PEOPLE v BECK
Docket Nos. 160668 and 160669
Michigan Supreme Court
July 27, 2022
Argued on application for leave to appeal October 6, 2021. Decided July 27, 2022.
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Syllabus
James Beck was convicted, following a jury trial, in the Macomb Circuit Court of two counts of first-degree criminal sexual conduct (CSC-I),
In an opinion by Justice VIVIANO, joined by Chief Justice McCORMACK and Justices BERNSTEIN and CLEMENT, the Supreme Court held:
The trial court did not conduct a sufficient inquiry to support a finding of manifest necessity before declaring a mistrial as to the 2016 charges; therefore, the court‘s declaration of a mistrial was an abuse of its discretion and the retrial on those charges violated double-jeopardy protections. Accordingly, defendant‘s convictions related to the 2016 charges had to be vacated. However, defendant was not entitled to a new trial, resentencing, or other relief regarding the 2017 charges. Contrary to defendant‘s contention that the remaining convictions were tainted by the admission of evidence related to the 2016 charges, his daughters’ testimony would have been admissible other-acts evidence even if defendant had been tried separately on the 2017 charges. The trial court did commit plain error by imposing a mandatory minimum sentence of 25 years under
- Under both the state and federal Constitutions, an accused cannot be placed in jeopardy twice for the same offense. If a trial is concluded prematurely, a retrial for that offense is prohibited unless the defendant consented to the interruption or a mistrial was declared because of manifest necessity. Determining whether manifest necessity exists requires balancing the competing concerns of the defendant‘s interest in completing the trial in a single proceeding before a particular tribunal and the strength of the justification for a mistrial. Before declaring a mistrial, the trial court must consider whether a mistrial is appropriate on the record and discuss alternatives with defense counsel and the prosecutor. When the trial court does not follow these procedures, there is no manifest necessity for declaring a mistrial. In this case, the standard for declaring a mistrial was not satisfied. Although the trial court polled the jury and briefly discussed the matter with counsel, including each side‘s proposed alternatives, the court‘s consideration of the matter was too abrupt, and its conclusions were not supported by sufficient evidence. The nature of the juror‘s outside research was unclear to the court, but instead of further probing the juror‘s research and whether it would affect the proceedings, the court summarily declared a mistrial. Further, although the court learned when the jury was polled that only one other juror knew about the outside research, the court nonetheless concluded that the entire jury was tainted. The court did not find a justification for mistrial that outweighed defendant‘s interest in continuing the trial. Therefore, the court‘s inquiry was insufficient to find manifest necessity, and retrial on the 2016 charges violated the Double Jeopardy Clauses of the federal and state Constitutions.
- Defendant argued that he was entitled to a new trial on the 2017 charges because his convictions on those counts were tainted by the admission of evidence related to the 2016 charges during the joint trial. At issue was whether the testimony of defendant‘s daughters and his ex-wife would have been inadmissible propensity evidence in a trial on only the 2017 charges. Propensity evidence is generally inadmissible under
MRE 404(b)(1) . However,MRE 404(b)(1) is superseded byMCL 768.27a when a criminal defendant is accused of committing a listed offense, including CSC-II and fourth-degree criminal sexual conduct (CSC-IV) against a minor. Under the statute, evidence that a defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. Therefore, evidence that defendant committed CSC-II or CSC-IV was admissible underMCL 768.27a(1) . The pertinent question then was whether the challenged testimony qualified as evidence of CSC-II or CSC-IV. The 2016 victim‘s testimony that defendant touched her breasts and her genitals over her clothing when she was between 10 and 12 years old satisfied the elements of CSC-II, and defendant‘s other daughters’ testimony also represented evidence that defendant committed CSC-II or CSC-IV; accordingly, the challenged evidence was admissible underMCL 768.27a(1) . However, evidence that is admissible underMCL 768.27a must also comply withMRE 403 . UnderMRE 403 , evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Considerations underMRE 403 may include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant‘s and the defendant‘s testimony. When applyingMRE 403 to evidence admissible underMCL 768.27a , courts must weigh the propensity inference in favor of the probative value of the evidence rather than its prejudicial effect. In this case, the analysis would have weighed in favor of admitting the evidence. TG and defendant‘s other daughters alleged that defendant engaged in acts generally similar to those alleged by CS, many of the acts were temporally proximate, no intervening acts occurred, and there was a need for additional evidence to support CS‘s allegations. In sum, the probative value of the other-acts testimony was not outweighed by unfair prejudice. With regard to the testimony of defendant‘s ex-wife, defendant‘s arguments were made in conclusory fashion and the Court did not address them. - Under
MCL 750.520b(2)(b) , when CSC-I is committed by a person aged 17 years or older against a person under the age of 13, the offense carries a mandatory minimum sentence of 25 years. In this case, the trial court imposed a mandatory minimum sentence of 25 years for both of defendant‘s remaining convictions for CSC-I, despite the fact that the information only stated that one of the CSC-I charges carried that sentence. Under the Sixth Amendment, a criminal defendant has the right to be informed of the nature and cause of the accusation against them. A constitutionally sufficient charging document contains the elements of the offense charged and fairly informs the defendant of the charge against which the defendant must defend. The elements of an offense include those facts that increase both the ceiling and the floor of the punishment for an offense; this includes facts that increase the mandatory minimum sentence of an offense. In Alleyne v United States, 570 US 99 (2013), the Court held that if a statute prescribed a particular punishment to be inflicted on those who violated the statute under special circumstances mentioned in the statute, those special circumstances must be specified in the indictment. This requirement is meant to allow the defendant to predict the legally applicable penalty from the face of the indictment. UnderMCL 750.520b(2)(b) , the defendant must be 17 years of age or older for the 25-year mandatory minimum sentence to apply. Accordingly, this fact increases the minimum penalty of the crime and is therefore an element that must be charged. Because only one of the remaining CSC-I counts against defendant charged him as a person 17 years of age or older, the trial court‘s decision to apply the mandatory minimum to both counts was plainly in error. However, the error did not significantly affect the fairness of the trial. Defendant had notice that he was over the age of 17 when he committed both counts of CSC-I; both counts arose out of defendant‘s actions on a particular date, so he was necessarily the same age when the conduct underlying both charges occurred; and the jury found beyond a reasonable doubt that defendant was over 17 years old at the time of the offenses. Additionally, the information‘s statement of the required ages of the victim and the offender as to the first count of CSC-I put defendant on notice that he would potentially be subjected to the same mandatory minimum for the second count. Therefore, this error did not entitle defendant to resentencing because it did not result in an unfair trial.
