People of Michigan v. James Curtis Beck ( 2022 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
PEOPLE v BECK
Docket Nos. 160668 and 160669. Argued on application for leave to appeal October 6,
2021. Decided July 27, 2022.
James Beck was convicted, following a jury trial, in the Macomb Circuit Court of two
counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, and three counts of
second-degree criminal sexual conduct (CSC-II), MCL 750.520c. In 2016, defendant was charged
with two counts of CSC-II related to allegations that he sexually assaulted his minor daughter, TG,
and the case proceeded to a jury trial. During the jury’s deliberations, one of the jurors notified
the trial court that another juror might have done outside research on the case. The trial court
polled the jury by written note to find out whether any of the jurors were aware of that research.
Two of the jurors responded affirmatively: Juror 255 stated that he had not researched the case
itself, but had asked his mother about “her past experience” without mentioning the case. Juror
337 told the court that he had heard that one of the jurors was “looking into another [in]discretion”
that had occurred in the juror’s family. The court discussed this information with the parties, and
the prosecution asked the court to replace the two jurors with alternates, while defendant preferred
to allow the seated jury to continue its deliberations or to further question the two jurors to obtain
more information. The trial court rejected the parties’ requests and determined that the entire jury
was tainted and declared a mistrial. The case was set for retrial in 2017. In 2017, while awaiting
retrial, defendant was accused of sexually assaulting CS, the minor friend of one of his children,
and was charged with two counts of CSC-I and one count of CSC-II. One of the CSC-I counts
was charged as “person under 13, defendant 17 years of age or older” under MCL 750.520b(2)(b),
which mandates a minimum sentence of 25 years in prison. The other CSC-I count in the
information did not cite MCL 750.520b(2)(b) and stated only that the victim was “under 13,”
without also alleging that defendant was 17 years old or older. The 2016 charges and the 2017
charges were jointly tried in a second trial, and defendant was found guilty of all charges. The
court sentenced defendant to 25 to 60 years in prison for each count of CSC-I and 57 to 180 months
in prison for each count of CSC-II. Defendant appealed, and the Court of Appeals, METER, P.J.,
and O’BRIEN and SWARTZLE, JJ., affirmed in an unpublished per curiam opinion. Defendant
applied for leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral
argument on whether to grant defendant’s application for leave to appeal or take other action,
instructing the parties to address whether defendant’s second trial was barred by the Double
Jeopardy Clauses of the state or federal Constitutions and whether the trial court had improperly
imposed a mandatory minimum sentence of 25 years for the count of CSC-I that was not charged
as carrying this minimum sentence. 506 Mich 946 (2020).
In an opinion by Justice VIVIANO, joined by Chief Justice MCCORMACK and Justices
BERNSTEIN and CLEMENT, the Supreme Court held:
The trial court did not conduct a sufficient inquiry to support a finding of manifest necessity
before declaring a mistrial as to the 2016 charges; therefore, the court’s declaration of a mistrial
was an abuse of its discretion and the retrial on those charges violated double-jeopardy protections.
Accordingly, defendant’s convictions related to the 2016 charges had to be vacated. However,
defendant was not entitled to a new trial, resentencing, or other relief regarding the 2017 charges.
Contrary to defendant’s contention that the remaining convictions were tainted by the admission
of evidence related to the 2016 charges, his daughters’ testimony would have been admissible
other-acts evidence even if defendant had been tried separately on the 2017 charges. The trial
court did commit plain error by imposing a mandatory minimum sentence of 25 years under MCL
750.520b(2)(b) for the second count of CSC-I charged in 2017, but resentencing was not necessary
because the error did not affect the fundamental fairness of the trial.
1. Under both the state and federal Constitutions, an accused cannot be placed in jeopardy
twice for the same offense. If a trial is concluded prematurely, a retrial for that offense is prohibited
unless the defendant consented to the interruption or a mistrial was declared because of manifest
necessity. Determining whether manifest necessity exists requires balancing the competing
concerns of the defendant’s interest in completing the trial in a single proceeding before a
particular tribunal and the strength of the justification for a mistrial. Before declaring a mistrial,
the trial court must consider whether a mistrial is appropriate on the record and discuss alternatives
with defense counsel and the prosecutor. When the trial court does not follow these procedures,
there is no manifest necessity for declaring a mistrial. In this case, the standard for declaring a
mistrial was not satisfied. Although the trial court polled the jury and briefly discussed the matter
with counsel, including each side’s proposed alternatives, the court’s consideration of the matter
was too abrupt, and its conclusions were not supported by sufficient evidence. The nature of the
juror’s outside research was unclear to the court, but instead of further probing the juror’s research
and whether it would affect the proceedings, the court summarily declared a mistrial. Further,
although the court learned when the jury was polled that only one other juror knew about the
outside research, the court nonetheless concluded that the entire jury was tainted. The court did
not find a justification for mistrial that outweighed defendant’s interest in continuing the trial.
Therefore, the court’s inquiry was insufficient to find manifest necessity, and retrial on the 2016
charges violated the Double Jeopardy Clauses of the federal and state Constitutions.
2. Defendant argued that he was entitled to a new trial on the 2017 charges because his
convictions on those counts were tainted by the admission of evidence related to the 2016 charges
during the joint trial. At issue was whether the testimony of defendant’s daughters and his ex-wife
would have been inadmissible propensity evidence in a trial on only the 2017 charges. Propensity
evidence is generally inadmissible under MRE 404(b)(1). However, MRE 404(b)(1) is superseded
by MCL 768.27a when a criminal defendant is accused of committing a listed offense, including
CSC-II and fourth-degree criminal sexual conduct (CSC-IV) against a minor. Under the statute,
evidence that a defendant committed another listed offense against a minor is admissible and may
be considered for its bearing on any matter to which it is relevant. Therefore, evidence that
defendant committed CSC-II or CSC-IV was admissible under MCL 768.27a(1). The pertinent
question then was whether the challenged testimony qualified as evidence of CSC-II or CSC-IV.
The 2016 victim’s testimony that defendant touched her breasts and her genitals over her clothing
when she was between 10 and 12 years old satisfied the elements of CSC-II, and defendant’s other
daughters’ testimony also represented evidence that defendant committed CSC-II or CSC-IV;
accordingly, the challenged evidence was admissible under MCL 768.27a(1). However, evidence
that is admissible under MCL 768.27a must also comply with MRE 403. Under MRE 403,
evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Considerations under MRE 403 may include (1) the dissimilarity between the other acts
and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the
infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the
evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond
the complainant’s and the defendant’s testimony. When applying MRE 403 to evidence
admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the
probative value of the evidence rather than its prejudicial effect. In this case, the analysis would
have weighed in favor of admitting the evidence. TG and defendant’s other daughters alleged that
defendant engaged in acts generally similar to those alleged by CS, many of the acts were
temporally proximate, no intervening acts occurred, and there was a need for additional evidence
to support CS’s allegations. In sum, the probative value of the other-acts testimony was not
outweighed by unfair prejudice. With regard to the testimony of defendant’s ex-wife, defendant’s
arguments were made in conclusory fashion and the Court did not address them.
3. Under MCL 750.520b(2)(b), when CSC-I is committed by a person aged 17 years or
older against a person under the age of 13, the offense carries a mandatory minimum sentence of
25 years. In this case, the trial court imposed a mandatory minimum sentence of 25 years for both
of defendant’s remaining convictions for CSC-I, despite the fact that the information only stated
that one of the CSC-I charges carried that sentence. Under the Sixth Amendment, a criminal
defendant has the right to be informed of the nature and cause of the accusation against them. A
constitutionally sufficient charging document contains the elements of the offense charged and
fairly informs the defendant of the charge against which the defendant must defend. The elements
of an offense include those facts that increase both the ceiling and the floor of the punishment for
an offense; this includes facts that increase the mandatory minimum sentence of an offense. In
Alleyne v United States, 570 US 99 (2013), the Court held that if a statute prescribed a particular
punishment to be inflicted on those who violated the statute under special circumstances mentioned
in the statute, those special circumstances must be specified in the indictment. This requirement
is meant to allow the defendant to predict the legally applicable penalty from the face of the
indictment. Under MCL 750.520b(2)(b), the defendant must be 17 years of age or older for the
25-year mandatory minimum sentence to apply. Accordingly, this fact increases the minimum
penalty of the crime and is therefore an element that must be charged. Because only one of the
remaining CSC-I counts against defendant charged him as a person 17 years of age or older, the
trial court’s decision to apply the mandatory minimum to both counts was plainly in error.
However, the error did not significantly affect the fairness of the trial. Defendant had notice that
he was over the age of 17 when he committed both counts of CSC-I; both counts arose out of
defendant’s actions on a particular date, so he was necessarily the same age when the conduct
underlying both charges occurred; and the jury found beyond a reasonable doubt that defendant
was over 17 years old at the time of the offenses. Additionally, the information’s statement of the
required ages of the victim and the offender as to the first count of CSC-I put defendant on notice
that he would potentially be subjected to the same mandatory minimum for the second count.
Therefore, this error did not entitle defendant to resentencing because it did not result in an unfair
trial.
Convictions stemming from the 2016 charges vacated; convictions and sentences
stemming from the 2017 charges affirmed.
Justice ZAHRA, concurring in part and dissenting in part, agreed that defendant was not
entitled to relief related to the 2017 charges and convictions but disagreed with the majority’s
decision to vacate defendant’s convictions relative to the 2016 charges and opined that the majority
had failed to give adequate deference to the trial court’s decision to declare a mistrial. Justice
ZAHRA noted that manifest necessity is not to be interpreted literally or applied mechanically;
rather, a high degree of necessity is required to justify declaring a mistrial. The level of appellate
scrutiny properly applied to a trial court’s decision depended on the nature of the circumstances
that led to the mistrial declaration. In a case of possible jury bias, the decision of the trial judge
was entitled to special respect, given the judge’s opportunity to observe the sequence of events in
the context of the trial. Under MCR 6.417, the trial court, before ordering a mistrial, must give
the parties an opportunity to comment on the record on the propriety of the order, to state whether
they consent or object, and to suggest alternatives. The role of the appellate court was not to
determine whether it would have found manifest necessity, but whether the trial court abused its
discretion. Justice ZAHRA opined that the trial court in this case did not abuse its discretion by
declaring a mistrial. The record showed that the court complied with its obligation under the court
rule and acted deliberately and responsibly in declaring a mistrial. Further, a review of the whole
record demonstrated that extraneous information was brought into the jury room and created the
possibility of juror bias sufficient to support a finding of manifest necessity to warrant a mistrial.
Justice ZAHRA also was not convinced that the trial court had to extensively consider less drastic
alternatives, noting that this was not required under either caselaw or the court rules, and in any
event, the trial court’s consideration of the parties’ proposed alternatives was adequate.
