People v. Johnson

396 Mich. 424 (1976)

240 N.W.2d 729

PEOPLE v. ALVIN JOHNSON

Docket No. 55577, (Calendar No. 12).

Supreme Court of Michigan.

Argued May 8, 1975.

Decided April 21, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, *428 Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training & Appeals, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by Norris J. Thomas, Jr., Assistant Defender) for defendant.

Decided April 21, 1976. Rehearing denied 396 Mich 992.

WILLIAMS, J.

In this case of first impression we consider the impact of a plea of guilty on the constitutional defense of double jeopardy. We hold that the defense of double jeopardy, as it affects whether a trial should have taken place at all, is not waived by a subsequent guilty plea. As this question is dispositive, we do not consider other issues raised by defendant, except we hold that the mere mention of a polygraph test without more does not constitute such manifest necessity as would justify a mistrial. We reverse the Court of Appeals and the trial court, and the defendant is discharged, as he was twice put in jeopardy, contrary to the mandate of the Federal and Michigan Constitutions.

I FACTS

Defendant Alvin Johnson's first trial, with codefendant Eddie Perkins on the charge of armed robbery, ended in a mistrial when, two days into the trial, Johnson's attorney asked a prosecution witness, a police officer:

"Q. Didn't he [Alvin Johnson] deny he was implicated, involved in the alleged holdup?

"A. Yes, he did.

"Q. Did he also ask you whether or not he could submit to a lie detector test?" *429 The witness never answered as the prosecutor instantly objected and the jury was excused.

The people moved for a mistrial, maintaining:

"The people would make a motion. Any reference to a lie detector test has to be prejudicial, and I would ask for a mistrial, with reluctance. No reference to a polygraph or lie detector test has been given. There has been no reference to that at all and is absolute grounds for a mistrial."

Perkins' counsel concurred. Johnson's counsel did not, maintaining, "All I can say is I didn't realize it was improper". He also noted, "I feel kind of small", but never directly commented one way or another on whether he would consent to a mistrial.

The court took the motion under advisement and adjourned until the following day. When court reconvened, the prosecutor withdrew his motion, claiming "that the inadvertent reference to a polygraph could be corrected by proper instructions from the court". Perkins' counsel, however, renewed his motion. "I feel that the harm done by this statement that was taken hinders any due process." The trial court granted the mistrial.

Before the second trial began, Johnson's counsel moved for dismissal on the grounds that the trial court abused its discretion in granting the mistrial. He maintained that the mere mention of the word polygraph would not be grounds for ending proceedings, that defendant's silence relative to mistrial signifies neither acceptance nor consent, and that consent must be affirmatively and knowingly given, which did not occur in the case of Johnson or his counsel. Further, he suggested that the court might have granted a mistrial as to defendant Perkins, who requested it, and could *430 have permitted the trial to continue as to defendant Johnson. While the court observed this was a unique idea, the motion was denied.

New counsel for Johnson subsequently moved to dismiss on double jeopardy grounds. The judge denied the motion on the ground of self-induced error by counsel for defendant Johnson.

Shortly after impanelling of the jury for the second trial began, codefendant Perkins pled guilty to an added count of assault with intent to rob and steal while being unarmed, and was endorsed as a witness to testify against Johnson. Johnson then pled guilty to the same added count and was sentenced to 5 to 15 years.

The Court of Appeals granted the prosecutor's motion to affirm the conviction. We granted leave, limited to "the question of whether the grant of a mistrial over defendant-appellant's objection barred subsequent prosecution under double jeopardy provisions of the Federal and state Constitutions". 392 Mich 756 (1974).

II THE PROTECTION AGAINST DOUBLE JEOPARDY

The Fifth Amendment to the United States Constitution[1] and article 1, § 15 of the Michigan Constitution guarantee an individual against twice being put in jeopardy.[2]

*431 "The underlying idea [of the protection against double jeopardy] * * * 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, 223; 2 L Ed 2d 199, 204 (1957).

Thus, once defendant has been placed in jeopardy,[3] unless he or she consents to the trial's interruption,[4] or a mistrial occurs because of manifest necessity,[5] the state is precluded from bringing him or her to trial again. Even if defendant benefits from a mistrial called for reasons short of those necessary to satisfy the manifest necessity *432 standard, reprosecution is still prohibited.[6] However, even where the mistrial was improperly declared, it is not a bar to retrial if the action was taken with defendant's consent. State v Fenton, 19 Ariz App 274, 276; 506 P2d 665, 667 (1973).

