466 Mich. 206 | Mich. | 2002
Lead Opinion
We granted leave to appeal in this case to consider whether defendant is entitled to the reversal of his convictions on the ground that he was retried, following the declaration of a mistrial, in violation of his constitutional right to be free from double jeopardy. We conclude that the trial court did not abuse its discretion in declaring a mistrial and in dismissing the jury where the jury foreperson indicated that the jury members were not going to reach a unanimous verdict and defendant did not object to the declaration of mistrial. We additionally conclude that defendant’s retrial, following the proper declaration of a mistrial, did not violate the constitutional protection against successive prosecutions. Accordingly, we reverse the decision of the Court of Appeals and remand this matter to that Court for consideration of the additional issue that was raised by defendant, but not decided.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 29, 1996, Adesoji Latona, a taxi driver, was fatally shot at a Detroit liquor store. Latona was apparently confronted by a group of men, including defendant, as he entered the liquor store. One of the men, Charles Jones, accused Latona of throwing him out of Latona’s cab, and an argument ensued inside the store. Latona’s girlfriend testified that she saw defendant draw a gun, after which she heard two gunshots. In a statement given to police following the
Defendant was charged with first-degree murder, MCL 750.316, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant’s first trial, which took place in June 1997 before Detroit Recorder’s Court Judge Helen E. Brown, consumed—from jury selection to closing statements and jury instructions—a total of eight and one-half hours spread out over six days. After approximately four or five hours of deliberation,
*210 The Court: I received your note asking me what if you can’t agree? And I have to conclude from that that that is your situation at this time. So, I’d like to ask the foreperson to identify themselves [sic], please?
Foreperson: [Identified herself.]
The Court: Okay, thank you. All right. I need to ask you if the jury is deadlocked; in other words, is there a disagreement as to the verdict?
Foreperson: Yes, there is.
The Court: All right. Do you believe that it is hopelessly deadlocked?
Foreperson: The majority of us don’t believe that. . .
The Court: (Interposing) Don’t say what you’re going to say, okay?
Foreperson: Oh, I’m sorry.
The Court: I don’t want to know what your verdict might be, or how the split is, or any of that. Thank you. Okay? Are you going to reach a unanimous verdict, or not?
Foreperson: (No response)
The Court: Yes or no?
Foreperson: No, Judge.
The Court: All right. I hereby declare a mistrial. The jury is dismissed.
In November 1997, defendant was retried before a different judge on charges of first-degree murder and felony-firearm. The second jury returned a verdict of guilty of the lesser offense of second-degree murder, MCL 750.317, and guilty as charged of felony-firearm.
In his appeal before the Court of Appeals, defendant, through appellate counsel, raised for the first time the claim that he was retried in violation of the Double Jeopardy Clause of the federal and state constitutions. Defendant argued that Judge Brown had
The Court of Appeals panel agreed and reversed defendant’s convictions. The panel opined that defendant had not consented to the declaration of the mistrial, citing People v Johnson, 396 Mich 424, 432; 240 NW2d 729 (1976), repudiated on other grounds in People v New, 427 Mich 482; 398 NW2d 358 (1986), for the proposition that a defendant’s mere silence or failure to object to the jury’s discharge is not “consent.” The panel, turning to defendant’s claim that the declaration of a mistrial was not manifestly necessary, concluded that the trial court’s decision to discharge the jury was not reasonable because it had failed to consider alternatives or to make findings on the record:
Recognizing that the doctrine of double jeopardy does not preclude retrial after the discharge of a jury because of inability to agree, our Supreme Court has stated that the inquiry “turns upon [the] determination whether the trial judge was entitled to conclude that the jury in fact was unable to [agree].” People v Duncan, 373 Mich 650, 660-661; 130 NW2d 385 (1964). This has led to the accepted rule that a trial court must consider reasonable alternatives before sua sponte declaring a mistrial and the court should make explicit findings, after a hearing on the record, that no reasonable alternative exists. People v Hicks, 447 Mich 819, 841 (Griffin, J.), 847 (Cavanagh, C.J.); 528 NW2d 136 (1994); People v Benton, 402 Mich 47, 61; 260 NW2d 77 (1977) (Levin, J.); People v Rutherford, 208 Mich App 198, 202; 526 NW2d 620 (1994); People, v Little, 180 Mich App 19, 23-24; 446 NW2d 566 (1989); People v Dry Land Marina, 175 Mich App 322, 327; 437 NW2d 391 (1989).
hi the present case, we must determine whether the trial court reasonably concluded that the jury was deadlocked.*212 Based on the record before us, we are forced to conclude that the court did not reasonably declare a mistrial. The trial court declared a mistrial without a hearing or discussion of any alternatives. No deadlock jury instructions were given much less even considered by the trial court. See CJI2d 3.12. The jury had deliberated only four or five hours in a capital murder case following four days of trial testimony. There was clearly a reasonable alternative in this case, that is, to give the jury a deadlock jury instruction and send it back for further deliberation. See, e.g., Hicks, supra, pp 843-844; Benton, supra, pp 61-62; Rutherford, supra, p 203; Little, supra, pp 27-30.
