Petition for Writ of Certiorari — Michigan v. Johnson

' EE

———!

Supreme Court, US.

Qe v4 om E D

25-2028 en |

No. JUN S 1986

IN THE SUPREME COURT OF THE drome snag |

OCTOBER TERM, 198

THE PEOPLE OF THE STATE OF MICHIGAN,

PETITIONER

vs.

GARY LAMAR JOHNSON,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF AFPEALS

OF THE STATE OF MICHIGAN

JOHN D. O'HAIR

Prosecuting Attorney

County of Wayne

TIMOTHY A. BAUGHMAN

Chief of the Criminal Division

Research, Training & Appeals

JEFFREY CAMINSKY

Assistant Prosecuting Attorney

1204 Frank Murphy Hall of Justice

Detroit, Michigan 48226

Phone: (313) 224-5846

-l-

QUESTION PRESENTED

MAY A CRIMINAL DEFENDANT WHO

DECLINES A TRIAL JUDGE'S OFFER OF A

MISTRIAL UPON REQUEST, OFFERED

BECAUSE OF A NECESSARY IN CAMERA

DISCUSSION WITH A PROSECUTION

WITNESS, CITE THE IN CAMERA

DISCUSSION AS A VIOLATION OF HIS

SIXTH AMENDMENT RIGHT TO

CONFRONTATION, OR HIS FOURTEENTH

AMENDMENT RIGHT TO DUE PROCESS,

JUSTIFYING A REVERSAL OF HIS

CONVICTION?

- 2-

TABLE OF CONTENTS

Page

Question Presented... ..cscecceceseeeceeeld

Index Of Authoritles..csccccccscccccsccesd

Opiniones BelOWecccccscccsecscesseessesesed

Statement of Jurisdiction...........+.2++6

Constitutional Provisions Involved......7

Statement of the Case... cc eeencee eee eS

Reasons for Granting the Writ..........12

CONGLUBLON. cc ccccccceccscccsccccecsesesad

Appendix

"A" Opinion of the Michigan

Court of Appeals..cccccccccseceead

"B" Order of the Michigan

Supreme og eo

-3-

INDEX OF AUTHORITIES

CASE PAGE

California v Green,

399 US 149, 157; 90 S Ct 1930;

26 L Ed 2d 489 (1970) wccccccccccccceeldS

Chambers v Mississippi,

410 US 284, 295; 93 S Ct 1038;

35 L Ed 2a 297 (1973) wcccccccccvccceeld

Chapman v California,

386 US 18; 87 S Ct 824;

17 L Ed 2da 241 (1967) wccccccccccesseetd

Dorsey v Warden,

Southern Michigan State Prison,

ee ee PD FOG, BOTS) ccciccccccccecdd

Faretta v California,

422 US 806; 95 S ct 2525;

45 L Ed 2a 562 (1975) ~cccccccccccceeedd

Harmon v Anderson,

495 F Supp (ED Mich, 1980)...........14

LaChappelle v Moran,

699 F2d 560 (CA 1, 1983)..........19,20

Mancusi v Stubbs,

408 US 204; 92 S Ct 2308;

33 L Eda 2a 293 (1972) wccccccccccecveseedd

People v Baines,

68 Mich App 385;

242 NW2da 784 (1976) wcccccccccccceceeedd

People v Brocato,

17 Mich App 277, 305;

169 NW2d 483 (1969)... ceeeeeeeeeeeeeel8

People v Kirtdoll,

391 Mich 370, 385;

Ee COMPAS. cccccccccseveccsccké

-4-

Index of Authorities

(Continued)

CASE PAGE

People v Ward, |\

133 Mich App 344;

351 NW2d 208 (1984)... ,ceeeeeeeeeeee el

Pointer v Texas,

380 US 400; 85 S Ct 1065;

13 L Ed 2d 923 (1965)... ecceeeeeee eld

United States v Anderson,

509 F2d 724 (CA 9, 1975)

cert den 420 US 910;