Convictions stemming from the 2016 charges vacated; convictions and sentences stemming from the 2017 charges affirmed.
Justice ZAHRA, concurring in part and dissenting in part, agreed that defendant was not entitled to relief related to the 2017 charges and convictions but disagreed with the majority‘s decision to vacate defendant‘s convictions relative to the 2016 charges and opined that the majority had failed to give adequate deference to the trial court‘s decision to declare a mistrial. Justice ZAHRA noted that manifest necessity is not to be interpreted literally or applied mechanically; rather, a high degree of necessity is required to justify declaring a mistrial. The level of appellate scrutiny properly applied to a trial court‘s decision depended on the nature of the circumstances that led to the mistrial declaration. In a case of possible jury bias, the decision of the trial judge was entitled to special respect, given the judge‘s opportunity to observe the sequence of events in the context of the trial. Under
Justice CAVANAGH, joined by Justice WELCH, concurring in part and dissenting in part, agreed with the majority opinion that the trial court had abused its discretion in finding that a manifest necessity required a mistrial and that consequently, defendant‘s second trial on the 2016 charges violated the prohibition against double jeopardy. However, Justice CAVANAGH would have remanded the case to the Court of Appeals to consider whether the 2017 convictions were impermissibly tainted by the introduction of the 2016 charges and additional other-acts evidence. Justice CAVANAGH also stated that the majority opinion had failed to faithfully conduct the analysis set forth in People v Watkins, 491 Mich 450 (2012), regarding whether evidence introduced pursuant to
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JAMES BECK, Defendant-Appellant.
Nos. 160668-9
STATE OF MICHIGAN SUPREME COURT
FILED July 27, 2022
BEFORE THE ENTIRE BENCH
Defendant‘s first trial ended when the trial court declared a mistrial. While awaiting retrial, defendant was charged with additional crimes, which were tried jointly with his original charges in a second trial. Three issues are presented in this appeal. First, whether the retrial of defendant‘s original charges was barred by the Double Jeopardy Clause of the federal or state Constitution. See
We hold that the trial court abused its discretion by declaring a mistrial in the initial trial without conducting an inquiry sufficient to support a finding of manifest necessity. As a consequence, those convictions will be vacated. However, defendant has not demonstrated that he is entitled to a new trial, resentencing, or other relief regarding the other convictions. Finally, we hold that the trial court committed plain error by imposing a mandatory minimum sentence of 25 years under
I. FACTS
In 2016, defendant, James Beck, was charged with two counts of second-degree criminal sexual conduct (CSC-II),
The court then spoke to the parties about the issue. The prosecution wanted these two jurors replaced with alternates. Defendant, however, wanted the jury to either continue its deliberations or further questioning of Jurors 255 and 337 to obtain more information. Defendant also argued that there was not enough information to show manifest necessity for a mistrial. The trial judge, however, expressed concern that the entire jury was tainted beyond repair because she did not know the subject of Juror 255‘s inquiry and speculated that the entire jury must know about it if Juror 337 had overheard something. Therefore, the trial court rejected the parties’ requests and declared a mistrial. The case was set for retrial in 2017.
In 2017, while awaiting retrial on the original charges, defendant was accused of sexually penetrating one of his son‘s friends, CS, who was a minor. As a result, defendant was charged with two counts of CSC-I and one count of CSC-II. The first count of CSC-I resulting from this incident was charged as “Person Under 13, Defendant 17 years of age or older” under
The new charges and the original charges were jointly tried in a second trial. TG and CS both testified about their respective allegations. TG testified about three separate incidents. In 2013, she was sitting on the defendant‘s lap while he used the computer in his trailer. He opened her knees and rubbed her genital area through her sweatpants twice. She was 10 years old at the time. Sometime after, while defendant was throwing kids into a swimming pool, he reached his hands into her swimsuit when gripping her hips. And in 2015, when she was 12 years old, he asked her to sit on the couch with him when the other kids in the trailer were asleep. He tickled her, put his hands up her shirt, and touched her breasts.
