PEOPLE
v.
MORRIS
Docket No. 29193.
Michigan Court of Appeals.
Decided August 22, 1977.*562 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Paul F. Berger, Prosecuting Attorney, and Chester S. Sugierski, Jr., Assistant Prosecuting Attorney, for the people.
I. Goodman Cohen (Charles E. Kovsky, of counsel), for defendant.
Before: DANHOF, C.J., and T.M. BURNS and A.E. KEYES,[*] JJ.
DANHOF, C.J.
Plaintiff appeals as of right from dismissal of the prosecution against defendant ordered by a three-judge circuit court panel on May 20, 1976.
Defendant was originally convicted of first-degree murder on April 12, 1972. That conviction was reversed by this Court in an unpublished opinion, No. 14273, issued on December 4, 1974, due to insufficient evidence of first-degree murder and the improper exclusion of evidence offered by defendant. That opinion also admonished the trial court to exclude all testimony relating to polygraph examinations in any new trial. Defendant's second trial ended in a mistrial resulting from the reference by a prosecution witness to a polygraph examination. Defendant's subsequent motion for dismissal was heard on May 6, 1976 by a three-judge panel pursuant to former GCR 1963, 925.3. In its opinion of May 13, 1976 the three-judge panel relied on two grounds in dismissing the prosecution.
*563 The first ground relied upon was based in the misconduct of the chief investigating police officer. This conduct was found to be a pattern of inexcusable neglect or deliberate deception involving crucial evidence, the conduct of the investigation, and testimony given at both trials. The opinion found that the prosecution had been permeated by this conduct to the point that it had become impossible for the defendant to receive a fair trial. Dismissal was therefore required by "due process, fundamental fairness and justice". The record supports the finding of misconduct.
Dismissal over prosecutorial objection is normally available as a remedy only when permitted by a statute or when there is an insufficiency of evidence. People v Stewart, 52 Mich. App. 477; 217 NW2d 894 (1974). People v Johnson, 397 Mich. 686; 246 NW2d 836 (1976). In certain other situations, however, constitutional guarantees will require dismissal, as in People v Marshall, 41 Mich. App. 66; 199 NW2d 521 (1972), where the defendant was discharged on due process grounds. The circumstances of this case are highly unusual. We are not faced with prosecutorial misconduct, but rather with police misconduct so egregious and tenancious that even the good faith efforts of the prosecutor's office were unable to control it or prevent its intrusion into both trials. In United States v Serlin, 538 F2d 737, 749 (CA 7, 1976), the Court stated: "A dismissal on the ground of government misconduct is justified only in situations where, due to government action, the defendant cannot receive a fair trial and therefore is deprived of due process of law." In United States v Pollock, 417 F Supp 1332, 1349 (D Mass, 1976), the Court found that government misconduct had deprived the defendant of a fair trial. That misconduct involved a bad faith attempt to "tamper with evidence material *564 to a defendant's guilt or innocence". A dismissal of the prosecution was ordered because all other alternative remedies were considered by the Court to be inadequate and therefore a trial would be fundamentally unfair and the denial of due process. Clearly such a remedy is rarely justified.
In People v Hamilton, 359 Mich. 410; 102 NW2d 738 (1960), the Court reversed a conviction on the ground that government misconduct had denied the defendant due process of law. The remedy in Hamilton was a new trial. We believe a new trial would not be proper in the present case. At this late date the manifest improprieties and the pattern of misconduct present in the instant proceedings could not be sorted out and corrected so as to furnish the defendant a fair trial. The pattern of misconduct present here has irretrievably tainted this prosecution. A retrial would deprive the defendant of his right to due process of law since it would be fundamentally unfair in these circumstances. Therefore, dismissal was proper.
Since the three-judge panel properly dismissed this prosecution on the due process ground we need not discuss the second ground they relied upon.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.