People v. McPherson, Docket No. 5737

• Decision Date: 03 February 1970
• Docket Number: No. 1,Docket No. 5737,1
• Citation: 21 Mich.App. 385,175 N.W.2d 828
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie J. McPHERSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 828

175 N.W.2d 828

21 Mich.App. 385

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie J. McPHERSON, Defendant-Appellant.

Docket No. 5737.

Court of Appeals of Michigan, Division No. 1.

Feb. 3, 1970.

Released for Publication March 26, 1970.

Carl Levin, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Dominick R. Carnovale, Chief, Appellate Div., Wayne County, Luvenia D. Dockett, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and DANHOF, JJ.

LESINSKI, Chief Judge.

In April, 1967, defendant was first tried for the crime of rape, M.C.L.A. § 750.520 (Stat.Ann.1954 Rev. § 28.788). Following his conviction of the lesser included offense of assault with intent to commit rape, M.C.L.A. § 758.85 (Stat.Ann.1962 Rev. § 28.280), defendant moved for and was granted a new trial. ¹

At the second trial defendant was again charged with and tried for rape. The jury returned a verdict convicting him of rape. At the sentencing hearing the court held that it was improper for defendant to be convicted of rape, on the grounds that the conviction at the first trial of the lesser included offense acted as an acquittal of the charge of rape, thus, making a conviction of rape double jeopardy. The court ruled:

'Accordingly it becomes necessary in order to protect your interests to interpret the jury's verdict not as a verdict of guilty of carnal knowledge of a female with force and against her will, but rather as a verdict of guilty of assault with intent to commit rape, which is the highest offense that the jury could have found you guilty of under the law in this case.'

The basic issues raised on appeal are: whether defendant was properly tried a second time for rape, and if not, whether the trial court's reduction of the verdict was a proper cure of the error. ²

It is settled that the double jeopardy provision of the Fifth Amendment of the Federal Constitution applies to the states by way of the Fourteenth Amendment. See Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. The same provision against double jeopardy is found in the Michigan Const.1963, art. 1, § 15. ³

In keeping with the principle that no person shall be twice put in jeopardy for the same offense, the legislature of this State enacted M.C.L.A. § 768.33 (Stat.Ann.1954 Rev. § 28.1056), which provides as follows:

'When a defendant shall be acquitted or convicted upon any indictment for an offense, consisting of different degrees, he shall not thereafter be tried or convicted for a different degree of the same offense; nor shall he be tried or convicted for any attempt to commit the offense charged in the indictment or to commit any degree of such offense.'

Thus, under the restraints imposed by the statute, in the instant case it was error for defendant to be Tried for the crime of rape a second time because of the result of the previous trial. See People v. Bower (1966), 3 Mich.App. 585, 143 N.W.2d 142. Beyond state law, Federal constitutional law equally requires the same result. See Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.

While the prosecutor concedes the first trial constituted jeopardy, he argues that defendant waived the issue by not raising it below. People v. Powers (1935), 272 Mich. 303, 261 N.W. 543, cited by the prosecutor, held that where the issue is not raised at trial it is waived.

During the nearly 35 years since Powers was decided, however, the Federal constitutional law regarding double jeopardy has gone through fundamental changes. Cf: Palko v. Connecticut (1937), 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and Benton v. Maryland, Supra. This Court noted these significant changes on the point in question in People v. Bower, Supra, 3 Mich.App. at 589, 143 N.W.2d at 144.

'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. 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.'

In light of the Benton and Henry decisions we conclude that the holdings in Powers on this point ⁴ has been preempted by the rulings of the United States Supreme Court. While we note the difference between our case which involved a trial and Bower which involved a plea of guilty, we find that the rationale of Henry, applied in Bower, applies to the instant case equally.

The prosecutor, seeking to avoid the impact of Henry, argues: 'It would seem that under the circumstances that defendant Having requested through counsel that he be tried on the original charge that he is now estopped to allege double jeopardy.' (Emphasis supplied.) Even assuming Arguendo the point is valid, a careful search of the record fails to reveal where defendant 'requested' that he be tried a second time for rape.

Although there is some indication that trial counsel felt obligated as a matter of law to permit a second trial on the original charge, ⁵ there is nothing to support the conclusion that this was a 'deliberate choice of strategy.' People v. Bower, Supra. The Court in Green v. United States, Supra, 355 U.S. at 191, 78 S.Ct. at 226, in discussing waiver stated:

"Waiver' is a vague term used for a great variety of purposes, good and bad in the law. In any normal sense, however, it connotes some kind of voluntary knowing relinquishment of a right. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.'

The record is totally devoid of any showing that 'some kind of voluntary knowing relinquishment of a right' was made. This Court will not presume the waiver of a constitutional right from a silent record.

As it was error to try defendant a second time for rape, we face the issue of whether the lower court's reduction of the verdict cured the error.

In United States ex rel. Hetenyi v. Wilkins [C.A. 2, 1965], 348 F.2d 844, cert. den. (1966), 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667, defendant Hetenyi was tried three times on the same indictment for first degree murder. The first trial resulted in conviction of second degree murder, the second in a conviction of first degree murder and the third in a conviction of second degree murder. In all three trials the court instructed the jury that it could return guilty verdicts of first or second degree murder or other lesser included offenses.

The court in Wilkins, supra, in an opinion by Judge (now Justice) Marshall stated at 864:

'Yet we believe that Hetenyi is being held in custody in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution because (1) there was a reasonable possibility that the conduct of the trial and the deliberation of the jury were affected by the fact that Hetenyi was indicted, prosecuted and charged with first degree murder and (2) the State was constitutionally forbidden to prosecute him for first degree murder following the completion of the first trial. Both the existence of this possibility of prejudice and the fact that it arises from a violation of the accused's constitutional rights render the process which resulted in his detention constitutionally inadequate, less than that which is constitutionally due.

'The question is not whether the accused was actually prejudiced, but whether there is Reasonable possibility that he was prejudiced. * * * The ends of justice would not be served by requiring a factual determination that the accused was actually prejudiced in his third trial by being prosecuted for and charged with first degree murder, nor would the ends of justice be served by insisting upon a quantitative measurement of that prejudice. The energies and resources consumed by such inquiry would be staggering and the attainable level of certainty most unsatisfactory. There could never be any certainty as to whether the jury was actually influenced by the reprosecution or whether the accused's defense strategy was impaired by this scope of the charge, even if there were a most sensitive examination of the entire trial record and a more suspect and controversial inquest of the jurors still alive and available.' (Citations omitted.)

Extending this point pp. 865, 866, the Court stated that it:

'would not be justified in excluding the reasonable possibility that the accused was prejudiced by the unconstitutionally broad scope of the prosecution. The mere fact that Hetenyi Could have--logically and legally--been convicted of second degree murder on the basis of all the evidence, does not mean that he would have been so convicted if he were not also charged with first degree murder. For example, it is entirely possible that without the inclusion of the first degree murder charge, the jury, reflecting a not unfamiliar desire to compromise might have returned a guilty verdict on the first degree manslaughter charge on the same evidence. There is, of course, no basis for predicting with any confidence, that this would have been the outcome of the third trial if Hetenyi had not been prosecuted for first degree murder; but neither is there any basis for predicting, with any confidence, that this would not have been the outcome. To make this latter prediction on...