Mere silence or failure to object to the jury's discharge is not such consent, 19 Ariz App 274, 276; 506 P2d 665, 667.[7]

In a very recent case in which defense counsel himself requested a mistrial, the United States Supreme Court has addressed this point as follows:

"The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed * * * ", United States v Dinitz, ___ US ___, ___; 96 S Ct 1075, 1081; 47 L Ed 2d 267 (1976),

and the defendant must therefore do something *433 positively in order to indicate he or she is exercising that primary control. Further,

"The circumstance that it is defense counsel who initiates the court's inquiry into a matter which ultimately results in an order of mistrial does not ipso facto transform counsel's expression of concern into an implied consent to such drastic ruling." People v Compton, 6 Cal 3d 55, 62; 98 Cal Rptr 217, 221; 490 P2d 537, 541 (1971).

"[A]n appellate court's assessment of which side benefited from the mistrial ruling does not adequately satisfy the policies underpinning the double jeopardy provision", United States v Jorn, 400 US 470, 483; 91 S Ct 547; 27 L Ed 2d 543 (1971). Thus, in the absence of bright-line rules deliberately eschewed by the United States Supreme Court, 400 US 470, 486, we must first look to whether in the exercise of that control of the course of his own trial, highlighted by Dinitz, defendant Alvin Johnson approved termination of the proceedings.

It is not difficult to require a trial court to inquire whether defendant consents. Therefore, in the absence of an affirmative showing on the record, this Court will not presume to find such consent.

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

III DID MANIFEST NECESSITY EXIST?

A judge has the power to abort a trial before a *434 verdict is reached in order to prevent frustration of the ends of justice. Where "the ends of substantial justice cannot be attained without discontinuing the trial", Gori v United States, 367 US 364, 368; 81 S Ct 1523; 6 L Ed 2d 901 (1961), a mistrial declared for such "manifest necessity"[8] may be declared without defendant's consent,[9] and will not foreclose retrial even if it is over his or her objection. 367 US 364, 368. Because of its implications, this judicial discretion is properly exercised "only in very extraordinary and striking circumstances". United States v Coolidge, 25 Fed Cas 622, 623; 2 Gall 364, 365 (D Mass, 1815), cited in Downum v United States, 372 US 734, 736; 83 S Ct 1033; 10 L Ed 2d 100 (1963).

"A mere error of law or procedure * * * does not constitute legal necessity." Curry v Superior Court, 2 Cal 3d 707, 714; 87 Cal Rptr 361, 365; 470 P2d 345, 349 (1970). "[A] mistrial should not be declared in consequence of mere irregularities which are not prejudicial to the rights of the persons prosecuted." People v Watson, 307 Mich 596, 606; 12 NW2d 476 (1944).

*435 The question of whether merely mentioning the term polygraph constitutes more than such a "mere irregularity" has been considered by our Court of Appeals. In People v Paul F Baker, 7 Mich App 471, 476; 152 NW2d 43 (1967), Judge, now Chief Justice, KAVANAGH, found that references to a polygraph test within the context of a particular case did not constitute reversible error and could be cured by relevant instructions to the jury.[10]

Cautionary instructions would be inadequate, the Court of Appeals has suggested, where testimony is admitted regarding refusal to take a polygraph test. People v Tyrer, 19 Mich App 48, 50; 172 NW2d 53 (1969).

Particularly helpful is People v Paffhousen, 20 Mich App 346, 350; 174 NW2d 69 (1969), where the complaining witness explained she had changed her story because "you don't fool a polygraph machine". The trial court denied counsel's motion for a mistrial.

"Defendant contends that the trial court erred in denying his motion for a mistrial. To so hold would be tantamount to requiring a mistrial every time the word `polygraph' is mentioned in a criminal prosecution. It was not established that the complainant had submitted to a polygraph examination nor was an attempt made to introduce the results of any such examination. The word `polygraph' was not used by counsel, but was volunteered by the witness. It was properly objected to, and the trial court properly ruled that the subject not be pursued any further. It was not, in fact, pursued, and no prejudicial error resulted." 20 Mich App 351. (Emphasis added.)

*436 In a case similar to that before us today, the Court of Appeals found reversible error barring retrial where the court did order a mistrial. People v Maguire, 38 Mich App 576; 196 NW2d 880 (1972).

During cross-examination of a detective by defense counsel, counsel asked:

"Q. Did you know that Mr. Maguire [defendant] was challenged to submit to a lie detector test?"

