People v. Johnson

396 PEOPLE v ALVIN JOHNSON (Calendar 12) 8, Argued May Docket No. 55577. No. . Decided April 21, Rehearing 1976. 992. denied Mich During joint the trial of Alvin Johnson and Eddie Perkins for robbery, Court, Wayne Stacey, J., armed Circuit Michael the L. granted of a mistrial on motion defendant Perkins when John- attorney polygraph son’s referred to a test. Before the defend- began, convicted, ants’ second trial Johnson and Perkins were pleas guilty, on their of assault of with intent to rob and steal Court, being Montante, Wayne unarmed the Circuit James Brennan, J., Appeals, J. The of V. J. P. and Gillis and Bashara, JJ., granted prosecution’s motion to John- affirm (Docket 15479). ap- son’s conviction No. Defendant Johnson peals. Held: placed jeopardy, 1. Once a defendant been has unless he interruption trial, consents to of or mistrial occurs necessity, precluded because of manifest state from bringing again. to him trial of an absence affirmative showing primary defendant exercised control over the mistrial, course to be followed and consented to the the court consent; however, finding necessity will not find of manifest permissible. for the mistrial would still make a trial second test, polygraph more, 2. The mere mention of a without did necessity justify constitute such manifest as would a mis- trial. [10, [8, ^{[1] [4] [3] [2]} [5-7, What constitutes accused’s Reference 9] Am21 21 Am Jur 21 Am Jur 75 Am Jur grant of matters new 11] 76 Am Jur former 21 Am Jur 13] trial, reversal, or Jur 21 Am state’s jeopardy plea. 2d, 2d, 2d, 2d, References 2d, counsel for Trial 208. Criminal Law Criminal Law 165-169. Criminal Law 476. 2d, Jur he does Trial § 1078 et motion Criminal Law 495. § 2d, modification. ALR2d Criminal not later for Points for mistrial which will constitute waiver 63 ALR2d 782. consent prosecution §§ §§ § seq. Law § attempt 185. in Headnotes court’s §§ opening discharge 195. prove 972. as statement of ground jury or to Johnson v Alvin nonjurisdictional defects guilty, plea it waives while 3. A right; of the defendant’s proceedings, waive all does not prevent right would be to asserted the result of where by plea guilty. taking place, waived it is not from start of the first after defense double taking place prevent second trial would because its assertion guilty. subsequent plea all, of at is not waived improperly in a mistrial and the ended 4. The first trial jeopardy in violation of his placed twice in defendant was may right. not stand and the conviction The constitutional released. must be Fitzgerald, Coleman, joined by dissented on Justice Justice judge The trial was valid. ground of mistrial that the order a mistrial is decision on whether make a is best situated to Although justice. the mistrial necessary of the ends to achieve Johnson, because of the defendant interest was not in the sole equally and demanded a mis- interested his codefendant reasonably trial, that the ends of find could the trial polygraph may required to a justice Reference a mistrial. case, every declaration of a mistrial but error be reversible judge’s product appear of the trial to least be would at inquiry waived his the defendant is not whether solicitude. The jury, right whether the defendant the first but to be tried to followed. In the primary the course be control over had time, objection specific of error at the or denial absence of a joined properly with that defendant determine trial court could general underlying seeking The a mistrial. the codefendant in jeopardy, the state with for the defense of double rationale power to make should not be allowed resources and all its defendant, prose- repeated attempts and that the to convict the badly, cution, going should not be its case is at a trial which convict, opportunity does to another more favorable afforded case. not obtain this Reversed. Guilty. Jeopardy —Mistrial—Plea

1. Criminal Law —Double improperly jeopardy after a The defense of double guilty. by subsequent plea granted is not waived Trial—Mistrial—Polygraph Test. Law — 2. Criminal trial, during polygraph test a criminal mention of a The mere necessity more, as not constitute such manifest does without granting a defend- justify in the absence of a mistrial would ant’s consent. 396 Jeopardy. 3. Criminal Law —Constitutional Law —Double guarantee against underlying the constitutional idea of jeopardy its the state with all resources double is that and repeated power attempts make allowed to to should not be offense, thereby alleged subjecting an convict an individual for embarrassment, expense compelling him and ordeal and him to anxiety insecurity, continuing to as well live in a state though enhancing possibility even innocent as he 15). (US Const, V, Am Const art § found Jeopardy. 4. Criminal Law —Double jeopardy, placed in unless he Once a defendant has been consents interruption or a mistrial occurs because of bringing necessity, precluded from him manifest the state is again. Jeopardy 5. Criminal Law —Double —Mistrial. Reprosecution prohibited by of a defendant is the double clause even if a defendant benefits from a mistrial called for necessary satisfy reasons short of those the manifest neces- sity standard. Jeopardy 6. Criminal —Mistrial—Consent. Law —Double A mistrial is not a bar to retrial of a defendant even where the improperly mistrial was declared if the action was taken with the defendant’s consent. Jeopardy

