Opinion
Docket No. 93736.
Decided August 7, 1989. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James J. Gregart, Prosecuting Attorney, and David W. DeBack, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by F. Michael Schuck), for defendant on appeal.
Defendant appeals from his jury conviction of first-degree criminal sexual conduct, MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). Defendant was sentenced to a prison term of three to ten years. We affirm.
The instant case is presented as an appeal from defendant's fourth trial on this charge. Defendant was originally charged by information filed in circuit court on January 15, 1980, for the instant offense, which occurred on December 22, 1979. The first trial resulted in a conviction for first-degree criminal sexual conduct, which was reversed by this Court on two grounds: (1) prosecutorial misconduct in eliciting testimony from the arresting officer of defendant's silence, contrary to People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973); and (2) the erroneous admission of defendant's postarrest statements elicited contrary to his Miranda right to a cessation of police interrogation once an accused has chosen to remain silent. People v Peeples, unpublished opinion per curiam of the Court of Appeals, decided November 10, 1981 (Docket No. 55765). The first ground was deemed "so blatant a violation of Bobo as to constitute an affront to the integrity of the trial process." Defendant's second trial concluded with the court's grant of defendant's request for a mistrial after a police witness made an indirect reference to defendant's first trial and sentence during prosecutorial direct examination. Immediately prior to the court's ruling, the prosecutor represented that he had advised the witness not to make reference to defendant's previous imprisonment and that he had not intended that the objectionable testimony be given. Defendant's third trial in November of 1982 resulted in a conviction of first-degree criminal sexual conduct. This conviction was also reversed on appeal for two stated reasons: (1) the testimony given by one of the arresting officers was contrary to defendant's Miranda rights as determined in the first appeal; consequently, the trial court's decision to allow the testimony was contrary to the law of the case; and (2) the trial court should have given an instruction on the lesser included offense of second-degree criminal sexual conduct. People v Peeples, unpublished opinion per curiam of the Court of Appeals, decided October 10, 1985 (Docket No. 70405). The fourth trial resulted in his third conviction of first-degree criminal sexual conduct in February and March of 1986. This conviction is the basis for the instant appeal.
The four trials did not violate defendant's right to due process of law. There is no evidence of blatant or inexcusable misconduct on the part of the police or prosecutor during the second, third or fourth trials. People v Walls, 117 Mich. App. 691; 324 N.W.2d 136 (1982). Nor was there evidence that the successive prosecutions were brought to harass defendant or in an attempt to "judge shop."
In People v Thompson, 424 Mich. 118; 379 N.W.2d 49 (1985), our Supreme Court upheld the defendant's conviction following a third trial. The Thompson Court held that retrial following a mistrial due to a deadlocked jury does not violate a defendant's right to due process or a fair trial. The Court stated that subsequent retrials are continuations of the same case assuming a sufficiency of the evidence. I find no authority that a fourth trial violates defendant's right to due process.
In three of the four separate trials, a jury found defendant guilty of first-degree criminal sexual conduct. It can be argued that defendant was subjected each time to expense, ordeal and anxiety. However, my sympathies lie with the victim who not only was forced against her will to perform oral sex twice and have intercourse twice with defendant, but also had to relive those agonizing moments many times prior to and during the four trials.
I reject defendant's claim that the evidence was insufficient to support the personal injury element serving to elevate defendant's conviction from criminal sexual conduct in the third degree to the first degree. See People v Hollis, 96 Mich. App. 333, 336-338; 292 N.W.2d 538 (1980); People v Kraai, 92 Mich. App. 398, 402-403; 285 N.W.2d 309 (1979), lv den 407 Mich. 954 (1980).
Affirmed.
MURPHY, J., concurred in the result only.
I would reverse. I would also reject defendant's claim that the evidence was insufficient to support the personal injury element serving to elevate defendant's conviction from criminal sexual conduct in the third degree to the first degree. See People v Hollis, 96 Mich. App. 333, 336-338; 292 N.W.2d 538 (1980); People v Kraai, 92 Mich. App. 398, 402-403; 285 N.W.2d 309 (1979), lv den 407 Mich. 954 (1980). Additionally, I would reject defendant's double jeopardy claim. See People v McPherson, 38 Mich. App. 534; 197 N.W.2d 173 (1972).
Where I disagree with Judge Grathwohl is with respect to defendant's argument that by subjecting him to repeated retrial due process was violated. I agree with defendant and premise my opinion for reversal on the conclusion that the course these proceedings took at some point amounted to a denial of due process. Due process is violated by a failure to accord the defendant fundamental fairness. People v Thompson, 424 Mich. 118, 133; 379 N.W.2d 49 (1985). A corollary of this basic principle is that prosecutorial misconduct depriving the defendant of a fair proceeding can amount to a denial of due process. See People v Walls, 117 Mich. App. 691; 324 N.W.2d 136 (1982).
In Thompson, supra, the defendant contended that his retrial after a mistrial declared due to jury deadlock in the second of three trials violated both Michigan and federal due process guarantees. Although the Court rejected the claim on its facts, which did not rise to the level of fundamental unfairness, the Court explicitly refused to foreclose the possibility that repeated retrials could violate due process. Taking prompting from the intimation by our Supreme Court in Thompson that due process does act to constrain repeated retrials at some point, I would conclude that each case must be examined on its own facts and turn to the controlling considerations in the case at bar. Unlike a double jeopardy evaluation, which is limited in focus to the trial in which jeopardy is claimed to bar any subsequent retrial, consideration of a possible due process violation extends to an overview of the entire history of the prosecution against defendant.
See also People v Pribble, 72 Mich. App. 219; 249 N.W.2d 363 (1976), lv den 409 Mich. 902 (1980); Harris v State, 312 Md. 225; 539 A.2d 637 (1988).
Defendant was subjected to the expense, ordeal, and state of anxiety attendant to four trials. Although I do not believe that four trials for one offense necessarily amount to a due process deprivation in most instances, I note the predominant role that prosecutorial and police misconduct and neglect played in withholding a final determination of guilt or innocence in the course of a single trial. Some instances of misconduct appear to be blatant and inexcusable. Although this case factually presents a close question, at some point enough becomes enough. I would conclude that a fourth trial in this case surpassed that point and thereby denied defendant a fair trial. Accordingly, I would reverse with the direction that the charges against defendant be dismissed.