84 Mich. App. 779 | Mich. Ct. App. | 1978
This case was originally decided by this Court in People v Yarbrough, 78 Mich App 81; 259 NW2d 248 (1977). On April 28, 1978, the Supreme Court issued the following order:
"Leave to appeal is considered April 28, 1978, and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, the Court of Appeals decision is vacated and the case is remanded o the Court of Appeals for consideration of the question of whether, assuming pro arguendo that the trial court should have entertained defendant’s final request for mistrial, it would have been error for the trial court to refuse to grant said motion. Unless it would have, been error for the trial court to refuse to grant the motion, reversal on this basis should not be ordered. In addition, the matters raised by defendant in his application for cross-appeal are remanded to the Court of Appeals for such further consideration as the Court of Appeals shall deem necessary. This Court does not retain jurisdiction.” 402 Mich 920 (1978).
The following is in compliance with that order. We specifically readopt our previous opinion and the legal conclusions set forth therein. As to the issue posed by the Supreme Court, it is elementary that a motion for mistrial lies within the sound discretion of the trial court, e.g. People v Schram, 1 Mich App 279; 136 NW2d 44 (1965), aff'd, 378 Mich 145; 142 NW2d 662 (1966). As noted in our previous opinion, " * * * the trial court expressed
In addition, we have reconsidered the remaining issues posed by defendant. As to the issue of witness Willie Wilson’s claim and later renunciation of his Fifth Amendment right not to incriminate himself, on retrial, the trial court is directed to People v Dortch, 84 Mich App 184; 269 NW2d 541 (1978). Defendant’s other claims have no merit.
Reversed and remanded for a new trial.