95 S Ct 831; 42 Ld 2d 840 (1975).....20

United States v Dinitz,

424 US 600; 96 S Ct 1075;

47 & BA BG BEF CABRE) 2 occ ccccccccck?, 38

United States v Jorn,

400 US 470; 91 S Ct 547;

27 L Ed 2d 543 (1971) -cccccccccccccced?

United States v Ruiz-Estrella,

481 F2d 723 (CA2, 1973) ..ccccceeeeeee2l

OTHER AUTHORITIES

US Const, AM Viccccccccccccccccsccsecscsccel

US Const, AM VI. cccccccccccccccceet 13,19

US Const, AM XIV. cccccccccccccccccceels,l&

28 USC SeC. 1257(3) -cccccccccevccceveceed

P. Watzlawick, The Situation is

Hopeless, but Not Serious, p 8l......17

- § «

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

THE PEOPLE OF THE STATE OF MICHIGAN,

PETITIONER

vs.

GARY LAMAR JOHNSON,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF MICHIGAN

NOW COME the People of the State of

Michigan, by John D. O'Hair, Prosecuting

Attorney for the County of Wayne, Timothy

A. Baughman, Chief of the Criminal

Division, Research, Training and Appeals,

and Jeffrey Caminsky, Assistant

Prosecuting Attorney, and pray that a

—

writ of certiorari issue to review the

judgment of the Court of Appeals of the

State of Michigan, entered in this cause

on December 16, 1985, Leave to appeal

denied by the Michigan Supreme Court on

April 11, 1986, one justice dissenting.

OPINIONS BELOW

The opinion of the Michigan Court of

Appeals is reported at 147 Mich App 542;

_.. ‘-NW2d __s« (1985), and appended below

as Appendix A; the order of the Michigan

Supreme Court denying leave to appeal is

unreported as yet, and appended below as

Appendix B. Michigan Supreme Court

Docket No. 77920.

STATEMENT OF JURISDICTION

The Michigan Court of Appeals entered

judgment on December 16, 1985. The

Michigan Supreme Court entered judgment

on April 1l, 1986. This Court's

jurisdiction is invoked under 28 USC Sec.

1257(3).

-7-

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V to the United States

Constitution provides, in pertinent part:

"No person shall. . . be subject for

the same offence to be twice put in

jeopardy of life or limb;

» « « nor be deprived of life, liberty

o property without due process of

Ws. « « o*

Amendment VI to the United States

Constitution provides, in pertinent part:

"In all criminal prosecutions, the

accused shall enjoy the right. .. to

be confronted with the witnesses

against him... ."

The Fourteenth Amendment to the United

States Constitution provides, in

pertinent part:

",. . »« No State shall make or enforce

any law which shall abridge the

privileges or immunities of citizens

of the United States; nor shall any

State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any person

within its jur- isdictions the equal

protection of the laws."

»@-«

STATEMENT OF THE CASE

On October 12, 1983, the trial court,

sitting without a jury, convicted

Respondent of armed robbery and felony

firearm, sentencing him on October 17,

1983 to 2 to 15 years for armed robbery,

and a two-year consecutive sentence for

felony firearn.

At the trial, prosecution witness

Willie Thomas testified that on February

28, 1983, while working at a gas station

in the City of Detroit, he was robbed by

two men, one of whom was armed, and one

of whom he identified as Respondent.

Clifford Williams, a l4-year old boy,

also testified at trial. Originally, he

testified that he did not see any of the

robbers, could not identify Respondent,

and could not tell if any of the robbers

had a gun. Suspecting possible witness

tampering, the trial court took the

e § «

witness, the court reporter, and the

officer in charge of the case into

chambers for a sequestered conference,

outside the presence of counsel for

either side. During the course of the

interview, the witness disclosed that he

had been offered money by Respondent's

brother to testify that he could not

identify the robbers; the interview

concluded with the witness assuring the

judge that he would tell the truth while

testifying. For the protection of the

witness, the judge agreed that he would

not disclose anything that transpired in

the courtroom during the trial.

At the conclusion of the interview,

the judge called counsel inte chambers,

informed them that he could not divulge

what had transpired, and admonished them

that the proceedings in chambers were not

to be the subject of any examination on

the record at trial. The judge then

o- 30 «

offered to declare a mistrial upon

Respondent's request, but noting possible

Double Jeopardy problems, indicated that

without Respondent's request he would not

do so. Respondent himself declined to

move for a mistrial, with his attorney's

full concurrence. Upon taking the stand

again, Clifford Williams identified

Respondent as the robber, and testified

that he was the only one of the robbers

who carried a gun. Pursuant to its prior

ruling, the trial court prevented defense

counsel from inquiring about anything

that transpired in chambers.