Before the witness responded, the prosecutor requested that the jury be excused. The judge granted a mistrial upon the prosecutor's request. 38 Mich App 578, 580.

The Court of Appeals, "taking into account all of the circumstances of the case", 38 Mich App 581, found the judge committed error. The panel noted, "There was no effort made by the judge to correct the statement by an instruction". 38 Mich App 581. Also important was that "[t]his is not a case of continued improper activity on the part of defense counsel after a ruling by the trial judge, but rather, one isolated instance". 38 Mich App 581. Further, the defense attorney did not ask for the mistrial, nor did he consent to it. 38 Mich App 582. Under the circumstances, therefore, the court did not find such "manifest necessity which prevented the ends of public justice from being served by a continuation of the proceedings". 38 Mich App 582.

A rule becomes clear, after reviewing the Court of Appeals' decision in People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969), where they found a mistrial would have been appropriate. 17 Mich App 292, fn 12. There, not only did the prosecutor insert the issue of a polygraph, 17 Mich App 291, but he apparently deliberately contravened the *437 court's warning to discontinue this approach.[11] 17 Mich App 292. It is clear that the Court of Appeals believed a mistrial was warranted because "[t]he prosecutor here made every conceivable effort to prevent the defendant from having a fair trial". 17 Mich App 291. They noted:

"It is rare indeed that an appellate court is confronted with such an openly disclosed intent on the part of a trial attorney to place before a jury improper and prejudicial testimony or such flagrant disregard of a ruling by the court." 17 Mich App 292.

Brocato was not a case of inadvertence, or of a single inappropriate question. Rather, it was part of a pattern of contumacious conduct on the part of the prosecutor. In the former instance, without a showing of prejudice, a mistrial would not be appropriate. In the latter, it certainly would be.

This is not true in the case before us. In the instant case, there was apparently an inadvertent question asked by defense counsel, which was instantly objected to, and therefore never answered. There was no overt effort to misuse the judicial system to prevent defendant from receiving a fair trial.

Under the circumstances, it does not appear that legal necessity existed for the discharge of the jury. The trial court ordinarily is in a superior position to determine when manifest necessity demands a mistrial, and must exercise its discretion to protect the ends of justice. Such discretion, *438 however, should be exercised with the object of safeguarding defendant's double jeopardy protection. 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. The trial judge must always consider the possibility of curing error with a warning.[12]

In the instant case, we do not think sufficient prejudice was demonstrated to warrant a mistrial. We do not think the mention of a polygraph test, without more, was sufficient to justify granting a mistrial even to Perkins, who requested it, and certainly was not enough to support the mistrial as to defendant Johnson. A different issue might have arisen had the witness answered the question, but it is not necessary to resolve that matter now.

IV EFFECT OF THE GUILTY PLEA

It is clear that in the instant case, defendant did not consent to the mistrial and it was not required by manifest necessity. Had the second trial not ended in a guilty plea, there is no question that it would have been improper as a violation of defendant's *439 constitutional right against twice being put into jeopardy. The main question of the case now faces us and that is whether the guilty plea waived that constitutional right.

A. What Guilty Plea Waives

Clearly, the plea of guilty is itself an affirmative waiver of certain preconviction rights of the accused. See Right to Appeal Plea Bargain Convictions, 69 Nw U L Rev 663, 664 and fn 3-6 (1974). People v Zunno, 384 Mich 151, 156; 180 NW2d 17 (1970). The proper focus of Federal habeas corpus inquiry is the nature of the advice and voluntariness of the plea. Tollett v Henderson, 411 US 258, 267; 93 S Ct 1602; 36 L Ed 2d 235 (1973).[13]

Thus, in the guilty-plea trilogy of Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), McMann v Richardson, 397 US 759; 90 S Ct 1441; 25 L Ed 2d 763 (1970), and Parker v North Carolina, 397 US 790; 90 S Ct 1458; 25 L Ed 2d 785 (1970), and in Tollett v Henderson, supra, the United States Supreme Court recognized that "a guilty plea represents a break in the chain of events which has preceded it in the criminal process. * * * [A criminal defendant] may only attack the voluntary and intelligent character of the guilty plea * * *". 411 US 258, 267.