Because a reasonable alternative existed in this case, an alternative never given consideration by the trial court, the trial court did not engage in a scrupulous exercise of discretion in sua sponte declaring a mistrial. Hicks, supra, p 829, citing United States v Jorn, 400 US 470, 485; 91 S Ct 547; 27 L Ed 2d 543 (1971). Put another way, it was not manifestly necessary for the trial court to have declared a mistrial given the shortness of the jury’s deliberation and the court’s failure to give a deadlock jury instruction. In fact, the trial court never even found on the record that the jury was genuinely deadlocked. Given these circumstances, we are compelled to conclude that retrial violated defendant’s rights against double jeopardy as guaranteed by the United States and Michigan Constitutions. Therefore, defendant’s convictions are reversed. [Slip op, pp 4-5.]
We granted the prosecution’s application for leave to appeal.
n. STANDARD OF REVIEW
A constitutional double jeopardy challenge presents a question of law that we review de novo. People v
III. ANALYSIS
A. DOUBLE JEOPARDY IMPLICATIONS OF RETRIAL FOLLOWING MISTRIAL
Under both the Double Jeopardy Clause of the Michigan Constitution
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. [Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).]
From this fundamental idea, the United States Supreme Court has over the years developed a body of double jeopardy jurisprudence that recognizes, among other related rights,
“[I]t is axiomatic that retrial is not automatically barred whenever circumstances compel the discharge of a factfinder before a verdict has been rendered.” Hicks, supra, 447 Mich 827 (Griffin, J.). It is well settled, for instance, that where a defendant requests or consents to a mistrial, retrial is not barred unless the prosecutor has engaged in conduct intended to provoke or “goad” the mistrial request. See Oregon v Kennedy, 456 US 667, 675-676; 102 S Ct 2083; 72 L Ed 2d 416 (1982); United States v Dinitz, 424 US 600, 608; 96 S Ct 1075; 47 L Ed 2d 267 (1976); Hicks, supra, 447 Mich 828 (Griffin, J.). Additionally, retrial is always permitted when the mistrial is occasioned by “manifest necessity.” Kennedy, supra, 456 US 672; Washington, supra, 434 US 505; Hicks, supra, 447 Mich 828 (Griffin, J.).
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; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests in this, as in other cases, upon the responsibility of the Judges, under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject, in the American Courts; but, after weighing the question with due deliberation, we are of opinion, that such a discharge constitutes no bar to further proceedings, and gives no right of exemption*217 to the prisoner from being again put upon trial. [Id. (emphasis supplied).][10]
As noted in Richardson v United States, 468 US 317, 323-324; 104 S Ct 3081; 82 L Ed 2d 242 (1984), “[i]t has been established for 160 years, since the opinion of Justice Story in [Perez], that a failure of the jury to agree on a verdict was an instance of ‘manifest necessity’ which permitted a trial judge to terminate the first trial and retry the defendant, because ‘the ends of public justice would otherwise be defeated.’ ” See also Washington, supra, 434 US 509 (“the mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict [has been] long considered the classic basis for a proper mistrial”); Kennedy, supra, 456 US 672 (“the hung jury remains the prototypical example” of a situation meeting the “manifest necessity” standard); People v Thompson, 424 Mich 118, 128; 379 NW2d 49 (1985) (“we have consistently held that retrial after a mistrial caused by jury deadlock does not violate the Michigan Constitution or the United States Constitution”); Duncan, supra, 373 Mich 660, quoting People v Parker, 145 Mich 488, 499; 108 NW 999 (1906) (Michigan case law has without exception recognized that “the doctrine of former jeopardy does not pre
Defendant nevertheless contends, and the Court of Appeals agreed, that his retrial constituted a violation of his constitutional right to be free from successive prosecutions because the trial court precipitously declared a mistrial without manifest necessity to do so. We disagree and hold that the Double Jeopardy Clause did not bar defendant’s second trial or convictions.