Justice CAVANAGH, joined by Justice WELCH, concurring in part and dissenting in part,
agreed with the majority opinion that the trial court had abused its discretion in finding that a
manifest necessity required a mistrial and that consequently, defendant’s second trial on the 2016
charges violated the prohibition against double jeopardy. However, Justice CAVANAGH would
have remanded the case to the Court of Appeals to consider whether the 2017 convictions were
impermissibly tainted by the introduction of the 2016 charges and additional other-acts evidence.
Justice CAVANAGH also stated that the majority opinion had failed to faithfully conduct the analysis
set forth in People v Watkins, 491 Mich 450 (2012), regarding whether evidence introduced
pursuant to MCL 768.27a was admissible under MRE 403. Justice CAVANAGH noted that while
Watkins required the courts to separately review each act alleged under MRE 403, the majority
opinion lumped all the other-acts evidence together into one conclusory analysis and was therefore
unclear as to whether some of the evidence admitted under MCL 768.27a should have been
admitted under MRE 403.
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED July 27, 2022
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v Nos. 160668-9
JAMES BECK,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
VIVIANO, J.
Defendant’s first trial ended when the trial court declared a mistrial. While awaiting
retrial, defendant was charged with additional crimes, which were tried jointly with his
original charges in a second trial. Three issues are presented in this appeal. First, whether
the retrial of defendant’s original charges was barred by the Double Jeopardy Clause of the
federal or state Constitution. See US Const, Am V; Const 1963, art 1, § 15. Second, if the
retrial of the original charges was barred, whether vacating those convictions would entitle
defendant to any relief with respect to his remaining convictions. Third, whether the trial
court erred by imposing a mandatory minimum sentence of 25 years for defendant’s
conviction of first-degree criminal sexual conduct (CSC-I) when the information did not
state that the charge carried this minimum sentence.
We hold that the trial court abused its discretion by declaring a mistrial in the initial
trial without conducting an inquiry sufficient to support a finding of manifest necessity.
As a consequence, those convictions will be vacated. However, defendant has not
demonstrated that he is entitled to a new trial, resentencing, or other relief regarding the
other convictions. Finally, we hold that the trial court committed plain error by imposing
a mandatory minimum sentence of 25 years under MCL 750.520b(2)(b) because the age
requirement is an element that must be charged in the information and found by the jury,
and it was not charged here. However, defendant is not entitled to relief because this error
did not result in a fundamentally unfair trial.
I. FACTS
In 2016, defendant, James Beck, was charged with two counts of second-degree
criminal sexual conduct (CSC-II), MCL 750.520c, for allegedly rubbing his underage
daughter TG’s genitals and chest through her clothing while he was alone with her. At the
end of the trial, the jury began to deliberate. However, during deliberations, a juror
informed the judge that another juror may have done outside research on the case. The
trial judge, concerned about juror bias, polled the jury by written note to see if any of the
jurors knew of that research. All but two jurors responded in the negative. Juror 255 said
he “didn’t do any research on the case itself,” but “[w]ithout mentioning anything about
2
the case, I asked my mom about her past experience.” Juror 337 said that what he had
heard “was not about the case, but [that] a juror was looking into another discretion [sic]
within his family.”
The court then spoke to the parties about the issue. The prosecution wanted these
two jurors replaced with alternates. Defendant, however, wanted the jury to either continue
its deliberations or further questioning of Jurors 255 and 337 to obtain more information.
Defendant also argued that there was not enough information to show manifest necessity
for a mistrial. The trial judge, however, expressed concern that the entire jury was tainted
beyond repair because she did not know the subject of Juror 255’s inquiry and speculated
that the entire jury must know about it if Juror 337 had overheard something. Therefore,
the trial court rejected the parties’ requests and declared a mistrial. The case was set for
retrial in 2017.
In 2017, while awaiting retrial on the original charges, defendant was accused of
sexually penetrating one of his son’s friends, CS, who was a minor. As a result, defendant
was charged with two counts of CSC-I and one count of CSC-II. The first count of CSC-I
resulting from this incident was charged as “Person Under 13, Defendant 17 years of age
or older” under MCL 750.520b(2)(b), which mandates a minimum sentence of 25 years’
imprisonment. However, the other CSC-I count only charged that the victim was “U[nder]
13” and did not allege that defendant was 17 years old or older or cite MCL 750.520b(2)(b).
The new charges and the original charges were jointly tried in a second trial. TG
and CS both testified about their respective allegations. TG testified about three separate
incidents. In 2013, she was sitting on the defendant’s lap while he used the computer in
his trailer. He opened her knees and rubbed her genital area through her sweatpants twice.
3
She was 10 years old at the time. Sometime after, while defendant was throwing kids into
a swimming pool, he reached his hands into her swimsuit when gripping her hips. And in
2015, when she was 12 years old, he asked her to sit on the couch with him when the other
kids in the trailer were asleep. He tickled her, put his hands up her shirt, and touched her
breasts.
CS, who is not related to the defendant, testified that in February 2017, when she
was 12 years old, she went to the defendant’s trailer to see his son, CB. The defendant
gave CB a bottle of fireball whiskey for his birthday, and CS, CB, and other friends drank
it and danced in CB’s bedroom. While they were dancing, the defendant came in and
started dancing with CS, putting his hands on her hips. When the other kids went for a
walk, CS stayed behind, too drunk to walk. The defendant picked her up, took her to his
bed, and pulled down her pants and underwear. He tried to penetrate her with his penis
after she told him to stop. She vomited, ran to the bathroom, and continued vomiting into
the toilet. While she was vomiting, the defendant attempted to penetrate her again.
In addition, over defendant’s objection, three of defendant’s other daughters and his
ex-wife were permitted to testify about their interactions with defendant. One of his
daughters, AR, testified that in 2007 when she was 15 and 16, defendant came into her
room regularly to rub her back and touch her genitals. Another daughter, ANB, testified
that defendant watched her and her friends change their clothing in 2014 when she was 16
years old; went into the bathroom while she showered in 2011 to 2013 when she was 13 to
15; and once rubbed her “inner upper thigh” and kissed her on the lips. Defendant’s third
daughter, ADB, testified that he slapped her on the buttocks and placed her toes in his
4
mouth. Defendant’s ex-wife testified that defendant treated the children in a cruel manner
and sought custody only so that he could receive child-support payments.
At the conclusion of the second trial, the jury found defendant guilty of all counts.
The court sentenced him to 25 to 60 years for each count of CSC-I, 57 to 180 months for
each count of CSC-II, and ordered the CSC-II sentences to be served concurrently with the
CSC-I sentences. Defendant appealed his convictions and sentences in the Court of
Appeals, which affirmed them in an unpublished opinion. Defendant then sought leave to
appeal in this Court. We granted oral argument on the application for leave to appeal with
regard to the following issues:
(1) whether the defendant’s retrial in Docket No. 2016-000309-FH was
barred by the Double Jeopardy Clauses of the federal or state constitutions,
US Const, Am V; Const 1963, art 1, § 15; (2) if so, whether vacating his
convictions in that case would also warrant a new trial, resentencing, or any
other remedy in the jointly tried case, Docket No. 2017-001376-FC; and (3)
whether the trial court improperly imposed a mandatory minimum sentence
of 25 years for an act of first-degree criminal sexual conduct (Count II) that
was not charged as carrying such a minimum. See Alleyne v United States,
570 US 99, 109-111[; 133 S Ct 2151; 186 L Ed 2d 314] (2013); Apprendi v
New Jersey, 530 US 466, 476, 478-479[; 120 S Ct 2348; 147 L Ed 2d 435]
(2000) . . . . [People v Beck, 506 Mich 946 (2020).]
II. ANALYSIS
A. DOUBLE JEOPARDY
The first issue is whether the retrial on defendant’s original charges was barred by
the Double Jeopardy Clauses of the federal and state Constitutions. See US Const, Am V;
Const 1963, art 1, § 15. 1 “Under both the Michigan and the federal constitutions, an
1
Benton v Maryland, 395 US 784, 794; 89 S Ct 2056; 23 L Ed 2d 707 (1969) (“[W]e today
find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental
ideal in our constitutional heritage, and that it should apply to the States through the
5
accused cannot be placed in jeopardy twice for the same offense.” People v Hicks, 447
Mich 819, 826; 528 NW 2d 136 (1994), citing Const 1963, art 1, § 15; US Const, Am V.
This protection attaches “ ‘once the defendant is put to trial before the trier of fact, whether
[it] be a jury or a judge.’ ” Hicks, 447 Mich at 826, quoting United States v Jorn, 400 US
470, 479; 91 S Ct 547; 27 L Ed 2d 543 (1971) (alteration in original). When the trier of
fact is a jury, “jeopardy generally attaches at the time the jury is selected and sworn.”
People v Mehall, 454 Mich 1, 4; 557 NW2d 110 (1997). “If the trial is concluded
prematurely, a retrial for that offense is prohibited unless the defendant consented to the
interruption or a mistrial was declared because of a manifest necessity.” Mehall, 454 Mich
at 4. It is the prosecutor’s “heavy” burden to show manifest necessity. Arizona v
Washington, 434 US 497, 505; 98 S Ct 824; 54 L Ed 2d 717 (1978).
In deciding whether manifest necessity exists, the United States Supreme Court has
stated:
“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
Fourteenth Amendment.”). While we are not bound to interpret our Constitution
consistently with similar provisions of the United States Constitution, “we have been
persuaded in the past that interpretations of the Double Jeopardy Clause of the Fifth
Amendment have accurately conveyed the meaning of Const 1963, art 1, § 15.” People v
Smith, 478 Mich 292, 302 n 7; 733 NW 2d 351 (2007). Therefore, our analysis is the same
under each.
6
causes . . . .” [Hicks, 447 Mich at 828, quoting United States v Perez, 22 US
(9 Wheat) 579, 580; 6 L Ed 165 (1824).]
“Determining whether manifest necessity exists to justify the declaration of a mistrial
requires a balancing of competing concerns: the defendant’s interest in completing his trial
in a single proceeding before a particular tribunal versus the strength of the justification for
a mistrial.” Id. at 829. We have stated that “[a] mistrial may only be declared . . . after an
on the record consideration and discussion of alternatives with counsel.” People v Benton,
402 Mich 47, 65; 260 NW2d 77 (1977); see also MCR 6.417 (“Before ordering a mistrial,
the court must, on the record, give each defendant and the prosecutor an opportunity to
comment on the propriety of the order, to state whether that party consents or objects, and
to suggest alternatives.”). 2 To declare a mistrial, the trial court must find the facts justifying
the mistrial. 3 When such procedures are not followed, there is no manifest necessity for
declaring a mistrial. Benton, 402 Mich at 65.