However, despite the apparently sweeping nature *440 of this language, the Supreme Court has not construed the effect of guilty pleas to preclude contesting all constitutional rights.[14] The Brady trilogy and Tollett did not change the established principle that a guilty plea does not waive defendant's right to contest whether a statute under which he or she is accused is constitutional, United States v Ury, 106 F2d 28 (CA 2, 1939), or whether the information or indictment stated an offense, Kolaski v United States, 362 F2d 847, 848 (CA 5, 1966).

B. What the Guilty Plea Does Not Waive

Generally, however, the guilty plea waives all nonjurisdictional defects in the proceedings. See People v Ginther, 390 Mich 436, 440; 212 NW2d 922 (1973). Why an accepted, unqualified[15] plea of *441 guilty should cure error that a guilty verdict or finding would not[16] has probably been best answered by the Supreme Court's observation that a guilty plea is different "in purpose and effect from a mere admission or an extra-judicial confession, it is itself a conviction". Kercheval v United States, 274 US 220, 223; 47 S Ct 582; 71 L Ed 1009 (1927). Thus, in the case of a guilty plea, the conviction is based not on possibly tainted evidence, but on defendant's admission in open court.

"A conviction after trial in which a coerced confession is introduced rests in part on the coerced confession, a constitutionally unacceptable basis for conviction. * * * The defendant who pleads guilty is in a different posture. He is convicted on his counseled admission in open court that he committed the crime charged against him. The prior confession is not the basis for the judgment * * *." McMann v Richardson, 397 US 759, 773; 90 S Ct 1441; 25 L Ed 2d 763 (1970).

The Court has, itself, however, recognized that the double jeopardy defense is different from the McMann type of defenses qualitatively. In Robinson v Neil, 409 US 505, 509; 93 S Ct 876; 35 L Ed 2d 29 (1973), Justice Rehnquist, speaking for a unanimous court, distinguished this protection *442 from others, such as the Mapp v Ohio exclusionary rule, designed to deter unlawful police conduct.

"While this guarantee [double jeopardy] * * * is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial."

Thus, the right is closer to those which were untouched by Brady, et al., such as the right to challenge the constitutionality of the statute under which the state proceeded, which may be asserted even after a plea of guilty. Defendant may always challenge whether the state had a right to bring the prosecution in the first place.

The first application of this approach came when the Supreme Court, in Blackledge v Perry, 417 US 21, 31; 94 S Ct 2098; 40 L Ed 2d 628 (1974), applied the Robinson double jeopardy reasoning to find that a guilty plea did not foreclose a defendant from collaterally raising a due process right in attacking a plea-based conviction in Federal habeas corpus proceedings.

First, the Court distinguished the due process right from those in the Brady trilogy and Tollett.

"Although the underlying claims presented in Tollett and the Brady trilogy were of constitutional dimensions, none went to the very power of the State to bring the defendant into court to answer the charge brought against him. * * * In the case at hand, by contrast, the nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge in the District Court, the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon the respondent to answer to the more serious charge in the Superior Court. Unlike the defendant *443 in Tollett, Perry is not complaining of `antecedent constitutional violations' or of a `deprivation of constitutional rights that occurred prior to the entry of the guilty plea.' 411 US at 266, 267. Rather, the right that he asserts and that we today accept is the right not to be haled into court at all upon the felony charge." 417 US 21, 30.

Then, using the Robinson double jeopardy reasoning, and applying it to the due process clause, the Court found:

"While our judgment today is not based upon the Double Jeopardy Clause, we think that the [Robinson double jeopardy clause] language aptly describes the due process right upon which our judgment is based. The `practical result' dictated by the Due Process Clause in this case is that North Carolina simply could not permissibly require Perry to answer to the felony charge. That being so, it follows that his guilty plea did not foreclose him from attacking his conviction in the Superior Court proceedings through a federal writ of habeas corpus." 417 US 21, 31.

The foundation laid in Blackledge was completed by the Supreme Court in its per curiam opinion in Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975). There, citing Blackledge, the Court rejected the state's reliance on Tollett and held that a guilty plea did not waive the double jeopardy defense.

"Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty." 423 US 62.

Thus, it is clear that the United States Supreme Court, while recognizing that certain rights of *444 defendant may be waived by a subsequent plea of guilty, does not say that is true of all rights. Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state's interest in punishing the defendant,[17] or the state's authority or ability to proceed with the trial may never be waived by guilty plea.[18] These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples. Wherever it is found that the result of the right asserted would be to prevent the trial from taking place, we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right.