B. MANIFEST NECESSITY
The Court of Appeals concluded that the trial court abused its discretion in discharging the jury without first examining alternatives, such as providing a “hung jury” instruction, and without conducting a hearing or making findings on the record. We hold that, because the record provides sufficient justification for the mistrial declaration, the trial court did not abuse its discretion in dismissing the jury.
The constitutional concept of manifest necessity does not require that a mistrial be “necessary” in the strictest sense of the word. Rather, what is required is a “high degree” of necessity. Washington, 434 US 506-507. Furthermore, differing levels of appellate scrutiny are applied to the trial court’s decision to declare a mistrial, depending on the nature of the circumstances leading to the mistrial declaration. At one end of the spectrum is a mistrial declared on the basis of the unavailability of crucial prosecution evidence, or when the prosecution is using its resources to achieve an impermissible tactical advantage over the accused. The trial judge’s declaration of a mistrial
As the United States Supreme Court has opined:
[T]here are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not “manifest necessity” justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his “valued right to have his trial completed by a particular tribunal.” But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate court views the “necessity” for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of an erroneous ruling, would employ coercive means to break the apparent deadlock. Such a rule would frustrate the public interest in just judgments. The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court. [Id. at 509-510.]
Therefore, the mere fact that the reviewing court would not have declared a mistrial under the circumstances of this case does not mean that retrial is necessarily barred. The issue is not whether this Court would have found manifest necessity, but whether the trial court abused its discretion in finding manifest necessity.
Although we acknowledge that the “deadlocked jury” instruction, CJI2d 3.12, might have appropriately been given to the jury in this case, the fact remains that defendant did not request that this instruction be given.
We conclude that the judge did not abuse her discretion in declaring a mistrial under the circumstances of this case. The jury had deliberated for at least four hours following a relatively short, and far from complex, trial. The jury had sent out several notes over the course of its deliberations, including one that appears to indicate that its discussions may have been particularly heated. Most important here is the fact that the jury foreperson expressly stated that the jury was not going to reach a verdict.
Our dissenting colleague opines that “the majority eviscerates established precedent requiring that trial judges exert reasonable efforts to avoid a mistrial.” Post at 225. We disagree. In holding that double jeopardy considerations did not preclude defendant’s retrial, we have merely set forth the unremarkable proposition that the failure of the jury to agree on a verdict is an instance of manifest necessity, allowing the trial court to declare a mistrial, discharge the jury, and retry the defendant.
Although the dissent ostensibly agrees that “no specific inquiry into alternatives to declaring a mistrial is required,” post at 227, the dissent nevertheless points out that the trial court did not poll the jurors, did not give a deadlocked jury instruction, and did not ask defense counsel for his thoughts. Post at 228. These, of course, would have been alternatives to declaring a mistrial. However, this Court has never required the trial court to explain why it chose to declare a mistrial on the basis of jury deadlock, rather than poll the jury, give a deadlocked jury instruction, or ask defense counsel for his thoughts. As we have explained above, the United States Supreme Court has specifically rejected such a requirement. See Washington, supra, 434 US 516-517:
The absence of an explicit finding of “manifest necessity” appears to have been determinative for the District Court and may have been so for the Court of Appeals. If those courts regarded that omission as critical, they required too much. Since the record provides sufficient justification for the state-court ruling, the failure to explain that ruling more completely does not render it constitutionally defective.
In this case, the record provides sufficient justification for the trial court’s declaration of a mistrial, and thus there was no need for the trial court to articulate a rationale on the record. The reasons were plain and obvious: the jury foreperson indicated that the jury was not going to be able to reach a unanimous verdict.
IV. CONCLUSION
The trial court did not abuse its discretion in declaring a mistrial, in the absence of objection by either party, where the jury expressly indicated that it was deadlocked. Accordingly, defendant’s retrial did not violate the constitutional bar against successive prosecutions. We therefore reverse the decision of the Court of Appeals and remand this matter to that Court for consideration of the additional issue that was raised by defendant, but not decided. We do not retain jurisdiction.
The jury deliberated from approximately 3:24 p.m. to 4:00 p.m. on June 12, 1997, and ended its deliberations at 12:45 p.m. on June 13, 1997.
During its deliberations, the jury sent out seven notes. Most of the notes were routine requests for evidence, instructions, and breaks. However, one note, sent out early on the second day of deliberations, stated that the jurors had “a concern about our voice levels disturbing any other proceedings that might be going on,” indicating that perhaps the deliberations had already become somewhat acrimonious.