CS, who is not related to the defendant, testified that in February 2017, when she was 12 years old, she went to the defendant‘s trailer to see his son, CB. The defendant gave CB a bottle of fireball whiskey for his birthday, and CS, CB, and other friends drank it and danced in CB‘s bedroom. While they were dancing, the defendant came in and started dancing with CS, putting his hands on her hips. When the other kids went for a walk, CS stayed behind, too drunk to walk. The defendant picked her up, took her to his bed, and pulled down her pants and underwear. He tried to penetrate her with his penis after she told him to stop. She vomited, ran to the bathroom, and continued vomiting into the toilet. While she was vomiting, the defendant attempted to penetrate her again.
In addition, over defendant‘s objection, three of defendant‘s other daughters and his ex-wife were permitted to testify about their interactions with defendant. One of his daughters, AR, testified that in 2007 when she was 15 and 16, defendant came into her room regularly to rub her back and touch her genitals. Another daughter, ANB, testified that defendant watched her and her friends change their clothing in
At the conclusion of the second trial, the jury found defendant guilty of all counts. The court sentenced him to 25 to 60 years for each count of CSC-I, 57 to 180 months for each count of CSC-II, and ordered the CSC-II sentences to be served concurrently with the CSC-I sentences. Defendant appealed his convictions and sentences in the Court of Appeals, which affirmed them in an unpublished opinion. Defendant then sought leave to appeal in this Court. We granted oral argument on the application for leave to appeal with regard to the following issues:
(1) whether the defendant‘s retrial in Docket No. 2016-000309-FH was barred by the Double Jeopardy Clauses of the federal or state constitutions,
US Const, Am V ;Const 1963, art 1, § 15 ; (2) if so, whether vacating his convictions in that case would also warrant a new trial, resentencing, or any other remedy in the jointly tried case, Docket No. 2017-001376-FC; and (3) whether the trial court improperly imposed a mandatory minimum sentence of 25 years for an act of first-degree criminal sexual conduct (Count II) that was not charged as carrying such a minimum. See Alleyne v United States, 570 US 99, 109-111 (2013); Apprendi v New Jersey, 530 US 466, 476, 478-479 (2000) . . . . [People v Beck, 506 Mich 946 (2020).]
II. ANALYSIS
A. DOUBLE JEOPARDY
The first issue is whether the retrial on defendant‘s original charges was barred by the Double Jeopardy Clauses of the federal and state Constitutions. See
accused cannot be placed in jeopardy twice for the same offense.” People v Hicks, 447 Mich 819, 826; 528 NW 2d 136 (1994), citing
In deciding whether manifest necessity exists, the United States Supreme Court has stated:
“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; 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 . . . .” [Hicks, 447 Mich at 828, quoting United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824).]
“Determining whether manifest necessity exists to justify the declaration of a mistrial requires a balancing of competing concerns: the defendant‘s interest in completing his trial in a single proceeding before a particular tribunal versus the strength of the justification for a mistrial.” Id. at 829. We have stated that “[a] mistrial may only be declared . . . after an on the record consideration and discussion of alternatives with counsel.” People v Benton, 402 Mich 47, 65; 260 NW2d 77 (1977); see also
“This Court accords considerable deference to a judge‘s determination of whether there is manifest necessity justifying declaration of a mistrial.” Id. To ensure that the trial court properly exercised its discretion, the reviewing court must consider the “particular facts” of the case. Hicks, 447 Mich at 829. “[I]f a trial judge acts irrationally or irresponsibly, . . . his action cannot be condoned.” Arizona v Washington, 434 US 497, 514; 98 S Ct 824; 54 L Ed 2d 717 (1978). See generally Fulton v Moore, 520 F3d 522, 529 (CA 6, 2008) (explaining that the court‘s review of “manifest necessity” focuses on “whether the trial judge (1) heard the opinions of the parties about the propriety of the mistrial; (2) considered the alternatives to a mistrial; and (3) acted deliberately, instead of abruptly“). The ultimate question is “not whether this Court would have found manifest necessity, but whether the trial court abused its discretion in finding manifest necessity.” People v Lett, 466 Mich 206, 220; 644 NW2d 743 (2002) (emphasis omitted).