2
Although some of the federal caselaw cited in Benton has been overruled, this Court has
never overruled Benton and no party has asked us to do so in the present case. See generally
People v Lett, 466 Mich 206, 220, 221 n 13; 644 NW2d 743 (2002). In any event, even if
consideration of alternatives is not constitutionally required, the trial court’s failure to do
so in the present case supports our conclusion that the trial court acted “precipitately” and
without the “greatest caution” before declaring a mistrial. Washington, 434 US at 515;
Perez, 9 Wheat at 580.
3
People v Parker, 145 Mich 488, 500; 108 NW 999 (1906) (“Appellate courts will not
interfere with the action of trial courts in discharging juries, where facts are found upon
which such action can be based. But the facts must be found and placed upon the record.”);
People v Anglin, 6 Mich App 666, 674; 150 NW2d 532 (1967) (“In dealing with cases of
alleged juror disqualification or misconduct discovered after the jury has been impaneled,
our Supreme Court has pointed out that the trial judge who has conducted an investigation
is better able to judge the question of disqualification because he ‘saw and heard the juror
and could note his appearance and attitude, tone of voice and manner of testifying when
undergoing the investigation.’ ”), quoting People v Schepps, 231 Mich 260, 270; 203 NW
882 (1925).
7
“This Court accords considerable deference to a judge’s determination of whether
there is manifest necessity justifying declaration of a mistrial.” Id. To ensure that the trial
court properly exercised its discretion, the reviewing court must consider the “particular
facts” of the case. Hicks, 447 Mich at 829. “[I]f a trial judge acts irrationally or
irresponsibly, . . . his action cannot be condoned.” Arizona v Washington, 434 US 497,
514; 98 S Ct 824; 54 L Ed 2d 717 (1978). See generally Fulton v Moore, 520 F3d 522,
529 (CA 6, 2008) (explaining that the court’s review of “manifest necessity” focuses on
“whether the trial judge (1) heard the opinions of the parties about the propriety of the
mistrial; (2) considered the alternatives to a mistrial; and (3) acted deliberately, instead of
abruptly”). The ultimate question is “not whether this Court would have found manifest
necessity, but whether the trial court abused its discretion in finding manifest necessity.”
People v Lett, 466 Mich 206, 220; 644 NW2d 743 (2002) (emphasis omitted).
In this case, although the trial court may have believed it was acting with an
abundance of caution, the standard for declaring a mistrial was not satisfied. The trial court
did poll the jury by written note, go on the record with counsel to discuss the matter, and
briefly consider each side’s proposed alternatives to a mistrial. However, the court’s
consideration of the matter was too abrupt, and its conclusions were not supported by
sufficient evidence. The nature of the juror’s outside research was unclear to the trial court
and yet, instead of further probing what the juror researched and whether it would affect
the proceedings, the trial court summarily declared a mistrial. Cf. Parker, 145 Mich at
500. Further, despite learning through polling the jurors that only one other juror had
knowledge of the outside research, the trial court concluded that the entire jury was tainted.
Perhaps this would have been a reasonable conclusion had the trial court elicited
8
information suggesting that the external research somehow affected the other jurors despite
the poll results indicating the contrary. But on the record presented, there was no basis for
disbelieving the jurors who responded to the written polling by stating that they did not
know of the research. The trial court itself acknowledged that “we don’t know if the
conversation would influence for or against the defense or the prosecution” because “[w]e
did not get enough information to even guess at that.” Accordingly, the trial court’s
consideration of less drastic alternatives failed to sufficiently determine the extent of any
jury taint and whether it was limited to jurors who could be excused and replaced. Due to
these failures, the trial court did not adequately find a justification for mistrial that
outweighed the defendant’s interest in continuing the trial. Hicks, 447 Mich at 829. 4
4
Justice ZAHRA’s partial dissent speculates about what the jurors might have known and
whether they understood what “outside research” actually meant. The result of these
speculations is the tepid conclusion that there was a “possibility” of juror impropriety. The
fact that Justice ZAHRA must guess about mere possibilities is, in large part, the problem
with the trial court’s handling of the mistrial: we are left to conjecture. Under the caselaw
spelled out above, such guesswork does not afford an adequate basis for a finding of
manifest necessity—instead, the trial court must find and place on the record the facts
justifying its decision. See Parker, 145 Mich at 500.
Justice ZAHRA’s partial dissent is also mistaken when it suggests that the United
States Supreme Court has approved of this speculation in the context of juror bias. See
post at 12 (ZAHRA, J., concurring in part and dissenting in part), discussing Washington
434 US at 512-514. That case, and the case it cited, Simmons v United States, 142 US 148;
12 S Ct 171; 35 L Ed 968 (1891), are a far cry from the current matter. In Washington, the
alleged bias resulted from the defense counsel’s opening statement, which the trial court
and all the jurors would have witnessed. Washington, 434 US at 498-499. The bias in
Simmons arose from similarly public events. There, during trial, the prosecutor received
an affidavit averring that a named juror knew defendant. Simmons, 142 US at 149. Defense
counsel subsequently sent a letter denying the allegations and commenting upon them; that
letter was then published in the newspapers. Id. After examining the jurors and
determining that they had read the paper, the trial court found that the prejudicial
information had been conveyed to the jury by way of the newspaper and that a new trial
9
For these reasons, the trial court’s inquiry was insufficient to find manifest
necessity, and therefore, retrial on the 2016 charges violated the Double Jeopardy Clauses
of the federal and state Constitutions. Accordingly, we now vacate defendant’s two CSC-
II convictions that arose from the 2016 charges.
B. IMPACT ON THE 2017 CHARGES
Because we have found that retrial on the initial charges was barred, we must next
determine whether vacating those convictions entitles defendant to a new trial,
resentencing, or any other relief regarding his remaining convictions. Defendant claims
that he is entitled to a new trial for the 2017 charges because his convictions on those counts
were tainted by the admission of evidence during the joint trial relating to the 2016 charges
during the joint trial, which would not have been admitted if the 2017 charges had been
tried separately. In other words, had the 2017 trial only addressed the 2017 charges—as it
should have, given that double jeopardy should have barred retrial of the 2016 charges—
the challenged evidence would not have been admissible. 5
The evidence that defendant challenges includes: (1) the testimony of the
complaining victim regarding the 2016 charges, (2) the testimony of defendant’s three
other daughters, and (3) the testimony of defendant’s ex-wife. Generally, we review
was necessary. Id. at 149-150. The Supreme Court upheld this sensible conclusion. Id. at
154-155. No such investigation or findings occurred here, nor was it even clear what
potentially prejudicial information was researched by a single juror or how one other juror
learned of it.
5
Defendant has similarly argued that the 2016 and 2017 charges should not have been
joined in a single trial, regardless of the double-jeopardy violation, and that therefore the
challenged evidence would not have been admissible in the trial of the 2017 charges. We
did not order briefing on this issue and decline to address it now.
10
admission of evidence for abuse of discretion. People v Bynum, 496 Mich 610, 623; 852
NW2d 570 (2014). Here, the question arises in a slightly different manner. While the
evidence was admitted at the joint trial, the issue is whether the trial court would have
abused its discretion if it had admitted this same evidence in a trial limited only to the 2017
charges. Further, we review the interpretation of a related statute de novo. People v
Watkins, 491 Mich 450, 466-467; 818 NW2d 296 (2012). 6
6
Justice CAVANAGH’S partial dissent faults us for treating this as an evidentiary error rather
than addressing whether to characterize it as some other form of error. But neither she nor
the parties have offered any legal analysis supporting another possible characterization of
the error or the standard for addressing it. And no one has pointed to any authority
suggesting that a properly tried charge is made reversible simply by being tried with a
charge ultimately found to violate the Double Jeopardy Clause. The authority we have
found suggests the opposite. The United States Court of Appeals for the Second Circuit,
in Pacelli v United States, 588 F2d 360 (CA 2, 1978), addresses the issue most directly.
Vincent Pacelli was convicted of conspiracy to distribute narcotics and two counts of
distributing narcotics, but the conspiracy count was ultimately reversed on double-jeopardy
grounds. Id. at 361. The court rejected a per se rule with regard to the impact of double
jeopardy on the properly tried charges. Id. at 366. The court determined that presentation
of the barred offense alongside the nonbarred offenses was harmless as to the latter because
“the testimony of those government witnesses who testified with respect to the conspiracy
count also related to the substantive counts, [meaning] the elimination of the conspiracy
count would not have significantly altered the defense trial strategy . . . .” Id. at 366.
Justice CAVANAGH notes that Pacelli, 588 F2d at 365, appears to support defendant’s
contention that if the present error were considered a constitutional error, the burden would
be on the prosecution to prove its harmlessness beyond a reasonable doubt. But she fails
to offer any explanation of how application of that standard would change the outcome
here, and we do not believe that it would.
Similarly, in Dowling v United States, the United States Supreme Court considered
use of acquitted conduct in a subsequent trial on other charges, treating the issue as an
evidentiary question. Dowling v United States, 493 US 342; 110 S Ct 668; 107 L Ed 2d
708 (1990). The Supreme Court ultimately held that prosecutors could introduce evidence
of an acquitted charge under FRE 404(b) when either (1) the issue being relitigated “is
presented in a subsequent action governed by a lower standard of proof” or (2) the
defendant “did not demonstrate that his acquittal in his first trial represented a jury
determination” of the fact at issue in the subsequent action. Id. at 348-349, 350-351.
11
Thus, we must determine whether the testimony of defendant’s daughters and ex-
wife would have been inadmissible propensity evidence if the charges had been tried
separately. Propensity evidence—i.e., evidence admitted to show the defendant’s
propensity to commit the charged crime—is generally prohibited by MRE 404(b)(1), which
provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act,
knowledge, identity, or absence of mistake or accident when the same is
material, whether such other crimes, wrongs, or acts are contemporaneous
with, or prior or subsequent to the conduct at issue in the case.
However, MRE 404(b) has been superseded by MCL 768.27a when the latter applies.
Watkins, 491 Mich at 476-477. That statute states, in relevant part, “in a criminal case in
which the defendant is accused of committing a listed offense against a minor, evidence
that the defendant committed another listed offense against a minor is admissible and may
be considered for its bearing on any matter to which it is relevant.” MCL 768.27a(1). 7
Finally, we have indicated, outside the double-jeopardy context, that misjoinder is harmless
when the evidence would have been admitted in the trial on the separate charge. See People
v Williams, 483 Mich 226, 244; 769 NW2d 605 (2009) (“ ‘[A] misjoinder may be deemed
harmless only if all or substantially all of the evidence of one offense would be admissible
in a separate trial of the other.’ ”), quoting Byrd v United States, 551 A2d 96, 99 (DC,
1988). In any event, given the lack of argument on this point and the evident lack of
authority supporting the speculation in Justice CAVANAGH’s partial dissent that some other
framing applies here, we will treat the error as evidentiary for present purposes.