Respondent appealed his conviction to

the Michigan Court of Appeals, which

reversed his convictions on December 16,

1985. The basis for reversal was that

the trial court violated Respondent's

Sixth Amendment right to confrontation by

conducting an in camera interview with

the key prosecution witness, and that

» i2 «=

Respondent did not waive the issue by

declining the court's invitation to move

for a mistrial. On April 11, 1986, the

Michigan Supreme Court denied Petition-

er's timely application for leave to

appeal, two justices dissenting.

- 12 -

REASONS FOR GRANTING THE WRIT

A CRIMINAL DEFENDANT WHO DECLINES

A TRIAL JUDGE'S OFFER OF A

MISTRIAL UPON REQUEST, OFFERED

BECAUSE OF A NECESSARY IN CAMERA

DISCUSSION WITH A PROSECUTION

WITNESS, MAY NOT CITE THE IN

CAMERA DISCUSSION AS A VIOLATION

OF HIS SIXTH AMENDMENT RIGHT TO

CONFRONTATION, OR HIS FOURTEENTH

AMENDMENT RIGHT TO DUE PROCESS,

JUSTIFYING A REVERSAL OF HIS

CONVICTION.

In his state court appeal, Respondent

Claimed, and the Michigan Court of

Appeals agreed, that the trial court

denied his constitutional right to

confront the witnesses against him by

conducting certain proceedings in camera;

these proceedings ultimately revealed

certain attempts to tamper with the

witness whom the trial judge interviewed

— oe

in his chambers, on the record but away

from Respondent, defense counsel, and the

trial prosecutor. This case illustrates

the dangers facing a trial judge when

unexpected events interfere with the

trial he is conducting, given the harsh

reality of the Double Jeopardy Clause;1l

but beyond this, the case illustrates the

extent to which criminal defendants will

pervert the purposes of the double jeop-

ardy protections, in efforts to ensure an

“appellate parachute" in the event of an

adverse verdict from the trier of fact.

For a variety of reasons, such efforts

must fail.

Respondent has not challenged the

impartiality of the trial judge, but

Claims instead that the trial court

abridged his right to confront his

accusers. The Sixth Amendment? guaran-

+ US Const, Am V

US Const, Am VI

o 3h «

tees that "in all criminal prose-

cutions, the accused shall enjoy the

right. . . to be confronted with the

witnesses against him. ... " Applied to

state court proceedings through the

Fourteenth Amendment,2 Pointer v Texas,

380 US 400; 85 S Ct 1065; 13 L Ed 2d 923

(1965), the core of this right is the

ability to confront witnesses at time of

trial. California v Green, 399 US 149,

157; 90 S Ct 1930; 26 L Ed 2d 489 (1970).

Moreover, while this right is not

coextensive with the rule on hearsay

evidence, both rules stem from the same

roots in the common law, and both seek to

address similar concerns. Harmon v

Anderson, 495 F Supp (ED Mich, 1980); as

the Michigan Supreme Court noted in

People v Kirtdoll], 391 Mich 370, 385; 217

NW2d 37 (1974), "(t]he evil the right of

confrontation sought to avoid was prose-

3 US Const, Am XIV

- 15 -

tion by means of ex parte affidavits,

which would be of uncertain reliability."

However, the right of confrontation is

not absolute, and may bow to accommodate

other important legal and societal

interests. Chambers v Mississippi, 410 US

284, 295; 93 S Ct 1038; 35 L Ed 2d 297

(1973). See also, Mancusi v Stubbs, 408

US 204; 92 S Ct 2308; 33 L Ed 2d 293

(1972). One such interest must be the

integrity of the judicial process; and a

criminal defendant may not reasonably

Claim the right to interfere with the

trial court's ability to control the

proceedings before it.

In this case, the record clearly shows

that the trial court was presented with

grounds to suspect that a key prosecu-

tion witness, a fourteen-year old boy,

had been tampered with. Under the

e 16 «

circumstances, it would have been

unreasonable for the trial court to do

nothing, for such a course would merely

have conceded the court's impotence to

counter attempts to influence the trial

through the improper manipulation of

witnesses. Accordingly, the court acted

properly in making inquiry in chambers,

where the witness would not feel

intimidated by either of the parties.