In this case, although the trial court may have believed it was acting with an abundance of caution, the standard for declaring a mistrial was not satisfied. The trial court did poll the jury by written note, go on the record with counsel to discuss the matter, and briefly consider each side‘s proposed alternatives to a mistrial. However, the court‘s consideration of the matter was too abrupt, and its conclusions were not supported by sufficient evidence. The nature of the juror‘s outside research was unclear to the trial court and yet, instead of further probing what the juror researched and whether it would affect the proceedings, the trial court summarily declared a mistrial. Cf. Parker, 145 Mich at 500. Further, despite learning through polling the jurors that only one other juror had knowledge of the outside research, the trial court concluded that the entire jury was tainted. Perhaps this would have been a reasonable conclusion had the trial court elicited information suggesting that the external research somehow affected the other jurors despite the poll results indicating the contrary. But on the record presented, there was no basis for disbelieving the jurors who responded to the written polling by stating that they did not know of the research. The trial court itself acknowledged that “we don‘t know if the conversation would influence for or against the defense or the prosecution” because “[w]e did not get enough information to even guess at that.” Accordingly, the trial court‘s consideration of less drastic alternatives failed to sufficiently determine the extent of any jury taint and whether it was limited to jurors who could be excused and replaced. Due to these failures, the trial court did not adequately find a justification for mistrial that outweighed the defendant‘s interest in continuing the trial. Hicks, 447 Mich at 829.4
Justice ZAHRA‘s partial dissent is also mistaken when it suggests that the United States Supreme Court has approved of this speculation in the context of juror bias. See post at 12 (ZAHRA, J., concurring in part and dissenting in part), discussing Washington, 434 US at 512-514. That case, and the case it cited, Simmons v United States, 142 US 148; 12 S Ct 171; 35 L Ed 968 (1891), are a far cry from the current matter. In Washington, the alleged bias resulted from the defense counsel‘s opening statement, which the trial
For these reasons, the trial court‘s inquiry was insufficient to find manifest necessity, and therefore, retrial on the 2016 charges violated the Double Jeopardy Clauses of the federal and state Constitutions. Accordingly, we now vacate defendant‘s two CSC-II convictions that arose from the 2016 charges.
B. IMPACT ON THE 2017 CHARGES
Because we have found that retrial on the initial charges was barred, we must next determine whether vacating those convictions entitles defendant to a new trial, resentencing, or any other relief regarding his remaining convictions. Defendant claims that he is entitled to a new trial for the 2017 charges because his convictions on those counts were tainted by the admission of evidence during the joint trial relating to the 2016 charges during the joint trial, which would not have been admitted if the 2017 charges had been tried separately. In other words, had the 2017 trial only addressed the 2017 charges—as it should have, given that double jeopardy should have barred retrial of the 2016 charges—the challenged evidence would not have been admissible.5
The evidence that defendant challenges includes: (1) the testimony of the complaining victim regarding the 2016 charges, (2) the testimony of defendant‘s three other daughters, and (3) the testimony of defendant‘s ex-wife. Generally, we review
admission of evidence for abuse of discretion. People v Bynum, 496 Mich 610, 623; 852 NW2d 570 (2014). Here, the question arises in a slightly different manner. While the evidence was admitted at the joint trial, the issue is whether the trial court would have abused its discretion if it had admitted this same evidence in a trial limited only to the 2017 charges. Further, we review the interpretation of a related statute de novo. People v Watkins, 491 Mich 450, 466-467; 818 NW2d 296 (2012).6
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
However,
Finally, we have indicated, outside the double-jeopardy context, that misjoinder is harmless when the evidence would have been admitted in the trial on the separate charge. See People v Williams, 483 Mich 226, 244; 769 NW2d 605 (2009) (“‘[A] misjoinder may be deemed harmless only if all or substantially all of the evidence of one offense would be admissible in a separate trial of the other.’ “), quoting Byrd v United States, 551 A2d 96, 99 (DC, 1988). In any event, given the lack of argument on this point and the evident lack of authority supporting the speculation in Justice CAVANAGH‘S partial dissent that some other framing applies here, we will treat the error as evidentiary for present purposes.
CSC-II and fourth-degree criminal sexual conduct (CSC-IV) are both listed offenses when committed against a minor.
2016 allegations, that victim‘s testimony would still have been admissible under
This does not end the analysis because ”
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant‘s and the defendant‘s testimony. [Watkins, 491 Mich at 487-488.]
“This list of considerations is meant to be illustrative rather than exhaustive.” Id. at 488. However, “when applying
must weigh the propensity inference in favor of the evidence‘s probative value rather than its prejudicial effect.” Id. at 487.
Here, the factors weigh in favor of admitting the evidence. Although there were some dissimilarities between the allegations underlying the 2016 charges and those alleged in the 2017 charges, we conclude nevertheless that the probative value would not have been substantially outweighed by a risk of unfair prejudice by admitting this evidence. TG and CS were roughly the same age—TG was between 10 and 12 when the abuse occurred, and CS was 12. Defendant allegedly sexually
Next, the allegations underlying the 2016 charges and the 2017 charges were temporally proximate. The incidents involving TG spanned from 2013 to 2015, while the incident involving CS took place in 2017. In addition, the allegations underlying the 2016 charges did not involve infrequent acts, as TG testified about three separate incidents. See People v Salloway, 316 Mich App 174, 195; 891 NW2d 255 (2016) (finding that other acts were not infrequent because the abuse was not a “one-time occurrence“). There are no relevant intervening acts that would have cut against the admission of TG‘s testimony. While the defense attempted to undermine the reliability of TG‘s testimony, we conclude that it would have remained more probative than unfairly prejudicial notwithstanding the concerns raised.10 In addition, we conclude there would have been a need for evidence
beyond CS‘s testimony. No one witnessed the alleged abuse, and while CS did have a forensic examination that showed physical injuries consistent with sexual activity or abuse, that examination did not reveal the presence of defendant‘s DNA and there was testimony that CS was sexually active with another individual the night that the alleged abuse occurred.
In sum, TG‘s testimony concerning the 2016 charges shows defendant‘s propensity to sexually assault children left alone with him in his home and lent credibility to the accusations underlying the 2017 charges. Any risk of unfair prejudice is outweighed by the evidence‘s probative value.
