PEOPLE v. GRIMMETT

SWAINSON, J.

On December 22, 1966, three men held up a small grocery store in the City of Detroit. During the course of the robbery, the owner, Shaker Aubrey, was killed, and a customer, John Kubon, was wounded by a bullet which struck him in the back. Defendant Grimmett was arrested on December 26, 1966, and on December 27, 1966, was charged with the murder of Mr. Aubrey.

A jury trial commenced on January 22, 1968, in Recorder's Court for the City of Detroit. On January 24, 1968, defendant's counsel informed the court that defendant wished to plead guilty to second-degree murder, and that it was his opinion that the information charged murder in the second degree. The prosecutor disagreed with defense counsel's assertion and contended that the information charged first-degree murder. In his opening statement to the jury, the prosecutor stated that he intended to prove the crime was premeditated.

The information read:
"In the Name of the People of the State of Michigan, WILLIAM L. CAHALAN, Prosecuting Attorney in and for the said County of Wayne, who prosecutes for and on behalf of the People of said State in said Court, comes now here in said Court in the MARCH term thereof, A.D. 1967, and gives the said Court to understand and be informed that
GEORGE GRIMMETT
HAROLD JOHNSON
CARLETON BROWN
late of the said City of Detroit, in said County, heretofore, to-wit, on the 22nd day of December, A.D. 1966, at the said City of Detroit, in the County aforesaid feloniously, wilfully and of their malice aforethought, did kill and murder one Shaker Aubrey; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan.
"Note — See Sec. 750.316 C.L. 1948

/s/ William L. Cahalan Prosecuting Attorney"

The trial court allowed the prosecutor to amend the information to charge first-degree murder by adding the words "and with premeditation." Defendant's objection to this amendment was overruled. The trial court, believing that MCLA 767.76; MSA 28.1016, required the dismissal of the jury when an information was amended, discharged the jury.

MCLA 767.76; MSA 28.1016, reads in part:
"If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury."

A new trial on the first-degree murder charge was commenced on September 29, 1969. On October 4, 1969, a jury found defendant guilty of manslaughter. He was sentenced to 14 years, 11 months to 15 years, with no recommendation.

On August 1, 1968, defendant was arraigned on the charge of assault with intent to commit murder resulting from the wounding of the customer, John Kubon. This was after the jury in the first trial on the murder charge had been discharged and prior to the commencement of the second trial on that charge. On December 17, 1968, defendant's trial on this second charge began before another jury in recorder's court. On December 20, 1968, defendant was found guilty of assault with intent to commit murder and was sentenced to life imprisonment. The Court of Appeals affirmed the conviction on the charge of assault with intent to commit murder. 27 Mich. App. 509. A separate panel of the Court of Appeals affirmed defendant Grimmett's conviction of manslaughter. 29 Mich. App. 609. We granted leave to appeal in both cases. 384 Mich. 833.

Defendant raises, and the prosecution accepts, five issues on appeal, four of which are listed below:

1. Whether the dismissal of the jury in the first trial was by the court sua sponte and not justified by "manifest necessity," or whether the dismissal of the jury was with the consent of the defendant?

2. Whether defendant was deprived of his right to a speedy trial where he was arrested and placed in custody on December 26, 1966, and a warrant and complaint did not issue until July 30, 1968?

3. Whether defendant was unconstitutionally placed in jeopardy twice by the multiple prosecutions launched against him arising out of the same criminal episode?

4. Whether it was improper for the trial judge at the assault sentencing to consider in the determination of punishment a factor, which at that time constituted an arrest for a crime for which defendant had not been convicted nor was subsequently convicted?

Defendant contends that the double jeopardy provisions of the Fifth Amendment should have prohibited his second trial after the judge dismissed the jury in the first trial. The purpose behind the double jeopardy provision of the Fifth Amendment was stated by the United States Supreme Court in Green v United States, 355 U.S. 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957), as follows:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

"[T]he 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."

The double jeopardy provision of the Fifth Amendment is now applicable to the states through the Fourteenth Amendment. Benton v Maryland, 395 U.S. 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). In addition, the Michigan Constitution 1963, art 1, § 15, prevents a defendant from being placed in double jeopardy.

"No person shall be subject for the same offense to be twice put in jeopardy. All persons shall, before conviction, be bailable by sufficient sureties, except for murder and treason when the proof is evident or the presumption great."

