People v. Sierb

v Sierb v SIERB PEOPLE 1996, Septem- 4, Decided at Detroit. Submitted June No. 179269. Docket Mich_. granted, appeal 27, 1996, A.M. Leave to at 9:05 ber with charged Court of Detroit in the Recorder’s was James Sierb property. burning The defendant burning property insured real respect charges, with each trial end- to those with was twice tried jury to reach a ver- ing failure of the as a result of the in a mistrial prepared the defendant a third When the dict. court, charges. The time, of the moved for dismissal the defendant prejudice, Roberson, J., charges with hold- dismissed the A. Dalton of both ing Due Process Clauses trial would violate the that a third prosecutor appealed. state and the federal constitutions. the Appeals held: The Court of judicial powers principle inter- restricts 1. The the executive function of exercise of ference with a Normally, charges. bringing a court can dismiss criminal criminal only by prosecutor objection charges when authorized an over insufficiency of evidence. when there is an do so statute or require situations, guarantees However, certain constitutional in charges. a court dismiss criminal Accordingly, requires process fairness. the fundamental 2. Due charges process question of the criminal due bars a retrial whether whether, particular under the circumstances of turns on in a right charges a defendant’s would violate a retrial of the anxiety, stress, present case, In the fairness. to fundamental reprosecution humiliation, these and cost to the defendant presented charges on retrial makes evidence -willbe where no new subject application proper ideas of of traditional for this case justice. minimizing Without and substantial fundamental fairness pub- brought, charges that were of the criminal the seriousness charges yet does not out- of these in another retrial lic’s interest fairness. weigh to fundamental due the defendant’s Affirmed. McDonald, J., part dissenting part, concurring J. J. and the should be reversed of the trial court stated that the order although trial, because, due a new be remanded for case should may require of crimi- dismissal

process under some circumstances 219 Opinion op Court charges charges, nal as the result of same successive retrials of the charges case do that a facts of this not establish retrial of these impose will unfair an burden on the defendant. Charges — — — Separation 1. Criminal Law Courts of Criminal Dismissal of Powers. principle powers judicial of of restricts interference bringing with a exercise of the executive of function charges; normally, charges criminal a court can dismiss criminal objection by prosecutor only over an a when authorized to do so by insufficiency evidence; however, statute when there or is an situations, guarantees require in certain constitutional that a court charges. dismiss criminal Charges — — — 2. Criminal Law Courts Retrial Criminal Due Process. may charges prosecutor’s objection A court dismiss criminal over a prior charges where two trials of the resulted in mistrials as a inability juries result of the a reach verdict and the conse- quences pro- of another retrial would violate the defendant’s due cess to fundamental fairness. Frank Kelley, Attorney J. General, Thomas L. Casey, General, Solicitor D. John O’Hair, Prosecuting Attorney, Timothy A. Baughman, Research, Chief of Training, Appeals, and and Jeffrey Caminsky, Assis- tant Prosecuting Attorney, people. for the

Magill Szymanski & (by Duncan M. Szymanski), for the defendant. P.J.,

Before: and J.J. McDona Cavanagh, Hood JJ. ld* prosecutor P.J. The appeals as of right

Cavanagh, from the trial court order dismissing charges against defendant. We affirm.

Defendant was the of a sports equipment owner store. On 27, 1990, June defendant’s was store dam- aged in a fire. Evidence was obtained indicating that

* sitting judge, Appeals by Circuit assignment. on the Court of v Sierb the fire had been sign illegal entry, no

there was liquid, and, two of a flammable ignition caused had increased the fire, defendant weeks before $50,000 to on the store from contents insurance with charged was arrested and Defendant $75,000. 750.73; MSA property, real MCL burning count of one property, insured burning one count of 28.268, and MSA 28.270. 750.75; MCL 1993. The jury tried before a June Defendant was was retried jury. in a Defendant hung trial ended to reach a failed February 1994, again prepared to defendant As the verdict. dismissal of the moved for time, third defendant was held on 5, 1994, hearing August On charges. prosecutor’s argu- rejecting motion. defendant’s the trial court motion, against ments stated: you stop? How shots at him. When do had two [Y]ou you try Suppose

many you going to this times are case[?] jury? hung get another person— stop punish a You can has to somewhere. [I]t trial, get