Defendant also challenges the testimony of his other daughters, AR, ANB, and ADB, who testified that when they were under 17 years old, defendant touched their genitals, rubbed their inner thighs, and slapped them on their buttocks. Depending on the ages of the children and other attendant circumstances, these allegations would satisfy the elements of either CSC-II or CSC-IV. See
of abuse constituting listed offenses is evidence of the commission of “listed offenses” and thus is also admissible under
With regard to temporal proximity, while AR’s allegations occurred 10 years prior to the episode with CS, AR testified about ongoing abuse and there were no relevant intervening acts cutting against admissibility. ANB and ADB alleged conduct that appears to have been closer in time to the episode with CS.13 Thus, although the earliest alleged conduct preceded the events of February 2017 by a number of years, much of the conduct was temporally proximate. AR testified to ongoing, frequent acts. Although ANB’s and ADB’s testimony spoke to isolated acts, the overall evidence revealed a pattern of other acts.14 Even if ANB and ADB testified
testimony was still admissible. No intervening acts have been cited that would suggest the allegations are inadmissible under
The last contested evidence is the testimony of defendant’s ex-wife.
Even though retrial of the 2016 charges was barred by double jeopardy and the related convictions will be vacated, defendant has not proven he is entitled to relief on his remaining convictions. The daughters’ testimony would have been admitted even if defendant had been tried separately on the 2017 charges. And defendant has not developed an argument that his ex-wife’s testimony would have been held inadmissible in such a trial.
C. MANDATORY MINIMUM FOR CSC-I
The final issue is whether the trial court erred by imposing a mandatory minimum sentence of 25 years for a conviction of CSC-I when the charging document did not state that the charge carried that minimum sentence. A CSC-I offense committed by an individual 17 years old or older against an individual under the age of 13 carries a 25-year mandatory minimum sentence.
Under the Sixth Amendment, a criminal defendant has the right “to be informed of the nature and cause of the accusation[.]”
definition of ‘elements’ [of an offense] necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment. . . . Facts that increase the mandatory minimum sentence are therefore elements . . . . [Alleyne, 570 US at 108.]
Put another way, a fact is an element when it “increases the punishment above what is otherwise legally prescribed” or “increase[s] the mandatory minimum sentence.” Id.
This rule applied to jury findings in Alleyne, but it also applies to what must be charged in an indictment. Id. at 112. The Alleyne Court explained that “if ‘a statute prescribes a particular punishment to be inflicted on those who commit it under special circumstances which it mentions, or with particular aggravations,’ . . . those special circumstances must be specified in the indictment.” Id., quoting 1 J. Bishop, Criminal Procedure 50, § 598, pp 360-361 (2d ed). This requirement is meant to allow “the defendant to predict the legally applicable penalty from the face of the indictment.” Id. at 113-114.
As noted, the defendant must be “17 years of age or older” for the 25-year mandatory minimum in
The prosecution admits this error, but contends the error was harmless under the third Carines prong. However, we need not address whether the error was harmless because defendant cannot meet the fourth prong of the plain-error test. See Carines, 460 Mich at 763-764. In United States v Cotton, a case involving evidence that increases the statutory maximum sentence, the United States Supreme Court found that the omission of the quantity of a drug from the indictment “did not seriously affect the fairness, integrity, or public reputation of [the] judicial proceedings” because the evidence establishing the quantity “was ‘overwhelming’ and ‘essentially uncontroverted.’ ” United States v Cotton, 535 US 625, 632-633; 122 S Ct 1781; 152 L Ed 2d 860 (2002), quoting Johnson v United States, 520 US 461, 469-470; 117 S Ct 1544; 13 L Ed 2d 718 (1997).
Here, defendant contends that the error significantly affected the fairness of the trial. Specifically, he contends that failure to charge the fact of his age and the mandatory minimum statute as to both counts deprived him of proper notice of the judgment he received upon conviction. Defendant does not contest that he was over the age of 17 at the time he committed both counts of CSC-I and, in any event, the jury found that he was over the age of 17 at the time he committed both counts of CSC-I beyond a reasonable doubt.16 And certainly, he had notice of his age and he could learn from the information’s statement of the first count that his age (and the age of the victim) potentially subjected him to the same mandatory minimum sentence in
because of these considerations or what alternative action he would have taken with notice of the additional mandatory minimum charge.
This conclusion is further supported by how the Court addressed the fourth prong in Carines. In that case, the defendant alleged that the trial court improperly convicted him of felony murder by blending the felony-murder and aiding-and-abetting instructions together. Carines, 460 Mich at 768-769.17 The trial court
participated in the killing . . . .” Id. at 772. Likewise, as noted, the jury in this case concluded that defendant was at least 17 years old for both counts. Both counts arose out of defendant’s actions on a particular date, so he necessarily was the same age when the conduct supporting each count occurred.
For these reasons, defendant is not entitled to resentencing.
III. CONCLUSION
In conclusion, we hold that the trial court abused its discretion by declaring a mistrial in the initial trial without conducting a sufficient inquiry to support a finding of manifest necessity. As a consequence, those convictions will be vacated. However, with regard to his remaining convictions, because the evidence presented accusing defendant of committing prior acts of CSC against minors would have been admissible in a separate trial under
David F. Viviano
Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JAMES CURTIS BECK, Defendant-Appellant.