The provision forbidding double jeopardy does not prevent a retrial under any circumstances. Two types of situations are recognized where a second trial is permitted. First, in those situations where "manifest necessity" requires it and, second, in those cases where the defendant consents to a mistrial.

The exception to the double jeopardy provision of the Constitution for cases where "manifest necessity" requires it was recognized by the United States Supreme Court in United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824).

It is difficult to precisely define what constitutes "manifest necessity". Examples include the failure of the jury to reach a verdict, United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824), and misconduct of a member of the jury, In re Ascher, 130 Mich. 540 (1902). However, in the present case, the prosecutor does not contend that there was "manifest necessity" for the dismissal of the jury. The prosecutor contends there is no double jeopardy because defendant requested and consented to a new jury.

Waiver is defined in Johnson v Zerbst, 304 U.S. 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938), as "an intentional relinquishment or abandonment of a known right or privilege." The Court added, "`courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and * * * we `do not presume acquiescence in the loss of fundamental rights.'" Thus, waiver consists of two separate parts: 1) a specific knowledge of the constitutional right; and 2) an intentional decision to abandon the protection of the constitutional right. Both of these elements must be present and if either is missing there can be no waiver and no finding of consent.

The difficulty arose in this case because the trial judge felt bound by MCLA 767.76; MSA 28.1016, to discharge the jury. This statute reads:

"No indictment shall be quashed, set aside or dismissed or motion to quash be sustained or any motion for delay of sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court shall in its discretion permit. The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury. In case a jury shall be discharged from further consideration of a case under this section, the accused shall not be deemed to have been in jeopardy. No action of the court in refusing a continuance or postponement under this section shall be reviewable except after motion to and refusal by the trial court to grant a new trial therefor and no writ of error or other appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court shall find that the accused was prejudiced in his defense or that a failure of justice resulted."

It is clear that the trial court was incorrect in its interpretation of the law. The statute provides: "the accused shall on his motion be entitled to a discharge of the jury". The statute does not permit the trial judge on his own motion to discharge the jury. Moreover, the statute provides that the discharge of the jury occurs after the amendment to the information. In this case, the trial court dismissed the jury before the amendment was made.

It is apparent from a reading of the colloquy between court and counsel that defendant's counsel also misunderstood MCLA 767.67; MSA 28.1016:

"Mr. Sherman [Defendant's counsel]: I am not arguing the constitutionality of the Michigan statutes. I call your attention to this. But, Your Honor, as to whether or not they have the right to amend —

"The Court (Interposing): You can argue the constitutionality of the Michigan statute. I think the Michigan statute is safe from constitutional defect by the requirement —

"Mr. Sherman (Interposing): Yes, that's right, Your Honor.

"The Court (Continuing): — that I discharge the Jury and give you an opportunity to meet the amendment to the indictment and have another trial.

"Mr. Sherman: That's right. * * * I agree with Your Honor that the Michigan statutes — where we raise the question and they want to amend to substance, we have got to have a new jury." (Emphasis added.)

The prosecutor contends that defense counsel by his actions did in fact make a motion for discharge of the jury and, thus, defendant did consent to such discharge and jeopardy does not attach. The prosecutor relies on the fact that the trial judge, at the end of his colloquy with the two attorneys, stated:

"The information does not charge premeditation and therefore it is not first-degree murder in Michigan.

"I grant the defense motion.

"If you want to amend I will give you leave to amend."

It is clear that the only motion the trial court was dealing with was defendant's motion that the information charged second-degree murder and not first-degree murder. Defendant never made any formal motion to discharge the jury. The prosecutor contends that although there was no formal motion, there was an informal motion which allowed defendant to waive this right. However, in view of the fact that defendant's attorney was mistaken in his view of the law, it is obvious that defendant could not consciously waive the right to object to the discharge of the jury. A close reading of the record reveals that defendant's counsel made no motion of any type to discharge the jury, and that the motion to discharge was made by the trial court sua sponte. No waiver can be inferred from the actions of defendant's counsel. The retrial of defendant under the circumstances of this case did constitute placing defendant in double jeopardy and the judgment of the Court of Appeals must be reversed.

Defendant's codefendant, Carleton Brown (also known as Carlton Brown), was present at the first trial with defendant. He appealed to the Court of Appeals, which held that he would be put in jeopardy twice if a retrial were allowed to proceed. People v Carlton Brown, 23 Mich. App. 528 (1970). We believe the Court of Appeals in the Brown case correctly analyzed the situation and that the reasoning of the Court of Appeals in Brown should be applied to the defendant in this case.

