People v. Little
| Decision Date | 26 October 1989 |
| Docket Number | Docket No. 106965 |
| Citation | 446 N.W.2d 566,180 Mich.App. 19 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald R. LITTLE, Jr., Defendant-Appellant. 180 Mich.App. 19, 446 N.W.2d 566 |
| Court | Court of Appeal of Michigan — District of US |
[180 MICHAPP 21] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., and Kenneth A. Roth, Asst. Pros. Atty., for the People.
Milton J. Marovich, Kalamazoo, for defendant-appellant.
Before SHEPHERD, P.J., and BEASLEY and GRIBBS, JJ.
On June 6, 1984, in a second jury trial, defendant, Donald R. Little, Jr., was convicted of felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. He then pled guilty to being an habitual offender, second offense, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082. Defendant was sentenced to serve not less than twenty-four months nor more than six years in prison. He appeals by leave granted.
In the first trial, after a noon recess and near the close of the prosecution's proofs, the trial judge (John E. Fitzgerald, then a Kalamazoo circuit judge) met with counsel in chambers to explain that he felt that he must declare a mistrial to avoid the appearance of impropriety and impartiality. He said that during the noon recess he and other Kalamazoo circuit judges had decided to file a formal grievance against the assistant prosecutor trying the instant case as a result of the assistant [180 MICHAPP 22] prosecutor's actions in another case. Defendant opposed the mistrial, but nevertheless the trial judge disqualified himself and declared a mistrial based on what he perceived to be manifest necessity.
Prior to the second trial, defendant brought a motion to dismiss on double jeopardy grounds, which was denied. The case then again went to trial before a jury on April 17, 18, and 19, 1984. Kalamazoo Circuit Judge Donald M. Goodwillie, who had not joined in the grievance and who had not been a Kalamazoo circuit judge at that time, presided. It is from the conviction in the second trial that defendant appeals by leave granted.
On appeal, defendant claims that there was no manifest necessity for the court to declare a mistrial after the grievance was filed against the assistant prosecutor and before examining any alternatives, and that, therefore, defendant should have been discharged and the charges against him dismissed for the reason that the second trial violated his constitutional guarantee against being placed twice in jeopardy.
Once a jury is impaneled and sworn, a defendant is placed in jeopardy, 1 and once a defendant has been placed in jeopardy, he has a right to have his guilt weighed and decided by that jury. Unless he consents to the trial's interruption or unless a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again. 2
[180 MICHAPP 23] In People v. Dawson, 3 the Michigan Supreme Court spoke to the matter of double jeopardy as follows:
The Double Jeopardy Clause does not bar all retrials. The Supreme Court of the United States has held that the charged offense may be retried where the mistrial was declared because of a hung jury. The Court has fashioned a balancing test focusing on the cause prompting the mistrial. The thrust of the Court's decisions is that the Double Jeopardy Clause does not bar retrial where the prosecutor or judge made an innocent error or where the cause prompting the mistrial was outside their control. Where the motion for mistrial is made by the prosecutor, or by the judge sua sponte, retrial will be allowed if declaration of the mistrial was "manifest[ly] necess[ary]":
In Downum v. United States, 4 the United States Supreme Court has indicated that any doubt regarding the existence of manifest necessity should be resolved in favor of the defendant. The Michigan Supreme Court has held that the trial court must exercise the power to declare a mistrial with great caution and employ less drastic alternatives which would be revealed by the "scrupulous exercise" of judicial discretion. 5 Before a court declares a mistrial on its own initiative, it should conduct a [180 MICHAPP 24] hearing on the record to thoroughly consider the situation and make explicit findings that no reasonable alternative exists. 6
Here, defendant contends that the trial court failed to make explicit findings as to manifest necessity and that, therefore, retrial in his case should have been barred. In the within case, on the second day of the first trial (November 9, 1983), immediately after the noon recess, the trial judge took the assistant prosecutor and defense counsel into his chambers where he announced, on the record, "that as a result of our Judges' meeting this noon, I [Judge John E. Fitzgerald] am now a party to a grievance that has been filed against the Prosecutor [Assistant Prosecutor E. Frederick Davison]." 7 After the trial judge's announcement, the following transpired:
Mr. Davison [Assistant Prosecutor]: Your Honor, if that is the case, then and if the Court does not feel it can sit fairly and impartially, then as a matter of course, the Court should disqualify itself and declare a mistrial as a manifest necessity, and if that's the case, then the People can still have their day in Court and try Mr. Little at a later date.
