People v. McGee

• Decision Date: 15 November 2001
• Docket Number: Docket No. 215576.
• Citation: 636 N.W.2d 531,247 Mich. App. 325
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William C. McGEE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

636 N.W.2d 531

247 Mich. App. 325

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William C. McGEE, Defendant-Appellant.

Docket No. 215576.

Court of Appeals of Michigan.

Submitted March 13, 2001, at Detroit.

Decided August 31, 2001, at 9:20 a.m.

Released for Publication November 15, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Thomas R. Grden, Assistant Prosecuting Attorney, for the people.

Neil J. Leithauser and William C. McGee, Troy, New Haven, In Propria Persona.

Before DOCTOROFF, P.J., and HOLBROOK, JR., and HOEKSTRA, JJ. DOCTOROFF, Presiding Judge.

Defendant appeals as of right his convictions on two counts of delivery of less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv), one count of delivery of an imitation controlled substance, M.C.L. § 333.7341(3), and one count of delivery of fifty grams or more but less than 225 grams of cocaine, M.C.L. § 333.7401(2)(a)(iii). Defendant claims that, among other assertions of error, the trial court erred in deciding to reinstate the jury's verdict after declaring sua sponte a mistrial. We agree and reverse and remand for proceedings consistent with this opinion.

I

In March 1998, the Pontiac police arrested defendant following four incidents in which defendant allegedly sold cocaine or an imitation controlled substance to undercover police officers. Defendant was tried before a jury on September 29 and October 1, 1998. After reading the jury instructions, the court randomly selected one of the remaining thirteen jurors¹ to become the alternate and excused that juror. After the jury returned with a verdict and the foreperson read the verdict in court, defense counsel asked that the jury be polled. During the polling, the trial court realized that there were thirteen jurors present and, upon questioning, discovered that the juror who was excused had been in the jury room during deliberations. When asked why she entered the jury room, the excused juror replied "I was not instructed to do anything different." The court did not further question the juror.

The court and the parties then engaged in an off-the-record conference at the bench. Immediately following this bench conference, the court dismissed the jury and declared a mistrial, stating:

I just knew this wasn't going to be a good day. We have a mistrial.

Mr. McGee, there were thirteen jurors who voted for your guilt, as opposed to twelve, and that is why we have a mistrial, because someone couldn't count when they were sending the jury into the jury room. But that's okay. We'll try this again, starting tomorrow.

At this point, defendant did not object to either the court's declaration of a mistrial sua sponte or its decision that the case would be retried.

When the parties returned on October 2, 1998, the court announced that it did not believe the case would need to be retried and that, instead, the jurors could be brought back in and repolled and the verdict could be reinstated. The court noted that the bench conference conducted after discovery of the thirteenth juror was not on the record and asked the parties what their recollection was of the discussion. Both the prosecutor and defense counsel stated that they believed that they did not respond either affirmatively or negatively to the court's indication that it would declare a mistrial.²

The court then informed the parties that on the basis of its research, it believed that a mistrial was not necessary where there is an extra juror and that it should either recall the jurors to complete the polling and reinstate the verdict or proceed to a retrial. Defendant argued that reinstating the verdict was not possible because the declaration of a mistrial rendered nugatory all trial proceedings, citing People v. Hamm, 100 Mich.App. 429, 298 N.W.2d 896 (1980). The court concluded that because the verdict was rendered, this case was distinguishable from Hamm. When defendant countered that no verdict was rendered because the polling was not completed, the court stated that "[t]he verdict was rendered when (a) we have a marked verdict sheet and (b) when the ... foreman indicates that that is the verdict of the jury. The polling is simply a verification." Defendant also moved for a dismissal of the charges, arguing that a retrial after a mistrial is possible only where the mistrial was a manifest necessity, and no such manifest necessity existed in this case. However, the court found that defendant acquiesced in the mistrial and, even if no manifest necessity existed, double jeopardy would not be a problem here where no retrial would take place.