Petitioner does not contend that

Respondent had no rights in this matter,

however, and agrees with the trial court

that he was entitled to a mistrial upon

request. However, Respondent raised no

question about the court's continued

capacity to be impartial, and declined to

move for a mistrial -- apparently using

his Double Jeopardy protections to try to

extract two chances at acquittal.

Respondent's strategy appears to be as

follows: if he declined to move for the

» 19 «

mistrial, then the court would grant one

at its peril, for if a reviewing court

found no manifest necessity for the

mistrial, then Respondent would walk away

from all charges. See, inter alia,

United States v Dinitz, 424 US 600; 96 S

Ct 1075; 47 L Ed 2d 267 (1976); United

States v Jorn, 400 US 470; 91 S Ct 547;

27 L Ed 2a 543 (1971). On the other

hand, if this Court found that the trial

court should have granted a mistrial,

then Respondent would get a second chance

at acquittal by the simple expedient of

failing te assert his rights at the

proper time. This is best described as

an illusion of alternatives: If one

chooses A, he should have chosen B; if he

chooses B, he should have chosen A. See,

P. Watzlawick, The Situation is Hopeless,

but Not Serious, p §1.

A defendant may not "sit back and

harbor error to be used as an appellate

o 18 «

parachute in the event of jury failure,"

People v Brocato, 17 Mich App 277, 305;

169 NW2d 483 (1969). Nor may he cite as

a ground for reversal a potential error

which he attempts to use to his own

tactical advantage. People v Ward, 133

Mich App 344; 351 NW2d 208 (1984).

People v Baines, 68 Mich App 385; 242

NW2d 784 (1976). In this case, when

Respondent declined the trial court's

offer to declare a mistrial upon request,

he forever waived the right to cite the

court's failure to grant one as error,

for he asserted primary control over the

course followed by the trial court for

Double Jeopardy purposes. United States

v Dinitz, supra. Having done this, he

may not cite the trial court's failure to

force a spurned mistrial upon him as a

basis for a new trial, for such a claim

is nothing more than a demand to exercise

two mutually exclusive rights

simultaneously -- much like asserting

= 19 «

both a Sixth Amendment right to counsel,

and a right to self-representation under

Faretta v California, 422 US 806; 95 S ct

2525; 45 L Ed 2d 562 (1975). Such a

tactic simply cannot succeed, for to hold

otherwise is to concede the judicial

system's inability to withstand attempts

to subvert it -- and will ultimately lead

to its downfall.

In passing, Petitioner notes that the

Court of Appecls misunderstood the

precise issue before it. Respondent

concedes the distinction which the Court

of Appeals drew between this case and

LaChappelle v Moran, 699 F2d 560 (CA l,

1983), relating to differences between

jury and non-jury trials; but all

LaChapelle stands for is the proposition

that in a non-jury trial, the court need

not grant a mistrial at all -- even upon

the defendant's request. It provides no

insights for dealing with cases where the

= 20 «

court itself is sitting as the trier of

fact. Moreover, that case involved a

court's attempt to protect a witness from

undue embarrassment -- not, as here, an

attempt to subvert the entire judicial

process‘ which the court must investigate

and combat if the concept of due process

is to have any meaning. In fact, between

the two pages of [LaChappelle which the

Court of Appeals cited, is the following

passage, which applies to the case at

hand:

"To be sure, in camera proceedings

are seldom proper in a criminal

trial. However, in the exercise of

the court's residual power to

ensure a just trial, and protect

urors and witnesses, a judge may

n ve rare circumstances feel it

essential to confer with a juror

outside the presence of others,

including the defendant. One

example of such a conference might

be where a juror or witness, having

been threatened, wished to speak to

the judge privately about the

threat." jLaChappelle, supra at

565. (Citations omitted). See

also, United States v Anderson, 509

F2d 724 (CA9, 1975) cert den 420 US

910; 95 S Ct 8313 42 L Ed 2d 840

ee

= 21 =

(1975); United States v Ruiz-Estrella,

481 F2d 723 (CA2, 1973).

Also relevant to this case is the

Sixth Circuit decision in Dorsey v

Warden, Southern Michigan State Prison,

523 F2d 590 (CA6, 1975). In that case,

the court affirmed the district court's

dismissal of a criminal defendant's

habeas petition on grounds that the trial

court did not deny the petitioner's

confrontation rights by holding a

contempt hearing involving a prosecution

witness outside his presence, and not

permitting him to cross-examine her about

her testimony at such a hearing. The

court noted that, as here, the excluded

testimony related not to the substantive

charges, but rather to collateral issues.