Nos. 160668-9
SUPREME COURT OF THE STATE OF MICHIGAN
ZAHRA, J. (concurring in part and dissenting in part).
While I concur with the majority opinion that defendant is not entitled to relief in Docket No. 160669 for his acts against CS, I respectfully dissent from the decision in Docket No. 160668 to vacate defendant’s
proceedings. I agree that the trial court could have proceeded differently. But our caselaw has long held that decisions made by trial court judges in the heat of the moment and in the course of an ongoing trial are reviewed for an abuse of discretion. An abuse of discretion is not found merely because the trial court could have acted differently or because a reviewing court would have reached a different result. An abuse of discretion will only be found when the court’s decision falls outside the range of principled outcomes.2
Considering the totality of the facts and circumstances of this case, I conclude that the trial court did not abuse its discretion in declaring a mistrial when confronted with evidence that the jury may have been tainted. Because manifest necessity existed to support the trial court’s declaration of a mistrial, defendant’s retrial was not barred by double jeopardy. Accordingly, I would affirm defendant’s convictions in Docket No. 160668.
I. PERTINENT FACTUAL BACKGROUND
In July 2016, defendant was tried for two counts of second-degree criminal sexual conduct (CSC-II) for acts against his ex-wife’s daughter, TG. After three days of testimony, the case was submitted to the jury on Friday, July 8, 2016. Roughly four hours into deliberation, the court received a note asking what happens when the jury is hung. The court brought the jury into the courtroom, read the standard instruction for a deadlocked jury, also known as an ”Allen charge,”3 and sent the jury back to deliberate for the remainder of the day.
At some point between the jury being sent back to deliberate and its dismissal for the weekend, one juror, Juror 337, informed the court that another juror, Juror 255, had done outside research on the case. There is no record of this initial interaction with Juror 337 in the July 8, 2016 transcript. Instead, the first reference to a juror possibly conducting outside research appears in the July 11, 2016 transcript, the following Monday. That morning, the court informed the jury that “there may have been some outside research done on topics or issues with regard to this trial” and asked the jurors whether they knew of any such research being conducted. Receiving no response, the trial court asked the jurors to return to the jury room and write their juror
Okay. So I’ve received notes back from all jurors. There’s only two at issue. One is from Juror 337, who we spoke to on Friday afternoon, who indicated: What I heard was not about the case, but a juror was looking into another discretion [sic] within his family.
And then, another response from Juror 255: I didn’t do any research on the case itself, nor do I know if anyone else did. Without mentioning anything about the case, I asked my mom about her past experience. . . .
All the rest of the jurors had nothing significant to report.4
The court invited responses from the parties on how to proceed. The prosecutor believed that both jurors had been tainted and requested that they be replaced with two alternate jurors. Defense counsel objected to the substitution, argued that neither juror had brought any extraneous information into the case, and advocated in favor of having the original 12 jurors deliberate the case. The parties further elaborated on their respective positions:
[The Prosecutor]: The People’s position is the way it is for the following reason: Obviously, that means juror number [337]5 heard and/or perhaps was influenced, we don’t know because we can’t know what his findings are, but . . . it was to the point where he thought it was important that he brought it to this court’s attention. He specifically said that he thought, and I was writing down what he[ said], the best I could, because he was sort of in circles about what he said, but he said that what the juror was saying struck him as against the instructions this court had given him. Specifically, he said that juror had spoke[n] to someone who had [t]his history of incidents and intended to determine the actions before and after to get an understanding of the actions in this case and why a person would do this or why a person wouldn’t do that.
And so, clearly, juror number [337] heard that and was influenced and/or . . . perhaps not influenced, but heard that. So he would be tainted for that reason. And, then, obviously, juror number [255], by his own admission, he indicated that although . . . he didn’t speak about the case. He said he spoke to his mom, but, obviously, brought that information that he spoke with his mom about into the jury room. That’s how the juror knew about it.
So, Judge, in order to not have a mistrial based on manifest injustice here, the People are suggesting that . . . a solution is to in fact ask that those two jurors be excused and ask the alternat[e] jurors be replaced. . . .
[Defense Counsel]: Your Honor, brief response. We’re not seeking a mistrial. If the prosecutor seeks a mistrial, then it’s double jeopardy. They’re not seeking a mistrial either. Really, what we’re talking about is a challenge for cause during deliberation. And if the Court’s wrong and does remove for
cause and there’s a conviction, it’s reversible error. I say we go with the 12 jurors.
Now, in the alternative, you could bring in each juror, the two jurors involved, individually and ask specifically what did you say, what did you learn, what do you know.6
The trial court disagreed with defense counsel that double jeopardy would bar retrial if the court declared a mistrial on these grounds and expressed its concerns about the extraneous information, stating:
I disagree it would be double jeopardy for the prosecution if the Court calls a mistrial based on issues brought up by the jurors. So, that part I disagree with.
I have serious concern about juror number 255, who apparently -- and we do not know what experience he inquired about someone else. The other person . . . who he inquired with doesn’t know anything about this case. But, what the juror knows is what’s important.
I can’t say juror number 337 was necessarily influenced because he seemed a little unsure as to specifically what he was even hearing. But, I do have concerns regarding [juror number] 255.
The prosecution added that the jury may have misunderstood that “outside research” included gaining insight from nonjurors and offered additional information about the initial interaction with Juror 337:
[I]f juror number [337] heard it, then, perhaps, it could be a presumption . . . that all the jurors had heard that. And when we ask them to go back into the jury room, we ask about specifically research. And I can’t get in their heads, but [when] we spoke about research, oftentimes, we spoke about getting on the internet and bringing that information in, as opposed to perhaps just getting outside insight, which they’re not allowed to do that either. . . . [W]e didn’t feel like we had to spell that out for them, but that appears to be what did happen. And . . . I’m not sure that juror number [337] was sitting with juror number [255] and they are the only two that had that conversation. It sounded as though there was a conversation in front of the whole jury, based on what juror number [337] said. So it’s almost as if the entire jury had heard that. So if we determine that someone is tainted by that, the whole jury has been tainted by it.7
After hearing from both parties, the trial court, over defendant’s objection, declared a mistrial, stating:
Quite honestly, we don’t know if the conversation would influence for or against the defense or the prosecution. . . .
We did not get enough information to even guess at that.
. . . [T]he response from juror number 255 . . . says: Without mentioning anything about the case, I asked my mom about her past experience. Another juror overheard a conversation that sounds like it wasn’t even with [juror number] 337 [sic: 255]8 but with yet another juror, and picked up enough about what that juror had said.
At this point, I think the jury is tainted and I don’t think bringing in two alternat[es] is going to help. I am going to declare a mistrial.
Defendant was later convicted of the two CSC-II counts as to TG at a subsequent trial held in 2017. The Court of Appeals
II. LEGAL BACKGROUND
“Under both the Double Jeopardy Clause of the Michigan Constitution and its federal counterpart, an accused may not be ‘twice put in jeopardy’ for the same offense.”9 The Double Jeopardy Clause “protects a criminal defendant from repeated prosecutions for the same offense.”10 This protection encompasses the “accused’s valued right to have his trial completed by a particular tribunal” once jeopardy has attached.11 “Jeopardy is said to ‘attach’ when a jury is selected and sworn, 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.”12 “If the trial is concluded prematurely, a retrial for that offense is prohibited unless the defendant consented to the interruption or a mistrial was declared because of a manifest necessity.”13 Defendant did not consent to the mistrial; therefore, the inquiry turns on whether “manifest necessity” existed, compelling the mistrial.
In Arizona v Washington, the Supreme Court of the United States reiterated the “classic formulation” for whether “manifest necessity” exists to warrant a mistrial:
“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; 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. 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.”14
” ‘Manifest necessity’ is not to be interpreted literally or applied mechanically; what is required is a ‘high degree’ of necessity.”15
Although the trial court’s decision to declare a mistrial on these grounds is afforded great deference, its discretion is not unlimited. “Determining whether manifest necessity exists to justify the declaration of a mistrial requires a balancing of competing concerns: the defendant’s interest in completing his trial in a single proceeding before a particular tribunal versus the strength of the justification for a mistrial.”21 To ensure the defendant’s interest is adequately protected, the reviewing court must be satisfied that the trial court did not act “irrationaly or irresponsibly,” but instead “exercised ‘sound discretion’ in declaring a mistrial.”22 A trial court is not required to make explicit findings of manifest necessity, nor must it articulate on the record all the factors informing its decision to declare a mistrial, as long as sufficient justification for the ruling exists on the record.23 Our court rules simply require that “[b]efore ordering a mistrial, the court must, on the record, give each defendant and the prosecutor an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.”24 Ultimately, “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.”25
III. APPLICATION
Applying the aforementioned principles, I cannot conclude that the trial court
Further, a review of the record as a whole demonstrates that extraneous information was indeed brought into the jury room and created the possibility of juror bias sufficient to support a finding of manifest necessity to warrant a mistrial. By written submission, Juror 255 stated that he asked his mother about her past experience of sexual assault. Also, according to the prosecutor’s recounting of the initial conversation with Juror 337 on July 8, 2016, Juror 255 “had spoke[n] to someone who had [t]his history of incidents and intended to determine the actions before and after to get an understanding of the actions in this case and why a person would do this or why a person wouldn’t do that.”26 Juror 255’s actions—i.e., seeking an outside perspective on how a sexual assault may impact a person’s behavior in order to assist him in deciding defendant’s criminal sexual conduct case—were clearly improper and created the possibility of juror bias.
The context in which this possible juror bias arose also cannot be ignored. After the jury asked the court what would be the ramifications of a hung jury, the court issued an Allen charge encouraging further deliberation. Thereafter, Juror 337 informed the court of Juror 255’s impropriety. The timing of these events gives rise to an inference that Juror 255 may have been trying to persuade other jurors on a particular disposition, which clearly was improper.