7
Under MCL 768.27a(2)(a), “ ‘[l]isted offense’ means that term as defined in section 2 of
the sex offenders registration act, 1994 PA 295, MCL 28.722.” “Listed offense” is defined
by the Sex Offenders Registration Act as a “tier I, tier II, or tier III offense.” MCL
28.722(i).
12
CSC-II and fourth-degree criminal sexual conduct (CSC-IV) are both listed offenses
when committed against a minor. MCL 28.722(t)(x), (v)(v), and (v)(vi). Thus, evidence
that defendant committed these offenses is admissible under MCL 768.27a(1). The
question, then, is whether the challenged testimony—specifically, the testimony by the
complaining victim with regard to the 2016 charges and the testimony of defendant’s other
three daughters—qualifies as evidence of a CSC-II or CSC-IV offense. TG, the
complaining victim in the 2016 charges, testified that her father touched her genitals
through her clothes and touched her breasts. She was between 10 and 12 years old when
the offenses occurred. These actions satisfy the elements of CSC-II, which is defined as
including “sexual contact with another person” when “[t]hat other person is under 13 years
of age” or “[t]hat other person is at least 13 but less than 16 years of age and . . . [t]he actor
is a member of the same household as the victim.” MCL 750.520c(1)(a) and (b)(i). 8 MCL
768.27a permits evidence that a defendant is “accused of committing” a listed offense
against a minor; it does not require a defendant to have been convicted of a listed offense.
So, although defendant’s convictions are being vacated for the charges stemming from the
8
“ ‘Sexual contact’ includes the intentional touching of the victim’s or actor’s intimate
parts or the intentional touching of the clothing covering the immediate area of the victim’s
or actor’s intimate parts, if that intentional touching can reasonably be construed as being
for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual
manner for: (i) [r]evenge[;] (ii) [t]o inflict humiliation[;] [or] (iii) [o]ut of anger.” MCL
750.520a(q). “Intimate parts” is defined to “include[] the primary genital area, groin, inner
thigh, buttock, or breast of a human being.” MCL 750.520a(f).
13
2016 allegations, that victim’s testimony would still have been admissible under MCL
768.27a even if there had been a separate trial on the 2017 allegations. 9
This does not end the analysis because “MRE 403 applies to evidence admissible
under MCL 768.27a.” Watkins, 491 Mich at 486. That is, even if the evidence is
admissible under MCL 768.27a, it must still comply with MRE 403. Under MRE 403,
“evidence may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Unfair
prejudice occurs “ ‘when there exists a danger that marginally probative evidence will be
given undue or preemptive weight.’ ” People v Mardlin, 487 Mich 609, 627; 790 NW2d
607 (2010), quoting People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998).
“There are several considerations that may lead a court to exclude such evidence” under
MRE 403:
(1) the dissimilarity between the other acts and the charged crime, (2) the
temporal proximity of the other acts to the charged crime, (3) the infrequency
of the other acts, (4) the presence of intervening acts, (5) the lack of reliability
of the evidence supporting the occurrence of the other acts, and (6) the lack
of need for evidence beyond the complainant’s and the defendant’s
testimony. [Watkins, 491 Mich at 487-488.]
“This list of considerations is meant to be illustrative rather than exhaustive.” Id. at 488.
However, “when applying MRE 403 to evidence admissible under MCL 768.27a, courts
9
Because MCL 768.27a (1) permits evidence of crimes even though no conviction is
obtained for those crimes, it applies to the allegations related to the 2016 charges even
though the convictions based on those charges are being vacated.
14
must weigh the propensity inference in favor of the evidence’s probative value rather than
its prejudicial effect.” Id. at 487.
Here, the factors weigh in favor of admitting the evidence. Although there were
some dissimilarities between the allegations underlying the 2016 charges and those alleged
in the 2017 charges, we conclude nevertheless that the probative value would not have been
substantially outweighed by a risk of unfair prejudice by admitting this evidence. TG and
CS were roughly the same age—TG was between 10 and 12 when the abuse occurred, and
CS was 12. Defendant allegedly sexually abused both in his home. The only difference is
that TG was defendant’s daughter, whereas CS was not related to him. This difference is
not enough to warrant exclusion under MRE 403.
Next, the allegations underlying the 2016 charges and the 2017 charges were
temporally proximate. The incidents involving TG spanned from 2013 to 2015, while the
incident involving CS took place in 2017. In addition, the allegations underlying the 2016
charges did not involve infrequent acts, as TG testified about three separate incidents. See
People v Salloway, 316 Mich App 174, 195; 891 NW2d 255 (2016) (finding that other acts
were not infrequent because the abuse was not a “one-time occurrence”). There are no
relevant intervening acts that would have cut against the admission of TG’s testimony.
While the defense attempted to undermine the reliability of TG’s testimony, we conclude
that it would have remained more probative than unfairly prejudicial notwithstanding the
concerns raised. 10 In addition, we conclude there would have been a need for evidence
10
Testimony was introduced at trial that TG asked others to testify that defendant had
touched TG inappropriately or had touched them inappropriately. Nevertheless, her
testimony was consistent with multiple other alleged victims.
15
beyond CS’s testimony. No one witnessed the alleged abuse, and while CS did have a
forensic examination that showed physical injuries consistent with sexual activity or abuse,
that examination did not reveal the presence of defendant’s DNA and there was testimony
that CS was sexually active with another individual the night that the alleged abuse
occurred.
In sum, TG’s testimony concerning the 2016 charges shows defendant’s propensity
to sexually assault children left alone with him in his home and lent credibility to the
accusations underlying the 2017 charges. Any risk of unfair prejudice is outweighed by
the evidence’s probative value.
Defendant also challenges the testimony of his other daughters, AR, ANB, and
ADB, who testified that when they were under 17 years old, defendant touched their
genitals, rubbed their inner thighs, and slapped them on their buttocks. Depending on the
ages of the children and other attendant circumstances, these allegations would satisfy the
elements of either CSC-II or CSC-IV. See MCL 750.520c(1)(a) (sexual contact with a
person under 13) and (b) (sexual contact with a person at least 13 but less than 16 plus
another aggravating factor such as when the victim is a member of the same household as
the actor); MCL 750.520e(1)(a) (defining CSC-IV as including sexual contact with a
person between 13 and 16 years old when the offender is five or more years older than the
victim). Like the 2016 victim’s testimony, defendant’s other daughters’ testimony
represents evidence that defendant is accused of committing a listed act, so the analysis of
these claims is the same. The testimony of defendant’s other daughters as to these instances
16
of abuse constituting listed offenses is evidence of the commission of “listed offenses” and
thus is also admissible under MCL 768.27a(1). 11
We also conclude this evidence would have been admissible under MRE 403 for
many of the same reasons that TG’s testimony was admissible. All three daughters alleged
acts similar to the crime charged regarding CS. Every allegation involved sexual abuse of
minors in defendant’s home. AR specifically alleged that defendant touched her genitals,
as occurred with CS. With regard to ANB, the act alleged—rubbing her upper inner
thigh—is similar to, though less egregious than, the charged crime relating to the abuse of
CS. In that case, he touched CS in a similar location, her hips, before attempting
penetration. ADB likewise alleged inappropriate touching less than penetration. 12
11
It is true that some of the testimony concerning the alleged incidents involved conduct
that may not, by itself, constitute admissible evidence of the commission of a listed offense.
Specifically, ANB testified that defendant watched her and her friends change, watched
her as she showered, and kissed her on the lips. These acts do not appear to constitute
listed offenses. ADB’s testimony that defendant sucked on her toes also does not appear
to allege a listed offense. Because these acts would not constitute listed offenses, the
evidence would have been subject to MRE 404(b). See Watkins, 491 Mich at 494(concluding that evidence that does not qualify as a listed offense must be analyzed under
MRE 404(b)). According to MRE 404(b), evidence of “other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in conformity
therewith.” Such evidence can only come in for other purposes, such as “proof of motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge,
identity, or absence of mistake or accident . . . .” Whether this testimony would have been
admissible under MRE 404(b) is doubtful, as it seems to have been admitted to show
defendant’s propensity to sexually abuse children. But even if this additional evidence
would have been inadmissible in a case covering only the 2017 charges, it would not have
been sufficiently prejudicial to affect the outcome of the trial and therefore its admission
would have been harmless error. The evidence against defendant was strong, especially in
light of the admissible other-acts evidence.
12
Justice CAVANAGH’s partial dissent appears to suggest that by analyzing each of these
allegations in the same paragraph we have somehow run afoul of Watkins’s requirement
17
With regard to temporal proximity, while AR’s allegations occurred 10 years prior
to the episode with CS, AR testified about ongoing abuse and there were no relevant
intervening acts cutting against admissibility. ANB and ADB alleged conduct that appears
to have been closer in time to the episode with CS. 13 Thus, although the earliest alleged
conduct preceded the events of February 2017 by a number of years, much of the conduct
was temporally proximate. AR testified to ongoing, frequent acts. Although ANB’s and
ADB’s testimony spoke to isolated acts, the overall evidence revealed a pattern of other
acts. 14 Even if ANB and ADB testified to acts that were individually less frequent, the
to “consider[] each act separately.” Watkins, 491 Mich at 493; see post at 4 (CAVANAGH,
J., concurring in part and dissenting in part) (“Yet when [these allegations from ANB and
ADB are] presented in the same paragraph as analysis of the testimony of defendant’s other
daughter, AR, alleging that defendant touched her vagina with his hands and his mouth,
the similarity or dissimilarity of each act becomes blurred.”). We do not believe Watkins
requires spatial separation—instead, it requires separate consideration of each of the other
acts. While a lengthier analysis (with more spacing) is always possible, that does not
necessarily mean its content will improve. Pascal, The Provincial Letters of Blaise Pascal
(New York: Derby & Jackson, 1859), p 417 (“The present letter is a very long one, simply
because I had no leisure to make it shorter.”). On a separate note, we acknowledge that the
allegations of ANB and ADB were not as extensive as the charged conduct, in that they
did not involve penetration; but we also recognize that the charged conduct involved
allegations of similar touching that occurred prior to the penetration.
13
ANB said incidents of abuse occurred the entire time she was with defendant between
the ages of 13 and 15. Because ANB was born June 1, 1995, this means the abuse would
have occurred between June 1, 2008 and June 1, 2010. TG alleged three incidents of abuse.
The first was in February 2013; she did not allege a time period for the second; and the
third incident took place in 2015. ADB did not provide any dates, but she moved out of
defendant’s home at age 17, so any abuse likely happened before then.
