People v. Rutherford, Docket Nos. 144458

Decision Date29 December 1994
Docket NumberDocket Nos. 144458,144459
Citation526 N.W.2d 620,208 Mich.App. 198
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Wayne RUTHERFORD, Defendant-Appellant. (Two Cases)
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Norman W. Donker, Pros. Atty., and Geoffrey K. Rettig, Asst. Pros. Atty., for People.

Hubbell & Hubbell, P.C. by Daniel A. Hubbell, Traverse City, for defendant.

Before CORRIGAN, P.J., and RICHARD ALLEN GRIFFIN and DRAKE, * JJ.

RICHARD ALLEN GRIFFIN, Judge.

Following a jury trial, defendant was convicted of one count of breaking and entering an occupied building with the intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305, and one count of conspiracy to commit a breaking and entering, M.C.L. § 750.157a; M.S.A. § 28.354(1) and M.C.L. § 750.110; M.S.A. § 28.305. Defendant later pleaded guilty of being an habitual offender, third offense, M.C.L. § 769.11; M.S.A. § 28.1083. In a separate proceeding, defendant pleaded guilty of resisting and obstructing an officer, M.C.L. § 750.479; M.S.A. § 28.747, arising out of an altercation with several correction officers that occurred while defendant was in jail awaiting sentencing for his earlier convictions. In exchange for the plea, the prosecutor agreed to the dismissal of defendant's prior conspiracy conviction. The defendant was sentenced to six to fifteen years' imprisonment for the breaking and entering conviction and sixteen to twenty-four months' imprisonment for the resisting and obstructing conviction. Defendant now appeals as of right. We affirm in part and reverse in part.

I

On July 9, 1991, a jury trial was commenced with respect to defendant's breaking and entering and conspiracy charges. On the second day of trial, following testimony by a rebuttal witness, the trial court declared a recess and excused the jury for a "morning break." During the recess, the trial court received a note from the jury room. On the note, four questions were written regarding evidentiary matters. From the handwriting on the note, it appears that the four questions were written by three different jurors. Questions A and B appear to be in the same handwriting. A second juror appears to have written question C, while a third juror appears to have written question D. The following questions were written on the note:

(A) Fingerprints on stereo equipment[?]

(B) If so whose[?]

(C) Who woke up Mr. Rutherford shortly before Officer Brooks spoke to him? Did anyone?

(D) Did anyone ever talk to Angela Slocum's aunt to confirm the time Angela visited & dropped off her child.

After receiving the note, the trial court immediately summoned the jury to the courtroom and sua sponte declared a mistrial. 1 Without consulting the attorneys or the parties, the trial court ruled that the note evidenced the start of the jury's deliberations, thereby necessitating a mistrial.

Following reinstatement of the charges, defendant moved to dismiss the case on the ground that a retrial would violate his constitutional rights against double jeopardy. 2 Defendant argued that the trial court's declaration of a mistrial was not prompted by manifest necessity. In denying defendant's motion, the trial court ruled that there was no reasonable alternative to granting a mistrial. The lower court concluded that it was clear from the jurors' note that the jury had discussed the case among themselves. Subsequently, defendant was retried and convicted on the charges.

II

Defendant argues on appeal that the trial court's declaration of a mistrial was not prompted by manifest necessity. We agree. Double jeopardy attaches in a jury trial once the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978); People v. Brower, 164 Mich.App. 242, 245, 416 N.W.2d 397 (1987), lv. den. 430 Mich. 864 (1988), cert. den. 488 U.S. 933, 109 S.Ct. 327, 102 L.Ed.2d 344 (1988). Because double jeopardy protection attaches before the end of a trial, a trial court's declaration sua sponte of a mistrial bars retrial of a defendant unless the mistrial was prompted by manifest necessity. People v. Dawson, 431 Mich. 234, 252, 427 N.W.2d 886 (1988). Therefore, a trial court should avoid declaring a mistrial sua sponte without first holding a hearing on the record and making explicit findings that no reasonable alternative exists, People v. Benton, 402 Mich. 47, 61, 260 N.W.2d 77 (1977) (opinion by Levin, J.).

Although there is no precise test concerning what constitutes "manifest necessity," it appears to refer to the existence of sufficiently compelling circumstances that would otherwise deprive the defendant of a fair trial or make its completion impossible. 3 Accordingly, " 'A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction ... would have to be reversed on appeal due to an obvious procedural error in the trial.' " Benton, supra at 57, 260 N.W.2d 77, quoting Illinois v. Somerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973).

Absent evidence that the jurors had discussed the case or that defendant was otherwise prejudiced, a defendant's right to an impartial trial is not compromised by written questions submitted by the jury before closing arguments. People v. White, 144 Mich.App. 698, 700-701, 376 N.W.2d 184 (1985); Clapham v. Yanga, 102 Mich.App. 47, 300 N.W.2d 727 (1980); People v. Scott, 55 Mich.App. 739, 223 N.W.2d 330 (1974). In White, the trial judge gave the members of the jury preliminary instructions that they were not to discuss the case among themselves until after the conclusion of the trial. 144 Mich.App. at 700, 376 N.W.2d 184. Further, the trial judge also instructed the members of the jury to submit any questions they had, in writing, to the trial judge and not to discuss the case with the other members of the jury. Id. Before closing arguments, ten questions were submitted in writing by the jurors. Id. In affirming the defendant's conviction, this Court held that an inference that the jury had begun deliberations could not be drawn solely from the evidence of the questions submitted by the jury.