7. Criminal Law —Double —Trial—Mistrial—Consent. object jury’s discharge Mere silence or failure to to the is not mistrial; by a a consent defendant to declaration of a in the showing an absence of affirmative on the record that the exercising primary defendant is control over the to course mistrial, and to the followed consents the Court will presume not to find a consent. Necessity. 8. Criminal Law —Trial—Mistrial—Manifest judicial The discretion to declare a mistrial such for manifest necessity justice that the ends of substantial cannot be attained discontinuing properly only without the trial exercised very extraordinary striking circumstances; and of a mere error procedure legal necessity law or does not a constitute and irregu- consequence mistrial should not be declared in of mere prejudicial rights persons larities which are not prosecuted. Necessity. 9. Criminal Law —Trial—Mistrial—Manifest apparently question An inadvertent asked defense counsel Alvin Johnson polygraph concerning instantly objected which a test was to part and never witness and which answered the was not of judicial system prevent an overt to the effort misuse to the receiving sufficiently preju- defendant trial from a fair necessity dicial on a based manifest warrant mistrial or even request defendant; of the declaration a of mistrial should judge lightly always not be must made and the consider curing warning. possibility the of error with a Guilty 10. Criminal of of Defects. Law —Plea —Waiver plea guilty generally nonjurisdictional A waives all defects in proceedings, may always the challenge but defendant the prosecution right bring whether the state had a place by raising rights might provide complete first which prosecution, defense to a criminal those undercut defendant, punishing state’s interest or the state’s au- thority ability proceed or with the trial. Guilty Rights. 11. Criminal Law —Plea of —Waiver of plea right A does not waive wherever it is found that asserting right prevent result of would have been to taking place. trial from Dissenting Opinion Fitzgerald, Coleman JJ. Jeopardy

12. C.-iminal Law —Double —Mistrial. Declaration of a on the demand aof codefendant after a polygraph reference to a examination had been de- made attorney fendant’s bar does not retrial of the defendant on the grounds apologized double where the defendant improper reference and remained silent after the demand mistrial, primary for a the defendant had control over the followed, reasonably course to he and the trial could ñnd (US justice required V, Const, ends a mistrial Am 15). Const art § 13. Criminal Law —Mistrial—Consent. proper inquiry determining whether a con- sented to declaration of a mistrial is whether the defendant primary followed, had control over the course to be and a reviewing totality examine the of the circumstances considering whether such control existed. Kelley,, Attorney General,

Frank J. Robert A. Derengoski, General, Cahalan, Solicitor William L. 396 op the Court Boyle, Principal Attorney, Prosecuting Patricia J. Training Appeals, Attorney, and Research, & Ar- Prosecuting Attorney, Bishop, thur N Assistant people. for the (by Appellate Norris J. Office State Defender Defender)

Thomas, Jr., for defendant. Assistant impression first we In this case J. Williams, plea impact on a consider the jeopardy. We hold of double constitutional defense jeopardy, as affects of double the defense place all, at is a have taken whether trial should plea. subsequent guilty As this not waived question dispositive, not consider other we do except by defendant, that the we hold raised issues polygraph without more test mere mention of necessity manifest as does not constitute such justify the Court of mistrial. We reverse would Appeals court, and defendant

and the jeopardy, discharged, put in con- as he was twice Michigan trary to the mandate of Federal Constitutions.

I— Facts trial, Alvin first with co- Johnson’s Defendant charge of armed Eddie Perkins days robbery, when, in a into ended two attorney prosecution Johnson’s asked police witness, a officer: ”Q. deny impli- Didn’t he he was [Alvin Johnson]

cated, alleged holdup? involved Yes, he

"A. did. "Q. you he ask or not he could Did also whether a lie detector test?” submit to Johnson Alvin op Opinion the Court prosecutor as the answered The witness never jury instantly objected was excused. and maintaining: people mistrial, for a The moved Any people make a motion. reference to a "The would I prejudicial, and test has to be would ask lie detector mistrial, reference to a poly- reluctance. No for a with given. There graph or lie test has been has detector grounds all and is absolute no reference to that at been for a mistrial.” Johnson’s counsel

Perkins’ counsel concurred. maintaining, say not, I "All I can didn’t did improper”. noted, He also "I feel realize it was directly small”, commented one kind of but never way he would consent to a or another on whether mistrial. took the motion under advisement

The court following day. adjourned until the When and prosecutor reconvened, motion, withdrew his claiming poly- to a "that the inadvertent reference proper graph instructions could be corrected counsel, however, from court”. Perkins’ re- "I that the harm done newed his motion. feel any that was taken hinders due this statement granted process.” trial court the mistrial. The began, trial Johnson’s counsel Before the second grounds on the the trial moved for dismissal granting court abused its discretion mis- He maintained that the mere mention of the trial. word ending grounds

polygraph would not be for proceedings, that defendant’s silence relative to signifies acceptance consent, neither nor mistrial affirmatively that consent must be and know- ingly given, did case of not occur suggested Further, or his counsel. he Johnson the court might granted have as to requested Perkins, it, who and could defendant op the Court as to defend- continue permitted have this was a observed the court While ant Johnson. denied. idea, the motion was unique subsequently moved to Johnson counsel for New grounds. on double dismiss of self-induced ground the motion on denied Johnson. error counsel jury for the impanelling after Shortly pled Perkins codefendant began, trial second intent to assault with count of guilty to an added unarmed, and was en- being rob and steal while testify against Johnson. to as a witness dorsed added count to the same pled then Johnson years. 5 to 15 to and was sentenced prosecutor’s granted Appeals The Court of leave, granted We the conviction. motion to affirm grant of a of whether question to "the limited objection bar- defendant-appellant’s mistrial over jeopardy under double prosecution subsequent red state Constitutions”. the Federal and provisions (1974). 392 Mich 756 Jeopardy Against Double

