Michigan v James E. Brower

People of the State of Michigan v James E. Brower

Docket No. 91353

Court of Appeals of Michigan

164 Mich App 242; 416 NW2d 397

July 9, 1987, Submitted November 2, 1987, Decided

Subsequent case developments: Application for Leave to Appeal Denied March 28, 1988.

Before: M. J. Kelly, P.J., and Beasley and P. Edwards, * JJ.

*   Recorder's Court judge, sitting on the Court of Appeals by assignment.

Opinion by: KELLY

OPINION

      Defendant was arrested on October 6, 1982, and subsequently charged with operating a motor vehicle while under the influence of intoxicating liquor operating a motor vehicle while under the influence of intoxicating liquor, MCL 257.625; MSA 9.2325. After several delays prompted by defendant, the case was scheduled for a bench trial on March 17, 1983. On that date the prosecutor informed the court that two police witnesses had been detained in another court. The prosecutor asked for an adjournment, or in the alternative a short continuance to give the officers an opportunity to appear. The court denied the request. The prosecutor then asked the court to dismiss the charge. Defense counsel objected unless the dismissal was with prejudice. The trial court then denied the prosecutor's request and ordered defense counsel to call his first witness, presumably to attach jeopardy. Defendant was called to the stand and, upon being asked his name, refused to testify, asserting the Fifth Amendment.

     After the district court judge "dismissed the case without deciding whether, in its opinion, jeopardy had attached," the prosecutor refiled the charge against defendant. Defendant filed a motion to dismiss on the basis of double jeopardy, which the court denied. Defendant was then convicted and appealed his conviction to circuit court, which reversed on double jeopardy grounds. The prosecutor now appeals by leave granted. We affirm.

     The Fifth Amendment of the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb . . . ." The federal Double Jeopardy Clause protects the finality of judgments, Crist v Bretz, 437 US 28, 33; 98 S Ct 2156; 57 L Ed 2d 24 (1978), and the individual's interest in not being repeatedly subjected to prosecution for the same offense. Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957); Arizona v Washington, 434 US 497, 503-504; 98 S Ct 824; 54 L Ed 2d 717 (1978). Once jeopardy has attached, the protections of the Double Jeopardy Clause are triggered. Jeopardy attaches in a criminal jury trial once the jury is empaneled and sworn. Crist, supra . The federal standard of when jeopardy attaches is applicable to the states. Crist, supra. [People v Thompson, 424 Mich 118, 122; 379 NW2d 49 (1985), reh den 424 Mich 1206 (1986).]

     The question here is, at what point does jeopardy attach in a bench trial? Appellant relies on Serfass v United States, 420 US 377, 388; 95 S Ct 1055; 43 L Ed 2d 265 (1975), where the Supreme Court stated: "In a nonjury trial, jeopardy attaches when the court begins to hear evidence." This language has been cited with approval with slight variation in footnotes to two Michigan Supreme Court cases: People v Alvin Johnson, 396 Mich 424, 431 n 3; 240 NW2d 729 (1976), and People v Cooke, 419 Mich 420, 434 n 3; 355 NW2d 88 (1984). 1 However, neither Serfass, Johnson, or Cooke are factually on point with this case. Serfass involved a pretrial order of dismissal, Johnson involved a guilty plea, and Cooke was a consolidated case in which the referred-to footnote was part of the opinion that dealt with a prosecutor's appeal from an order acquitting the defendant on the basis of insufficiency of the evidence entered after the jury returned a verdict of guilty. Cooke was affirmed on statutory grounds and the double jeopardy question was not reached.

     The final statement made by the Court in Serfass, supra at 394, was:

     We hold only that the Double Jeopardy Clause does not bar an appeal by the United States under 18 USC § 3731 with respect to a criminal defendant who has not been "put to trial before the trier of the facts, whether the trier be a jury or a judge." United States v Jorn, 400 US [470, 479; 91 S Ct 547; 27 L Ed 2d 543 (1971)].

     In the subsequent United States Supreme Court case of Crist v Bretz, supra, double jeopardy was again the issue. Montana law provided that in a jury trial jeopardy did not attach until the first witness was sworn. The Supreme Court disagreed and held that once the jury was sworn jeopardy attached. In its discussion, the Court cited Serfass and stated in a footnote:

     In nonjury trials jeopardy does not attach until the first witness is sworn. Serfass v United States, 420 US 377, 388. [Crist, supra at 37 n 15.]

     Subsequently, this footnote was adopted by the Fourth Circuit Court of Appeals as the point at which jeopardy attaches in a bench trial. In Goolsby v Hutto, 691 F2d 199 (CA 4, 1982), two different district court judges denied the prosecutor's motion for nolo prosequi and the prosecutor refused to go forward with evidence. The trial judge called and swore in a detective who had been subpoenaed as a defense witness. The prosecutor refused to ask any questions of the witness, who was then dismissed. The trial judge concluded that jeopardy had attached and dismissed the charges for lack of evidence. The Fourth Circuit Court of Appeals concluded that jeopardy had attached when the witness was sworn and that further prosecution on a felony charge involving the same circumstances was barred.

     The rationale in Goolsby was that defendant was put to trial before the trier of fact and when the witness was called and sworn the defendant became subjected to either conviction or acquittal. "The fact that the witness gave no evidence required the acquittal of Goolsby by the general district court, just as his conviction would have been required had the witness given evidence sufficient to sustain his guilt." Goolsby, supra at 202. Goolsby held that when the witness was sworn the court began to hear evidence, and it was immaterial whether or not the witness testified.

     The facts in Goolsby are on point with the facts presented in this case. Defendant here was put in jeopardy once the first witness was sworn, regardless of the fact that the witness subsequently did not answer questions but asserted his Fifth Amendment privilege against self-incrimination.

     We hold that the circuit court did not err and that jeopardy attaches in a bench trial once the first witness is sworn.

     Affirmed.