People v. Williams, Docket No. 77-2839

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM
• Citation: 85 Mich.App. 258,271 N.W.2d 191
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky WILLIAMS, Defendant-Appellant.
• Docket Number: Docket No. 77-2839
• Decision Date: 21 August 1978

Page 191

271 N.W.2d 191 85 Mich.App. 258 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Ricky WILLIAMS, Defendant-Appellant. Docket No. 77-2839. Court of Appeals of Michigan. Aug. 21, 1978.
Released for Publication Nov. 13, 1978.

[85 Mich.App. 260] Victor A. Gold, Boulder, Colo., for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., Timothy Scallen, Asst. Pros. Atty., for plaintiff-appellee.

Page 192

Before RILEY, P. J., and CAVANAGH and HENSICK, ^* JJ.

PER CURIAM.

On May 6, 1976, defendant was convicted by a jury of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. He was sentenced to a term of 10 to 15 years in prison, and appeals as of right.

The main issue raised on appeal is whether reprosecution of the defendant following the trial judge's Sua sponte declaration of a mistrial after the jury was sworn was violative of the Double Jeopardy Clause. We hold that it was and that the information should be dismissed. As this question is dispositive, we do not consider the other issues raised by defendant.

Defendant was first brought to trial on September[85 Mich.App. 261] 4, 1975. On the following day, immediately prior to the completion of the jury selection process, one of the members of the jury panel asked to be and was excused by the trial judge apparently because she had observed the defendant conversing at length with one of the other panel members. Another member of the panel was then qualified as juror No. 14, and the jury was impaneled and sworn by the court.

Following the swearing of the jury, the prosecutor requested and was allowed to interrogate the complaining witness out of the presence of the jury. During the hearing, the complainant positively identified the defendant as the person who had robbed him. The complainant testified that defendant had approached him three or four times out of court prior to trial, had admitted the robbery and had offered to pay back the money taken to avoid going to court. Complainant further testified that defendant had told him that his brother was in the Mafia, and that he didn't want his brother to go after the complainant.

Following this hearing, the trial court declared a mistrial based on the defendant's alleged conversations with the juror and with complainant. Defense counsel vigorously opposed the mistrial.

Once a jury is impaneled and sworn a defendant is placed in jeopardy. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, 553 (1971); People v. Tillard, 318 Mich. 619, 29 N.W.2d 111 (1947); People v. Gardner, 37 Mich.App. 520, 195 N.W.2d 62 (1972). When a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. Unless he consents to the trial's interruption, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again. People [85 Mich.App. 262] v. Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976).

In People v. Benton, 402 Mich. 47, 260 N.W.2d 77 (1977), Justice Levin analyzed the concept of manifest necessity as enunciated in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824):

"Jorn ¹ requires that the judge consider viable alternative curative measures before Sua sponte declaring a mistrial. As stated in Dinitz, ² quoting from Jorn, in the absence of a motion by a defendant for a mistrial, 'the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until 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'

"In...