Defendant contends that his right to a speedy trial was violated by the 19-month delay between his arrest and his indictment on the charge of assault with intent to commit murder. The right to a speedy trial is embodied in the Sixth Amendment to the United States Constitution. This right attaches to the period of time between an arrest and an indictment. United States v Kaufman, 311 F.2d 695 (CA 2, 1963); Hardy v United States, 119 US App DC 364; 343 F.2d 233 (1964).

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The Court of Appeals in dealing with this issue stated ( 27 Mich. App. 509, 515):

"Under these circumstances was there a right, in addition to the right to a speedy trial in both prosecutions, to speedy commencement of prosecutions? The people take the negative position, asserting that the defendant's only right concerning the timing of the commencement of the prosecution is set forth by the applicable statute of limitations. The necessary preparation for each trial would have been virtually the same and defendant demonstrates no prejudice in having a fair trial by reason of the delay. The original prosecution was still pending and he did not move for a joint trial of both prosecutions. The second prosecution was completed before the first. We hold that there was no violation of his constitutional or statutory rights to speedy trial nor was there a failure of due process. 21 Am Jur 2d, Criminal Law, § 248, p 283."

The United States Supreme Court has recently handed down a decision that authoritatively settles many of the problems in this area. In Barker v Wingo, 407 U.S. 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), the Court delivered a decision dealing with the right to a speedy trial. Mr. Justice Powell, speaking for a unanimous Court, stated that the rule followed in Michigan and some other states, which requires a defendant to make a demand or else he is presumed to waive his right to a speedy trial, is inconsistent with Federal constitutional requirements. The Court stated:

"Such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court's pronouncements on waiver of constitutional rights. The Court has defined waiver as `an intentional relinquishment or abandonment of a known right or privilege.' Johnson v Zerbst, 304 U.S. 458, 464 [ 58 S Ct 1019; 82 L Ed 1461] (1938). Courts should `indulge every reasonable presumption against waiver,' Aetna Ins. Co. v Kennedy, 301 U.S. 389, 393 [ 57 S Ct 809; 81 L Ed 1177] (1937), and they should `not presume acquiescence in the loss of fundamental rights,' Ohio Bell Tel. Co. v Public Utilities Comm'n, 301 U.S. 292, 307 [ 57 S Ct 724; 81 L Ed 1093] (1937). In Carnley v Cochran, 369 U.S. 506 [ 82 S Ct 884; 8 L Ed 2d 70] (1962), we held:

"`Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel, but intelligently and understandably rejected the offer. Anything less is not waiver.' Id., at 516.

The Court has ruled similarly with respect to waiver of other rights designed to protect the accused. See, e.g., Miranda v Arizona, 384 U.S. 436, 475-476 [ 86 S Ct 1602; 16 L Ed 2d 694] (1966); Boykin v Alabama, 395 U.S. 238 [ 89 S Ct 1709; 23 L Ed 2d 274] (1969).

"In excepting the right to speedy trial from the rule of waiver we have applied to other fundamental rights, courts that have applied the demand-waiver rule have relied on the assumption that delay usually works for the benefit of the accused and on the absence of any readily ascertainable time in the criminal process for a defendant to be given the choice of exercising or waiving his right. But it is not necessarily true that delay benefits the defendant. There are cases in which delay appreciably harms the defendant's ability to defend himself. Moreover, a defendant confined to jail prior to trial is obviously disadvantaged by delay as is a defendant released on bail but unable to lead a normal life because of community suspicion and his own anxiety.

"The nature of the speedy-trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest.

"It is also noteworthy that such a rigid view of the demand rule places defense counsel in an awkward position. Unless he demands a trial early and often, he is in danger of frustrating his client's right. If counsel is willing to tolerate some delay because he finds it reasonable and helpful in preparing his own case, he may be unable to obtain a speedy trial for his client at the end of that time. Since under the demand-waiver rule no time runs until the demand is made, the government will have whatever time is otherwise reasonable to bring the defendant to trial after a demand has been made. Thus, if the first demand is made three months after arrest in a jurisdiction which prescribes a six months rule, the prosecution will have a total of nine months — which may be wholly unreasonable under the circumstances. The result in practice is likely to be either an automatic, pro forma demand made immediately after appointment of counsel or delays which, but for the demand-waiver rule, would not be tolerated. Such a result is not consistent with the interests of defendants, society, or the Constitution.

"We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection.