you person in never a get a involved a criminal can if he had been sent to do him as bad as conviction and [sic] literally economically you ruin him. prison. Because could court the trial opinion, in a written Subsequently, violate a third time would defendant stated that States of both the United Process Clauses the Due Constitutions, relying on Michigan and the 424 People Thompson, in v decision Supreme Court’s court then The trial 118; (1985). NW2d 49 Mich 379 with defendant charges against dismissed as of appeals right. prejudice. 127 130 219 Mich App appeal, prosecutor argues On that the trial principle court’s action violates the powers. question is a law This that we review de appeal. People App Artman, novo on v 218 236, (1996). 239; 553 NW2d Thompson, Supreme pro- In Court held due that cess of law is not a violated when defendant is retried by single after a mistrial caused deadlock. supra Thompson, However, at 133. the Court stated may repeated that “there be which cases in retrials repeated jury might after deadlock be so fundamen- tally process guaranteed unfair as violate the due § 1963, 1, 17, Const art or Fourteenth Amend- ment to United States Constitution.” Id.

Subsequently, question this Court examined the repeated whether process trials violated due Peeples, 178 Mich 743; Peeples, (1989). 444 NW2d 248 In the defendant was juries tried four times. three of the four trials, the convicted the defendant. of the Two convictions were part reversed because of misconduct on the police prosecutor. and the In addition, a mistrial was declared after witness made a reference to defend- ant’s first trial and Id. sentence. at 745-746. In a opinion,1 divided this Court held that a trial fourth did process. not violate the defendant’s to due reviewing jurisdictions,2 In appears the case law from other it no court has held that a mistrial after jury prevented one deadlocked retrial. Sullivan v App, (Tex 1994); State, 699, SW2d see Rich- judge only, judge One concurred the result and the third dissented. Propriety dismissing generally court’s or See anno: indictment prosecution trials, agree because successive 4 ALR4th of failure after 1274, supplement, pp and the 1995 188-189. 131 v Sierb 104 S Ct States, 317, 326; 468 US v United

ardson mistrial that one (holding 2d 242 (1984) 82 L Ed 3081; State prevent retrial); did not after deadlocked 1164, (Vt, 1995) (reaching Sauve, v 666 A2d per- of record has addition, no court result). same Pres- juries. deadlocked See after four mitted a retrial NC, Blackledge, Supp 681, (ED 1971) F ton v the Double under that the defendants’ (holding by five How- trials). were violated Jeopardy Clause a third or fourth split have on whether ever, courts juries per- mistrials due to deadlocked trial after Gunter, 546 F2d States v See, e.g., United missible. third trial after 10, 861, 1976) (permitting 864 (CA parte Ex (1977); cert den 431 US 920 mistrials), two Anderson, 446, 1984) (permit- 451-452 (Ala, 457 So 2d due to dead- trial after three mistrials a fourth ting Moriwake, v 47, 57-58; Hawaii State juries); locked allow retrial after two (refusing 647 P2d 705 (1982) Abbati, 418, 436; 493 State 99 NJ juries); deadlocked retrial after two A2d 513 to allow (1985) (refusing Witt, State v 913, 572 SW2d juries); deadlocked retrial after three to allow (Tenn, 1978) (refusing Sullivan, supra (permitting at 705 juries); deadlocked mistrials, to deadlocked retrial after three two due juries). jeopardy as a rejected have double

Most courts deadlocked retrial after two or more basis to bar 54; Witt, supra at Moriwake, supra at juries. See, e.g., jeopardy that double Only one court has held 917. juries. See multiple retrials after deadlocked prohibits does Preston, supra. case, defendant present In the violate consti- that a third trial would not contend jeopardy. double provisions against tutional 219 Mich Opinion of the Court ruling In that retrial was barred after successive mistrials, other courts have relied on the trial court’s implied powers. supra, inherent or Moriwake, the Supreme Hawaiian Court stated: aspect judicial power That of the which seeks to “admin- justice” properly ister invoked when a trial court sua sponte prejudice dismisses an indictment following with declaration of one or genuinely more mistrials because of juries, though deadlocked even the defendant’s constitu- yet implicated. tional [Moriwake, supra are not at 55.] appropriate (1)

