People v. Thompson

• Decision Date: 23 December 1985
• Docket Number: Docket No. 73206
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert THOMPSON, Defendant-Appellant. 424 Mich. 118, 379 N.W.2d 49
• Court: Michigan Supreme Court

Page 49

379 N.W.2d 49

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert THOMPSON, Defendant-Appellant.

Docket No. 73206.

424 Mich. 118, 379 N.W.2d 49

Supreme Court of Michigan.

Argued June 6, 1985.

Decided Dec. 23, 1985.

Christopher S. Boyd, Pros. Atty., by Kay F. Pearson, Asst. Pros. Atty., Saginaw, Mich., for plaintiff-appellee.

Mardi Crawford, Asst. Defender, Detroit, for defendant-appellant.

John D. O'Hair, Pros. Atty., Wayne County, Joseph T. Barberi, Pros. Attys., Edward Reilly Wilson, Deputy Chief, Civil and Appeals, Timothy A. Baughman, Principal Atty., Research, Training and Appeals, Detroit, amicus curiae, for plaintiff-appellee.

BOYLE, Justice.

We granted leave in this case to consider the constitutionality of reprosecution when a previous criminal trial results in mistrial because of a jury deadlock. We hold that retrial in these circumstances does not violate either the Double Jeopardy Clause of the Michigan Constitution, Const.1963, art. 1, Sec. 15, or the due process guarantees of the Michigan and United States Constitutions, Const.1963, art. 1, Sec. 17, and U.S. Const. Am. XIV.

I. Facts

Robert Thompson appeals his conviction of felony murder for killing a bartender, Mary Hendry, during an armed robbery. Appellant was initially convicted in a jury trial in August 1975. That conviction was reversed because of improper malice instructions. People v. Thompson, 81 Mich.App. 348, 265 N.W.2d 632 (1978), aff'd People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980). Thompson was retried in May 1981. That trial resulted in a jury deadlock, and a mistrial was declared. Appellant's second retrial began in September 1981, and ended on October 8, 1981, with a jury verdict of guilty. The Court of Appeals affirmed defendant's conviction, and he appealed to this Court.

II. Double Jeopardy Under the United States

and Michigan Constitutions

Appellant's primary claim is that the Michigan Double Jeopardy Clause, art. 1, Sec. 15, prohibits retrial after a mistrial declared due to the jury's inability to decide on a verdict. We begin with a review of federal double jeopardy law since a similar argument was recently considered by the United States Supreme Court in Richardson v. United States, 468 U.S. ----, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).

The Fifth Amendment of the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb ...." The federal Double Jeopardy Clause protects the finality of judgments, Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978), and the individual's interest in not being repeatedly subjected to prosecution for the same offense. Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199 (1957); Arizona v. Washington, 434 U.S. 497, 503-504, 98 S.Ct. 824, 829-830, 54 L.Ed.2d 717 (1978). Once jeopardy has attached, the protections of the Double Jeopardy Clause are triggered. Jeopardy attaches in a criminal jury trial once the jury is empaneled and sworn. Crist, supra. The federal standard of when jeopardy attaches is applicable to the states. Crist, supra.

Even though jeopardy has attached, the protections of the Double Jeopardy Clause are not absolute where there has been no final judgment of guilt or innocence. As this Court stated in a review of the federal law of jeopardy,

"Where, however, the trial or proceeding does not end in a judgment of acquittal or conviction ... the constitutional protections are not absolute. The defendant has an interest in avoiding harassment from repeated proceedings and in having his guilt decided by the jury impaneled to try him. The people, however, have a competing interest in having one complete opportunity to try those accused of breaking the law....

"If the trial or proceeding ends without the defendant's consent, further prosecution is generally barred; the defendant's 'valued right to have his trial completed by a particular tribunal' was taken from him, and reprosecution smacks of harassment. An exception is recognized, and retrial permitted, where 'manifest necessity' compelled the termination of the first trial or proceeding." (Citations omitted.) People v. Anderson, 409 Mich. 474, 483-484, 295 N.W.2d 482 (1980).