Accordingly, it held that the trial court

did not violate petitioner's right to

confrontation.

- 22 -

Petitioner urges a similar resolution

by this Court; in addition, upon the full

record, it is apparent that even if error

existed, it was constitutionally harm-

less. Chapman v California, 386 US 18;

87 S Ct 824; 17 L Ed 2d 241 (1967).

- 23 «-

CONCLUSION

WHEREFORE, Petitioner prays that this

Court grant plenary review, reverse the

holding of the Michigan Court of Appeals,

and reinstate Respondent's convictions.

JOHN D. O'HAIR

Wayne County Prosecuting Attorney

TIMOTHY A. BAUGHMAN

Chief of Criminal Division

R rch, » pro)

SZ

Assistant Prosecuting Attorney

1204 Frank Murphy Hall of Justice

Detroit, Michigan 48226

Phone: (313) 224-5846

Dated: June 3, 1986

JC/ag

- 24 -

APPENDIX

- 25 -

PINION OF THE MICHIGAN COURT OF APPEALS

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

w= Dec. 16, 1985

GARY LAMAR JOHNSON, No. 76159

Defendant-Appellant.

Before: R.S. Gribbs, P.J., Cynar and

P.J. Duggan,* JJ.

PATRICK J. DUGGAN, J.

Defendant was convicted of armed rob-

bery following a bench trial. He appeals

as of right. Defendant and a co-defen-

dant, Juarez Bolden, were charged with

robbing a gas station. An employee of

the gas station testified that defendant

Johnson was one of the individuals who

committed the robbery. Clifford

Williams, a fourteen-year-old witness,

testified that he was at the gas station

the night the robbery allegedly took

*Circuit judge, sitting on the Court of

Appeals by assignment.

o 96 «

place; but contrary to statements he had

previously given, Williams initially

testified at trial that he could not

identify the robbers. At this point the

trial judge ordered a recess, and took

Williams, the court reporter and the

officer in charge into chambers for an in

camera hearing. The judge was concerned

that someone may have ordered Williams to

change his story: After questioning by

the judge and the police officer (some of

which questioning by the police officer

took place out of the presence of the

judge and the court reporter), Williams

admitted that he had been offered money

by the brother of the defendant if he

would testify that he could not identify

the robbers. He then assured the judge

that he would tell the truth while

testifying.

In an effort to protect Williams, the

court refused to disclose to the

prosecutor or the defense attorney what

~ 29 =

was said during the in camera hearing.

The court, however, did indicate to

defendant and defense counsel that he

would grant a mistrial if one was

requested. For “tactical reasons"

defendant refused to request a mistrial.

Wiliiams then testified during the

bench trial that the defendant was one of

the robbers. The court, however,

prevented defense counsel from inquiring

about any of the discussion that took

place in chambers. The court subse-

quently found defendant guilty of the

armed robbery charge.

The only issue raised by appellant is

whether defendant is entitled to a new

trial because of a violation of his

constitutional rights under the Sixth

Amendment. U.S.C.A. Const. Amend. 6.

Defendant contends that the in camera

discussion between the trial judge and

the prosecution witness violated his

right to have a public trial by an

a. 98 «=

impartial jury and to be confronted by

the witnesses against hin. Defendant

believes that such violation requires the

grant of a new trial.

The Confrontation Clause of the Sixth

Amendment requires that "in all criminal

prosecutions, the accused shall enjoy the

right...to be confronted with the

witnesses against him" Applicable to the

states through the Fourteenth Amendment,

the confrontation clause "guarantees a

criminal defendant the right to be

present at every stage of his trial,

Illinois v Allen, 397 US 339, 90 sct

1057, 25 LEd2da 353 (1970), and to

physically confront, and to cross-examine

the witnesses against hin. Davis v

Alaska, 415 US 308, 94 SCt 1105, 39 LEd2d

347 (1974)." lLaChappelle v Moran, 699

F2d 560, 564 (1983). Because such in

camera proceedings during a criminal

trial are "manifestly conceptually

incompatible with our system of criminal

o 96 «

jurisprudence," close consideration of

this question is warranted. U.S. Vv

Arroyo-Angulo, 580 F2d 1137, 1141 (1978).