II —The Protection to the United States Amendment The Fifth 1, Michigan 15 of the and article Constitution1 § against twice an individual guarantee Constitution in being put jeopardy.2 1 against through the protection the states was held enforceable The 784; Maryland, 395 US 89 S Ct in Benton v Amendment Fourteenth (1969). 2056; 23 L Ed 2d 707 2 protect against prosecu- guarantee a second has been said The acquittal, against prosecution after a second the same offense tion for conviction, multiple punish- against and same offense after for the 711, Pearce, v 395 US offense. North Carolina for the same ments 717; (1969). scope 2072; of the law 23 L Ed 2d 656 S Ct 89 Michigan apparently and United

jeopardy the same under both 540, 418; Ascher, 545; 57 90 NW In re States Constitutions. LRA 806 (1902). v Alvin Johnson Opinion of the Court protection against underlying "The idea dou- [of * * * the State all jeopardy] with its re- ble power and should not allowed to sources repeated make attempts to convict an individual for an al- offense, subjecting embarrassment, him leged thereby expense compelling and ordeal him to and live continuing enhancing anxiety insecurity, state of as well as possibility though that even innocent he States, guilty.” be found Green v United 355 US 184, 187-188; 221, 223; 78 S L Ed 2d Ct (1957). placed jeop Thus, been once defendant has *3 ardy,* he she unless or consents to the trial’s interruption,4 or a mistrial occurs because of mani necessity,5 precluded bringing fest the state is from again. or him her to trial if Even defendant bene fits from a mistrial called for reasons short of necessary satisfy necessity those the manifest placed to jeopardy proceeding defendant is in a "[A] criminal once put facts, the defendant is trier before trier of whether the jury judge.” Jorn, 470, 479; be a or a United States L jury S Ct 27 Ed 2d "In the case of a * * * jury empaneled attaches when a and sworn. In a trial, nonjury dence.” jeopardy begins attaches when the court evi hear States, 377, 388; 1055; v Serfass United 420 S US 95 Ct 43 L (1975). plea, jeopardy Ed 2d 265 the sentence is the case a when attaches Burt, imposed. People 275, App 277; v 29 Mich 185 (1970). NW2d 207 4 analysis immunity Traditional has been that from second personal privilege awas be could waived the accused. — However, Dinitz, in a in footnote the recent case of United States v —; 1075; (1976), US 96 47 L Ed S Ct 2d 267 the United States "rejected permissibility the contention that the of a —— following depends retrial a mistrial” on waiver. US fn 11. 5"Only jeopardy upon if has attached is a court called to determine required by a whether necessity’ declaration of was mistrial 'manifest ” public justice.’ Somerville, or 'ends v Illinois 410 458, (1972). 468; 1066; US 93 S Ct L Ed 35 2d 425 "Examples necessity of situations where such a manifest has been jury agree; found to exist include cases where the is unable to where army the tactical of an situation in the field dictates the dismissal of court-martial; where trial discovers that one or more biased; jurors might juror, and where a or defendant becomes ill during making presence impossible.” People his continued v Gardner, App 520, 527-528; (1972). 37 Mich 195 NW2d 62 Mich 424 396 432 the Court standard, prohibited.6 is still How reprosecution ever, improperly- was even where declared, if the action to retrial it is not bar Fenton, v State 19 consent. taken with defendant’s (1973). 665, 667 274, 276; 506 P2d App Ariz object jury’s Mere silence or failure consent, 274, App 19 Ariz discharge is not such 276; 665, 506 P2d 667.7 defense case in which counsel very

In a recent mistrial, the United States requested himself point this as follows: has addressed Supreme Court consideration, purposes of important "The Clause, the defendant Jeopardy Double primary is that retains * * * ”, the course to be followed control over — —, —; 1075, Dinitz, 1081; 96 US S Ct United States v (1976), 47 L Ed 2d 267 do something and the defendant must therefore 6"Reprosecution unnecessarily after a mistrial has been declared obviously subjects the defendant to the same the trial court regardless underlying personal the Ct insecurity of the motivation strain and Jorn, 470, 483; judge’s action.” United States v 91 S (1971). 547; 27 L Ed 2d 543 apparent irony denying "We are not unmindful of the the trial made, ruling jurisdiction proceed court part, ostensibly because of a at least petitioners. But for the benefit of these we do not deal technicality here with a mere of the law: as the Locklear court * * * case, , 'Assuming explained is justice failure of instant personal great outweighed by general security by the afforded jeopardy. principle of freedom from double Such misadventures are ” price protection against arbitrary power.’ of individual State v 232; 436, Locklear, quoted Curry 16 108 A2d 442 v NJ 345, Court, 707, 718; 361, 368; Superior Rptr 2 Cal 3d 87 Cal 470 P2d (1970). Baker, 382, Accord, 115; v 413 Pa 196 A2d Commonwealth Curry Superior (1964); Court, Rptr Cal 3d 87 Cal (1970). 361, 364; 470 P2d Brown, 528, 534; also, People App See v Carlton 179 NW2d operate against a defendant.” "Silence cannot State, 325, 509, Contra, Coppage 335; v 62 Okla Cr 71 P2d 513 (1937). People 433 Alvin Johnson v the Court is positively in order indicate he or she to exercis- Further, ing that primary control.

"The circumstance defense counsel who into a inquiry initiates mately the court’s matter which ulti- in an of mistrial does ipso results order not expression facto transform counsel’s of concern into an implied ruling.” consent to such drastic v Comp- ton, 55, 62; Rptr 217, 221; 6 Cal 3d Cal P2d (1971). appellate court’s assessment of which side "[A]n ruling benefited from the mistrial does not ade- quately satisfy policies underpinning the dou- Jorn, United ble jeopardy provision”, States 470, 483; US 27 L S Ct Ed 2d Thus, bright-line in the absence of rules deliber- ately eschewed the United States Court, we first must look to whether exercise control of the by Dinitz, course of his highlighted own defendant Alvin approved Johnson termination proceedings.

It require not difficult a trial inquire Therefore, whether defendant consents. the absence of an affirmative showing the rec- ord, this Court presume will not to find such consent.