In light of White, we are convinced that there was not manifest necessity for the declaration of the mistrial. The actions of the jury would not have required reversal had defendant been convicted at the first trial. Here, the trial judge improperly assumed that the jury had begun its deliberations on the basis of the jurors' questions. Moreover, the trial judge failed to hold a hearing to discuss alternatives or to obtain consent before declaring a mistrial. Under these circumstances, the retrial violated defendant's rights against double jeopardy as guaranteed by the United States and Michigan Constitutions. Defendant's convictions of breaking and entering and being an habitual offender, third offense, are hereby reversed.

III

Defendant next argues that his sixteen- to twenty-four-month sentence for his resisting and obstructing conviction violates the principle of proportionality in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). However, because defendant has already served his minimum sentence, we decline to review this issue. Where a subsequent event renders it impossible for this Court to fashion a remedy, an issue becomes moot. See, e.g., People v. Greenberg, 176 Mich.App. 296, 302, 439 N.W.2d 336 (1989); Crawford Co. v. Secretary of State, 160 Mich.App. 88, 93, 408 N.W.2d 112 (1987).

Affirmed in part and reversed in part.

DRAKE, J., concurred.

CORRIGAN, Presiding Judge (concurring in part and dissenting in part ).

I join Part III of the majority opinion. I agree that defendant's challenge to his sentence for resisting and obstructing an officer, M.C.L. § 750.479; M.S.A. § 28.747, is moot because defendant has served that sentence.

I dissent from the holding that defendant's retrial on charges of breaking and entering, M.C.L. § 750.110; M.S.A. § 28.305, and conspiracy to break and enter, M.C.L. § 750.157a; M.S.A. § 28.354(1) and M.C.L § 750.110; M.S.A. § 28.305, offended the protection against double jeopardy, U.S. Const., Am. V; Const.1963, art. 1, § 15. First, I am not persuaded that the judge sua sponte declared a mistrial. Ante at 622, n. 1. Defendant sought a mistrial on grounds of prosecutorial misconduct in the rebuttal argument. The court declared a mistrial on grounds different from the ground identified by defendant. It found juror misconduct for violation of previous instructions. However, the court ruled after the defendant had first moved for a mistrial. A defendant who moves for or consents to a mistrial waives double jeopardy claims, whether or not a manifest necessity for mistrial exists. People v. Benton, 402 Mich. 47, 260 N.W.2d 77 (1977) (opinion by Levin, J.).

The transcript reflects:

Mr. Evans: Yes your Honor, I am making a motion for mistrial on the basis of the prosecutor's--at least two questions to Deputy Brooks on--in rebuttal, in the rebuttal portion of the prosecutor's trial case.... That's improperly using the defendant's silence against him and the jury should not have heard that and it is--and on that basis I am moving for a mistrial.

Mr. Rettig: Ah, your Honor, in the first place, in perspective, that was on rebuttal, as I believe you will recall, after Mr. Rutherford stated that he had never seen Mr. Brooks until yesterday at trial. Rebuttal testimony--

The Court: I am going to stop you. We have a serious problem. This jury is in here deliberating. They asked a question earlier, could we hear Mrs. Slocum's testimony because she was very inaudible...

To continue reading

Request your trial
20 cases
  • People v. Green
    • United States
    • Court of Appeal of Michigan — District of US
    • 14 de abril de 2004
    ...neither of which need any consideration. The first is moot because defendant has fully served his sentence, People v. Rutherford, 208 Mich.App. 198, 204, 526 N.W.2d 620 (1994), and the second is deemed abandoned because defendant only gave it cursory treatment with little or no citation of ......
  • People v. Lett
    • United States
    • Michigan Supreme Court
    • 4 de junho de 2002
    ...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, 32......
  • Phinney v. Perlmutter
    • United States
    • Court of Appeal of Michigan — District of US
    • 4 de abril de 1997
    ...whether the trial court improperly excluded the questioning of her with respect to her legal expenses is moot. People v. Rutherford, 208 Mich.App. 198, 204, 526 N.W.2d 620 (1994); Crawford Co. v. Secretary of State, 160 Mich.App. 88, 93, 408 N.W.2d 112 (1987). Finally, the trial court did n......
  • People v. Mehall
    • United States
    • Court of Appeal of Michigan — District of US
    • 12 de setembro de 1995
    ...polled, one juror expresses disagreement with the verdict, the jury must be sent out to deliberate further); People v. Rutherford, 208 Mich.App. 198, 202, 526 N.W.2d 620 (1994) (a trial court should avoid declaring a mistrial sua sponte without first holding a hearing on the record and maki......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT