Williams, J. 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). Fitzgerald, J., concurred with Coleman, J.
1. -- Double Jeopardy -- Mistrial -- Plea of Guilty.
The defense of double jeopardy after a mistrial is improperly granted is not waived by a subsequent plea of guilty.
2. -- Trial -- Mistrial -- Polygraph Test.
The mere mention of a polygraph test during a criminal trial, without more, does not constitute such manifest necessity as would justify granting a mistrial in the absence of a defendant's consent.
3. -- Constitutional Law -- Double Jeopardy.
The underlying idea of the constitutional guarantee 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 (US Const, Am V, Const 1963, art 1, § 15).
Once a defendant has been placed in jeopardy, unless he consents to interruption of the trial, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again.
5. -- Double Jeopardy -- Mistrial.
Reprosecution of a defendant is prohibited by the double jeopardy clause even if a defendant benefits from a mistrial called for reasons short of those necessary to satisfy the manifest necessity standard.
6. -- Double Jeopardy -- Mistrial -- Consent.
A mistrial is not a bar to retrial of a defendant even where the mistrial was improperly declared if the action was taken with the defendant's consent.
7. -- Double Jeopardy -- Trial -- Mistrial -- Consent.
Mere silence or failure to object to the jury's discharge is not consent by a defendant to a declaration of a mistrial; in the absence of an affirmative showing on the record that the defendant is exercising primary control over the course to be followed and consents to the mistrial, the Supreme Court will not presume to find a consent.
8. -- Trial -- Mistrial -- Manifest Necessity.
The judicial discretion to declare a mistrial for such manifest necessity that the ends of substantial Justice cannot be attained without discontinuing the trial is properly exercised only in very extraordinary and striking circumstances; a mere error of law or procedure does not constitute legal necessity and a mistrial should not be declared in consequence of mere irregularities which are not prejudicial to the rights of the persons prosecuted.
9. -- Trial -- Mistrial -- Manifest Necessity.
An apparently inadvertent question asked by defense counsel concerning a polygraph test which was instantly objected to and never answered by the witness and which was not part of an overt effort to misuse the judicial system to prevent the defendant from receiving a fair trial was not sufficiently prejudicial to warrant a mistrial based on manifest necessity or even on request of a defendant; the declaration of a mistrial should not be made lightly and the trial Judge must always consider the possibility of curing error with a warning.
10. -- Plea of Guilty -- Waiver of Defects.
A plea of guilty generally waives all non-jurisdictional defects in the proceedings, but the defendant may always challenge whether the state had a right to bring the prosecution in the first place by raising rights which might provide a complete defense to a criminal prosecution, those which undercut the state's interest in punishing the defendant, or the state's authority or ability to proceed with the trial.
11. -- Plea of Guilty -- Waiver of Rights.
A plea of guilty does not waive a right wherever it is found that the result of asserting the right would have been to prevent a trial from taking place.
Coleman and Fitzgerald, JJ.
12. -- Double Jeopardy -- Mistrial.
Declaration of a mistrial on the demand of a co-defendant after a reference to a polygraph examination had been made by defendant's attorney does not bar retrial of the defendant on the grounds of double jeopardy where the defendant apologized for the improper reference and remained silent after the demand for a mistrial, the defendant had primary control over the course to be followed, and the trial Judge could reasonably find that the ends of Justice required a mistrial (US Const, Am V, Const 1963, art 1, § 15).
13. -- Mistrial -- Consent.
The proper inquiry in determining whether a defendant consented to declaration of a mistrial is whether the defendant had primary control over the course to be followed, and a reviewing court may examine the totality of the circumstances in considering whether such control existed.
The opinion of the court was delivered by: Williams
During the joint trial of Alvin Johnson and Eddie Perkins for armed robbery, the Wayne Circuit Court, Michael L. Stacey, J., granted a mistrial on motion of defendant Perkins when Johnson's attorney referred to a polygraph test. Before the defendants' second trial began, Johnson and Perkins were convicted, on their pleas of guilty, of assault with intent to rob and steal being unarmed by the Wayne Circuit Court, James Montante, J. The Court of Appeals, V. J. Brennan, P. J., and Gillis and Bashara, JJ., granted the prosecution's motion to affirm Johnson's conviction (Docket No. 15479). Defendant Johnson appeals. Held:
1. Once a defendant has been placed in jeopardy, unless he consents to interruption of the trial, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again. In the absence of an affirmative showing that the defendant exercised primary control over the course to be followed and consented to the mistrial, the court will not find consent; however, a finding of manifest necessity for the mistrial would still make a second trial permissible.
2. The mere mention of a polygraph test, without more, did not constitute such manifest necessity as would justify a mistrial.
3. A plea of guilty, while it waives non-jurisdictional defects in the proceedings, does not waive all of the defendant's right; where the result of the right asserted would be to prevent a trial from taking place, it is not waived by a plea of guilty. The defense of double jeopardy after the start of the first trial, because its assertion would prevent a second trial taking place at all, is not waived by the subsequent plea of guilty.
4. The first trial improperly ended in a mistrial and the defendant was placed in jeopardy twice in violation of his constitutional right. The conviction may not stand and the defendant must be released.
Justice Coleman, joined by Justice Fitzgerald, Dissented on the ground that the order of mistrial was valid. The trial Judge is best situated to make a decision on whether a mistrial is necessary to achieve the ends of Justice. Although the mistrial was not in the sole interest of the defendant Johnson, because his co-defendant was equally interested and demanded a mistrial, the trial Judge could reasonably find that the ends of Justice required a mistrial. Reference to a polygraph may not be reversible error in every case, but declaration of a mistrial would at least appear to be the product of the trial Judge's solicitude. The inquiry is not whether the defendant waived his right to be tried by the first jury, but whether the defendant had primary control over the course to be followed. 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 co-defendant in seeking a mistrial. The general underlying rationale for the defense of double jeopardy, that the state with all its resources and power should not be allowed to make repeated attempts to convict the defendant, and that the prosecution, at a trial in which its case is going badly, should not be afforded another more favorable opportunity to convict, does not obtain in this case.
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.
Defendant Alvin Johnson's first trial, with co-defendant 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 ...