There no such affirmative showing in this best, case. At defense counsel may be said to have worst, been At silent. he did protest, but he Therefore, did not assent. we find that defendant did not personally consent the end of the first However, trial. finding of manifest necessity would still make the second trial permissible. Necessity

Ill — Did Manifest Exist? A has power to abort a trial before a 424 396 Mich 434 the Court of frustration prevent to in order verdict is reached ends of substan "the Where justice. of the ends of discontinu without attained justice tial cannot States, 367 US 364, v United Gori trial”, the ing (1961), a mistrial 2d 901 1523; 6 L Ed S 368; 81 Ct necessity”8 may be "manifest for such declared consent,9 and will not defendant’s declared without her objec over his or if it is retrial even foreclose implications, of its 364, Because 367 368. tion. US "only exercised properly this discretion judicial striking circumstances”. and extraordinary in very 622, 623; 2 Coolidge, 25 Fed Cas v United States in Downum v (D 1815), Mass, cited 364, 365 Gall 1033; 734, 736; 83 Ct 10 L States, 372 US S United (1963). 2d 100 Ed * * * does procedure or of law "A mere error Superior Curry v necessity.” legal not constitute 361, 365; 470 Court, 2 Cal 3d 707, 714; Rptr 87 Cal (1970). not be should P2d 349 "[A] irregularities of mere consequence declared the rights the of prejudicial are not Watson, v People prosecuted.” persons 606; 12 NW2d (1944). Story expressed by in United States principle Justice was first The Wheat) (1824), (9 writing 580; Perez, when 6 L Ed 165 US court, he said: unanimous for a nature, think, the law has invested of this that in all cases "We giving authority discharge jury from justice the with Courts any whenever, taking verdict, opinion, all the circumstances in their act, consideration, necessity or the for the there is a manifest into ends of They justice are to to public otherwise be defeated. would impossible subject; it is discretion on exercise a sound define all circumstances, proper to inter- which would render caution, sure, ought greatest power to be used with the fere. To be causes; circumstances, very plain urgent and for and obvious under and, extremely especially, careful capital Courts should be cases life, any favor of they the chances of with how interfere prisoner.” prosecutorial develop not attributable to circumstances 9 "[W]here overreaching, defendant for mistrial judicial a motion or ordinarily reprosecution.” any United to remove barrier assumed 470, 485; v Jorn, 27 L Ed 2d 543 91 S Ct States People v Alvin Johnson Opinion of the Court question whether merely mentioning more than polygraph

term constitutes such a considered irregularity” "mere has been our Baker, v Paul F Appeals. 471, 476; 152 App NW2d Judge, Kavanagh, Justice, now Chief found that refer ences to a polygraph test within context of a particular case did not constitute reversible error and could be cured relevant instructions jury.10

Cautionary instructions would be inadequate, the Court of Appeals suggested, has where testi- mony regarding admitted refusal to take People v 19 Tyrer, polygraph 48, test. Mich App (1969). 50; 172 NW2d 53 People Paffhousen, v helpful Particularly 20 346, 350; App Mich 174 69 NW2d where the complaining explained witness she had changed her story because don’t fool a "you poly- graph machine”. The trial court denied counsel’s motion a mistrial.

"Defendant that contends the trial court erred denying his for a motion mistrial. To so hold would be requiring tantamount every time the word ''polygraph’ prosecution. is mentioned in a criminal It complainant was not established that the had submitted polygraph attempt to a examination nor was an made to introduce any the results of such examination. The 'polygraph’ counsel, by word not was used but was by to, volunteered properly objected the witness. It was and the trial properly subject court that ruled the pursued not, be any fact, pursued, further. It was prejudicial App and no error 20 resulted.” Mich 351. added.) (Emphasis 10 polygraph "if evidence of the fact of a test be admitted or argument improper though objection it be about made even no interposed, jury either be the should instruct as the unreliability App of such tests.” Mich 476. Mich op the Court today, before us the that In a case similar barring reversible error Appeals found order mistrial. did where the court retrial 576; 196 NW2d 880 App Maguire, 38 Mich de- detective During cross-examination counsel, counsel asked: fense Maguire was you Mr. Did know that [defendant] ”Q. detector test?” challenged to to a lie submit prosecutor the responded, Before witness judge excused. The jury requested prosecutor’s request. granted upon a mistrial App Mich 580. "taking into account all of The Court of Appeals, case”, App circumstances noted, panel error. The judge found the committed to correct "There was no effort made App the statement an'instruction”. is not a case important 581. Also "[t]his activity part on the improper of continued ruling by judge, counsel after a defense rather, App one instance”. 38 Mich but isolated Further, attorney not ask for 581. defense did mistrial, App to Mich nor did he consent it. 38 the circumstances, therefore, the court Under the 582. pre- necessity not find such "manifest did justice being the ends of from served public vented proceedings”. the 38 Mich a continuation of 582. App clear, after the Court reviewing

A rule becomes Brocato, 17 Mich People decision Appeals’ of found they 169 NW2d 483 where App 17 Mich appropriate. would have been a mistrial There, only prosecutor fn 12. not the App did polygraph, App the issue of a Mich insert apparently deliberately but he contravened Johnson v Alvin op approach.11 discontinue this warning to court’s 292. clear that the Court of App Appeals Mich It is mistrial was warranted because believed a "[t]he made prosecutor every here conceivable effort to fair having from a prevent defendant trial”. 291. App noted: They appellate "It court rare indeed that an is con- on openly part fronted with such an disclosed intent place jury improper a trial attorney of before flagrant disregard or prejudicial testimony such of a ruling App by the court.” Mich 292.

