 373 Mich. at 661, 130 N.W.2d 385 (emphasis supplied).

III. ANALYSIS

A. DOUBLE JEOPARDY IMPLICATIONS OF RETRIAL FOLLOWING MISTRIAL

Under both the Double Jeopardy Clause of the Michigan Constitution⁷ and its federal counterpart,⁸ an accused may not be "twice put in jeopardy" for the same offense. The Double Jeopardy Clause originated from the common-law notion that a person who has been convicted, acquitted, or pardoned should not be retried for the same offense. See United States v. Scott, 437 U.S. 82, 87, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978)....