We are unable to discern from the trial transcript whether any off-the-record discussion took place between Judge Brown and counsel before the jury was called into the courtroom concerning any proposed response to the jury’s note.
The second jury deliberated for approximately three hours and fifteen minutes before delivering its verdict.
463 Mich 939 (2000).
See Huss v Graves, 252 F3d 952, 956-957 (CA 8, 2001) (a case involving the sua sponte declaration of a mistrial in a bench trial, contrary to both the prosecution’s and the defendant’s motions for entry of verdict of not guilty by reason of insanity, was “not similar to those [cases] in which a mistrial is declared when a jury is unable to reach a verdict, a situation in which a finding of manifest necessity is almost always justified”) (emphasis supplied).
Const 1963, art 1, § 15. Our constitution provides no greater protection than does the federal constitution with respect to retrial following a mistrial caused by jury deadlock. People v Thompson, 424 Mich 118, 125-129; 379 NW2d 49 (1985).
US Const, Am V, made applicable to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 C St 2056; 23 L Ed 2d 707 (1969).
The Double Jeopardy Clause has often been described, in simple terms, as embodying three separate guarantees: protection against' a second prosecution for the same offense following acquittal, protection against a second prosecution for the same offense following conviction, and protection against multiple punishments for the same offense. See Ohio v Johnson, 467 US 493, 497; 104 S Ct 2536; 81 L Ed 2d 425 (1984); Justices of Boston Municipal Court v Lydon, 466 US 294, 306-307; 104 S Ct 1805; 80 L Ed 2d 311 (1984); Herron, supra, 464 Mich 599; People v Vincent, 455 Mich 110, 120, n 5; 565 NW2d 629 (1997). However, as the Court noted in Crist, supra, 437 US 32, the “deceptively plain language” of the Double Jeopardy Clause “has given rise to problems both subtle and complex . . . .”
10 Interestingly, in Crist, supra, 437 US 34, n 10, the Court questioned whether the Perez Court was actually deciding a constitutional question, or was rather “simply settling a problem arising in the administration of federal criminal justice.” See also id. at 44-45 (Powell, J., dissenting) (“[a]s both Justices Washington and Story believed that the Double Jeopardy Clause embraced only actual acquittal and conviction, they must have viewed Perez as involving the independent rule barring needless discharges of the jury”). However, the majority, declining to upset 150 years of settled Fifth Amendment jurisprudence, stated that “to cast such a new light on Perez at this late date would be of academic interest only.” Id. at 34, n 10.
See also Duncan, supra, 373 Mich 660:
Defendant contends on appeal that discharge of the jury ... bars his retrial because he has previously been put in jeopardy of conviction of such charges. ... In none of the cases [defendant has] cited is it even suggested that discharge of a jury, without the defendant’s consent, for its inability to agree upon a verdict thereby bars subsequent retrial.
When a mistrial is declared on the basis of juror deadlock, double jeopardy interests will rarely, if ever, be implicated, because jeopardy “continúes” following the mistrial declaration. See Richardson, supra, 468 US 325-326, reaffirming that “a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy” to which the defendant was subjected. See also People v Mehall, 454 Mich 1, 4-5; 557 NW2d 110 (1997):
One circumstance that constitutes a manifest necessity is the jury’s failure to reach a unanimous verdict. When this occurs, and the trial court declares a mistrial, a retrial is not precluded because the original jeopardy has not been terminated, i.e., there has not been an assessment of the sufficiency of the prosecution’s proofs. [Emphasis supplied.]
We were recently guided by this principle in Herron, supra, in which we determined that the defendant could be tried in a second trial for second-degree murder after the first jury arrived at a verdict with respect to one charge, but was unable to reach a verdict with respect to the murder charge:
Where criminal proceedings against an accused have not run their full course, the Double Jeopardy Clause does not bar a second trial. .. . Thus, because the prosecutor’s retrial of defendant on the charge of second-degree murder was the result of a hung jury, we conclude that there was no violation of double jeopardy principles aimed at multiple prosecutions. [Id. at 602-603 (citations omitted).]