Brocato inadvertence, not case of was or of a Rather, single inappropriate question. it was part a pattern of of contumacious conduct on the part instance, the prosecutor. In the former without showing prejudice, a mistrial would not be latter, appropriate. it certainly would be. This true the case before us. In the case, instant there was apparently an inadvertent question counsel, asked by defense which was to, objected instantly and therefore an- never There swered. was no overt effort to misuse the judicial system prevent from receiv- ing a fair trial. circumstances,

Under it does not appear legal necessity discharge existed for the The trial jury. ordinarily is in a superior position to determine when manifest necessity mistrial, demands a and must exercise its discre- tion protect discretion, the ends of justice. Such colloquy warning questioning This followed trial court’s polygraph "treading dangerous ground”, about examinations was App 292: Whitfield, question: process your Miss one last In the "Q. investi- gation of case this and to ascertain the truthfulness Lana Jane Robinson, counsel) (defense any get ready, she at Mr. Bucknell time — polygraph (Emphasis supplied.)” examination? —offered the Court of object however, with the exercised should be jeopardy protec safeguarding double defendant’s high placed on value defend tion. Because of undergo being required ant’s discom not modity the declaration of of a second a lightly, made even when it mistrial should not be is made protection ostensibly defendant. for always possibil consider the The trial must warning.12 ity curing error with a case, we do not think sufficient the instant prejudice a demonstrated to warrant mistrial. polygraph test, of a We do not think the mention justify granting more, without was sufficient requested Perkins, it, mistrial even to certainly who and enough support was not might as to Johnson. A different issue defendant ques- have arisen had the answered the witness necessary tion, not to resolve that but matter now. Guilty

IV — Effect Plea case, It is clear that the instant defendant did required not consent to the mistrial and it was not necessity. manifest Had the second trial not guilty plea, question in have ended there is no that it improper as would been a violation of defend- presented why The California Court has some reasons might opt for a mistrial. may "A defendant choose not to move for or consent to a mistrial many may opinion for reasons. He be of the that no error fact occurred, occurred, prejudicial. may or if it that it was not He believe any admitting improper that motion to strike or a impeachment error in evidence can be cured admonition, request or can be refuted Indeed, contrary of the witness or defense evidence. palpably prejudicial even when error has been committed a defend- personal prefer going ant have valid reasons to ahead with beginning process anew, rather than the entire desire trial to minimize the such as a embarrassment, expense, anxiety mentioned Court, Curry Superior Rptr 2 Cal 3d above.” 87 Cal 367; 470 P2d People 439 Alvin v Johnson Opinion of the Court right against

ant’s constitutional twice being put of the jeopardy. question into The main case now us and that the guilty plea faces is whether right. waived constitutional A. What Plea Waives Guilty is itself an

Clearly, plea guilty affirmative preconviction rights waiver of certain of the ac Right Appeal Bargain Plea cused. See Convic tions, (1974). 663, 69 Nw U L Rev 664 and fn 3-6 Zunno, v 151, 156; 384 Mich 180 NW2d 17 proper focus of Federal habeas corpus inquiry is the nature of the advice and voluntari Henderson, Tollett v plea. ness of the 258, 411 US (1973).13 267; 1602; 93 S Ct 36 L Ed 235 2d Thus, in the guilty-plea of Brady v trilogy States, United 742; 397 1463; US 90 S Ct 25 L Ed Richardson, McMann (1970), 2d 747 v 759; 397 US 90 1441; (1970), S Ct 25 L Ed 2d 763 and Parker v Carolina, North 790; 397 US 90 S Ct 25 L Ed Henderson, and in Tollett v 2d 785 supra, the United Supreme States Court recognized "a guilty plea represents a break in the chain of events preceded which has it in the proc- criminal * * * ess. criminal may only attack [A defendant] the voluntary and intelligent character * * * plea ”. guilty 258, 267.

However, despite the apparently sweeping na- prisoner pleads guilty counsel, "If a on the advice of he must range competence demonstrate that the advice was not 'within the cases,’ attorneys Richardson, demanded of supra, in criminal McMann v properly giving at 771. Counsel’s failure to evaluate facts rise claim, properly to a constitutional or his failure to inform himself of claim, facts that would have shown the existence of a constitutional might particular Thus, proof. fact situations meet this standard of prior deprivation may play part while claims of constitutional evaluating counsel, they the advice rendered are not themselves independent grounds for federal collateral 266- relief.” 411 US 267. Opinion of the Court ture of this language, Court has not pleas construed the effect guilty preclude contesting rights.14 all constitutional The Brady Tollett did not trilogy change established principle plea that a does not waive defend right ant’s to contest whether a statute under which he constitutional, or she is accused is (CA 2, 1939), United States Ury, F2d or whether the information or indictment stated an States, offense, Kolaski v United 362 F2d (CA 1966).

B. What the Guilty Plea Does Not Waive however,

Generally, guilty plea waives all nonjurisdictional defects in the proceedings. See People Ginther, v 436, 440; 390 Mich 212 NW2d (1973). Why an accepted, unqualified15 plea of Thus, Our own example, decisions have followed this lead. a plea guilty illegally gained of a People waives claim of an confession. Catlin, Millard, (1972). 106, 108; App v v 39 Mich 197 NW2d 137 But see 99; (1975), 228 NW2d 783 for indication that a guilty plea preconviction rights does not waive all of the accused. qualified plea, As for defendant’s appar- the Federal circuits have ently split the may plead guilty preserving as to whether defendant while right appeal challenges See, to raise on constitutional to evidence. e.g-, (CA 1972). Cox, 937, 6, United States 464 F2d sum, proposed procedure "In [allowing while we can see that the plead guilty, contingent right defendant nonjurisdictional grounds appeal on his plea] may from his own ease the docket pressures confronting many courts, district we believe the disadvan- tages accuracy avoiding consistency process, terms of the internal of our criminal appellate review, hoary and conflict with the doctrine of questions possible, outweigh constitutional putative if far gains.” Contra, (CA Caraway, 5, 1973), United States v 474 F2d 28-29 opinion nolo moot, (CA 1973) (involving plea vacated as 483 F2d 215 contendere, legal equivalent guilty plea). of a recognizing type express "Our rationale for agreement this First, rigid two-fold. we requiring are reluctant to establish a rule undergo costly defendant to complete and futile ordeal of a easily prove when the State could its case the evidence claimed to illegally evidence, be merely obtained and no other and the defendant * * * preserve single, nonjurisdictional seeks issue . People v Alvin Johnson that a guilty should cure error verdict or

finding has probably would not16 been best an swered Court’s observation that a guilty plea purpose is different "in and effect from a mere admission extra-judicial confession, or an itself a conviction”. States, Kercheval v United (1927). 223; 274 US 582; 47 S Ct 71 L Ed 1009 Thus, guilty plea, case of a the conviction is evidence, based not on tainted possibly but on defendant’s in open admission court.

