Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 4, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 117041
REGINALD JOHN LETT,
Defendant-Appellee.
___________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We granted leave to appeal in this case to consider
whether defendant is entitled to the reversal of his
convictions on the ground that he was retried, following the
declaration of a mistrial, in violation of his constitutional
right to be free from double jeopardy. We conclude that the
trial court did not abuse its discretion in declaring a
mistrial and in dismissing the jury where the jury foreperson
indicated that the jury members were not going to reach a
unanimous verdict and defendant did not object to the
declaration of mistrial. We additionally conclude that
defendant’s retrial, following the proper declaration of a
mistrial, did not violate the constitutional protection
against successive prosecutions. Accordingly, we reverse the
decision of the Court of Appeals and remand this matter to
that Court for consideration of the additional issue that was
raised by defendant, but not decided.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 29, 1996, Adesoji Latona, a taxi driver, was
fatally shot at a Detroit liquor store. Latona was apparently
confronted by a group of men, including defendant, as he
entered the liquor store. One of the men, Charles Jones,
accused Latona of throwing him out of Latona’s cab, and an
argument ensued inside the store. Latona’s girlfriend
testified that she saw defendant draw a gun, after which she
heard two gunshots. In a statement given to police following
the incident, defendant admitted that he was at the party
store at the time of the shooting and that he and Jones had
fought with Latona inside the store. Defendant further stated
that he had retrieved a gun from another friend in the parking
lot, and that he went back inside and fired the gun into the
air before running back outside. Latona died from two gunshot
wounds, one to the head and one to the chest.
Defendant was charged with first-degree murder, MCL
750.316, and possession of a firearm during the commission of
2
a felony (felony-firearm), MCL 750.227b. Defendant’s first
trial, which took place in June 1997 before Detroit Recorder’s
Court Judge Helen E. Brown, consumed–from jury selection to
closing statements and jury instructions–a total of eight and
one-half hours spread out over six days. After approximately
four or five hours of deliberation,1 the jury sent Judge Brown
a note which stated: “What if we can’t agree? [M]istrial?
[R]etrial? [W]hat?”2 Upon receiving the note, Judge Brown
called the jury into the courtroom and, with the assistant
prosecuting attorney and defense counsel present,3 engaged in
the following exchange with the jury foreperson:
The Court: I received your note asking me what
if you can’t agree? And I have to conclude from
that that that is your situation at this time. So,
I’d like to ask the foreperson to identify
themselves [sic], please?
Foreperson: [Identified herself.]
The Court: Okay, thank you. All right. I
need to ask you if the jury is deadlocked; in other
words, is there a disagreement as to the verdict?
1
The jury deliberated from approximately 3:24 p.m. to
4:00 p.m. on June 12, 1997, and ended its deliberations at
12:45 p.m. on June 13, 1997.
2
During its deliberations, the jury sent out seven notes.
Most of the notes were routine requests for evidence,
instructions, and breaks. However, one note, sent out early
on the second day of deliberations, stated that the jurors had
“a concern about our voice levels disturbing any other
proceedings that might be going on,” indicating that perhaps
the deliberations had already become somewhat acrimonious.
3
We are unable to discern from the trial transcript
whether any off-the-record discussion took place between Judge
Brown and counsel before the jury was called into the
courtroom concerning any proposed response to the jury’s note.
3
Foreperson: Yes, there is.
The Court: All right. Do you believe that it
is hopelessly deadlocked?
Foreperson: The majority of us don’t believe
that . . .
The Court: (Interposing) Don’t say what you’re
going to say, okay?
Foreperson: Oh, I’m sorry.
The Court: I don’t want to know what your
verdict might be, or how the split is, or any of
that. Thank you. Okay? Are you going to reach a
unanimous verdict, or not?
Foreperson: (No response)
The Court: Yes or no?
Foreperson: No, Judge.
The Court: All right. I hereby declare a
mistrial. The jury is dismissed.
In November 1997, defendant was retried before a
different judge on charges of first-degree murder and felony
firearm. The second jury returned a verdict of guilty of the
lesser offense of second-degree murder, MCL 750.317, and
guilty as charged of felony-firearm.4
In his appeal before the Court of Appeals, defendant,
through appellate counsel, raised for the first time the claim
that he was retried in violation of the Double Jeopardy Clause
of the federal and state constitutions. Defendant argued that
Judge Brown had sua sponte terminated the first trial without
4
The second jury deliberated for approximately three
hours and fifteen minutes before delivering its verdict.
4
manifest necessity to do so and without his consent, and that
retrial therefore violated his constitutional right to be free
from successive prosecutions.
The Court of Appeals panel agreed and reversed
defendant’s convictions. The panel opined that defendant had
not consented to the declaration of the mistrial, citing
People v Johnson, 396 Mich 424, 432; 240 NW2d 729 (1976),
repudiated on other grounds in People v New, 427 Mich 482; 398
NW2d 358 (1986), for the proposition that a defendant’s mere
silence or failure to object to the jury’s discharge is not
“consent.” The panel, turning to defendant’s claim that the
declaration of a mistrial was not manifestly necessary,
concluded that the trial court’s decision to discharge the
jury was not reasonable because it had failed to consider
alternatives or to make findings on the record:
Recognizing that the doctrine of double
jeopardy does not preclude retrial after the
discharge of a jury because of inability to agree,
our Supreme Court has stated that the inquiry
“turns upon [the] determination whether the trial
judge was entitled to conclude that the jury in
fact was unable to [agree].” People v Duncan, 373
Mich 650, 660-661; 130 NW2d 385 (1964). This has
led to the accepted rule that a trial court must
consider reasonable alternatives before sua sponte
declaring a mistrial and the court should make
explicit findings, after a hearing on the record,
that no reasonable alternative exists. People v
Hicks, 447 Mich 819, 841 (GRIFFIN , J.), 847 (CAVANAGH ,
C.J.); 528 NW2d 136 (1994); People v Benton, 402
Mich 47, 61; 260 NW2d 77 (1977) (LEVIN , J.); People
v Rutherford, 208 Mich App 198, 202; 526 NW2d 620
(1994); People v Little, 180 Mich App 19, 23-24;
446 NW2d 566 (1989); People v Dry Land Marina, 175
Mich App 322, 327; 437 NW2d 391 (1989).
5
In the present case, we must determine whether
the trial court reasonably concluded that the jury
was deadlocked. Based on the record before us, we
are forced to conclude that the court did not
reasonably declare a mistrial. The trial court
declared a mistrial without a hearing or discussion
of any alternatives. No deadlock jury instructions
were given much less even considered by the trial
court. See CJI2d 3.12. The jury had deliberated
only four or five hours in a capital murder case
following four days of trial testimony. There was
clearly a reasonable alternative in this case, that
is, to give the jury a deadlock jury instruction
and send it back for further deliberation. See,
e.g., Hicks, supra, pp 843-844; Benton, supra, pp
61-62; Rutherford, supra, p 203; Little, supra, pp
27-30.
Because a reasonable alternative existed in
this case, an alternative never given consideration
by the trial court, the trial court did not engage
in a scrupulous exercise of discretion in sua
sponte declaring a mistrial. Hicks, supra, p 829,
citing United States v Jorn, 400 US 470, 485; 91 S
Ct 547; 27 L Ed 2d 543 (1971). Put another way, it
was not manifestly necessary for the trial court to
have declared a mistrial given the shortness of the
jury’s deliberation and the court’s failure to give
a deadlock jury instruction. In fact, the trial
court never even found on the record that the jury
was genuinely deadlocked. Given these
circumstances, we are compelled to conclude that
retrial violated defendant’s rights against double
jeopardy as guaranteed by the United States and
Michigan Constitutions. Therefore, defendant’s
convictions are reversed. [Slip op, pp 4-5.]
We granted the prosecution’s application for leave to appeal.5
Because we conclude that manifest necessity existed to support
the mistrial declaration, we reverse.
II. STANDARD OF REVIEW
A constitutional double jeopardy challenge presents a
5
463 Mich 939 (2000).
6
question of law that we review de novo. People v Herron, 464
Mich 593, 599; 628 NW2d 528 (2001). Necessarily intertwined
with the constitutional issue in this case is the threshold
issue whether the trial court properly declared a mistrial.
The trial judge’s decision to declare a mistrial when he
considers the jury deadlocked is accorded great deference by
a reviewing court. Arizona v Washington, 434 US 497, 510; 98
S Ct 824; 54 L Ed 2d 717 (1978).6 “At most, . . . the inquiry
. . . turns upon determination whether the trial judge was
entitled to conclude that the jury in fact was unable to reach
a verdict.” Duncan, supra, 373 Mich 661 (emphasis supplied).
III. ANALYSIS
A. DOUBLE JEOPARDY IMPLICATIONS OF RETRIAL
FOLLOWING MISTRIAL
Under both the Double Jeopardy Clause of the Michigan
Constitution7 and its federal counterpart,8 an accused may not
6
See Huss v Graves, 252 F3d 952, 956-957 (CA 8, 2001) (a
case involving the sua sponte declaration of a mistrial in a
bench trial, contrary to both the prosecution’s and the
defendant’s motions for entry of verdict of not guilty by
reason of insanity, was “not similar to those [cases] in which
a mistrial is declared when a jury is unable to reach a
verdict, a situation in which a finding of manifest necessity
is almost always justified”) (emphasis supplied).
7
Const 1963, art 1, § 15. Our constitution provides no
greater protection than does the federal constitution with
respect to retrial following a mistrial caused by jury
deadlock. People v Thompson, 424 Mich 118, 125-129; 379 NW2d
49 (1985).