"In ruling that a defendant has some responsibility to assert a speedy-trial claim, we do not depart from our holdings in other cases concerning the waiver of fundamental rights, in which we have placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made. Such cases have involved rights which must be exercised or waived at a specific time or under clearly identifiable circumstances, such as the rights to plead not guilty, to demand a jury trial, to exercise the privilege against self-incrimination, and to have the assistance of counsel. We have shown above that the right to a speedy trial is unique in its uncertainty as to when and under what circumstances it must be asserted or may be deemed waived. But the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside."

Thus, the Michigan rule laid down in People v Foster, 261 Mich. 247 (1933), which required that a defendant demand a speedy trial or waive his constitutional right, is overruled.

The Court further held that in determining whether the right to a speedy trial has been violated, a balancing test should be used which should take into account four factors:

"Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."

In this case there clearly was a very long delay which the state had the heavy burden of justifying. Our Court has followed the rule that after a delay of 18 months, prejudice is presumed. People v Den Uyl, 320 Mich. 477 (1948). Moreover, the United States Supreme Court in Barker, supra, recognized that the prejudice to the defendant often could not be quantified, and, thus, must to some extent be presumed. The Court stated:

"A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown." (Emphasis added.)

We believe that upon considering all of these factors, defendant was not denied his right to a speedy trial. In Barker v Wingo, supra, the delay was over 5 years; here it was 19 months. Moreover, there is no evidence that defendant was prejudiced by the delay. While it is difficult to measure prejudice in these circumstances, defendant has failed to point out any type of prejudice that did occur. The fact situation in the two trials were identical. Therefore, the defense in both trials was based on substantially the same facts. Loss of evidence due to a delay could not and did not occur in this case.

Defendant made no request for a trial on the assault charge. Although failure to assert this right does not lead to an automatic waiver, it is one factor to consider in determining whether defendant was denied this right. We hold that viewing all of the facts, defendant was not denied his right to a speedy trial.

Defendant further contends that we should prohibit multiple prosecutions arising out of the same factual situation. Defendant properly points out that in some cases multiple prosecutions are prejudicial to a defendant. In some cases multiple prosecutions may aid a defendant. Therefore, we believe a mandatory rule would be an unwise solution to this problem. Moreover, we believe that the type of rule proposed by the defendant, such as is found in the Model Penal Code, is properly a decision for the Legislature and not for this Court.

Section 1.07 of the Model Penal Code (Proposed Official Draft, 1962, p 12) reads in part:
"(2) Limitation on Separate Trials for Multiple Offenses. Except as provided in Subsection (3) of this Section, a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.
"(3) Authority of Court to Order Separate Trials. When a defendant is charged with two or more offenses based on the same conduct or arising from the same criminal episode, the Court, on application of the prosecuting attorney or of the defendant, may order any such charge to be tried separately, if it is satisfied that justice so requires."

At the sentencing of defendant on the assault charge, the trial court stated:

"And while he was tried for the shooting of Mr. Kubon, he is certainly the same person who murdered the other grocer, Mr. Shaker Aubrey at the same time."

We believe this was improper. The trial court, of course, has wide latitude in sentencing a defendant. The court may consider a defendant's previous convictions, public records concerning the defendant, or even defendant's admissions to the court. People v Losinger, 331 Mich. 490 (1951); cert den 343 U.S. 911; 72 S Ct 644; 96 L Ed 1327 (1952). However, here the trial judge went even further and made an independent finding of defendant's guilt on the murder charge. This was for the jury at the murder trial to decide. At the time of the sentencing on the assault charge, defendant had not been found guilty on the murder charge. He had technically been arrested but not convicted on the murder charge. We believe the trial judge acted improperly in assuming defendant was guilty of the murder charge when he sentenced defendant on the assault charge. We, therefore, remand the case to the trial court for resentencing on the assault charge. See People v Baum, 251 Mich. 187 (1930); People v Mellor, 302 Mich. 537 (1942); People v Earegood, 383 Mich. 82 (1970).

The Court of Appeals is reversed as to defendant's conviction for manslaughter ( 29 Mich. App. 609). The Court of Appeals is affirmed as to defendant's conviction of assault with intent to commit murder ( 27 Mich. App. 509), and the cause is remanded for resentencing of defendant in accordance with this opinion.

T.M. KAVANAGH, C.J., and ADAMS, T.G. KAVANAGH, and WILLIAMS, JJ., concurred with SWAINSON, J.