"A conviction after trial coerced confes- on the coerced confes- part sion is introduced rests sion, a constitutionally unacceptable basis for convic- *** * tion. pleads The defendant who guilty is in a posture. different He is convicted on his counseled open admission in that he committed the crime charged against prior him. The confession is not the ** * judgment basis for the .” Richardson, McMann v 759, 773; 1441; 90 S Ct 25 L Ed 2d 763 has, itself, however, The Court recognized the double jeopardy defense is different from the McMann type of defenses qualitatively. In Robin- Neil, 505, 509; son v US 93 S Ct 35 L Ed 2d 29 Rehnquist, Justice speaking for a court, unanimous distinguished protection this Second, requisites, 'intelligence’ of the combined 'voluntariness’ and * * * equivalence guilty plea, plea, to a valid a nolo conditioned right appellate evidence, suppress on now the so to might review of a motion to * * * being 'voluntary,’ meet conditioning the test of but the of plea right appellate on a to review demonstrates it was not 'intelligently’ deprivation nonjurisdictional entered as to waive of a sought reviewed; so, where, especially defect to be and more at the pleading, practice reviewing time of the of the court is to honor such (Citations omitted.) a condition allowed the trial court.” Ginther, 436, 441; As we observed in v (1973), might NW2d 922 right appeal while one find waiver of the to alleged part constitutional violations as of the consideration for permitting plea guilty offense, "[p]utting of to a lesser aside the consideration, legitimacy (Notes omitted.) pleas bargained pleas”. of such all are not Court Mapp exclusionary v Ohio others, the such as from police rule, conduct. unlawful designed to deter * * * jeopardy] is a guarantee this "While [double defendant, prac- its right the criminal constitutional all, taking place from at prevent to a trial tical result is govern procedural rules prescribe to than rather conduct of a trial.” the

Thus, those which were closer to right the al., right the to et such as by Brady, untouched statute under challenge constitutionality the the which asserted proceeded, the state may always Defendant plea guilty. even after a to right bring state had a challenge the whether first prosecution place. the approach came when application of this first Court, Blackledge Perry, the 21, 31; L 2d 628 applied 94 S Ct 40 Ed reasoning find the Robinson double plea did not foreclose that a raising process right due collaterally from conviction in Federal ha- attacking plea-based proceedings. corpus beas

First, distinguished process due the the trilogy the and Tollett. right Brady from those in presented underlying in Tollett "Although the claims Brady trilogy the were of constitutional dimen- and sions, very bring power of the State none went charge brought the into to answer the defendant * * * hand, contrast, against him. case at underlying infirmity constitutional nature of markedly Having originally proceed different. chosen Court, charge in the District on the misdemeanor State was, this under the facts of North Carolina case, simply precluded by Due Clause from Process calling respondent to the more upon to answer charge Superior the de- Court. Unlike serious Alvin Johnson 443 v Opinion the Court of Tollett, complaining of Perry is not fendant 'anteced- a 'deprivation or of ent constitutional violations’ of prior rights that to the entry constitutional occurred Rather, right guilty plea.’ 411 US at 267. today accept right he asserts and that we upon at all felony not be haled into court charge.” 21, 30. Then, using the Robinson double rea- jeopardy soning, process clause, it to the due applying the Court found: today judgment upon "While our is not based Clause, Jeopardy

Double think that we the [Robinson jeopardy language aptly double describes the clause] process right upon judgment due our is based. 'practical result’ dictated the Due Process Clause in simply this case is that North Carolina could permissibly Perry require to answer felony charge. so, being guilty plea That it follows that his did attacking not foreclose him from his conviction in the Superior proceedings through Court a federal writ of corpus.” habeas US 31.

The foundation laid in Blackledge was com- pleted by Supreme in its per curiam York, opinion 61; Menna New US S Ct There, 46 L citing Ed 2d Black- ledge, rejected the Court the state’s reliance Tollett and held that a did not plea waive double defense. precluded

"Where the State is by the United States haling Constitution from charge, a defendant into on a requires federal law that a conviction on that charge be set aside even if the conviction was entered pursuant plea to counseled 423 US 62. guilty.” Thus, it is clear that the United States Court, recognizing while rights certain 396 op the Court subsequent plea be waived rights. say guilty, true of all that is does not rights might Certainly provide those it is true prosecu complete to a criminal defense tion, punishing the state’s undercut interest in those which authority defendant,17 the state’s or the trial proceed may ability never to with or rights plea.18 by guilty are These similar to waived jurisdictional in that their effect the that test, defenses is no trial at all. The

there should have been although grounded constitution, practical Thus, one. the defense of therefore a double clause, process jeopardy, grounded in the due those relating to insufficient evidence to those preliminary and bind over at examination failure suppress illegally-obtained evidence without to which proceed people could not are other examples. it is found result of Wherever prevent right the trial asserted would be taking place, from we follow the lead of the United guilty plea States Court and hold a does right. not waive that