8
US Const, Am V, made applicable to the states through
the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89
7
be “twice put in jeopardy” for the same offense. The Double
Jeopardy Clause originated from the common-law notion that a
person who has been convicted, acquitted, or pardoned should
not be retried for the same offense. See United States v
Scott, 437 US 82, 87; 98 S Ct 2187; 57 L Ed 2d 65 (1978);
Crist v Bretz, 437 US 28, 33; 98 S Ct 2156; 57 L Ed 2d 24
(1978). The constitutional prohibition against multiple
prosecutions arises from the concern that the prosecution
should not be permitted repeated opportunities to obtain a
conviction:
The underlying idea, one that is deeply
ingrained in at least the Anglo-American system of
jurisprudence, is that the State with all its
resources and power should not be allowed to make
repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility
that even though innocent he may be found guilty.
[Green v United States, 355 US 184, 187-188; 78 S
Ct 221; 2 L Ed 2d 199 (1957).]
From this fundamental idea, the United States Supreme
Court has over the years developed a body of double jeopardy
jurisprudence that recognizes, among other related rights,9 an
C St 2056; 23 L Ed 2d 707 (1969).
9
The Double Jeopardy Clause has often been described, in
simple terms, as embodying three separate guarantees:
protection against a second prosecution for the same offense
following acquittal, protection against a second prosecution
for the same offense following conviction, and protection
against multiple punishments for the same offense. See Ohio
v Johnson, 467 US 493, 497; 104 S Ct 2536; 81 L Ed 2d 425
(1984); Justices of Boston Municipal Court v Lydon, 466 US
294, 306-307; 104 S Ct 1805; 80 L Ed 2d 311 (1984); Herron,
8
accused’s “valued right to have his trial completed by a
particular tribunal . . . .” Wade v Hunter, 336 US 684, 689;
69 S Ct 834; 93 L Ed 974 (1949); see also Washington, supra,
434 US 503; Illinois v Somerville, 410 US 458, 466; 93 S Ct
1066; 35 L Ed 2d 425 (1973). Jeopardy is said to “attach”
when a jury is selected and sworn, see Somerville, supra, 410
US 467; Hicks, supra, 447 Mich 827, n 13 (GRIFFIN , J.), and the
Double Jeopardy Clause therefore protects an accused’s
interest in avoiding multiple prosecutions even where no
determination of guilt or innocence has been made. See Scott,
supra, 437 US 87-92; Crist, supra, 437 US 33-34. It is this
interest that is implicated when the trial judge declares a
mistrial, thereby putting an end to the proceedings before a
verdict is reached. Scott, supra, 437 US 92; Crist, supra,
437 US 33-34. However, the general rule permitting the
prosecution only one opportunity to obtain a conviction “‘must
in some instances be subordinated to the public’s interest in
fair trials designed to end in just judgments.’” Washington,
supra, 434 US 505, n 11, quoting Wade, supra, 336 US 689.
“[I]t is axiomatic that retrial is not automatically
barred whenever circumstances compel the discharge of a
factfinder before a verdict has been rendered.” Hicks, supra,
supra, 464 Mich 599; People v Vincent, 455 Mich 110, 120, n 5;
565 NW2d 629 (1997). However, as the Court noted in Crist,
supra, 437 US 32, the “deceptively plain language” of the
Double Jeopardy Clause “has given rise to problems both subtle
and complex . . . .”
9
447 Mich 827 (GRIFFIN , J.). It is well settled, for instance,
that where a defendant requests or consents to a mistrial,
retrial is not barred unless the prosecutor has engaged in
conduct intended to provoke or “goad” the mistrial request.
See Oregon v Kennedy, 456 US 667, 675-676; 102 S Ct 2083; 72
L Ed 2d 416 (1982); United States v Dinitz, 424 US 600, 608;
96 S Ct 1075; 47 L Ed 2d 267 (1976); Hicks, supra, 447 Mich
828 (GRIFFIN , J.). Additionally, retrial is always permitted
when the mistrial is occasioned by “manifest necessity.”
Kennedy, supra, 456 US 672; Washington, supra, 434 US 505;
Hicks, supra, 447 Mich 828 (GRIFFIN , J.).
The concept of “manifest necessity” was introduced in
United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824),
in which the Court addressed the propriety of the retrial of
an accused following the discharge of a deadlocked jury
without the accused’s consent. Noting that in such a case the
accused has not been convicted or acquitted, the Court held
that the declaration of a mistrial under these circumstances
poses no bar to a future trial. Id. at 580. However, the
Court indicated that trial courts are to exercise caution in
discharging the jury before a verdict is reached:
We think, that in all cases of this nature,
the law has invested Courts of justice with the
authority to discharge a jury from giving any
verdict, whenever, in their opinion, taking all the
circumstances into consideration, there is a
manifest necessity for the act, or the ends of
public justice would otherwise be defeated. They
are to exercise a sound discretion on the subject;
10
and it is impossible to define all the
circumstances, which would render it proper to
interfere. To be sure, the power ought to be used
with the greatest caution, under urgent
circumstances, and for very plain and obvious
causes; and, in capital cases especially, Courts
should be extremely careful how they interfere with
any of the chances of life, in favour of the
prisoner. But, after all, they have the right to
order the discharge; and the security which the
public have for the faithful, sound, and
conscientious exercise of this discretion, rests in
this, as in other cases, upon the responsibility of
the Judges, under their oaths of office. We are
aware that there is some diversity of opinion and
practice on this subject, in the American Courts;
but, after weighing the question with due
deliberation, we are of opinion, that such a
discharge constitutes no bar to further
proceedings, and gives no right of exemption to the
prisoner from being again put upon trial. [Id.