One long-recognized instance in which "manifest necessity" requires the termination of a trial is where the jury fails to agree on a verdict. Arizona v. Washington, supra, 434 U.S. p. 509, 98 S.Ct. at p. 832. ¹ In Richardson v. United States, supra, the United States Supreme Court recently reconsidered whether retrial after a mistrial declared due to jury deadlock violates the federal Double Jeopardy Clause. The petitioner argued that the sufficiency of the evidence at the mistrial required appellate review before subsequent retrial because if there was insufficient evidence, the Double Jeopardy Clause would bar subsequent retrial. Id., 104 S.Ct. at 3083-3084. The Richardson Court, noting society's interest in a complete opportunity to convict wrongdoers in a full and fair trial, held that jeopardy does not terminate upon mistrial caused by jury deadlock and that the Double Jeopardy Clause is therefore not implicated by a subsequent retrial:

"The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at petitioner's first trial, he has no valid double jeopardy claim to prevent his retrial." Richardson, 104 S.Ct. at 3086.

Thus, the federal Double Jeopardy Clause does not prohibit the retrial challenged in the instant case. ² Appellant argues here that the Michigan Double Jeopardy Clause, Const.1963, art. 1, Sec. 15, should be read as prohibiting retrial after a mistrial caused by jury deadlock. It is well-recognized that state constitutions can provide greater protections than those afforded by the United States Constitution. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967); PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed. 741 (1980); Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1076, 71 L.Ed.2d 152 (1982).

The issue thus is whether art. 1, Sec. 15 should be so construed. After careful consideration, we are unable to conclude that the Michigan Constitution may properly be interpreted to preclude retrial after a mistrial declared because of the jury's inability to reach a verdict.

The Michigan Double Jeopardy Clause, Const.1963, art. 1, Sec. 15 provides:

"No person shall be subject for the same offense to be twice put in jeopardy."

The necessary starting point for the determination of appellant's claim rests in ascertaining the intent of the framers and the people who adopted the provision. Pfeiffer v. Detroit Bd. of Ed., 118 Mich. 560, 564, 77 N.W. 250 (1898).

Before adoption of the 1963 Constitution, the relevant clause in the 1908 Constitution read:

"No person, after acquittal upon the merits, shall be tried for the same offense." Const. 1908, art. 2, Sec. 14.

The same language was contained in the 1850 Constitution, art. 6, Sec. 29. On its face, this language suggests that the protections of the clause were only triggered--that is, jeopardy attached--upon "acquittal on the merits." However, this Court had consistently interpreted the Michigan Double Jeopardy Clause as providing that jeopardy attaches when the jury is empaneled and sworn. People v. Schepps, 231 Mich. 260, 203 N.W. 882 (1925); People v. Tillard, 318 Mich. 619; 29 N.W.2d 111 (1947). Thus, the judicial interpretation of Const. 1908, art. 2, Sec. 14, while consistent with federal double jeopardy law, offered far broader protections for defendants than the plain language of the clause would seem to reflect.

The committee comment, as revised by the Committee on Declaration of Rights, Suffrage, and Elections, to what was ultimately adopted ³ as Const. 1963, art. 1, Sec. 15, indicates that the language of Sec. 15 was changed to make it clearly consistent with the language of the federal Double Jeopardy Clause and the practice of Michigan courts of construing the Michigan provision as providing the broader protections of the federal clause:

"The foregoing change in section 14 involves the substitution of the double jeopardy provision from the Constitution of the United States (except for the deletion of the obsolete words of 'life or limb') in place of the original provision which merely prohibits retrial after 'acquittal upon the merits.' The former language, the committee points out, has been consistently construed by the Michigan supreme court to mean something quite different than the words on the surface appear to connote. Taken literally, the words appear to say that there is no double jeopardy until a trial has run its course complete to acquittal. In fact, however, the Michigan courts have followed the federal rule on double jeopardy. The new language thus appears to be consistent with the actual practice of the courts in Michigan." 1 Official Record, Constitutional Convention 1961, p. 468. ⁴

The convention debate also reveals that the change in language was not meant to make a substantive change in existing law:

"It has been explained here several times that this does not change the law of the state as it is now. However, if you read the original provision, it might be difficult to understand why the supreme court has ruled that it means what we are putting in here now. In other words, it all probably revolves around the fact that the supreme court says when a jury has been sworn or a witness has been sworn, he is in jeopardy, and he is in jeopardy whether you change the language or not, in fact." Id., p. 543 (Mr. Stevens).

Other comments during the convention show that there was no intent to bar retrial after mistrials caused by...