14
We disagree with Justice CAVANAGH’s partial dissent that it is improper to consider
whether the incidents comprising the other-acts evidence occurred in relation to one
another. The Watkins factors—which are “illustrative rather than exhaustive”—expressly
include the frequency of the other acts and are certainly broad enough to include
consideration of the timeline of the other acts. The Watkins factors are considerations in
18
testimony was still admissible. No intervening acts have been cited that would suggest the
allegations are inadmissible under MRE 403. Finally, just as there would have been a need
for TG’s testimony, the same need applies to the other daughters’ testimony—no one had
witnessed the abuse of CS. As to reliability, defendant made no efforts to undermine
ANB’s or ADB’s credibility. Although there was some evidence casting doubt on AR’s
credibility, her allegations were consistent with those of the other daughters. In sum, under
the Watkins factors, the probative value of the evidence has not been substantially
outweighed by the risk of unfair prejudice.
The last contested evidence is the testimony of defendant’s ex-wife. MCL 768.27a
does not apply to his ex-wife’s testimony that he was rude and impatient with his daughters
and wanted custody of them only so that he could receive child-support payments.
Defendant’s argument that this testimony was inadmissible under MRE 401 and MRE 404
has been made in conclusory fashion. “It is not enough for an appellant . . . simply to
announce a position or assert an error and then leave it up to this Court to discover and
rationalize the basis for his claims . . . and then search for authority either to sustain or
reject his position.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Rather,
the MRE 403 analysis, which generally weighs the probative value of the other-acts
evidence against its potential prejudice. From this vantage, whether the other-acts evidence
forms a pattern is relevant to determining its probativeness. See United States v Wacker,
72 F3d 1453, 1469 (CA 10, 1995) (“Applying this standard, we conclude that the proffered
evidence is probative of a material issue and not unduly prejudicial. Although the bad acts
testified to at trial occurred well before the offenses charged in the indictment, the
prosecution used this testimony to show a long-standing pattern of drug activity from the
late 1970s up until the time of appellants’ arrest in 1990. Viewed in this light, the evidence
is not unrelated and remote, but is integrally related to the criminal activity charged in the
indictment.”).
19
defendant must provide this Court with authority to support his argument and demonstrate
how the evidence is inadmissible under the rules he cited. See Goolsby v Detroit, 419 Mich
651, 655 n 1; 358 NW 2d 856 (1984). Because he failed to provide such an argument, we
need not address whether the trial court abused its discretion in admitting this evidence.
See id.Even though retrial of the 2016 charges was barred by double jeopardy and the
related convictions will be vacated, defendant has not proven he is entitled to relief on his
remaining convictions. The daughters’ testimony would have been admitted even if
defendant had been tried separately on the 2017 charges. And defendant has not developed
an argument that his ex-wife’s testimony would have been held inadmissible in such a trial.
C. MANDATORY MINIMUM FOR CSC-I
The final issue is whether the trial court erred by imposing a mandatory minimum
sentence of 25 years for a conviction of CSC-I when the charging document did not state
that the charge carried that minimum sentence. A CSC-I offense committed by an
individual 17 years old or older against an individual under the age of 13 carries a 25-year
mandatory minimum sentence. MCL 750.520b(2)(b). The question presented is whether
the information must allege the fact triggering the mandatory minimum for each count
subject to that minimum. Defendant did not raise this issue at trial or in the Court of
Appeals; therefore, we review the issue for plain error. People v Carines, 460 Mich 750,
764; 597 NW2d 130 (1999). Plain error exists when “1) [an] error . . . occurred, 2) the
error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Id.
at 763. Even after these prongs are met, “[r]eversal is warranted only when the plain,
20
forfeited error resulted in the conviction of an actually innocent defendant or when an error
‘ “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings”
independent of the defendant’s innocence.’ ” Id. at 763, quoting United States v Olano,
507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993).
Under the Sixth Amendment, a criminal defendant has the right “to be informed of
the nature and cause of the accusation[.]” US Const, Am VI. A constitutionally sufficient
charging document “contains the elements of the offense charged and fairly informs a
defendant of the charge against which he must defend . . . .” United States v Resendiz-
Ponce, 549 US 102, 108; 127 S Ct 782; 166 L Ed 2d 591 (2007), quoting Hamling v United
States, 418 US 87, 117; 94 S Ct 2887; 41 L Ed 2d 590 (1974). The United States Supreme
Court’s
definition of ‘elements’ [of an offense] necessarily includes not only facts
that increase the ceiling, but also those that increase the floor. Both kinds of
facts alter the prescribed range of sentences to which a defendant is exposed
and do so in a manner that aggravates the punishment. . . . Facts that increase
the mandatory minimum sentence are therefore elements . . . . [Alleyne, 570
US at 108.]
Put another way, a fact is an element when it “increases the punishment above what is
otherwise legally prescribed” or “increase[s] the mandatory minimum sentence.” Id.This rule applied to jury findings in Alleyne, but it also applies to what must be
charged in an indictment. Id. at 112. The Alleyne Court explained that “if ‘a statute
prescribes a particular punishment to be inflicted on those who commit it under special
circumstances which it mentions, or with particular aggravations,’ . . . those special
circumstances must be specified in the indictment.” Id., quoting 1 J. Bishop, Criminal
Procedure 50, § 598, pp 360-361 (2d ed). This requirement is meant to allow “the
21
defendant to predict the legally applicable penalty from the face of the indictment.” Id. at
113-114.
As noted, the defendant must be “17 years of age or older” for the 25-year
mandatory minimum in MCL 750.520b(2)(b) to apply. If the defendant’s age is not
charged and found by the jury, there is no mandatory minimum. See MCL 750.520b(2)(b);
see also Alleyne, 570 US at 116-117. Accordingly, this fact increases the minimum penalty
of the crime and therefore is an element that must be charged. Here, defendant was
convicted of two counts of CSC-I, only one of which charged him as a person “17 years of
age or older.” The other count charged him for “engag[ing] in sexual penetration . . . with
a child under 13 years of age[.]” See MCL 750.520b(1)(a). The trial court applied the
mandatory minimum to both counts of CSC-I despite only one of them being charged as
“Defendant 17 years of age or older.” This was plainly in error. 15
The prosecution admits this error, but contends the error was harmless under the
third Carines prong. However, we need not address whether the error was harmless
because defendant cannot meet the fourth prong of the plain-error test. See Carines, 460
15
Defendant also notes that this count “does not reference the statutory section establishing
the mandatory minimum.” But he has failed to develop this argument, and he cites no
authority for the proposition that the Sixth Amendment requires the information to cite the
statute and indicate that the defendant will be subject to a mandatory minimum sentence.
See People v Head, 323 Mich App 526, 546; 917 NW2d 752 (2018) (holding that by failing
to cite any relevant authority defendant failed to properly present the argument that “the
habitual-offender notice did not indicate that defendant would be subject to a 25-year
mandatory minimum sentence”). Further, the information did cite the statute in the other
charge arising out of the same incident. And, as noted below, defendant had knowledge of
the relevant underlying fact—i.e., that he was 17 years old or older—that gave rise to the
mandatory minimum. In these circumstances, we decline to address defendant’s
undeveloped argument.
22
Mich at 763-764. In United States v Cotton, a case involving evidence that increases the
statutory maximum sentence, the United States Supreme Court found that the omission of
the quantity of a drug from the indictment “did not seriously affect the fairness, integrity,
or public reputation of [the] judicial proceedings” because the evidence establishing the
quantity “was ‘overwhelming’ and ‘essentially uncontroverted.’ ” United States v Cotton,
535 US 625, 632-633; 122 S Ct 1781; 152 L Ed 2d 860 (2002), quoting Johnson v United
States, 520 US 461, 469-470; 117 S Ct 1544; 137 L Ed 2d 718 (1997).
Here, defendant contends that the error significantly affected the fairness of the trial.
Specifically, he contends that failure to charge the fact of his age and the mandatory
minimum statute as to both counts deprived him of proper notice of the judgment he
received upon conviction. Defendant does not contest that he was over the age of 17 at the
time he committed both counts of CSC-I and, in any event, the jury found that he was over
the age of 17 at the time he committed both counts of CSC-I beyond a reasonable doubt.16
And certainly, he had notice of his age and he could learn from the information’s statement
of the first count that his age (and the age of the victim) potentially subjected him to the
same mandatory minimum sentence in MCL 750.520b(2)(b) that was cited in the first
count. Cf. United States v Yancy, 725 F3d 596, 602-602 (CA 6, 2013) (holding that failure
to include an element in the indictment did not deprive the defendant of notice when the
defendant admitted to the relevant conduct and knew of the applicable sentencing
enhancement when he did so). Further, defendant does not explain how the trial was unfair
16
Although it was not charged this way in the information, the trial court instructed the
jury, on each count, that it had to find the victim was under 13 years old and that defendant
was 17 years old or older when he committed the offenses charged.
23
because of these considerations or what alternative action he would have taken with notice
of the additional mandatory minimum charge.
This conclusion is further supported by how the Court addressed the fourth prong
in Carines. In that case, the defendant alleged that the trial court improperly convicted him
of felony murder by blending the felony-murder and aiding-and-abetting instructions
together. Carines, 460 Mich at 768-769. 17 The trial court instructed that the prosecution
needed to prove that the victim was killed by one of the robbers during the robbery, that
there was malice, and that the defendant must have participated in the robbery. Id.However, the defendant complained that the instructions did not include the second
element of aiding and abetting: “that defendant must have performed acts or given
encouragement that assisted the commission of the [robbery].” Id. at 769. We held that
this error did not satisfy the fourth prong of the plain-error standard even if it was not
harmless because “the jury could not have reasonably concluded that defendant
participated in the robbery and acted with malice without also concluding that he
17
Carines explained that the “the elements of felony murder are: 1) the killing of a human
being, 2) malice, and 3) the commission, attempted commission, or assisting in the
commission of one of the felonies enumerated in the statute, among them armed robbery.”
Carines, 460 Mich at 768, citing People v Turner, 213 Mich App 558, 566; 540 NW2d 728(1995), disapproved of on other grounds by People v Mass, 464 Mich 615, 628 (2001).
Carines explained that the elements of aiding and abetting are: “(1) the crime charged was
committed by the defendant or some other person, (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime, and (3) the defendant intended
the commission of the crime or had knowledge that the principal intended its commission
at the time he gave aid and encouragement.” Carines, 460 Mich at 768, quoting Turner,
213 Mich App at 568; but see Mass, 464 Mich at 628 (explaining that “[c]onviction of a
crime as an aider and abettor does not require a higher level of intent with regard to the
commission of the crime than that required for conviction as a principal. To the extent the
cited language from Turner[, including the third element,] may suggest otherwise, it is
disapproved”) (citation omitted).
24
participated in the killing . . . .” Id. at 772. Likewise, as noted, the jury in this case
concluded that defendant was at least 17 years old for both counts. Both counts arose out
of defendant’s actions on a particular date, so he necessarily was the same age when the
conduct supporting each count occurred.
For these reasons, defendant is not entitled to resentencing.