(emphasis supplied).][10]
As noted in Richardson v United States, 468 US 317, 323
324; 104 S Ct 3081; 82 L Ed 2d 242 (1984), “[i]t has been
established for 160 years, since the opinion of Justice Story
in [Perez], that a failure of the jury to agree on a verdict
was an instance of ‘manifest necessity’ which permitted a
trial judge to terminate the first trial and retry the
defendant, because ‘the ends of public justice would otherwise
10
Interestingly, in Crist, supra, 437 US 34, n 10, the
Court questioned whether the Perez Court was actually deciding
a constitutional question, or was rather “simply settling a
problem arising in the administration of federal criminal
justice.” See also id. at 44-45 (Powell, J., dissenting)
(“[a]s both Justices Washington and Story believed that the
Double Jeopardy Clause embraced only actual acquittal and
conviction, they must have viewed Perez as involving the
independent rule barring needless discharges of the jury”).
However, the majority, declining to upset 150 years of settled
Fifth Amendment jurisprudence, stated that “to cast such a new
light on Perez at this late date would be of academic interest
only.” Id. at 34, n 10.
11
be defeated.’” See also Washington, supra, 434 US 509 (“the
mistrial premised upon the trial judge’s belief that the jury
is unable to reach a verdict [has been] long considered the
classic basis for a proper mistrial”); Kennedy, supra, 456 US
672 (“the hung jury remains the prototypical example” of a
situation meeting the “manifest necessity” standard); People
v Thompson, 424 Mich 118, 128; 379 NW2d 49 (1985) (“we have
consistently held that retrial after a mistrial caused by jury
deadlock does not violate the Michigan Constitution or the
United States Constitution”); Duncan, supra, 373 Mich 660,
quoting People v Parker, 145 Mich 488, 499; 108 NW 999 (1906)
(Michigan case law has without exception recognized that “the
doctrine of former jeopardy does not preclude retrial after
discharge of a jury ‘for inability to agree, or for some other
overruling necessity’”).
Defendant nevertheless contends, and the Court of Appeals
agreed, that his retrial constituted a violation of his
constitutional right to be free from successive prosecutions
because the trial court precipitously declared a mistrial
without manifest necessity to do so. We disagree and hold
that the Double Jeopardy Clause did not bar defendant’s second
trial or convictions.
B. MANIFEST NECESSITY
The Court of Appeals concluded that the trial court
abused its discretion in discharging the jury without first
12
examining alternatives, such as providing a “hung jury”
instruction, and without conducting a hearing or making
findings on the record. We hold that, because the record
provides sufficient justification for the mistrial
declaration, the trial court did not abuse its discretion in
dismissing the jury.
The constitutional concept of manifest necessity does not
require that a mistrial be "necessary" in the strictest sense
of the word. Rather, what is required is a “high degree” of
necessity. Washington, 434 US 506-507. Furthermore,
differing levels of appellate scrutiny are applied to the
trial court’s decision to declare a mistrial, depending on the
nature of the circumstances leading to the mistrial
declaration. At one end of the spectrum is a mistrial
declared on the basis of the unavailability of crucial
prosecution evidence, or when the prosecution is using its
resources to achieve an impermissible tactical advantage over
the accused. The trial judge’s declaration of a mistrial
under those types of circumstances will be strictly
scrutinized. Id. at 508. At the other end of the spectrum is
the mistrial premised on jury deadlock, “long considered the
classic basis for a proper mistrial.” Id. at 509.11 The trial
11
See also Duncan, supra, 373 Mich 660:
Defendant contends on appeal that discharge of
the jury . . . bars his retrial because he has
previously been put in jeopardy of conviction of
such charges. . . . In none of the cases
13
judge’s decision to discharge a jury when he concludes that it
[defendant has] cited is it even suggested that
discharge of a jury, without the defendant’s
consent, for its inability to agree upon a verdict
thereby bars subsequent retrial.
When a mistrial is declared on the basis of juror
deadlock, double jeopardy interests will rarely, if ever, be
implicated, because jeopardy “continues” following the
mistrial declaration. See Richardson, supra, 468 US 325-326,
reaffirming that “a trial court’s declaration of a mistrial
following a hung jury is not an event that terminates the
original jeopardy” to which the defendant was subjected. See
also People v Mehall, 454 Mich 1, 4-5; 557 NW2d 110 (1997):
One circumstance that constitutes a manifest
necessity is the jury’s failure to reach a
unanimous verdict. When this occurs, and the trial
court declares a mistrial, a retrial is not
precluded because the original jeopardy has not
been terminated, i.e., there has not been an
assessment of the sufficiency of the prosecution’s
proofs. [Emphasis supplied.]