V CONCLUSION

Defendant Alvin Johnson's first trial ended in *445 an improperly called mistrial. Thus, defendant was placed in jeopardy twice in violation of his constitutional right. Because this right goes to the very heart of the government's ability to place defendant on trial, the subsequent guilty plea does not foreclose defendant from raising this defense. We therefore find that since the second trial should not have taken place at all, the conviction may not stand and defendant must be released.

The Court of Appeals and the trial court are reversed.

KAVANAGH, C.J., and LEVIN, J., concurred with WILLIAMS, J.

LINDEMER and RYAN, JJ., took no part in the decision of this case.

COLEMAN, J. (dissenting).

I disagree with the reasoning in support of my colleagues' decision to set aside a guilty plea and dismiss defendant from court jurisdiction.

Two days into a joint trial, the prosecutor objected to a question by defendant's counsel and made a motion for a mistrial. Although the prosecutor withdrew his objection and motion, codefendant Perkins demanded a mistrial, saying, "I feel that the harm done by this statement that was taken hinders any due process". Defense counsel remained silent, neither objecting to nor requesting a mistrial, but saying "All I can say is I didn't realize it was improper" and "I feel kind of small".

Mistrial was granted. A second joint trial on the armed robbery charge was begun over defendant's claim of double jeopardy. After the jury was impanelled, defendant pled guilty to an added count of assault with intent to rob and steal while being *446 unarmed. (This was after his codefendant had pled guilty to the same charge.)

Now defendant claims (1) that the order of mistrial was improper, and (2) therefore, he could neither be tried on the original charge nor could he plead guilty to the reduced charge. He claims that the defense of double jeopardy is not waived by a plea of guilty.

This dissent is neither in agreement nor disagreement with the latter claim. Instead, it is directed to the conclusion that the order of mistrial was invalid in the first instance.

With the codefendant demanding mistrial, the judge had cause to believe that he could not win regardless of what he did. He chose to accede to codefendant's motion for mistrial under the circumstances.

The majority would find that the judge chose erroneously and would free defendant.

The cases relied upon by the majority are inapposite. All refer to a prosecutor's motion or a judge's sua sponte declaration of mistrial.

For instance, the majority quotes from Gori v United States, 367 US 364; 81 S Ct 1523; 6 L Ed 2d 901 (1961), but does not relate the essence of that decision.

In Gori, defendant was in the first day of a jury trial when the judge, on his own motion, declared a mistrial. Defendant was silent, neither objecting nor approving. The Supreme Court stated that reasons for the mistrial were unclear although the trial judge may have acted because of questioning by the prosecutor bringing out other crimes of defendant. The Court agreed with the Court of Appeals in characterizing the judge's action:

"In any event, it is obvious, as the Court of Appeals *447 concluded, that the judge `was acting according to his convictions in protecting the rights of the accused.' 282 F2d, at 46. The court below did not hold the mistrial ruling erroneous or an abuse of discretion. It did find the prosecutor's conduct unexceptionable and the reason for the mistrial, therefore, not `entirely clear'. It did say that `the judge should have awaited a definite question which would have permitted a clear-cut ruling', and that, in failing to do so, he displayed an `overzealousness' and acted `too hastily'. Id., at 46, 48."

Gori, supra, at 366.

The Court commented on the role of the trial judge in declaring a mistrial re Fifth Amendment concerns:

"Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment.

* * *

"It is also clear that "This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served * * *,' Brock v North Carolina, 344 US 424, 427 [73 S Ct 349; 97 L Ed 456, 459 (1953)] and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion." (Emphasis added.)

Gori, supra, at 368.

Gori states the better rule to follow under the instant facts which are distinguishable 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 judge sua *448 sponte. Further, the rationale of Gori carries over to the instant case: (1) The trial judge is best situated to make a decision on whether a mistrial is necessary to achieve the ends of justice. (2) Although the mistrial was not "in the sole interest of the defendant", Johnson, there were two defendants and the codefendant was equally interested. He demanded a mistrial, so the trial judge could reasonably find that the ends of justice required a mistrial. (3) Although reference to a polygraph may not be reversible error in every case, the judge's declaration of a mistrial would at least appear to be the product of the trial judge's solicitude and in the sole interest of the defendants.

Moreover, the general underlying rationale for defense of double jeopardy does not exist in the instant case.

"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." (Emphasis added.)

Green v United States, 355 US 184, 187-188; 78 S Ct 221, 223; 2 L Ed 2d 199, 204 (1957).