III. CONCLUSION
In conclusion, we hold that the trial court abused its discretion by declaring a
mistrial in the initial trial without conducting a sufficient inquiry to support a finding of
manifest necessity. As a consequence, those convictions will be vacated. However, with
regard to his remaining convictions, because the evidence presented accusing defendant of
committing prior acts of CSC against minors would have been admissible in a separate trial
under MCL 769.267a and MRE 403—and defendant has not sufficiently developed an
argument that his ex-wife’s testimony would have been inadmissible—we hold that
defendant is not entitled to a new trial, resentencing, or other relief. Finally, we hold that
the trial court committed plain error by imposing a mandatory minimum sentence of 25
years under MCL 750.520b(2)(b) for the second count of CSC-I because the age
requirement is an element that must be charged in the information and found by the jury,
and it was not charged here. However, resentencing is unnecessary because the error did
not affect the fundamental fairness of the trial.
David F. Viviano
Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement
25
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v Nos. 160668-9
JAMES CURTIS BECK,
Defendant-Appellant.
ZAHRA, J. (concurring in part and dissenting in part).
While I concur with the majority opinion that defendant is not entitled to relief in
Docket No. 160669 for his acts against CS, I respectfully dissent from the decision in
Docket No. 160668 to vacate defendant’s convictions for his acts against TG on double-
jeopardy grounds. 1 From my view, the majority opinion fails to give adequate deference
to the trial court’s decision to declare a mistrial. Instead, with the benefit of hindsight, the
majority opinion lays out a more prudent course of action that the trial court could have
followed when confronted with evidence that a juror investigated matters outside the trial
1
Given my conclusion that no double-jeopardy violation occurred in Docket No. 160668,
I would not reach the questions of whether vacating those convictions entitles defendant to
a new trial, resentencing, or any other relief on his other convictions in Docket No. 160669.
I agree, however, with the majority opinion that the omission of defendant’s age as an
element of the second count of first-degree criminal sexual conduct in Docket No. 160669
does not warrant resentencing under People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999).
proceedings. I agree that the trial court could have proceeded differently. But our caselaw
has long held that decisions made by trial court judges in the heat of the moment and in the
course of an ongoing trial are reviewed for an abuse of discretion. An abuse of discretion
is not found merely because the trial court could have acted differently or because a
reviewing court would have reached a different result. An abuse of discretion will only be
found when the court’s decision falls outside the range of principled outcomes. 2
Considering the totality of the facts and circumstances of this case, I conclude that the trial
court did not abuse its discretion in declaring a mistrial when confronted with evidence that
the jury may have been tainted. Because manifest necessity existed to support the trial
court’s declaration of a mistrial, defendant’s retrial was not barred by double jeopardy.
Accordingly, I would affirm defendant’s convictions in Docket No. 160668.
I. PERTINENT FACTUAL BACKGROUND
In July 2016, defendant was tried for two counts of second-degree criminal sexual
conduct (CSC-II) for acts against his ex-wife’s daughter, TG. After three days of
testimony, the case was submitted to the jury on Friday, July 8, 2016. Roughly four hours
into deliberation, the court received a note asking what happens when the jury is hung. The
court brought the jury into the courtroom, read the standard instruction for a deadlocked
jury, also known as an “Allen charge,” 3 and sent the jury back to deliberate for the
remainder of the day.
2
People v Watkins, 491 Mich 450, 467; 818 NW2d 296 (2012).
3
“The term ‘Allen charge’ is the generic name for a class of supplemental jury instructions
given when jurors are apparently deadlocked; the name derives from the first Supreme
2
At some point between the jury being sent back to deliberate and its dismissal for
the weekend, one juror, Juror 337, informed the court that another juror, Juror 255, had
done outside research on the case. There is no record of this initial interaction with Juror
337 in the July 8, 2016 transcript. Instead, the first reference to a juror possibly conducting
outside research appears in the July 11, 2016 transcript, the following Monday. That
morning, the court informed the jury that “there may have been some outside research done
on topics or issues with regard to this trial” and asked the jurors whether they knew of any
such research being conducted. Receiving no response, the trial court asked the jurors to
return to the jury room and write their juror numbers on a piece of paper along with any
information they had about whether anyone “has done any outside research on topics at
issue here.” The court recounted the responses it received as follows:
Okay. So I’ve received notes back from all jurors. There’s only two
at issue. One is from Juror 337, who we spoke to on Friday afternoon, who
indicated: What I heard was not about the case, but a juror was looking into
another discretion [sic] within his family.
And then, another response from Juror 255: I didn’t do any research
on the case itself, nor do I know if anyone else did. Without mentioning
anything about the case, I asked my mom about her past experience. . . .
All the rest of the jurors had nothing significant to report.[4]
The court invited responses from the parties on how to proceed. The prosecutor
believed that both jurors had been tainted and requested that they be replaced with two
Court approval of such an instruction in [Allen v United States, 164 US 492; 17 S Ct 154;
41 L Ed 528 (1896)].” United States v Berger, 473 F3d 1080, 1089 (CA 9, 2007).
Michigan’s standard instruction for a deadlocked jury is found at M Crim JI 3.12.
4
These notes were not preserved in the lower court file.
3
alternate jurors. Defense counsel objected to the substitution, argued that neither juror had
brought any extraneous information into the case, and advocated in favor of having the
original 12 jurors deliberate the case. The parties further elaborated on their respective
positions:
[The Prosecutor]: The People’s position is the way it is for the
following reason: Obviously, that means juror number [337][5] heard and/or
perhaps was influenced, we don’t know because we can’t know what his
findings are, but . . . it was to the point where he thought it was important
that he brought it to this court’s attention. He specifically said that he
thought, and I was writing down what he[ said], the best I could, because he
was sort of in circles about what he said, but he said that what the juror was
saying struck him as against the instructions this court had given him.
Specifically, he said that juror had spoke[n] to someone who had [t]his
history of incidents and intended to determine the actions before and after to
get an understanding of the actions in this case and why a person would do
this or why a person wouldn’t do that.
And so, clearly, juror number [337] heard that and was influenced
and/or . . . perhaps not influenced, but heard that. So he would be tainted for
that reason. And, then, obviously, juror number [255], by his own admission,
he indicated that although . . . he didn’t speak about the case. He said he
spoke to his mom, but, obviously, brought that information that he spoke
with his mom about into the jury room. That’s how the juror knew about it.
So, Judge, in order to not have a mistrial based on manifest injustice
here, the People are suggesting that . . . a solution is to in fact ask that those
two jurors be excused and ask the alternat[e] jurors be replaced. . . .
[Defense Counsel]: Your Honor, brief response. We’re not seeking a
mistrial. If the prosecutor seeks a mistrial, then it’s double jeopardy. They’re
not seeking a mistrial either. Really, what we’re talking about is a challenge
for cause during deliberation. And if the Court’s wrong and does remove for
5
The court and parties referred to the jurors by their juror numbers and seat numbers
interchangeably. To avoid confusion, this opinion refers to the jurors by their juror
numbers.
4
cause and there’s a conviction, it’s reversible error. I say we go with the 12
jurors.
Now, in the alternative, you could bring in each juror, the two jurors
involved, individually and ask specifically what did you say, what did you
learn, what do you know.[6]
The trial court disagreed with defense counsel that double jeopardy would bar retrial
if the court declared a mistrial on these grounds and expressed its concerns about the
extraneous information, stating:
I disagree it would be double jeopardy for the prosecution if the Court calls
a mistrial based on issues brought up by the jurors. So, that part I disagree
with.
I have serious concern about juror number 255, who apparently -- and
we do not know what experience he inquired about someone else. The other
person . . . who he inquired with doesn’t know anything about this case. But,
what the juror knows is what’s important.
I can’t say juror number 337 was necessarily influenced because he
seemed a little unsure as to specifically what he was even hearing. But, I do
have concerns regarding [juror number] 255.
The prosecution added that the jury may have misunderstood that “outside research”
included gaining insight from nonjurors and offered additional information about the initial
interaction with Juror 337:
[I]f juror number [337] heard it, then, perhaps, it could be a
presumption . . . that all the jurors had heard that. And when we ask them to
go back into the jury room, we ask about specifically research. And I can’t
get in their heads, but [when] we spoke about research, oftentimes, we spoke
about getting on the internet and bringing that information in, as opposed to
perhaps just getting outside insight, which they’re not allowed to do that
either. . . . [W]e didn’t feel like we had to spell that out for them, but that
appears to be what did happen. And . . . I’m not sure that juror number [337]
6
Emphasis added.
5
was sitting with juror number [255] and they are the only two that had that
conversation. It sounded as though there was a conversation in front of the
whole jury, based on what juror number [337] said. So it’s almost as if the
entire jury had heard that. So if we determine that someone is tainted by
that, the whole jury has been tainted by it.[7]
After hearing from both parties, the trial court, over defendant’s objection, declared
a mistrial, stating:
Quite honestly, we don’t know if the conversation would influence for
or against the defense or the prosecution. . . .
We did not get enough information to even guess at that.
. . . [T]he response from juror number 255 . . . says: Without
mentioning anything about the case, I asked my mom about her past
experience. Another juror overheard a conversation that sounds like it wasn’t
even with [juror number] 337 [sic: 255][8] but with yet another juror, and
picked up enough about what that juror had said.
At this point, I think the jury is tainted and I don’t think bringing in
two alternat[es] is going to help. I am going to declare a mistrial.
Defendant was later convicted of the two CSC-II counts as to TG at a subsequent
trial held in 2017. The Court of Appeals affirmed his convictions, holding that his retrial
did not violate double jeopardy.
7
Emphasis added.
8
Given that Juror 337 overheard that Juror 255 brought extraneous information into the
jury room, it appears the trial court misspoke here and meant to refer to Juror 255.
6
II. LEGAL BACKGROUND
“Under both the Double Jeopardy Clause of the Michigan Constitution and its
federal counterpart, an accused may not be ‘twice put in jeopardy’ for the same offense.” 9
The Double Jeopardy Clause “protects a criminal defendant from repeated prosecutions for
the same offense.” 10 This protection encompasses the “accused’s valued right to have his
trial completed by a particular tribunal” once jeopardy has attached. 11 “Jeopardy is said to
‘attach’ when a jury is selected and sworn, and the Double Jeopardy Clause therefore
protects an accused’s interest in avoiding multiple prosecutions even where no
determination of guilt or innocence has been made.” 12 “If the trial is concluded
prematurely, a retrial for that offense is prohibited unless the defendant consented to the
interruption or a mistrial was declared because of a manifest necessity.” 13 Defendant did
9
People v Lett, 466 Mich 206, 213; 644 NW2d 743 (2002), citing Const 1963, art 1, § 15,
and US Const, Am V. See also Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed
2d 707 (1969) (holding that the Fifth Amendment’s protection against double jeopardy
applies to the states through the Fourteenth Amendment).