We were recently guided by this principle in Herron,
supra, in which we determined that the defendant could be
tried in a second trial for second-degree murder after the
first jury arrived at a verdict with respect to one charge,
but was unable to reach a verdict with respect to the murder
charge:
Where criminal proceedings against an accused
have not run their full course, the Double Jeopardy
Clause does not bar a second trial. . . . Thus,
because the prosecutor’s retrial of defendant on
the charge of second-degree murder was the result
of a hung jury, we conclude that there was no
violation of double jeopardy principles aimed at
multiple prosecutions. [Id. at 602-603 (citations
omitted).]
See also, e.g., United States v Streett, ___ F Supp ___;
2001 WL 420367 (WD VA, 2001) (defendants’ argument that
retrial after a mistrial declared because of jury deadlock was
constitutionally impermissible is without merit, both because
of the “broad discretion” enjoyed by the trial court in making
this determination and because “the Supreme Court has
expressly held that the failure of a jury to reach a verdict
is ‘not an event which terminates jeopardy’”).
14
is deadlocked is entitled to great deference. Id. at 510.
As the United States Supreme Court has opined:
[T]here are especially compelling reasons for
allowing the trial judge to exercise broad
discretion in deciding whether or not “manifest
necessity” justifies a discharge of the jury. On
the one hand, if he discharges the jury when
further deliberations may produce a fair verdict,
the defendant is deprived of his “valued right to
have his trial completed by a particular tribunal.”
But if he fails to discharge a jury which is unable
to reach a verdict after protracted and exhausting
deliberations, there exists a significant risk that
a verdict may result from pressures inherent in the
situation rather than the considered judgment of
all the jurors. If retrial of the defendant were
barred whenever an appellate court views the
“necessity” for a mistrial differently from the
trial judge, there would be a danger that the
latter, cognizant of the serious societal
consequences of an erroneous ruling, would employ
coercive means to break the apparent deadlock.
Such a rule would frustrate the public interest in
just judgments. The trial judge’s decision to
declare a mistrial when he considers the jury
deadlocked is therefore accorded great deference by
a reviewing court. [Id. at 509-510.]
Therefore, the mere fact that the reviewing court would
not have declared a mistrial under the circumstances of this
case does not mean that retrial is necessarily barred. The
issue is not whether this Court would have found manifest
necessity, but whether the trial court abused its discretion
in finding manifest necessity.12
12
As noted, a trial court’s decision to declare a mistrial
on the basis of juror deadlock is entitled to a high degree of
deference. It is well established that “[a]n abuse of
discretion involves far more than a difference in judicial
opinion.” Alken-Ziegler, Inc v Waterbury Headers Corp, 461
Mich 219, 227; 600 NW2d 638 (1999); Spalding v Spalding, 355
Mich 382, 384; 94 NW2d 810 (1959). Rather, “such abuse occurs
only when the result is ‘so palpably and grossly violative of
15
Consistent with the special respect accorded to the
court’s declaration of a mistrial on the basis of jury
deadlock, this Court has never required an examination of
alternatives before a trial judge declares a mistrial on the
basis of jury deadlock;13 nor have we ever required that the
judge conduct a “manifest necessity” hearing or make findings
on the record. In fact, we long ago stated that, “[a]t most,
. . . the inquiry in [such a case] turns upon determination
whether the trial judge was entitled to conclude that the jury
in fact was unable to reach a verdict.” Duncan, supra, 373
fact and logic that it evidences not the exercise of will but
perversity of will, not the exercise of judgment but defiance
thereof, not the exercise of reason but rather of passion or
bias.’” Alken-Ziegler, supra at 227, quoting Spalding, supra
at 384-385. We simply cannot conclude that the trial court
abused its discretion in such a manner here.
13
We acknowledge that we have required the examination of
alternatives in other mistrial contexts. See Hicks, supra,
447 Mich 843-845 (GRIFFIN , J.) (declaration of a mistrial after
the trial judge recused herself over the defendant’s
objection); Benton, supra, 402 Mich 47 (sua sponte declaration
of a mistrial on the basis of prosecutorial error). We need
not determine whether the failure to consider alternatives to
mistrial in circumstances other than jury deadlock is
constitutionally impermissible. We note, however, that in
support of the proposition that consideration of alternative
measures is constitutionally required in these other contexts,
this Court in Benton cited two federal circuit court opinions
that were subsequently overturned by the United States Supreme
Court: Arizona v Washington, 546 F2d 829, 832 (CA 9, 1976),
was reversed on appeal to the Supreme Court at 434 US 497 (in
which the Court rejected the notion that the trial judge was
required to consider or utilize alternatives before declaring
a mistrial), and United States v Grasso, 552 F2d 46, 49-50 (CA
2, 1977), vacated by the Supreme Court at 438 US 901; 98 S Ct
3117; 57 L Ed 2d 1144 (1978) (directing the Court of Appeals
to reconsider in light of Washington, supra). See Benton,
supra, 402 Mich 57, n 11, 61, n 19.
16
Mich 661 (emphasis supplied). Moreover, the United States
Supreme Court has expressly indicated that the failure of a
trial judge to examine alternatives or to make findings on the
record before declaring a mistrial does not render the
mistrial declaration improper. Instead, where the basis for
a mistrial order is adequately disclosed by the record, the
ruling will be upheld. Washington, supra, 434 US 515-517.14
Although we acknowledge that the “deadlocked jury”
instruction, CJI2d 3.12, might have appropriately been given
to the jury in this case, the fact remains that defendant did
not request that this instruction be given.15 We are not aware
14
Justice Marshall, joined by Justice Brennan, dissented:
“What the ‘manifest necessity’ doctrine . . . require[s], in
my view, is that the record make clear either that there were
no meaningful and practical alternatives to a mistrial, or
that the trial court scrupulously considered available
alternatives and found all wanting but a termination of the
proceedings.” Id. at 525 (Marshall, J.). The Court of
Appeals panel’s view in the instant case, although apparently
consistent with the view of Justices Marshall and Brennan, was
specifically rejected by the Washington majority.
15
Further, it appears from the record that defendant did
not object to the trial court’s decision to discharge the
jury. The prosecution contends that under these circumstances
defendant “implicitly consented” to the declaration of
mistrial, thus rendering it unnecessary to determine whether
the declaration was supported by manifest necessity. See
Hicks, supra, 447 Mich 858, n 3 (BOYLE , J., dissenting) (“[t]he
Supreme Court appears to use ‘consent’ . . . to refer to
mistrials not requested by the defendant, but only acquiesced
to”) (emphasis supplied); see also United States v
Aguilar-Aranceta, 957 F2d 18, 22 (CA 1, 1992); United States
v Beckerman, 516 F2d 905, 909 (CA 2, 1975); United States v
Phillips, 431 F2d 949, 950 (CA 3, 1970); United States v Ham,
58 F3d 78, 83-84 (CA 4, 1995); United States v Palmer, 122 F3d
215, 218 (CA 5, 1997); United States v Gantley, 172 F3d 422,
428-429 (CA 6, 1999); Camden v Crawford Co Circuit Court, 892
F2d 610, 614-618 (CA 7, 1989); United States v Gaytan, 115 F3d
17
of any requirement that a trial court sua sponte instruct a
deadlocked jury to resume deliberations. Moreover, we remain
cognizant of the significant risk of coercion that would
necessarily accompany a requirement that a deadlocked jury be
forced to engage in protracted deliberations. See Washington,
supra, 434 US 509-510; People v Hardin, 421 Mich 296; 365 NW2d
101 (1984).16
We conclude that the judge did not abuse her discretion
in declaring a mistrial under the circumstances of this case.
The jury had deliberated for at least four hours following a
relatively short, and far from complex, trial. The jury had
sent out several notes over the course of its deliberations,
including one that appears to indicate that its discussions
may have been particularly heated. Most important here is the
737, 742 (CA 9, 1997); Earnest v Dorsey, 87 F3d 1123, 1129 (CA
10, 1996); United States v Puleo, 817 F2d 702, 705 (CA 11,
1987). In light of our determination that the mistrial
declaration was manifestly necessary, we save for another day
the issue of implied consent.
16
See also United States v Klein, 582 F2d 186, 194 (CA 2,
1978):
The appellant argues that a retrial is barred
because of the failure of the trial court to make
explicit findings that there were no reasonable
alternatives to a mistrial . . . . The short
answer to this claim is the holding of Arizona v
Washington that such findings are not
constitutionally required. [Emphasis supplied.]
See also Hicks, supra, 447 Mich 867 (BOYLE , J.,
dissenting)(“[t]he assumption that, as a matter of law,
manifest necessity requires the exploration of less drastic
alternatives to mistrial . . . ignores that the United States
Supreme Court has specifically rejected [this] proposition”).
18
fact that the jury foreperson expressly stated that the jury
was not going to reach a verdict.17 We conclude that, in the
absence of an objection by either party, the declaration of a
mistrial in this case constituted a proper exercise of
judicial discretion. Accordingly, manifest necessity for the
jury’s discharge existed, and defendant’s retrial did not
constitute a constitutionally impermissible successive
prosecution.
C. RESPONSE TO THE DISSENT
Our dissenting colleague opines that “the majority
eviscerates established precedent requiring that trial judges
exert reasonable efforts to avoid a mistrial.” Post at 1. We
disagree. In holding that double jeopardy considerations did
not preclude defendant’s retrial, we have merely set forth the
unremarkable proposition that the failure of the jury to agree
on a verdict is an instance of manifest necessity, allowing
the trial court to declare a mistrial, discharge the jury, and
retry the defendant.