would have affected the impartiality of the jury as a whole. This inference was not lost on the trial court, which concluded that other jurors, in addition to Juror 337, had been exposed to the extraneous information and that the entire jury had been tainted.27 In short, the circumstances giving rise to the possibility of juror bias occurred at a critical point in defendant’s trial, and the trial court acted within its discretion in concluding that these circumstances warranted a mistrial. “[T]he overriding
I am also not convinced that the trial court was required to give the sort of extensive consideration of “less drastic alternatives” that the majority opinion seems to mandate.32 In Washington, the trial court declared a mistrial based on defense counsel’s improper argument during his opening statement.33 The Supreme Court of the United States upheld the trial court’s decision even though the mistrial was not strictly “necessary” insofar as an appropriate cautionary instruction may have counteracted the possibility of juror bias.34 In People v Lett, this Court recognized that Washington does not require trial courts to examine alternatives or make findings on the record before declaring a mistrial, even noting that this Court’s prior decisions requiring such examination rely on caselaw of questionable validity in light of Washington.35 Indeed, our court rules simply require trial courts to give the
The majority opinion states that even if consideration of alternatives is not constitutionally required, the trial court’s failure to consider alternatives in this case supports the majority opinion’s conclusion that the trial court acted precipitately in declaring a mistrial. Not only does the majority opinion ignore the trial court’s actual consideration of the alternatives proposed by the parties, see pp 3-6 and 14-15 of this opinion, it admittedly demands more of our trial courts than is constitutionally required. Indeed, if trial courts, in safeguarding a defendant’s constitutional right against double jeopardy, are not constitutionally required to consider alternatives to declaring a mistrial, what other basis is there for requiring such consideration?
In any event, the trial court’s consideration of the parties’ proposed alternatives was adequate. Defense counsel’s requests to have the original 12 jurors decide the case or bring Jurors 255 and 337 into the courtroom for further questioning ignores the trial court’s conclusion that Juror 255’s impropriety had tainted the entire panel. Also, defense counsel objected to the prosecutor’s request to substitute Jurors 255 and 337 with two alternates, even arguing that their removal would amount to error requiring reversal. Defense counsel therefore left the trial court with two options: either continue the trial with a jury that the court believed was tainted, or declare a mistrial and give the parties a fresh start with a jury untainted by the possibility of bias. Under these circumstances, the trial court did not abuse its discretion in declaring a mistrial.
In sum, the trial court “exercised ‘sound discretion’ in handling the sensitive problem of possible juror bias created” by Juror 255 bringing extraneous information into the jury room.37 The trial court “acted responsibly and deliberately,” “gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial,” and reasonably concluded that the possibility of juror bias permeated the jury room such that it was questionable whether an impartial verdict could be reached.38 “[I]n these circumstances, the public’s interest in fair trials designed to end in just judgements must prevail over the defendant’s valued right to have his trial concluded before the first jury impaneled.”39 Accordingly, manifest necessity existed to support the trial court’s declaration of a mistrial, and defendant’s retrial was not barred by double jeopardy. Because this Court concludes otherwise, I respectfully dissent on this issue.
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JAMES BECK, Defendant-Appellant.
Nos. 160668-9
STATE OF MICHIGAN SUPREME COURT
CAVANAGH, J. (concurring in part and dissenting in part).
I concur in Part II(A) of the majority opinion because I agree that the trial court abused its discretion by finding that a
Because the now-vacated, constitutionally problematic 2016 charges were consolidated into a single trial with charges related to a different victim arising from conduct that occurred in 2017, the focus of Part II(B) of the majority opinion is whether the 2017 convictions were impermissibly tainted by the introduction of the 2016 charges and additional “other acts” evidence. The Court of Appeals, of course, has not yet addressed this analytical oddity.1 For that reason, I would have preferred to remand this case to the lower court for its full consideration and to allow defendant to make additional arguments in light of today’s ruling. Beyond that, I find the majority’s analysis lacking. For example, it engages only in a footnote with how to characterize defendant’s claimed error concerning the admission of other-acts evidence when charges that were the basis of a constitutionally prohibited trial are joined with charges forming the basis of a constitutionally permissible trial.2 Nor does it discuss how that characterization might affect preservation or the appropriate standard of review.
Most troubling in my view, however, is the majority’s failure to faithfully conduct the analysis set forth by this Court in People v Watkins, 491 Mich 450; 818 NW2d 296 (2012). Watkins discussed
Despite this clear directive in Watkins, the majority opinion fails to heed its instruction to balance each separate piece of evidence under
The majority opinion may ultimately reach the correct result—that there were no errors in the admission of the evidence discussed or that any errors were not prejudicial enough to defendant to warrant reversal.6 Even still, instead of engaging in a truncated analysis, I believe it would have been much more prudent to remand to the Court of Appeals for full consideration in the first instance. By taking that route, our opinion would properly encourage our trial courts to zealously guard against the admission of unfairly prejudicial propensity evidence. And, after the review of our intermediate court, this
Megan K. Cavanagh
Elizabeth M. Welch
Notes
- the dissimilarity between the other acts and the charged crime,
- the temporal proximity of the other acts to the charged crime,
- the infrequency of the other acts,
- the presence of intervening acts,
- the lack of reliability of the evidence supporting the occurrence of the other acts, and
- the lack of need for evidence beyond the complainant’s and the defendant’s testimony. [Watkins, 491 Mich at 487-488.]
There are compelling institutional considerations militating in favor of appellate deference to the trial judge’s evaluation of the significance of possible juror bias. He has seen and heard the jurors during their voir dire examination. He is the judge most familiar with the evidence and the background of the case on trial. He has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors. In short, he is far more conversant with the factors relevant to the determination than any reviewing court can possibly be. [Quotation marks and citation omitted.]