See also, e.g., United States v Streett, 2001 WL 420367 (WD VA, 2001) (defendants’ argument that retrial after a mistrial declared because of jury deadlock was constitutionally impermissible is without merit, both because of the “broad discretion” enjoyed by the trial court in making this
As noted, a trial court’s decision to declare a mistrial on the basis of juror deadlock is entitled to a high degree of deference. It is well estab
We acknowledge that we have required the examination of alternatives in other mistrial contexts. See Hicks, supra, 447 Mich 843-845 (Griffin, J.) (declaration of a mistrial after the trial judge recused herself over the defendant’s objection); Benton, supra, 402 Mich 47 (sua sponte declaration of a mistrial on the basis of prosecutorial error). We need not determine whether the failure to consider alternatives to mistrial in circumstances other than jury deadlock is constitutionally impermissible. We note, however, that in support of the proposition that consideration of alternative measures is constitutionally required in these other contexts, this Court in Benton cited two federal circuit court opinions that were subsequently overturned by the United States Supreme Court: Arizona v Washington, 546 F2d 829, 832 (CA 9, 1976), was reversed on appeal to the Supreme Court at 434 US 497 (in which the Court rejected the notion that the trial judge was required to consider or utilize alternatives before declaring a mistrial), and United States v Grasso, 552 F2d 46, 49-50 (CA 2, 1977), vacated by the Supreme Court at 438 US 901; 98 S Ct 3117; 57 L Ed 2d 1144 (1978) (directing the Court of Appeals to reconsider in light of Washington, supra). See Benton, supra, 402 Mich 57, n 11, 61, n 19.
Justice Marshall, joined by Justice Brennan, dissented: “What the ‘manifest necessity’ doctrine . . . require[s], in my view, is that the record make clear either that there were no meaningful and practical alternatives to a mistrial, or that the trial court scrupulously considered available alternatives and found all wanting but a termination of the proceedings.” Id. at 525 (Marshall, J.). The Court of Appeals panel’s view in the instant case, although apparently consistent with the view of Justices Marshall and Brennan, was specifically rejected by the Washington majority.
Further, it appears from the record that defendant did not object to the trial court’s decision to discharge the jury. The prosecution contends that under these circumstances defendant “implicitly consented” to the declaration of mistrial, thus rendering it unnecessary to determine whether the declaration was supported by manifest necessity. See Hicks, supra, 447 Mich 858, n 3 (Boyle, J., dissenting) (“[t]he Supreme Court appears to use ‘consent’ ... to refer to mistrials not requested by the defendant, but only acquiesced to") (emphasis supplied); see also United States v Aguilar-Aranceta, 957 F2d 18, 22 (CA 1, 1992); United States v Beckerman, 516 F2d 905, 909 (CA 2, 1975); United States v Phillips, 431 F2d 949, 950 (CA 3, 1970); United States v Ham, 58 F3d 78, 83-84 (CA 4, 1995); United States v Palmer, 122 F3d 215, 218 (CA 5, 1997); United States v Gantley, 172 F3d 422, 428-429 (CA 6, 1999); Camden v Crawford Co Circuit Court, 892 F2d 610, 614-618 (CA 7, 1989); United States v Gaytan, 115 F3d 737, 742 (CA 9, 1997); Earnest v Dorsey, 87 F3d 1123, 1129 (CA 10, 1996); United States v Puleo, 817 F2d 702, 705 (CA 11, 1987). In light of our determination that the mistrial declaration was manifestly necessary, we save for another day the issue of implied consent.
See also United States v Klein, 582 F2d 186, 194 (CA 2, 1978):
The appellant argues that a retrial is barred because of the failure of the trial court to make explicit findings that there were no reasonable alternatives to a mistrial.... The short answer to this claim is the holding of Arizona v Washington that such findings are not constitutionally required. [Emphasis supplied.]
See also Hicks, supra, 447 Mich 867 (Boyle, J., dissenting) (“[t]he assumption that, as a matter of law, manifest necessity requires the exploration of less drastic alternatives to mistrial . . . ignores that the United States Supreme Court has specifically rejected [this] proposition”).
This Court long ago indicated that “the court is justified in accepting [the jury’s] statement that [it] cannot agree as proper evidence in determining the question.” People v Parker, 145 Mich 488, 502; 108 NW 999 (1906). See also United States v Cawley, 630 F2d 1345, 1349 (CA 9, 1980) (“[t]he most critical factor is the jury’s own statement that it is unable to reach a verdict”).
Dissenting Opinion
(dissenting). I disagree with the majority’s conclusion that a manifest necessity required a mistrial. In reaching its holding, the majority eviscerates established precedent requiring that trial judges exert reasonable efforts to avoid a mistrial. Because I cannot agree that the prohibition
It is not apparent from the record that it was manifestly necessary to declare a mistrial. “Because of the high value placed on defendant’s not being required to undergo the discommodity of a second trial, the declaration of a mistrial should not be made lightly, even when it is made ostensibly for the protection of defendant.” People v Johnson, 396 Mich 424, 438; 240 NW2d 729 (1976). As a “general rule, . . . trial judges must consider reasonable alternatives before declaring a mistrial.” People v Hicks, 447 Mich 819, 841; 528 NW2d 136 (1994) (opinion of Griffin, J.).