Although the dissent ostensibly agrees that “no specific
inquiry into alternatives to declaring a mistrial is
required,” post at 3, the dissent nevertheless points out that
17
This Court long ago indicated that “the court is
justified in accepting [the jury’s] statement that [it] cannot
agree as proper evidence in determining the question.” People
v Parker, 145 Mich 488, 502; 108 NW 999 (1906). See also
United States v Cawley, 630 F2d 1345, 1349 (CA 9, 1980)
("[t]he most critical factor is the jury's own statement that
it is unable to reach a verdict").
19
the trial court did not poll the jurors, did not give a
deadlocked jury instruction, and did not ask defense counsel
for his thoughts. Post at 4. These, of course, would have
been alternatives to declaring a mistrial. However, this
Court has never required the trial court to explain why it
chose to declare a mistrial on the basis of jury deadlock,
rather than poll the jury, give a deadlocked jury instruction,
or ask defense counsel for his thoughts. As we have explained
above, the United States Supreme Court has specifically
rejected such a requirement. See Washington, supra, 434 US
516-517:
The absence of an explicit finding of
“manifest necessity” appears to have been
determinative for the District Court and may have
been so for the Court of Appeals. If those courts
regarded that omission as critical, they required
too much. Since the record provides sufficient
justification for the state-court ruling, the
failure to explain that ruling more completely does
not render it constitutionally defective.
Further, even the dissent in Washington recognized that, where
the necessity for a mistrial is “manifest on the face of the
record,” the trial court does not have to make findings of
necessity on the record to justify the declaration of a
mistrial. Id. at 526.
In this case, the record provides sufficient
justification for the trial court’s declaration of a mistrial,
and thus there was no need for the trial court to articulate
a rationale on the record. The reasons were plain and
obvious: the jury foreperson indicated that the jury was not
20
going to be able to reach a unanimous verdict.
IV. CONCLUSION
The trial court did not abuse its discretion in
declaring a mistrial, in the absence of objection by either
party, where the jury expressly indicated that it was
deadlocked. Accordingly, defendant’s retrial did not violate
the constitutional bar against successive prosecutions. We
therefore reverse the decision of the Court of Appeals and
remand this matter to that Court for consideration of the
additional issue that was raised by defendant, but not
decided. We do not retain jurisdiction.
CORRIGAN , C.J., and WEAVER , TAYLOR , and MARKMAN , JJ.,
concurred with YOUNG , J.
21
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN
Plaintiff-Appellant,
v No. 117041
REGINALD JOHN LETT,
Defendant-Appellee.
___________________________________
CAVANAGH, J. (dissenting).
I disagree with the majority’s conclusion that a manifest
necessity required a mistrial. In reaching its holding, the
majority eviscerates established precedent requiring that
trial judges exert reasonable efforts to avoid a mistrial.
Because I cannot agree that the prohibition against placing a
defendant in double jeopardy evaporates simply because a
defendant fails to object when a jury expresses discord, I
respectfully dissent.
It is not apparent from the record that it was manifestly
necessary to declare a mistrial. “Because of the high value
placed on defendant’s not being required to undergo the
discommodity of a second trial, the declaration of a mistrial
should not be made lightly, even when it is made ostensibly
for the protection of defendant.” People v Johnson, 396 Mich
424, 438; 240 NW2d 729 (1976). As a “general rule, . . .
trial judges must consider reasonable alternatives before
declaring a mistrial.” People v Hicks, 447 Mich 819, 841; 528
NW2d 136 (1994) (opinion of Griffin, J.).
[I]n 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. . . .’” [People v Benton, 402 Mich
47, 57; 260 NW2d 77, 81 (1977), quoting United
States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed
2d 267 (1976).]
Contrary to the majority’s assertions, this Court’s
precedent finds support in the guidance provided by the United
States Supreme Court, which has affirmed that
a constitutionally protected interest is inevitably
affected by any mistrial decision. The trial
judge, therefore, “must always temper the decision
whether or not to abort the trial by considering
the importance to the defendant of being able, once
and for all, to conclude his confrontation with
society through the verdict of a tribunal he might
believe to be favorably disposed to his fate.” In
order to ensure that this interest is adequately
protected, reviewing courts have an obligation to
satisfy themselves that, in the words of Mr.
Justice Story, the trial judge exercised “sound
discretion” in declaring a mistrial. [Arizona v
Washington, 434 US 497, 514; 98 S Ct 824; 54 L Ed
2d 717 (1978) (citations omitted).] [Emphasis
added.]
2
Thus, sound discretion requires a thoughtful, prudent
analysis.