"Judicial wisdom counsels against anticipating hypothetical situations in which the discretion of the trial judge may be abused and so call for the safeguard of the Fifth Amendment cases in which the defendant would be harrassed by successive, oppressive prosecutions, or in which a judge exercises his authority to help the prosecution, at a trial in which its case is *449 going badly, by affording it another, more favorable opportunity to convict the accused." (Emphasis added.)

Gori, supra, at 369.

In the instant case, the mistrial was declared on motion of the codefendant, not the prosecutor.

In an effort to avoid reversal on appeal, the trial judge in the instant case may have "bent over backwards" on behalf of the defendants in declaring a mistrial. However, careful judges are learning that they cannot be too careful or can they?

Justice Frankfurter's comment in Gori at 369 applies equally to the majority opinion in the instant case:

"[W]e are unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial. It would hark back to the formalistic artificialities of seventeenth century criminal procedure so to confine our federal trial courts by compelling them to navigate a narrow compass between Scylla and Charybdis." (Emphasis added.)

In the recent case of United States v Dinitz, ___ US ___; 96 S Ct 1075; 47 L Ed 2d 267 (1976), defendant was represented by several attorneys. The trial judge excluded the attorney in charge of the trial because of his repeated improper actions during the opening statement. The judge set three alternatives for the defendant: (1) stay or recess pending Court of Appeals review on expulsion of the attorney; (2) continuation of the trial with the remaining attorneys, or (3) declaration of a mistrial so defendant could get new counsel. A remaining attorney moved for a mistrial after consulting with defendant. It was not opposed by the prosecutor and was granted by the judge.

*450 Before the second trial, defendant unsuccessfully moved for dismissal of the indictment on double jeopardy grounds. His subsequent conviction was reversed by the Court of Appeals on double jeopardy grounds because defendant was given no choice but to ask for a mistrial. The Court of Appeals treated the case as a declaration of mistrial over defendant's objection, ignoring his request for mistrial. Therefore, it was said that double jeopardy barred the second trial because there was no manifest necessity.

The United States Supreme Court reversed, holding that defendant did request a mistrial.

The Court of Appeals had based its holding on a waiver theory, saying that when defendant requests a mistrial he waives his right to be tried by the first jury. Therefore, it was said that defendant did not voluntarily waive because the trial judge did not present enough alternatives he was left with no choice other than mistrial.

The Supreme Court held that the waiver theory does not apply defendant is always faced with a "Hobson's choice" in deciding whether to respond to judicial or prosecutorial error with a mistrial request. He must give up the first jury or continue in a trial which may contain error. The Court said that the inquiry should be whether "defendant retains primary control over the course to be followed in the event of such error". Dinitz, supra, at 431. (Emphasis added.)

Dinitz is not on "all fours" with the instant case, but the cases are similar because the complaining defendant's attorney in each case committed possible error during trial. In Dinitz, the judge took his action upon objection from the prosecutor and a resulting request for mistrial by defendant. In the instant case, the trial judge declared a mistrial at the request of the codefendant.

*451 However, the basic theory of Dinitz applies equally to the instant appeal.

We must examine the circumstances surrounding the declaration of mistrial to discover whether defendant had primary control. Defendant's attorney asked the objectionable question, codefendant's attorney strongly objected and asked for a mistrial, and defendant's attorney essentially apologized, saying, "[a]ll I can say is I didn't realize it was improper" and, "I feel kind of small". The court, on these facts, could find that defendant consented to the mistrial. Defendant had interests similar to those of the objecting codefendant and he apologized for the problem caused by his own question. Considering these facts, defendant had control over the events and, in the absence of a specific objection or denial of error at the time, the trial court could properly determine that defendant joined with the codefendant in seeking a mistrial.

The majority opinion states that "defendant must therefore do something positively in order to indicate he or she is exercising that primary control". However, Dinitz contains no such language. The proper inquiry, simply stated, is whether defendant had primary control. A reviewing court may examine the totality of the circumstances in considering whether such control existed. The totality of the instant facts reveal control. Defendant need not raise a red flag.

Finally, we note comments by the United States Supreme Court concerning the result which Justice WILLIAM'S opinion inevitably brings about:

"[It] * * * undermines rather than furthers the protections of the Double Jeopardy Clause. In the event of severely prejudicial error a defendant might well consider an immediate new trial a preferable alternative to the prospect of a probable conviction followed by an *452 appeal, a reversal of the conviction, and a later retrial. Yet the Court of Appeals' decision, in effect, instructs trial judges to reject the most meritorious mistrial motion in the absence of manifest necessity and to require, instead, that the trial proceed to its conclusion despite a legitimate claim of seriously prejudicial error. For if a trial judge follows that course, the Double Jeopardy Clause will present no obstacle to a retrial if the conviction is set aside by the trial judge or reversed on appeal. United States v Ball, 163 US 662." Id.