The severity factors to be considered are charged; (2)

of the offense the number of prior mistrials and the circumstances of the (3) deliberations therein, so far known; as is the char- prior length, complexity, acter of trials in terms of similarity presented; (4) and of evidence the likeli- any subsequent hood of substantial difference in a (5) trial, if allowed; the trial court’s own evaluation of strength; professional (6) relative case and con- diligence respective particularly duct and of counsel, prosecuting attorney. that Id. at 56. Similarly, Jersey Supreme the New Court held that precepts fairness, together judici- fundamental with the ary’s appropriate just need to create remedies, and and its general responsibility to assure the overall efficient admin- justice system, istration of the criminal confirm an inherent power in a trial court to dismiss an indictment with prejudice following general mistrials attributable repeated jury [Abbati, supra deadlocks. at 427.] The factors that the Abbati court said that the trial essentially court should consider are identical to the factors identified the Moriwake court. However, People v Sierb the Abbati court omitted severity of the offense supplied two factors, additional the basis of the prosecutor’s decision reprosecute and the effect of the retrial defendant, on the hardship terms of unfairness. Id. at 435. present

In the prosecutor argues that the trial court’s action violates the doctrine powers. Specifically, contends that prosecution because the of a criminal case is an exec- function, utive the trial court was without legal authority to dismiss this case over the objection. county prosecutor

The is a constitutional officer with discretion to decide whether to initiate criminal charges. principle The powers judicial restricts prosecutor’s interference with a exercise of executive discretion. v Herrick, 216 Mich App 594, 598; 550 NW2d 541 (1996). Dismis- prosecutorial objection normally sal over available remedy only as a permitted by when a statute or insufficiency when there is an of evidence. In certain situations, however, other guarantees constitutional require will People Morris, dismissal. v 77 App Mich 561, 563; 258 NW2d 559 (1977).3 already discussed, Supreme

As Court has recog- nized prosecutions that certain cases recurrent prosecutor may The contends that a trial court dismiss a criminal charge prosecutor’s objection only over the where there is insufficient evi guilt permitted by support dence of or where statute. In of this conten tion, prosecutor People Williamson, App 397, 399; cites v 138 Mich (1984), People Jones, App 516, 519; NW2d 199 v 94 Mich 288 NW2d Morris, (1979), supra. sup Williamson and both Jones cite Morris port proposition. However, Williamson, Jones, of that and the exception general all fail to mention that an to the rule exists: that consti guarantees might require tutional dismissal even over the objection. Morris, supra. See 219 multiple after deadlocks be so fundamen- might tally unfair as to violate a defendant’s constitutional right process. Thompson, supra. to due See Accord- we ingly, must determine whether the circumstances of the present support the trial court’s finding right process defendant’s to due would be vio- lated a third trial.

This Court has stated: process requires fairness,

Due fundamental which private stake, involves consideration of the interest at deprivation risk of an through erroneous of such interest procedures used, probable value of additional or procedures, government interest, substitute and the state or including the function involved and the fiscal or administra- imposed by procedures. tive burdens substitute [Dobrzenski Dobrzenski, App 514, 515; 208 Mich 528 NW2d 827 (1995).]

We conclude that on the facts of this retrial would violate due of law under the United States and Michigan Constitutions. As the United Supreme States Court has stated: underlying idea, deeply ingrained one that is in at system Anglo-American

least jurisprudence, is that power the State with all its resources and should not be repeated attempts allowed to make to convict an individual thereby alleged offense, for an subjecting him to embarrass- ment, expense and compelling ordeal and him to live in a anxiety continuing insecurity, state of as well as enhancing possibility may though that even innocent he guilty. be States, 184, found v United 355 US 187- [Green 188; 221; 2 L (1957).] S Ct Ed 2d 199 In this anxiety, stress, humiliation, and cost to the defendant of continual reprosecution where no new evidence exists is a proper subject for v Sierb fundamental ideas of of traditional application Defendant has justice. and substantial fairness juries unable to separate two trials, with endured two not indicated prosecution has a reach verdict. at a third any new evidence offering will it be hung of another probability accordingly, trial; has fees, defendant legal to his In addition high.4 in retain expense to incur considerable been forced we two trials. While testify at the first experts to ing of the crimes the seriousness way in no minimize conclude that was we charged, with which defendant outweigh in retrial does not public’s interest due and fundamental to right defendant’s fairness. any hold that that we do not emphasize

