PEOPLE OF MI V RAY EVART GOREE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 1, 2001
Plaintiff-Appellee,
v
No. 202938
Kent Circuit Court
LC No. 96-001192-FH
RAY EVART GOREE,
Defendant-Appellant.
ON REMAND
Before: Griffin, P.J., and McDonald and White, JJ.
GRIFFIN, P.J. (dissenting).
Previously, the majority remanded this matter to the trial court for an evidentiary hearing
regarding the factual basis for the lower court’s ruling of manifest necessity and no reasonable
alternative for the declaration of a mistrial. On remand, the Honorable Dennis C. Kolenda
diligently attempted to comply with our Court’s directive, although he acknowledged the great
difficulty of recreating events that occurred nearly four years ago.
One of the matters that the majority remanded for a factual finding was whether
defendant’s trial could have been completed within the week it was scheduled had the victims of
the crime been arrested and hauled into court for their testimony. On this factual issue, the trial
court made the following factual finding:
I have recreated my calendars for those days, and the one thing I can say
with certainty is this trial could not have been completed that week. We were at
the point where we could have nothing productive on that Wednesday because of
all the time that was spent trying to sort out the Trumbulls’ [crime victims]
situation. We would, therefore, have had to begin the proofs on Thursday.
Looking at the number of witnesses here and knowing the lawyers involved and
anticipating the arguments, et cetera, there is simply no way that everything,
proofs, arguments, and instructions, could have been completed by Friday.
The majority also directed the trial court to make a factual finding regarding whether the
jury members would have suffered undue hardship had their service been continued into the next
week although the jury term expired at the end of Friday. On this issue, the trial court ruled:
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I, frankly, do not recall whether we knew what the jury’s schedule was,
but, frankly, they usually start telling us about the end of the jury term, the other
things that they’ve got planned. They expect to be finished and out of here. And
probably had some specific reason to know that one or more of them were not
going to be available the next week. But, I don’t know anymore for sure. And,
frankly, there’s no way to now determine that.
Although the majority does not articulate its standard of review, it is our duty to review a
trial court’s factual findings under a clearly erroneous standard. MCR 2.613(C).1 Contrary to the
majority, I do not find the trial court’s factual determinations to be clearly erroneous.
The majority advances the following rationale for its reversal of the lower court:
We are aware of no case that would permit a court to declare a mistrial on
the basis that the court’s practice of handling non-trial matters in the afternoon,
coupled with the practice to complete jurors’ service within a set period of time,
has operated to make it impossible to finish the trial within that period of time,
even under the added circumstance that the trial was unexpectedly prolonged due
to unanticipated delay in securing the presence of the complaining witnesses.
While the majority cannot find a case involving the same unusual and extraordinary
circumstances of the present case, the concept of manifest injustice is defined through our case
by case review. As we stated in People v Rutherford, 208 Mich App 198, 202-203; 526 NW2d
620 (1994):
Although there is no precise test concerning what constitutes “manifest
necessity,” it appears to refer to the existence of sufficiently compelling
circumstances that would otherwise deprive the defendant of a fair trial or make
its completion impossible.3 Accordingly, “ ‘A trial judge properly exercises his
discretion to declare a mistrial if an impartial verdict cannot be reached, or if a
verdict of conviction . . . would have to be reversed on appeal due to an obvious
procedural error in the trial.’” [People v] Benton [402 Mich 47; 260 NW2d 77
(1977)], supra at 57, quoting Illinois v Somerville, 410 US 458, 464; 93 S Ct
1066; 35 L Ed 2d 425 (1973).
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3
See, e.g., Commonwealth v Gains, 383 PA Super 208; 556 A2d 870 (1989)
(manifest necessity found where one of the juror’s exposed jury to prejudicial
1
MCR 2.613(C) provides:
Findings of fact by the trial court may not be set aside unless clearly
erroneous. In the application of this principle, regard shall be given to the special
opportunity of the trial court to judge the credibility of the witnesses who
appeared before it.
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information concerning the defendant’s wife); Bailey v State, 521 A2d 1069 (Del,
1987) (manifest necessity found where prosecution witnesses improperly referred
to the defendant’s prior trial and conviction in the matter); State v Pierce, 459
A2d 148 (Me, 1983) (manifest necessity found where the trial court determined in
a bench trial that it could not impartially assess the credibility of a prosecution
witness); Fuller v State, 420 So 2d 650 (Fla App, 1982) (manifest necessity found
where juror indicated during trial he could not be impartial and there was no
alternate juror to replace him); People v Harvey, 121 Mich App 681; 329 NW2d
456 (1982) (manifest necessity found where jury was deadlocked); People v
Hamm, 79 Mich App 281; 261 NW2d 288 (1977) (manifest necessity found
where the defendant was declared incompetent during trial).
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On appeal, “[t]he grant or denial of a mistrial motion rests in the sound discretion of the
trial judge and relief is merited only after a finding of abuse of that discretion.” People v
Robertson, 87 Mich App 109, 111; 273 NW2d 501 (1978). The trial court must consider
reasonable alternatives before declaring a mistrial, People v Hicks, 447 Mich 819, 841; 528
NW2d 136 (1994) (opinion by Griffin, J.), and exercise “sound discretion,” Arizona v
Washington, 434 US 497; 98 S Ct 824; 54 L Ed 717 (1978).
In the present case, the trial court explicitly considered the possible alternatives before
declaring a mistrial. In this regard, the trial court found that arresting the crime victims and
hauling them over one hundred miles into court would be unreasonable unless advance
arrangements were made for the care of their seven children, five of whom had special needs. In
addition, the lower court ruled that impaneling the jurors beyond their month-long term of
service would impose an undue hardship on the jury members. Finally, the unexpected refusal of
the crime victims to comply with the subpoena for their appearance was conduct beyond the
control of the prosecutor. As our Supreme Court explained in People v Dawson, 431 Mich 234,
252; 427 NW2d 886 (1988):
The thrust of the Court’s decisions is that the Double Jeopardy Clause
does not bar retrial where the prosecutor or judge made an innocent error or where
the cause prompting the mistrial was outside their control.
In view of the unique circumstances of the present case and the trial court’s proper
consideration of reasonable alternatives, I would hold that the trial court exercised “sound
discretion” in its determination of manifest necessity and did not abuse its discretion by declaring
a mistrial. Arizona v Washington, supra; Robertson, supra. Accordingly, I respectfully dissent.
I would affirm.
/s/ Richard Allen Griffin
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