People v. Tyson

• Decision Date: 18 November 1985
• Docket Number: No. 73774,73774
• Citation: 377 N.W.2d 738,423 Mich. 357
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Schweidel TYSON, Defendant-Appellant. 423 Mich. 357, 377 N.W.2d 738
• Court: Michigan Supreme Court

Page 738

377 N.W.2d 738

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Schweidel TYSON, Defendant-Appellant.

No. 73774.

423 Mich. 357, 377 N.W.2d 738

Supreme Court of Michigan.

Argued June 6, 1985.

Decided Nov. 18, 1985.

John D. O'Hair, Pros. Atty., Wayne County, Timothy A. Baughman, Deputy Chief, Civil and Appeals, Jeffrey Caminsky, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office By Kim Robert Fawcett Asst. Defender, Susan M. Meinberg Sp. Asst. Defender, Detroit, for defendant-appellant.

BRICKLEY, Justice.

We granted leave to appeal in this case to decide whether the state or federal prohibition against double jeopardy should have barred defendant's retrial on armed robbery and felony-firearm charges following a mistrial granted at his request, and whether the prosecutor's closing argument was so prejudicial to defendant that his conviction on those charges must be reversed. We answer no to the first question and yes to the second, and therefore reverse defendant's conviction.

I

Defendant Schweidel Tyson and another man, Tommy Lee Forrest, were charged with armed robbery and possession of a firearm during the commission of a felony in connection with the robbery of Flag's Restaurant in Belleville on December 16, 1980. Defendant's postarrest statements to the police were the subject of a lengthy Walker ¹ hearing, following which the trial judge ruled the statements involuntary and therefore inadmissible. Essentially, defendant had confessed the crime to police, stating that he had originally planned on robbing a bank, but was deterred when he saw the protective glass covering the tellers' windows.

During direct examination of the officer in charge of the case in defendant's second trial, ² the prosecutor was pursuing a line of questioning related to defendant's demeanor during the trial ³ in an apparent attempt to discredit defendant's insanity defense by eliciting testimony that he was "putting on sort of an act." Following testimony to that effect, amid several objections by defense counsel, the record then reveals the following:

"Q. Now, the way the Defendant appeared during the booking process immediately after his arrest, does that--did he appear then pretty much then as he appears at times in the courtroom now?

"A. I don't feel so, other than I would have to say when I first spoke with him he appeared to have a--a feeling of--or he displayed a feeling of remorse." (Emphasis added.)

Defense counsel objected and had the jury excused, whereupon the following colloquy occurred:

"Mr. Hallmark: Your Honor, I believe the last testimony elicited from the officer was in direct and deliberate violation of this Court's order as to any and all oral and written statements made by the Defendant. It was intended to and it did get across to this jury the notion that the Defendant talked about this offense, and that he showed some remorse, some feeling of guilt. It was deliberately done. And I would ask for a mistrial at this point.

"Mr. Seller: Well, first, as to the notion of it being deliberately done. I can certainly address the Court, and I think it is incumbent upon me to say there was no intention on my part to get into the context of any statements whatsoever, and I think from my perspective it was not deliberate on the officer's part. It is a difficult area sometimes where you search for words. Certainly one can look sorry as well as saying I am sorry, and I don't know whether it got across to the jury, you know, what the defense attorney says it got across. It certainly wasn't intended in any case.

"Mr. Hallmark: Your Honor, I have been objecting for the last ten minutes to this line of questioning, because it was leading in that direction. The officer indicated, if I am correct in my recollection, expressed a remorse.

"The Court: I doubt that it was intended to violate any Court's order, but it contains a clear implication that the Defendant said he was sorry he did it. The Motion is granted."

Defendant unsuccessfully moved to bar retrial on the ground that double jeopardy prevented further proceedings because the mistrial was provoked by the prosecutor's deliberate misconduct or gross negligence.

The third attempt at trying defendant resulted in his conviction of both charges. Defendant's insanity defense was unsuccessful. A court-appointed psychiatrist, Dr. Joel Dreyer, testified in support of the defendant's insanity defense, stating his opinion that defendant was a schizophrenic and an alcoholic, and had no impulse control. Testimony from defendant's family and acquaintances revealed that he had exhibited bizarre behavior since childhood, that he had been in several mental hospitals and alcohol rehabilitation centers, and that he had repeatedly attempted suicide by slashing his wrists, the last attempt being two days before the robbery of the restaurant.