In this case, it also results in one codefendant convicted and another released after guilty pleas by each to identical offenses. Gamesmanship prevailed again.

I would affirm the conviction.

FITZGERALD, J., concurred with COLEMAN, J.

NOTES

[1] The protection was held enforceable against the states through the Fourteenth Amendment in Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).

[2] The guarantee has been said to protect against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). The scope of the law of jeopardy is apparently the same under both the Michigan and United States Constitutions. In re Ascher, 130 Mich 540, 545; 90 NW 418; 57 LRA 806 (1902).

[3] "[A] defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge." United States v Jorn, 400 US 470, 479; 91 S Ct 547, 554; 27 L Ed 2d 543, 553 (1971). "In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. * * * In a nonjury trial, jeopardy attaches when the court begins to hear evidence." Serfass v United States, 420 US 377, 388; 95 S Ct 1055; 43 L Ed 2d 265 (1975). In the case of a guilty plea, jeopardy attaches when the sentence is imposed. People v Burt, 29 Mich App 275, 277; 185 NW2d 207 (1970).

[4] Traditional analysis has been that immunity from second jeopardy was a personal privilege which could be waived by the accused. However, in a footnote in the recent case of United States v Dinitz, ___ US ___; 96 S Ct 1075; 47 L Ed 2d 267 (1976), the United States Supreme Court "rejected the contention that the permissibility of a retrial following a mistrial" depends on waiver. ___ US ___ fn 11.

[5] "Only if jeopardy has attached is a court called upon to determine whether the declaration of a mistrial was required by `manifest necessity' or the `ends of public justice.'" Illinois v Somerville, 410 US 458, 468; 93 S Ct 1066; 35 L Ed 2d 425 (1972).

"Examples of situations where such a manifest necessity has been found to exist include cases where the jury is unable to agree; where the tactical situation of an army in the field dictates the dismissal of a court-martial; where the trial judge discovers that one or more jurors might be biased; and where a juror, or defendant becomes ill during trial, making his continued presence impossible." People v Gardner, 37 Mich App 520, 527-528; 195 NW2d 62 (1972).

[6] "Reprosecution after a mistrial has unnecessarily been declared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge's action." United States v Jorn, 400 US 470, 483; 91 S Ct 547; 27 L Ed 2d 543 (1971).

"We are not unmindful of the apparent irony in denying the trial court jurisdiction to proceed because of a ruling made, at least in part, ostensibly for the benefit of these petitioners. But we do not deal here with a mere technicality of the law: as the Locklear court explained * * *, `Assuming a failure of justice in the instant case, it is outweighed by the general personal security afforded by the great principle of freedom from double jeopardy. Such misadventures are the price of individual protection against arbitrary power.'" State v Locklear, 16 NJ 232; 108 A2d 436, 442 (1954), quoted in Curry v Superior Court, 2 Cal 3d 707, 718; 87 Cal Rptr 361, 368; 470 P2d 345, 352 (1970).

[7] Accord, Commonwealth v Baker, 413 Pa 105, 115; 196 A2d 382, 387 (1964); Curry v Superior Court, 2 Cal 3d 707, 713; 87 Cal Rptr 361, 364; 470 P2d 345, 348 (1970).

See also, People v Carlton Brown, 23 Mich App 528, 534; 179 NW2d 58 (1970).

"Silence cannot operate against a defendant."

Contra, Coppage v State, 62 Okla Cr 325, 335; 71 P2d 509, 513 (1937).

[8] The principle was first expressed by Justice Story in United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824), when writing for a unanimous court, he said:

"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 favor of the prisoner."

[9] "[W]here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution." United States v Jorn, 400 US 470, 485; 91 S Ct 547; 27 L Ed 2d 543 (1971).

[10] "If evidence of the fact of a polygraph test be admitted or improper argument about it be made even though no objection to either be interposed, the court should instruct the jury as to the unreliability of such tests." 7 Mich App 471, 476.

[11] This colloquy followed the trial court's warning that questioning about polygraph examinations was "treading on dangerous ground", 17 Mich App 292:

"Q. Miss Whitfield, one last question: In the process of your investigation of this case and to ascertain the truthfulness of Lana Jane Robinson, was she at any time get ready, Mr. Bucknell (defense counsel) offered a polygraph examination? (Emphasis supplied.)"