On October 9, 1998, the court recalled the jurors by subpoena to complete the polling. Before starting the polling, the court noted that "[w]e do have in the court file, the signature of the foreman on the guilty verdict form which he handed to us on the day ... the jury rendered their verdict." During the polling, the court verified that the signature on the verdict form was that of the jury foreman and that he signed it at the time the verdict was rendered. The court also questioned the excused juror regarding her involvement in the jury's deliberations:

Q. [Juror 13], you went into the jury room. Did you participate?

A. No

Q. Did you speak?

A. I asked for water and coffee, and I made coffee.

Q. You asked for coffee and water. Did you participate at all in the deliberations?

A. No.

Q. All you did was listen quietly?

A. Um hum.

Q. Didn't vote, didn't talk, just sat and made coffee?

A. I made coffee, yes.

During this hearing, defendant renewed his motion for dismissal on the ground of double jeopardy. In denying defendant's motion for dismissal, the court stated:

Again, in a discussion at the bench, we made a subsequent record indicating that there was, the shock of the moment of seeing 13 jurors which in my career I have never seen, and I've been a judge for 20 years.

We did not complete the polling process. But, the foreman had in fact signed the Jury Verdict form and handed it to my clerk. [T]he foreman did in fact render the verdict of the jury.

And we have now completed or will complete the polling process.... And the 13th juror who did make a record today indicated that she did not take part in any discussion. So that there was no mistrial.

And the court speaks through its written orders. There is no written Order of mistrial. Therefore, the verdict would in fact be reinstated, and any record would of course then go up to the Court of Appeals. So, the question of jeopardy is not before this court because I don't believe that we have a mistrial.

There was no written Order of mistrial. And the verdict will be reinstated based upon the fact that all of this was done prior to that. The cases, I believe that [defense counsel] cite[s] ... refer to mistrial during that [sic] occurred during the proceedings and not after a jury has rendered their verdict.

And second of all, I believe that the acquiescence would in fact [sic] that was sort of a joint decision at the bench off the top of our heads which has been recalled prior to the entry of a formal Judgment. And therefore since there was no written Judgment of mistrial, this court is free to reinstate and we are taking our poll. And there is a verdict of guilty. So the question of jeopardy is irrelevant at this time.

After completing the polling, the court accepted the verdict and noted that the jury found defendant guilty on all four counts.

II

Defendant asserts several errors that he claims warrant reversal of his convictions; however, the key question appears to be whether the trial court abused its discretion by first declaring a mistrial and then revoking the declaration of a mistrial and reinstating the jury's verdict. To facilitate our review of this alleged erroneous sequence of events, we analyze individually the trial court's four primary decisions in this regard: (a) the declaration of a mistrial sua sponte, (b) the revocation of the declaration of the mistrial, (c) the recalling and repolling of the jurors, and (d) the reinstatement of the verdict.

A

We first address whether the trial court erred in declaring a mistrial. A trial court should refrain from declaring a mistrial unless "`a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.'" People v. Hicks, 447 Mich. 819, 829, 528 N.W.2d 136 (1994), quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Therefore, we review the trial court's determination on this issue for an abuse of discretion. People v. Blackburn, 94 Mich.App. 711, 714, 290 N.W.2d 61 (1980).

It appears that the trial court in this case concluded that defendant consented to, or at least acquiesced in, the court's declaration of a mistrial. This conclusion apparently was based on defense counsel's response to the court's inquiry regarding what was said during the bench conference that followed the discovery of the thirteenth juror. According to defense counsel's recollection of the discussion, which was confirmed by the prosecutor, he neither objected to nor agreed with the court's conclusion that a mistrial was warranted. Contrary to the trial court's conclusion, a criminal defendant's silence in the face of the court's declaration of a mistrial cannot be construed as consent. People v. Johnson, 396 Mich. 424, 432-433, 240 N.W.2d 729 (1976), repudiated on other grounds in People v. New, 427 Mich. 482, 488-490, 398 N.W.2d 358 (1986). Here, there was no evidence on the record that defendant or his counsel explicitly indicated consent to the mistrial, and we will not presume consent in the absence of an affirmative showing. Johnson, supra at 433, 240 N.W.2d 729.

Because defendant did not consent to the declaration of a mistrial, the court's...