10
Oregon v Kennedy, 456 US 667, 671; 102 S Ct 2083; 72 L Ed 2d 416 (1982). “The
Double Jeopardy Clause has often been described, in simple terms, as embodying three
separate guarantees: protection against a second prosecution for the same offense following
acquittal, protection against a second prosecution for the same offense following
conviction, and protection against multiple punishments for the same offense.” Lett, 466
Mich at 214 n 9.
11
Lett, 466 Mich at 214 (quotation marks and citation omitted).
12
Id. at 215 (citations omitted).
13
People v Mehall, 454 Mich 1, 4; 557 NW2d 110 (1997). See also Lett, 466 Mich at 215(“[R]etrial is always permitted when the mistrial is occasioned by ‘manifest necessity.’ ”).
7
not consent to the mistrial; therefore, the inquiry turns on whether “manifest necessity”
existed, compelling the mistrial.
In Arizona v Washington, the Supreme Court of the United States reiterated the
“classic formulation” for whether “manifest necessity” exists to warrant a mistrial:
“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.
But, after all, they have the right to order the discharge; and the security
which the public have for the faithful, sound, and conscientious exercise of
this discretion, rests, in this, as in other cases, upon the responsibility of the
Judges, under their oaths of office.”[14]
“ ‘Manifest necessity’ is not to be interpreted literally or applied mechanically; what
is required is a ‘high degree’ of necessity.” 15 “Furthermore, differing levels of appellate
scrutiny are applied to the trial court’s decision to declare a mistrial, depending on the
nature of the circumstances leading to the mistrial declaration.” 16 “The strictest scrutiny is
employed when the mistrial was premised on bad-faith conduct by the judge or prosecutor,
and the most relaxed scrutiny is employed when the mistrial was premised on a deadlocked
14
Arizona v Washington, 434 US 497, 506 & n 18; 98 S Ct 824; 54 L Ed 2d 717 (1978)
(ellipsis omitted), quoting United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165(1824).
15
Ross v Petro, 515 F3d 653, 660-661 (CA 6, 2008), quoting Washington, 434 US at 506.
16
Lett, 466 Mich at 218.
8
jury.” 17 In cases such as this, “when some event creates the possibility that the jury may
have been biased, the decision of the trial judge who has had the opportunity to observe
the sequence of events in the context of the trial is entitled to special respect.” 18 “[T]he
trial judge’s evaluation of the possibility of juror bias is entitled to ‘great deference,’ ”19
and “[a] reviewing court must ‘accord the highest degree of respect to the trial judge’s
evaluation of the likelihood’ that the circumstances giving rise to the mistrial would have
affected the impartiality of the deliberations of the jury.” 20
Although the trial court’s decision to declare a mistrial on these grounds is afforded
great deference, its discretion is not unlimited. “Determining whether manifest necessity
exists to justify the declaration of a mistrial requires a balancing of competing concerns:
the defendant’s interest in completing his trial in a single proceeding before a particular
tribunal versus the strength of the justification for a mistrial.” 21 To ensure the defendant’s
interest is adequately protected, the reviewing court must be satisfied that the trial court
did not act “irrationally or irresponsibly,” but instead “exercised ‘sound discretion’ in
declaring a mistrial.” 22 A trial court is not required to make explicit findings of manifest
17
Ross, 515 F3d at 661.
18
Gilliam v Foster, 75 F3d 881, 894 (CA 4, 1996), citing Washington, 434 US at 512-514.
19
Ross, 515 F3d at 661 (emphasis omitted), quoting Washington, 434 US at 511-514.
20
Gilliam, 75 F3d at 894, quoting Washington, 434 US at 511.
21
People v Hicks, 447 Mich 819, 829; 528 NW2d 136 (1994) (opinion by GRIFFIN, J.).
22
Washington, 434 US at 514.
9
necessity, nor must it articulate on the record all the factors informing its decision to declare
a mistrial, as long as sufficient justification for the ruling exists on the record. 23 Our court
rules simply require that “[b]efore ordering a mistrial, the court must, on the record, give
each defendant and the prosecutor an opportunity to comment on the propriety of the order,
to state whether that party consents or objects, and to suggest alternatives.” 24 Ultimately,
“the mere fact that the reviewing court would not have declared a mistrial under the
circumstances of this case does not mean that retrial is necessarily barred. The issue is not
whether this Court would have found manifest necessity, but whether the trial court abused
its discretion in finding manifest necessity.” 25
III. APPLICATION
Applying the aforementioned principles, I cannot conclude that the trial court
abused its discretion in declaring a mistrial. After learning that a juror may have conducted
outside research on the case, the trial court took reasonable measures of asking each juror
to inform the court whether any outside research had been done. The court received two
responses that both seemed to refer to the same extraneous information. The court then
heard argument from both parties on how they wished to proceed, considered the parties’
alternatives to declaring a mistrial, found those alternatives inadequate to cure the taint of
possible juror bias, and ultimately declared a mistrial. These facts alone demonstrate that
23
Id. at 516-517; Lett, 466 Mich at 222 (“[W]here the basis for a mistrial order is adequately
disclosed by the record, the ruling will be upheld.”).
24
MCR 6.417.
25
Lett, 466 Mich at 220.
10
the trial court dutifully complied with its obligation under the court rules and acted
deliberately and responsibly rather than abruptly or precipitously.
Further, a review of the record as a whole demonstrates that extraneous information
was indeed brought into the jury room and created the possibility of juror bias sufficient to
support a finding of manifest necessity to warrant a mistrial. By written submission, Juror
255 stated that he asked his mother about her past experience of sexual assault. Also,
according to the prosecutor’s recounting of the initial conversation with Juror 337 on
July 8, 2016, Juror 255 “had spoke[n] to someone who had [t]his history of incidents and
intended to determine the actions before and after to get an understanding of the actions in
this case and why a person would do this or why a person wouldn’t do that.” 26 Juror 255’s
actions—i.e., seeking an outside perspective on how a sexual assault may impact a person’s
behavior in order to assist him in deciding defendant’s criminal sexual conduct case—were
clearly improper and created the possibility of juror bias.
The context in which this possible juror bias arose also cannot be ignored. After the
jury asked the court what would be the ramifications of a hung jury, the court issued an
Allen charge encouraging further deliberation. Thereafter, Juror 337 informed the court of
Juror 255’s impropriety. The timing of these events gives rise to an inference that Juror
255 may have been trying to persuade other jurors on a particular disposition, which clearly
26
Although there is no transcript of this conversation, we are not precluded from
considering the prosecutor’s statements and arguments that informed the trial court’s
declaration of a mistrial. See Washington, 434 US at 517 (“The basis for the trial judge’s
mistrial order is adequately disclosed by the record, which includes the extensive argument
of counsel prior to the judge’s ruling.”).
11
would have affected the impartiality of the jury as a whole. This inference was not lost on
the trial court, which concluded that other jurors, in addition to Juror 337, had been exposed
to the extraneous information and that the entire jury had been tainted. 27 In short, the
circumstances giving rise to the possibility of juror bias occurred at a critical point in
defendant’s trial, and the trial court acted within its discretion in concluding that these
circumstances warranted a mistrial. “[T]he overriding interest in the evenhanded
administration of justice requires that we accord the highest degree of respect to the trial
judge’s evaluation of the likelihood that the impartiality of one or more jurors may have
been affected” by the impropriety. 28 That the trial court did not elicit the precise
information learned, or the extent to which that extraneous information may have
influenced each juror, does not invalidate the court’s decision to declare a mistrial. 29 It is
27
This conclusion is supported by the prosecutor’s recounting of the July 8, 2016
conversation with Juror 337, which suggests that the entire jury had been exposed to the
extraneous information. Further, although the other jurors’ written responses indicated that
they were not aware of any outside research being done on the case, the prosecutor noted
that the jury likely did not understand that “outside research” included gaining insight from
nonjurors. Indeed, Juror 255 stated that he “didn’t do any research on the case itself,”
despite bringing extraneous information into the jury room, and Juror 337 stated that the
information he overheard was “not about the case.” These responses bolster the notion that
other jurors also may have misunderstood what amounted to impermissible “outside
research” done on topics or issues in the case.
28
Id. at 511 (emphasis added).
29
See id. at 512 (noting that, in Simmons v United States, 142 US 148; 12 S Ct 171; 35
L Ed 968 (1891), the Supreme Court upheld the trial court’s declaration of a mistrial based
on the possibility of juror bias even though the trial court had not “determin[ed] the truth
or falsity of the charge” or “examin[ed] the jurors to ascertain what influence [the
extraneous information] had upon them”).
12
the trial court, not this Court, that is in the best position to assess the possibility of juror
bias. 30 Although neither the prosecutor nor defense counsel was at fault, “[n]either party
has a right to have his case decided by a jury which may be tainted by bias[.]” 31
I am also not convinced that the trial court was required to give the sort of extensive
consideration of “less drastic alternatives” that the majority opinion seems to mandate. 32
In Washington, the trial court declared a mistrial based on defense counsel’s improper
argument during his opening statement. 33 The Supreme Court of the United States upheld
the trial court’s decision even though the mistrial was not strictly “necessary” insofar as an
appropriate cautionary instruction may have counteracted the possibility of juror bias. 34 In
30
As the Supreme Court explained in Washington, 434 US at 513-514:
There are compelling institutional considerations militating in favor
of appellate deference to the trial judge’s evaluation of the significance of
possible juror bias. He has seen and heard the jurors during their voir dire
examination. He is the judge most familiar with the evidence and the
background of the case on trial. He has listened to the tone of the argument
as it was delivered and has observed the apparent reaction of the jurors. In
short, he is far more conversant with the factors relevant to the determination
than any reviewing court can possibly be. [Quotation marks and citation
omitted.]
31
Id. at 516 (emphasis added). Because the “possibility” and “risk” of juror bias alone can
warrant a mistrial, id. at 512-513, I disagree with the majority opinion that my position
rests upon speculation and conjecture. Rather, the facts and circumstances apparent from
the record support the trial court’s declaration of a mistrial based on Juror 255’s
impropriety, which created a situation in which the entire jury may have been tainted.
32
Ante at 9.
33
Washington, 434 US at 498-499.
34
Id. at 511.
13
People v Lett, this Court recognized that Washington does not require trial courts to
examine alternatives or make findings on the record before declaring a mistrial, even noting
that this Court’s prior decisions requiring such examination rely on caselaw of questionable
validity in light of Washington. 35 Indeed, our court rules simply require trial courts to give
the parties “an opportunity . . . to suggest alternatives” on the record before declaring a
mistrial, 36 and the trial court undoubtedly complied with this directive.