V — Conclusion Defendant Alvin Johnson’s first trial ended in (CA 2, 1970), Eg., Liguori, United States v 430 F2d 848-849 den, 1614; 91 S Ct 29 L Ed 2d 118 where cert governmental seeing punished, there was no interest in statutory privilege against it was the scheme which violated the since self-incrimination. fendant’s meaningless, prosecute punishing "Where the state’s interest the de- lacking, plea conduct as an becomes admission authority upon cannot bestow the state the Shwartz, punish Guilty or the defendant.” Plea as a Rights: Waiver of Present but Unknowable’ Constitutional The After- (1974). Brady Trilogy, L math of the 74 Col Rev 18"The federal courts have stated that one can never waive a * * * jurisdictional jurisdiction, For a defect. to have there information, indictment must be legal valid or substantiated sufficient probably to show the accused the crime evidence committed charged.” Mullady, Appellate he is Constitu with which Review of Notwithstanding Guilty, L Rev tional Inñrmities a Plea of 9 Houston (Notes omitted.) 305, 314 Alvin Johnson Dissenting Opinion Coleman, J. improperly Thus, an mistrial. called defendant was placed twice violation his consti- right. right goes very tutional Because this government’s place ability heart of the defend- subsequent guilty plea ant on does not raising foreclose defendant from this defense. We therefore find that since the second trial should place all, not have taken at the conviction and stand defendant must be released. Appeals

The Court of and the trial court are reversed. J., Levin, J., C.

Kavanagh, concurred with J. Williams, part JJ., and took no Ryan,

Lindemer decision of this case. (dissenting). disagree J. I

Coleman, with the reasoning support my colleagues’ decision to guilty plea set aside a and dismiss defendant from jurisdiction. days joint prosecutor Two into a the ob- jected question by to a defendant’s counsel and Although prose- made a motion for a mistrial. the objection motion, cutor withdrew his and codefend- saying, mistrial, ant Perkins demanded a "I feel that the harm done this statement that was any process”. taken hinders due Defense counsel objecting request- silent, remained ing neither to nor saying say mistrial, but "All I can is I didn’t improper” realize it was and "I feel kind of small”. granted. joint Mistrial was A second trial on the robbery charge begun armed was over defendant’s jeopardy. impa- jury claim of double After the was pled guilty nelled, defendant to an added count being with assault intent to rob and steal while Coleman, Dissenting J. (This pled had his codefendant after unarmed. charge.) guilty to the same (1) order of mis- that the Now claims (2) therefore, he could improper, trial was charge nor could original neither be tried on charge. He reduced claims plead he is not waived of double defense plea aby guilty. agreement

This nor dis- neither dissent Instead, the latter claim. agreement with the order mis- to the conclusion directed instance. in the first trial was invalid mistrial, demanding With the codefendant that he could not win had cause believe judge did. He chose to accede to regardless of what he under the cir- motion for mistrial codefendant’s cumstances. find that chose

The would majority and would free defendant. erroneously majority inap- are upon by The cases relied All to a motion or a posite. prosecutor’s refer sponte sua declaration of mistrial. judge’s from Gori v instance, majority quotes For States, 1523; 6 L United 81 S Ct Ed 2d the essence of that but does not relate decision. Gori, in the first of a day jury defendant was motion, on his own declared judge,

trial when silent, objecting Defendant was neither a mistrial. stated that approving. nor although the reasons for the mistrial were unclear questioning have acted because of judge may out crimes of prosecutor bringing other agreed The Court with the Court defendant. characterizing judge’s action: Appeals obvious, event, Appeals as the Court of any "In Alvin Johnson Dissenting Opinion J. Coleman, concluded, acting according that 'was judge to his rights in protecting the of the accused.’ convictions F2d, at 46. did not hold the The court below mistrial ruling It erroneous or an abuse discretion. did find prosecutor’s unexceptionable conduct and the rea- therefore, mistrial, son for say not 'entirely clear’. It did judge have 'the should awaited definite question permitted which would have a clear-cut rul- that, so, ing’, failing displayed to do he an Id., hastily’. at 'overzealousness’ and acted 'too 48.” supra, Gori, at 366.

The Court on the commented role of the trial judge declaring re Fifth Amendment concerns: "Where, compelling by for reasons deemed the trial

judge, best intelligently who is situated to make such a decision, justice the ends of substantial cannot be at- tained discontinuing without a mistrial may be declared without the defendant’s consent and even over objection, his and he be retried consistently with the Amendment. Fifth

"It is also clear that long 'This has favored the rule of and to judge discretion in the trial declare mistrial require panel try another the defendant if the * * * justice ,’ ends of will be best served Brock v Carolina, North US S Ct 97 L Ed [73 (1953)] and that consistently we have declined sharp scrutinize with surveillance the exercise of added.) ’’(Emphasis discretion. supra, Gori, at 368.

Gori states the better rule to under follow distinguishable instant facts which are from those leading to the conclusion as to that defendant. Here codefendants are involved rather than a single defendant, and the codefendant made the motion for mistrial rather than the sua 396 Coleman, Dissenting J. sponte. Further, of Gori the rationale carries over (1) judge instant case: trial is best situated to whether a make decision (2) is necessary justice. the ends of to achieve Although "in the the mistrialAvas not sole interest defendant”, Johnson, there were two defend- ants and the equally codefendant was interested. mistrial, He demanded a so the trial judge could reasonably find that of justice required the ends (3) mistrial. Although reference to a polygraph not may case, in every be reversible error judge’s declaration of mistrial would at least appear product be the of the trial judge’s solici- tude and in the sole interest of the defendants.