[12] The California Supreme Court has presented some reasons why defendant might not opt for a mistrial.

"A defendant may choose not to move for or consent to a mistrial for many reasons. He may be of the opinion that no error in fact occurred, or if it occurred, that it was not prejudicial. He may believe that any error in admitting improper evidence can be cured by a motion to strike or a request for admonition, or can be refuted by impeachment of the witness or contrary defense evidence. Indeed, even when a palpably prejudicial error has been committed a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the entire process anew, such as a desire to minimize the embarrassment, expense, and anxiety mentioned above." Curry v Superior Court, 2 Cal 3d 707, 717; 87 Cal Rptr 361, 367; 470 P2d 345, 351 (1970).

[13] "If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not `within the range of competence demanded of attorneys in criminal cases,' McMann v Richardson, supra, at 771. Counsel's failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof. Thus, while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief." 411 US 258, 266-267.

[14] Our own decisions have followed this lead. Thus, for example, a plea of guilty waives a claim of an illegally gained confession. People v Catlin, 39 Mich App 106, 108; 197 NW2d 137 (1972). But see People v Millard, 394 Mich 99; 228 NW2d 783 (1975), for indication that a guilty plea does not waive all preconviction rights of the accused.

[15] As for defendant's qualified plea, the Federal circuits have apparently split as to whether defendant may plead guilty while preserving the right to raise on appeal constitutional challenges to evidence. See, e.g., United States v Cox, 464 F2d 937, 945 (CA 6, 1972).

"In sum, while we can see that the proposed procedure [allowing defendant to plead guilty, contingent on his right to appeal on nonjurisdictional grounds from his own plea] may ease the docket pressures confronting many district courts, we believe the disadvantages in terms of the internal consistency of our criminal process, the accuracy of appellate review, and conflict with the hoary doctrine of avoiding constitutional questions if possible, far outweigh the putative gains."

Contra, United States v Caraway, 474 F2d 25, 28-29 (CA 5, 1973), opinion vacated as moot, 483 F2d 215 (CA 5, 1973) (involving a plea of nolo contendere, the legal equivalent of a guilty plea).

"Our rationale for recognizing this type of express agreement is two-fold. First, we are reluctant to establish a rigid rule requiring a defendant to undergo the costly and futile ordeal of a complete trial, when the State could easily prove its case by the evidence claimed to be illegally obtained and by no other evidence, and the defendant merely seeks to preserve a single, nonjurisdictional issue * * *. Second, of the combined requisites, `voluntariness' and `intelligence' * * * for equivalence to a valid guilty plea, a nolo plea, conditioned on right to appellate review of a motion to suppress evidence, might now * * * meet the test of being `voluntary,' but the conditioning of the plea on a right to appellate review demonstrates that it was not so `intelligently' entered as to waive deprivation of a nonjurisdictional defect sought to be reviewed; and more especially so, where, at the time of pleading, the practice of the reviewing court is to honor such a condition allowed by the trial court." (Citations omitted.)

[16] As we observed in People v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973), while one might find waiver of the right to appeal alleged constitutional violations as part of the consideration for permitting a plea of guilty to a lesser offense, "[p]utting aside the legitimacy of such consideration, all pleas are not bargained pleas". (Notes omitted.)

[17] E.g., United States v Liguori, 430 F2d 842, 848-849 (CA 2, 1970), cert den, 402 US 948; 91 S Ct 1614; 29 L Ed 2d 118 (1971), where there was no governmental interest in seeing defendant punished, since it was the statutory scheme which violated the privilege against self-incrimination. "Where the state's interest in punishing the defendant's conduct is lacking, the plea as an admission becomes meaningless, for it cannot bestow upon the state the authority to prosecute or punish the defendant." Shwartz, The Guilty Plea as a Waiver of `Present but Unknowable' Constitutional Rights: The Aftermath of the Brady Trilogy, 74 Col L Rev 1435, 1462 (1974).

[18] "The federal courts have stated that one can never waive a jurisdictional defect. * * * For a court to have jurisdiction, there must be a valid indictment or information, substantiated by sufficient legal evidence to show the accused probably committed the crime with which he is charged." Mullady, Appellate Review of Constitutional Infirmities Notwithstanding a Plea of Guilty, 9 Houston L Rev 305, 314 (1971). (Notes omitted.)