During cross-examination of Dr. Dreyer, the prosecutor asked him a hypothetical question which was factually based upon defendant's postarrest statements, previously ruled involuntary:

"Q. Now once it occurred to him to rob the Flagg's Restaurant, he couldn't say no?

"A. That's right.

"Q. Had it occurred to him to rob a bank, he would not have been able to say no?

"A. No.

"Q. Even if he walked in there and found himself faced with bulletproof glass, he couldn't have stopped himself?

"A. Yep, you got it."

Defense counsel objected on the ground that the prosecutor was again attempting to get into evidence a statement that had been ruled inadmissible. ⁴ Nevertheless, both the prosectuion's expert, Dr. Charles Clark, and Officer Lindberg, the officer in charge of the case, were allowed to testify on rebuttal as to defendant's postarrest statements regarding the bank. ⁵ The court gave a cautionary instruction, admonishing the jury that the statements were to be considered not as substantive evidence that defendant had committed the robbery; rather, they could be used only to show his state of mind. ⁶

During closing argument, the prosecutor made several references to the fact that defendant's expert witness, Dr. Dreyer, had been paid for his testimony and that that was his motivation for testifying. He also argued to the jury that Dr. Dreyer was lacking in integrity and that the prosecution's expert, Dr. Charles Clark (employed at the Forensic Center), was an "unbiased expert who works for the State of Michigan." ⁷ Defense counsel objected both during and after the prosecutor's argument and moved for a mistrial because of the "unfair inferences" made by the prosecutor. ⁸ The trial judge declined to grant the mistrial, but allowed defense counsel to respond to some of the statements, ruling:

"The Court: All right. Number one, the question was not asked of the doctor how he was going to be paid, during the course of either Direct or Cross-Examination. Strictly speaking, it goes beyond the scope of testimony.

"In order to balance one against the other, the Court will permit counsel for Defendant, in his Closing Argument, to state that the doctor--Dr. Dreyer was a court-appointed psychiatrist. If you wish to state he was paid by the County, you may do so, although you are not required to. And I may also state for the record that he or any psychiatrist could get more money in their private practice than by a court-appointment. I think that will balance it off. Anything more, gentlemen?"

Defense counsel made the following statement during his closing argument:

"I believe in Closing Argument, Mr Seller was just a little bit less than kind to Dr. Dreyer. He indicated that Dr. Dreyer's testimony in this courtroom was bought and paid for; that he wouldn't have testified on behalf of this Defendant if he wasn't bought and paid for. That is what it comes down to. Well, it is unfair, for this reason. He failed to say and he failed to put into evidence when he had the opportunity to do so, that Dr. Dreyer is Court-appointed. That man is indigent. The County of Wayne pays Dr. Dreyer, not that man, not me. He failed to say, also, that Dr. Dreyer can earn far more money sitting in his own office treating patients. He is an active treating psychiatrist. He can make more money in his own practice than he can make sitting on that witness stand in this courtroom and standing around during delays and taking abuse from two attorneys who may not think the same or understand the terminology the same as a medical person or a psychiatrist would."

The Court of Appeals affirmed defendant's conviction of both charges, 133 Mich.App. 318, 350 N.W.2d 248 (1984), rejecting defendant's double jeopardy argument and holding that, although the prosecutor's closing argument was misconduct, that "this claim of error was waived when defense counsel accepted the court's offer to make countering arguments." Id., 325, 350 N.W.2d 248. We granted leave to appeal. 419 Mich. 943 (1984).

II

We turn first to defendant's contention that the mistrial occasioned by Officer Lindberg's response to the prosecutor's question regarding defendant's demeanor following his arrest and at trial should have barred retrial on double jeopardy grounds. Defendant contends that the prosecutor, either by intentional misconduct or gross negligence, precipitated the mistrial by asking a question which was sure to elicit an improper response.

As a general rule, both the federal ⁹ and state ¹⁰ guarantee against being put twice in jeopardy for the same crime does not bar the retrial of a defendant after his prior trial has been terminated following his successful mistrial motion. 98 ALR3d 997 (1980).

Both on the federal and state levels, however, an exception to the rule has developed where the successful mistrial motion is precipitated by prosecutorial or judicial error. Difficulties have arisen, however, both in attempts to define the type of error required for a double jeopardy bar to retrial and in applying the definition to the...