We wish to jury deadlock will mistrials due to specific number of due that a defendant’s automatically indicate that the Rather, we hold process has been violated. case. Whether matter should be decided in a infringed are constitutional discretion of be left to the sound given case should on the factors enunciated court, the trial based pertinent fac- Moriwake and Abbati any and on other attention. See to the court’s brought tors that are supra at 705. Sullivan,

Affirmed. addition, court observed: as one always unsatisfactory. tend to almost Counsel Retrials are freshness, testimony perfunctorily, subtle differ- more lacks

them credibility up challenge in recollections are blown ences impedes atmosphere is created. All this certain of staleness Supp 384, (D Ingram, F search for truth. States [United DC, 1976).] 219 Opinion by J. J. J. McDonald, Hood, J., concurred. (concurring part MCDONALD,

J. J. J. and dis- senting part). part part. I concur in and dissent in majority holding I concur with the that the constitu- guarantees process may, tional require of due occasion, on charges against

dismissal of the a defendant, prosecutor’s objections. over the I would also concur jeopardy retrying that double does not bar a defend- jury ant after a deadlock. I would further concur that any specific there is not number of mistrials due to automatically deadlock that will violate a defend- right process, justifying ant’s to due dismissal. I dissent, however, with the outcome reached in this case. On the basis of the record before Ime, would vote to reverse the trial court’s order and rein- charges against state the the defendant so as to allow Analyzing him to be retried at least one more time. this case under the combined factors enumerated in (1985), State v Abbati, 99 418; NJ 493 A2d 513 and (1982), State v Moriwake, 65 Hawaii 47; 647 P2d I would find that the to due way justify would not be violated in such a to dismissal. severity

First, of the offense is considered. charged Here, the defendant is with one count of burning property, real 750.73; MCL MSA 28.268, burning property, one count of insured 750.75; MCL dangerous MSA28.270.These are serious and crimes. only split among There have been two trials, and the jurors prosecutor presented indicates that the strong against appears the defendant.1 It response my question appellate concerning counsel the nature jury splits trials, at the first and second I recollect that counsel People v Sierb McDonald, J. J.J. Opinion by present basically would third trial proposed this presented prior trials, as in the two evidence same attorney expert witness exception with the unduly upon not be burdensome costs would fees, the have Furthermore, hung jury mistrials the defendant. as nullities and subse- consistently been considered nothing have been determined to be quent retrials the same a continuation of case. more than 118, 127; 379 NW2d 49 Thompson, (1985). any likelihood of substantial differ- With to the regard trial, gauge I cannot that likelihood. ence in another the trial court never made a determi- instance, In this the relative or concerning strength either nation prosecutor’s professional case or the weakness of respective counsel. diligence conduct or by factors cited the Abbati The two additional prosecutor’s rep- basis of the decision to court are the on the defendant in terms of rosecute and the effect Abbati, supra at 436. With hardship and unfairness. only speculate. I can There is respect factors, to these prosecutor to indicate that the in the record nothing in improper vindictive or has motives reach- being is for a third time. the decision to the defendant ing justice by is done prosecutor’s job is to see that he to case; probably trying this that is what is retrying jurors juries accomplish. The number of on the two defendant was also guilty who would have found the rep- a factor in the decision to probably that another retrial will result rosecute. I do feel will not defendant, on the but that it hardship some any unfairness to him. Defendant necessarily result eight guilty juries’ at for were deadlocked in the first trial stated the votes guilty guilty guilty and six not at the second trial. not and at six and four 219 Mich Opinion by J. J. J. McDonald, undoubtedly defending will incur additional costs in just against reprosecution, but this is one factor. jurors’ mostly per- guilty, If the votes had been not haps retry unfair, the defendant would be but that is not the case. majority, ready specific

Like the I am not a to set jury number of retrials after deadlocks that would process sufficiently rights violate a defendant’s due justify change dismissal. If there a is to be in the man- following ner in which retrials a mistrial due to a hung Michigan are conducted, then it is for the Supreme Court to decide the factors that a trial court deciding should consider when whether the defend- ant’s to due would be violated jury. hung especially retrial after a sidering case, this con- pollings juries the results of the of the two already that have case, heard the pursuing not meritless case. In this I would vote to reverse the trial court’s order and remand the for retrial.

Case Details

Case Name: People v. Sierb

Court Name: Michigan Court of Appeals

Date Published: Nov 22, 1996

Citation: 555 N.W.2d 728

Docket Number: Docket 179269

Court Abbreviation: Mich. Ct. App.