The Court: Well I am not sure if whether you are requesting me to disqualify myself or not.
Mr. Davison: If the Court feels it cannot sit fairly and impartially and now I think it's established that it can't, then the Court should disqualify itself declaring that there's a manifest necessity in this case.
The Jury is sworn. My only concern is that and the way the Court puts it on the Record and the [180 MICHAPP 25] way the Record is establishing itself now that we still are able to try Mr. Little at a later date.
The Court: That's exactly why I am presenting the matter to you in the manner in which I am so it does not in any way prejudice the ultimate outcome of this particular case which you know if, if I am disqualified, I am satisfied under the Rules that creates a manifest necessity that would warrant the declaring of a mistrial which would not bar any subsequent prosecution of Mr. Little.
Mr. Davison: That's my concern and if that's the case, then we move ...
The Court: To respond to your question, I personally have no problem in presiding at this matter. I'm aware of the appearance of things and how it may appear that perhaps I am not fair and impartial, and I'm more concerned of, from the appearance of things and how one might perceive any action taken by the Court and our continued relationship.
Mr. Davison: Understand.
The Court: Mr. Turpel? [Defense Counsel]
Mr. Turpel: Your Honor, we see no evidence of any partiality one way or the other. We are here; we've been here for the last day and a half. We see no reason why the Court should not sit in this matter.
We would not request, in fact, we would oppose. I understand the Court's opinion as to manifest necessity, but at this point, we would oppose, if we could, any withdrawal.
The Court: As I've already indicated on the Record, I feel that I have been fair and impartial in presiding during this trial, and I would hope that I could continue to be, but as a result of the action taken at our Judges' meeting, I will now become a party to an action or to a proceeding involving the Prosecutor and while I feel that I can personally maintain my objectivity, I am aware of how things might be perceived and that by our Supreme Court, in fact, our Chief Justice has admonished the Courts to be more perceptive and aware of how things might be perceived as [180 MICHAPP 26] opposed to what in essence might be the case, and so I am concerned on how matters might be perceived henceforth.
I don't know whether that changes your position or perspective.
Mr. Davison: No, Your Honor, it doesn't.
The Court: This Court, on the basis of, on risking the chance of an appearance of not being fair and impartial although I feel I could at this moment be fair and impartial, I don't know. I have no crystal ball, and I can't say how matters might develop in the future which may make a strained relationship or maybe even tighten the possibility of perceiving the action of this Court not to be fair and impartial.
It feels that it would be appropriate for this Court to disqualify itself, and this Court having disqualified itself that creates what this Court believes to be a manifest necessity that warrants the declaration of a mistrial in this matter.
I will state for the Record, which in this Court's opinion does not preclude any subsequent prosecution of the Defendant in this action.
Now for purposes of the Record when we go in open Court as far as the Jury is concerned, I don't see any necessity of why they need to know what has transpired in terms of a grievance being filed. I will merely indicate to them that based upon the Rules, there has been a situation of manifest necessity that requires the declaring of a mistrial and that's the end of the matter. I see no reason why they need to know these whys and wherefores.
Mr. Davison: I agree with the Court.
Mr. Turpel: I agree. The Record is sufficient for any purposes of appeal or motion.
The Court: Is there anything further either Counsel wishes to state on the Record at this time?
Mr. Davison: No, Your Honor.
The Court: Mr. Turpel?
Mr. Turpel: No, Your Honor.
As previously indicated, before the second trial, [180 MICHAPP 27] defendant brought a motion to dismiss based on double jeopardy, which...
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