Even though no specific inquiry into alternatives to
declaring a mistrial is required, such an inquiry would make
clear the justification for retrial. Where no consideration
of alternatives is evident, something else on the record must
make clear the trial judge exercised “sound discretion” before
declaring a mistrial. Unfortunately, no sound discretion was
exercised here. Although this first-degree murder trial
spanned a ten-day period, tried intermittently over six days,
the deliberations lasted just over four hours.1 The jury
likely spent the first thirty-five minutes, late Thursday
afternoon, doing little more than electing a foreperson. A
few hours into the deliberations on Friday morning, the jurors
sent a note to the judge that indicated concern over their
voice levels during deliberation. Some time later, the jury
sent another note that asked about the consequences if they
failed to agree. On that basis, the trial judge ordered the
jury into the courtroom at 12:45 p.m. and asked the foreperson
whether the jury could reach a verdict. The foreperson
responded, “no.” The trial judge then immediately declared a
mistrial, and by 12:48 p.m., the jury was excused. Never did
1
Although it is not clear from the record when the jury
reconvened June 13, 1997, I have assumed deliberations got
under way at 9:00 a.m.
3
the trial judge consider alternatives or otherwise provide
evidence that she exercised sound discretion. For example,
the judge did not poll the jurors, give an instruction
ordering further deliberations, query defense counsel about
his thoughts on continued deliberations, or indicate on the
record why a mistrial declaration was necessary.
Though I acknowledge that a trial judge need not perform
any explicit act to ensure a mistrial is manifestly necessary,
there must be some indication on the record that such a grave
act was required. Washington at 516-517 (the record must
provide “sufficient justification” of the manifest need for a
mistrial). In this case, where the jurors had been
deliberating only a short time, where the note from the jurors
merely questioned what might happen if they did not agree,
where the judge–albeit in an attempt to properly keep the
jurors’ positions concealed–suppressed all comments by the
foreperson that could have shed light on the need for a
mistrial, and where the record as a whole fails to reveal that
“the ends of public justice” would be served by the
declaration of a mistrial, I cannot agree that subjecting
defendant to a new trial was manifestly necessary. Benton at
57.
The majority makes special note of defendant’s silence,
observing that defense counsel did not object to the mistrial
4
declaration. Ante at 20-21, n 15. However, it was not
necessary that defendant object at the very moment the
mistrial had been declared, particularly because the jurors
were simultaneously dismissed. Though an objection on the
record would have been helpful in determining defendant’s
position and in refreshing the judge concerning her duty to
exercise sound discretion, defense counsel’s failure to voice
an objection cannot be considered evidence that a mistrial
declaration was manifestly necessary.
The majority insinuates that defendant tried to have his
cake and eat it too by failing to object to the mistrial
declaration. However, defendant gained nothing as a result of
his counsel’s failure to timely object.2 Either the trial
judge properly declared a mistrial on the basis of manifest
necessity, or she did not. If she had, retrial would have
been proper. If not, defendant’s right to be free from double
jeopardy was violated by the second trial. If defendant had
succeeded in convincing a majority of this Court that the
mistrial declaration was improper, he would gain nothing other
2
Defense counsel’s failure to raise the double jeopardy
issue any time before or during the second trial was not
objectively reasonable. No trial strategy could justify
failing to object to the second trial. Defendant had nothing
to gain by exposing himself to a second trial and, instead,
lost the very thing the right was meant to protect: subjection
to a trial in which the state had a second shot to get it
right, i.e., to get a conviction.
5
than the lawful protection of his inherent constitutional
rights. That the state was able to try defendant a second
time and to secure a conviction cannot make an
unconstitutional second trial retrospectively valid.
The new standard articulated by the majority negates any
substance the manifest necessity inquiry might have. Though
the majority may feel that trial judges can declare a mistrial
on the most meager record without even a cursory attempt to
assure that the public interest in such a declaration
outweighs the defendant’s clear interest in resolution by the
first factfinder, this narrow interpretation of “sound
discretion” must be rejected. The majority’s conclusion
ignores precedent from this Court and cursorily dismisses the
mandate from the Supreme Court affirming the need for trial
judges to exercise “sound discretion.”3
In erroneously finding that manifest necessity required
mistrial, the majority diminishes the constitutional rights of
our citizens, specifically the right to be free from double
3
The majority attempts to escape its duty to execute the
Supreme Court’s mandate, i.e., to assure the trial court
exercised “sound discretion,” by implying that I simply differ
with the trial court’s result. To clarify, I object not to
the trial court’s concern that the jurors held irreconcilable
differences–in fact, I share that concern–but to its utter
failure to make the pronouncement in a manner that evidences
the exercise of “sound discretion.” Because the judge did
nothing more than act on a hunch with the most meager record
for support, I cannot agree that “sound discretion” was
exercised.
6
jeopardy. Even though defense counsel failed to timely
object, causing defendant to suffer unnecessarily through a
second trial, such an error does not excuse a violation of
constitutional magnitude. Therefore, I would affirm the
decision of the Court of Appeals.
KELLY , J., concurred with CAVANAGH , J.
7