Moreover, general underlying for rationale defense of double jeopardy does not exist instant case. idea, "The underlying deeply ingrained one that Anglo-American at least the system jurisprudence, power State with all its resources and should repeated attempts be allowed to make to convict an offense, alleged individual to an thereby subjecting him embarrassment, expense and compelling ordeal and continuing

him to live in a of anxiety state and insecu- enhancing as well as rity, possibility that even though innocent he may guilty.” be (Emphasis found added.) States, Green v United 187-188; 78 S Ct 2 L Ed 2d

"Judicial wisdom against counsels anticipating hypo- thetical situations which the discretion of judge safeguard be abused and so call for the the Fifth Amendment —cases in which the successive, would harrassed oppressive prosecu- tions, or in authority exercises his help prosecution, at a trial in which its case is Johnson v Alvin Dissenting Opinion Coleman, J. another, going affording badly, by more favorable added.) opportunity the accused. to convict ”(Emphasis supra, Gori, at 369. case,

In the instant the mistrial was declared on prosecutor. codefendant, motion of the not the appeal, In an eifort on to avoid reversal the trial judge in the instant case have "bent over on backwards” behalf of the defendants in declar- ing judges However, a mistrial. careful are learn- ing they they? cannot too careful —or can

Justice Frankfurter’s comment Gori at 369 applies opinion equally majority instant case: unwilling, appears clearly are where it that a "[W]e granted

mistrial has been the sole interest of the defendant, necessary consequence to hold that its is to bar all retrial. It would hark back to the formalistic century procedure artificialities of seventeenth criminal so to by compelling confine our federal trial courts navigate compass them to Scylla narrow between added.) Charybdis.” (Emphasis — Dinitz, the recent case of United States v —; US 96 S Ct 47 L Ed 2d 267 defend- represented by attorneys. ant was several The trial judge attorney charge excluded the of the trial repeated improper during because of his actions opening judge statement. The set three alter- (1) stay pend- natives for the defendant: or recess ing Appeals expulsion Court review on (2) attorney; continuation of the trial with the (3) remaining attorneys, or declaration of a mis- get trial so defendant could new counsel. A re- maining attorney moved for a mistrial after con- sulting opposed by with defendant. It was not prosecutor granted by judge. and was 396 Coleman, Dissenting Opinion J.

Before the defendant unsuccessfully second moved for of the indictment on dismissal double subsequent jeopardy grounds. conviction His was Appeals reversed the Court of double jeop- ardy grounds was given because defendant no choice but ask a mistrial. The Court Appeals treated the case as declaration of mis- trial objection, ignoring over defendant’s his re- Therefore, quest it was for mistrial. said that double jeopardy barred the second trial because there necessity. was no manifest

The reversed, United States holding request that defendant did a mistrial. Appeals Court of holding had based its on a waiver theory, saying that when defendant re- quests right a mistrial he his waives be tried Therefore, the first jury. said that did not voluntarily waive because present did not enough alternatives —he was left with no choice other than mistrial. Supreme

The Court held that the waiver theory does not apply always faced with —defendant deciding "Hobson’s choice” in whether to respond judicial or prosecutorial error with a mistrial request. give He must up the first jury or continue in a trial which may contain error. The Court said inquiry the should be whether "defendant primary retains control over the course to be Dinitz, followed the event of such error”. supra, added.) 431. (Emphasis at Dinitz is not on case, "all fours” with the instant but the cases are similar because the complaining defendant’s attorney in each case possi- committed Dinitz, ble error during trial. judge the took his upon action objection from the prosecutor and a resulting request by mistrial defendant. In the case, instant declared a at request the codefendant. Alvin Johnson Coleman, Dissenting Opinion J. theory applies Dinitz However, the basic equally appeal. to the instant must the circumstances surround-

We examine ing the mistrial to discover whether declaration of primary control. Defendant’s attor- defendant had ney question, objectionable asked the codefend- objected strongly attorney ant’s asked for a attorney apol- essentially mistrial, and defendant’s ogized, saying, say "[a]ll is I didn’t I can realize it improper” and, "I feel kind small”. The court, facts, find that these could consented to the mistrial. Defendant had interests objecting similar he those codefendant and apologized problem for the caused his own question. Considering facts, these defendant had and, control over the events the absence of a specific objection time, or of error denial at properly trial court could determine that defend- joined seeking ant with codefendant in a mis- trial. opinion majority states that "defendant something positively

must do therefore in order to exercising primary indicate he or she is con- language. However, trol”. The Dinitz contains such no proper inquiry, simply stated, de- whether primary reviewing fendant had control. A totality examine the of circumstances considering whether such control existed. The to- tality of the instant facts reveal control. Defendant flag. need not red raise a Finally, we note comments the United States concerning the result which Jus- opinion brings inevitably tice William’s about: * * * pro- undermines rather than furthers "[It] Jeopardy tections the Double In Clause. event severely prejudicial might error a defendant con- well preferable an sider immediate new trial alternative probable prospect conviction followed an Coleman, Dissenting Opinion J. conviction, appeal, a later reversal retrial. decision, effect, Appeals’ Yet the Court of instructs judges reject the most meritorious necessity motion in the absence of manifest require, and to instead, proceed to its the trial conclusion despite legitimate prejudicial seriously claim of error. course, judge For if a trial follows that the Double Jeopardy present Clause will no obstacle to a retrial if the conviction is set aside the trial or reversed Ball, appeal. 662.” Id. United States v US case, this also results one codefendant convicted pleas and another released after guilty by each to identical offenses. Gamesmanship pre- again. vailed

I would affirm the conviction.

Fitzgerald, Coleman, J., concurred with J.

Case Details

Case Name: People v. Johnson

Court Name: Michigan Supreme Court

Date Published: Apr 21, 1976

Citation: 240 N.W.2d 729

Docket Number: 55577, (Calendar No. 12)

Court Abbreviation: Mich.