[I]n the absence of a motion by a defendant for a mistrial, “ ‘the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. ...’ ” [People v Benton, 402 Mich 47, 57; 260 NW2d 77, 81 (1977), quoting United States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed 2d 267 (1976).]
Contrary to the majority’s assertions, this Court’s precedent finds support in the guidance provided by the United States Supreme Court, which has affirmed that
a constitutionally protected interest is inevitably affected by any mistrial decision. The trial judge, therefore, “must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” In order to ensure that*227 this interest is adequately protected, reviewing courts have an obligation to satisfy themselves that, in the words of Mr. Justice Story, the trial judge exercised “sound discretion” in declaring a mistrial. [Arizona v Washington, 434 US 497, 514; 98 S Ct 824; 54 L Ed 2d 717 (1978) (citations omitted).] [Emphasis added.]
Thus, sound discretion requires a thoughtful, prudent analysis.
Even though no specific inquiry into alternatives to declaring a mistrial is required, such an inquiry would make clear the justification for retrial. Where no consideration of alternatives is evident, something else on the record must make clear the trial judge exercised “sound discretion” before declaring a mistrial. Unfortunately, no sound discretion was exercised here. Although this first-degree murder trial spanned a ten-day period, tried intermittently over six days, the deliberations lasted just over four hours.
Though I acknowledge that a trial judge need not perform any explicit act to ensure a mistrial is manifestly necessary, there must be some indication on the record that such a grave act was required. Washington at 516-517 (the record must provide “sufficient justification” of the manifest need for a mistrial). In this case, where the jurors had been deliberating only a short time, where the note from the jurors merely questioned what, might happen if they did not agree, where the judge-albeit in an attempt to properly keep the jurors’ positions concealed-suppressed all comments by the foreperson that could have shed light on the need for a mistrial, and where the record as a whole fails to reveal that “the ends of public justice” would be served by the declaration of a mistrial, I cannot agree that subjecting defendant to a new trial was manifestly necessary. Benton at 57.
The majority makes special note of defendant’s silence, observing that defense counsel did not object to the mistrial declaration. Ante at 222. However, it was not necessary that defendant object at the very moment the mistrial had been declared, particularly because the jurors were simultaneously dismissed. Though an objection on the record would have been helpful in determining defendant’s position and in refreshing the judge concerning her duty to exercise sound discretion, defense counsel’s failure to voice an objection cannot be considered evidence that a mistrial declaration was manifestly necessary.
The new standard articulated by the majority negates any substance the manifest necessity inquiry might have. Though the majority may feel that trial judges can declare a mistrial on the most meager record without even a cursory attempt to assure that the public interest in such a declaration outweighs the defendant’s clear interest in resolution by the first factfinder, this narrow inteipretation of “sound discretion” must be rejected. The majority’s conclusion ignores precedent from this Court and cursorily dismisses the mandate from the Supreme Court af
In erroneously finding that manifest necessity required mistrial, the majority diminishes the constitutional rights of our citizens, specifically the right to be free from double jeopardy. Even though defense counsel failed to timely object, causing defendant to suffer unnecessarily through a second trial, such an error does not excuse a violation of constitutional magnitude. Therefore, I would affirm the decision of the Court of Appeals.
Although it is not clear from the record when the jury reconvened June 13, 1997,1 have assumed deliberations got under way at 9:00 am.
Defense counsel’s failure to raise the double jeopardy issue any time before or during the second trial was not objectively reasonable. No trial strategy could justify failing to object to the second trial. Defendant had nothing to gain by exposing himself to a second trial and, instead, lost the very thing the right was meant to protect: subjection to a trial in which the state had a second shot to get it right, i.e., to get a conviction.
The majority attempts to escape its duty to execute the Supreme Court’s mandate, i.e., to assure the trial court exercised “sound discretion,” by implying that I simply differ with the trial court’s result. To clarify, I object not to the trial court’s concern that the jurors held irreconcilable differences-in fact, I share that concem-but to its utter failure to make the pronouncement in a manner that evidences the exercise of “sound discretion.” Because the judge did nothing more than act on a hunch with the most meager record for support, I cannot agree that “sound discretion” was exercised.