35
Lett, 466 Mich at 221-222 & n 13 (“[I]n support of the proposition that consideration of
alternative measures is constitutionally required . . . , this Court in [People v Benton, 402
Mich 47; 260 NW2d 77 (1977),] cited two federal circuit court opinions that were
subsequently overturned by the United States Supreme Court[.]”). Compare Hicks, 447
Mich at 843-844 (opinion by GRIFFIN, J.) (holding that the trial court’s “failure to consider
alternatives precludes a determination that manifest necessity justified [its] declaration of
a mistrial”), citing Benton, 402 Mich 47, with Hicks, 447 Mich at 867 (BOYLE, J.,
dissenting) (“The assumption that, as a matter of law, manifest necessity requires the
exploration of less drastic alternatives to mistrial also ignores that the United States
Supreme Court has specifically rejected the proposition that all other alternatives to a
mistrial must be explored on the record in the context of a mistrial triggered by the
possibility of bias. In [Washington, 434 US at 511, 516-517], the Court held that the record
did not have to reflect the exploration and rejection of all available alternatives so as to
establish the necessity for mistrial.”).
The majority opinion states that even if consideration of alternatives is not
constitutionally required, the trial court’s failure to consider alternatives in this case
supports the majority opinion’s conclusion that the trial court acted precipitately in
declaring a mistrial. Not only does the majority opinion ignore the trial court’s actual
consideration of the alternatives proposed by the parties, see pp 3-6 and 14-15 of this
opinion, it admittedly demands more of our trial courts than is constitutionally required.
Indeed, if trial courts, in safeguarding a defendant’s constitutional right against double
jeopardy, are not constitutionally required to consider alternatives to declaring a mistrial,
what other basis is there for requiring such consideration?
36
MCR 6.417 (emphasis added).
14
In any event, the trial court’s consideration of the parties’ proposed alternatives was
adequate. Defense counsel’s requests to have the original 12 jurors decide the case or bring
Jurors 255 and 337 into the courtroom for further questioning ignores the trial court’s
conclusion that Juror 255’s impropriety had tainted the entire panel. Also, defense counsel
objected to the prosecutor’s request to substitute Jurors 255 and 337 with two alternates,
even arguing that their removal would amount to error requiring reversal. Defense counsel
therefore left the trial court with two options: either continue the trial with a jury that the
court believed was tainted, or declare a mistrial and give the parties a fresh start with a jury
untainted by the possibility of bias. Under these circumstances, the trial court did not abuse
its discretion in declaring a mistrial.
In sum, the trial court “exercised ‘sound discretion’ in handling the sensitive
problem of possible juror bias created” by Juror 255 bringing extraneous information into
the jury room. 37 The trial court “acted responsibly and deliberately,” “gave both defense
counsel and the prosecutor full opportunity to explain their positions on the propriety of a
mistrial,” and reasonably concluded that the possibility of juror bias permeated the jury
room such that it was questionable whether an impartial verdict could be reached. 38 “[I]n
these circumstances, the public’s interest in fair trials designed to end in just judgements
must prevail over the defendant’s valued right to have his trial concluded before the first
37
Washington, 434 US at 516.
38
Id. at 515-516. See also Illinois v Somerville, 410 US 458, 464; 93 S Ct 1066; 35 L Ed
2d 425 (1973) (“A trial judge properly exercises his discretion to declare a mistrial if an
impartial verdict cannot be reached . . . .”).
15
jury impaneled.” 39 Accordingly, manifest necessity existed to support the trial court’s
declaration of a mistrial, and defendant’s retrial was not barred by double jeopardy.
Because this Court concludes otherwise, I respectfully dissent on this issue.
Brian K. Zahra
39
Washington, 434 US at 516 (quotation marks and citation omitted).
16
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v Nos. 160668-9
JAMES BECK,
Defendant-Appellant.
CAVANAGH, J. (concurring in part and dissenting in part).
I concur in Part II(A) of the majority opinion because I agree that the trial court
abused its discretion by finding that a manifest necessity required the declaration of a
mistrial. People v Lett, 466 Mich 206, 220; 644 NW2d 743 (2002). Accordingly,
defendant’s second trial on the charges of criminal sexual conduct allegedly perpetrated
against TG violated the Double Jeopardy Clauses of both our state and federal
Constitutions, and those convictions must be vacated. I do not, however, join the remainder
of the opinion.
Because the now-vacated, constitutionally problematic 2016 charges were
consolidated into a single trial with charges related to a different victim arising from
conduct that occurred in 2017, the focus of Part II(B) of the majority opinion is whether
the 2017 convictions were impermissibly tainted by the introduction of the 2016 charges
and additional “other acts” evidence. The Court of Appeals, of course, has not yet
addressed this analytical oddity. 1 For that reason, I would have preferred to remand this
case to the lower court for its full consideration and to allow defendant to make additional
arguments in light of today’s ruling. Beyond that, I find the majority’s analysis lacking.
For example, it engages only in a footnote with how to characterize defendant’s claimed
error concerning the admission of other-acts evidence when charges that were the basis of
a constitutionally prohibited trial are joined with charges forming the basis of a
constitutionally permissible trial. 2 Nor does it discuss how that characterization might
affect preservation or the appropriate standard of review.
Most troubling in my view, however, is the majority’s failure to faithfully conduct
the analysis set forth by this Court in People v Watkins, 491 Mich 450; 818 NW2d 296(2012). Watkins discussed MCL 768.27a, which allows evidence that a defendant
committed a listed offense against a minor to be admitted for consideration “for its bearing
on any matter to which it is relevant.” MCL 768.27a(1). This includes propensity evidence
1
The panel summarily dismissed a related argument below, declining to fully address the
issue because it concluded defendant’s briefing was not sufficient.
2
Defendant argues that the admission of evidence that formed the basis of the 2017
charges, barred from retrial by double-jeopardy principles, was a preserved constitutional
error. That would mean that the prosecutor bears the burden of showing that the error was
harmless beyond a reasonable doubt. See People v Sammons, 505 Mich 31, 56; 949 NW2d
36 (2020) (“This Court reviews preserved constitutional errors to determine whether the
beneficiary of the error has established that the error was harmless beyond a reasonable
doubt.”). The majority characterizes the error as an evidentiary error, while citing at least
one case that would suggest that defendant’s designation of the error may be correct. See
Pacelli v United States, 588 F2d 360, 364-365 (CA 2, 1978) (holding that the “spillover
effects” of a double-jeopardy-barred charge being tried alongside properly lodged charges
was a constitutional claim subject to review for whether the error was harmless beyond a
reasonable doubt). While I express no opinion on what standard is correct, I believe this
ambiguity between evidentiary and constitutional error further supports that a remand
would be appropriate.
2
that would generally be barred from admission. Watkins, 491 Mich at 470. Evidence
introduced under MCL 768.27a remains subject to MRE 403, but the propensity inference
of that evidence is drawn in favor of the evidence’s probative value, not the danger of unfair
prejudice. Watkins cautioned, however, that MCL 768.27a did not provide carte blanche
to admit overly prejudicial evidence. Watkins, 491 Mich at 487. The Court listed several
considerations that might lead a court to exclude such evidence. Id. at 487-488. 3
Importantly for present purposes, this Court was careful to note that the MRE 403 analysis
must be applied “to each separate piece of evidence offered under MCL 768.27a.” Watkins,
491 Mich at 489. When applying this new rule in Watkins, the Court explained that the
trial court erred when it “failed to review separately under MRE 403 each act
alleged . . . and instead lumped all of the evidence together.” Id. at 493. It reiterated, “The
trial court should have considered each act separately.” Id.Despite this clear directive in Watkins, the majority opinion fails to heed its
instruction to balance each separate piece of evidence under MRE 403. It “lumps” all the
other-acts-evidence testimony of defendant’s teenaged daughters into one conclusory
analysis. By approaching the analysis in this way, it is cloudy, at best, regarding whether
some of the evidence admitted under MCL 768.27a should have been admissible under
MRE 403. For example, ANB testified that defendant had “mov[ed] his hand up [her]
3
These considerations, or the “Watkins factors,” include:
(1) the dissimilarity between the other acts and the charged crime, (2) the
temporal proximity of the other acts to the charged crime, (3) the infrequency
of the other acts, (4) the presence of intervening acts, (5) the lack of reliability
of the evidence supporting the occurrence of the other acts, and (6) the lack
of need for evidence beyond the complainant’s and the defendant’s
testimony. [Watkins, 491 Mich at 487-488.]
3
thigh,” which made her uncomfortable. ADB testified that defendant would “smack [her]
butt” when she did the dishes. To assert that these instances of inappropriate touching are
similar to the charged conduct at issue in the 2017 trial—violent sexual penetration—is
untenable. 4 Yet when the testimony of ANB and ADB is presented in the same paragraph
as analysis of the testimony of defendant’s other daughter, AR, alleging that defendant
touched her vagina with his hands and his mouth, the similarity or dissimilarity of each act
becomes blurred. 5
The majority opinion may ultimately reach the correct result—that there were no
errors in the admission of the evidence discussed or that any errors were not prejudicial
enough to defendant to warrant reversal. 6 Even still, instead of engaging in a truncated
analysis, I believe it would have been much more prudent to remand to the Court of
4
I do not suggest that for other-acts evidence to be admissible under MCL 768.27a it must
be identical to the charged conduct, but acknowledging dissimilarities is an important part
of the MRE 403 analysis.
5
The majority agrees that Watkins requires separate consideration of each act, but does not
believe that “spatial separation” is necessary for such consideration. Respectfully, in my
view, a robust Watkins analysis does require a lengthier analysis. Here, that would look
like an MRE 403 balancing of AR’s allegations, then an MRE 403 balancing of ANB’s
allegations, and then an MRE 403 balancing of ADB’s allegations. I believe this would
help avoid what I believe to be the murkiness in the majority’s approach to the Watkins
analysis.
6
I note that I agree with the majority that some of the daughters’ testimony involved
conduct that was not admissible pursuant to MCL 768.27a because it did not involve a
“listed offense.” I further agree that the propriety of the admission of this evidence is
governed by traditional principles concerning MRE 404(b) evidence and that it is doubtful
that this evidence should have been admitted. That said, because I do not join the
majority’s conclusion that all of the other-acts evidence was admissible under Watkins, I
am unable to opine on whether the admission of this propensity evidence was harmless or
not.
4
Appeals for full consideration in the first instance. By taking that route, our opinion would
properly encourage our trial courts to zealously guard against the admission of unfairly
prejudicial propensity evidence. And, after the review of our intermediate court, this Court
would have been in a much better position to review defendant’s arguments. Instead, the
majority applies Watkins 7 in a way that I believe signals to the trial courts that “anything
goes.” Therefore, I respectfully dissent from Part II(B) of the majority opinion. 8
Megan K. Cavanagh
Elizabeth M. Welch
7
Notably, to my knowledge, this is the first time that this Court has applied Watkins since
it was decided in 2012.
8
Because I dissent from Part II(B), I express no opinion on Part II(C), given that the
premise of that section is that defendant’s convictions for the 2017 charges stand.
5