A defendant's right to be present at

his trial extends to any stage of his

trial that “bears, or may fairly be

assumed to bear, a relation, reasonably

substantial to his opportunity to

defend." Snyder v Massachusetts, 291 US

97, 106, 54 SCt 330; 78 LEd 674 (1934).

However, not every aspect of a judicial

proceeding is a stage at which the

accused must be present. For example, in

LaChappelle, supra, where the trial judge

in a jury trial sensed that the sixteen-

year-old complainant had refused to

answer defense counsel's question because

of embarrassment, and saw fit to conduct

an in camera interview with her out of

the presence of counsel and the jury, the

court held that the in camera conference

was not a stage of the trial at which the

confrontation clause gave a right to be

ail

« 30

present. LaChappelle, however, is

distinguishable from the instant case.

In LaChappelle, the judge was not the

trier of fact and the court specifically

noted that "The witness's response and

demeanor were not being judged at the in

camera conference..." LaChappelle,

supra, at 566. The LaChappelle court

specifically noted "the confrontation

clause guarantees a defendant the right

of physical presence when a witness's

response and demeanor are being tested

before the trier of fact." LaChappelle,

supra, at 566.

Given the fact that Williams was an

eyewitness to the armed robbery, his

credibility certainly was a significant

factor in the decision made by the trier

of fact. Certainly, had this same

information been conveyed to a jury

without the defendant or his counsel

being present, a new trial would be

mandated. An in camera proceeding before

ill

» $2 @

a judge in a bench trial does not require

a different result where the information

communicated to the judge may well have

influenced his decision as the trier of

fact.

In this court's opinion, defendant's

Sixth Amendment rights were violated.

Mr. Williams made statements to the trier

of fact during the in camera hearing

which the defense was not given any

opportunity to refute. The statements

made by Mr. Williams could be interpreted

as adverse to defendant. Defendant had

no opportunity to cross-examine the

witness with regard to these statements;

nor was the defense even aware of the

substance of these statements. This

violation of the defendant's Sixth

Amendment rights mandates a new trial.

We also believe that defendant's

rights to due process guaranteed to him

under the 14th Amendment of the Federal

Constitution mandate a new trial. The

o 32 «

relevant determination under the Due

Process Clause is whether the judge's

actions were so egregious and fundamen-

tally unfair as to deprive the defendant

of his right to trial based on untainted

evidence before an impartial trier of

fact. See LaChappelle, supra, at 566-7.

Generally, courts regard in camera

proceedings during criminal trials as

improper. Ex parte communications shadow

the impartiality, or at least the

appearance of impartiality, of any

judicial proceeding, particularly a bench

trial where the judge sits as the trier

of fact. Grieco v Meachum, 533 F2d 713

(1976).

In the instant case, the impartiality

of the trial judge following the in

camera proceeding is clearly in question.

The information obtained by the judge

during the in camera conference may well

have influenced the judge's opinion of

the credibility of the eyewitness testi-

@ 33 «

mony. Moreover, the trial judge communi-

cated to defense counsel his concerns

about his ability to remain impartial

based on the information received in

chambers. Because this was a bench

trial, defendant's right to a trial

before an impartial trier of fact was

jeopardized and he is entitled to a new

trial.

Appellee argues that a new trial

should not be granted because defendant

was given an opportunity for a mistrial

and refused it. He should, therefore,

not now be allowed to claim error. We

disagree. We recognize that the trial

judge was in a difficult position. If he

granted the mistrial without defendant's

consent at that stage of the proceedings,

defendant may well have been successful

in precluding a second trial on the basis

of double jeopardy. If he didn't grant

the mistrial, defendant most certainly

would assert his conduct as the basis for

o 34

a new trial, as he has done. Appeilee

contends that defendant should not be

able to reject the court's offer for a

mistrial, thereby implying that he is

satisfied that the court can be impar-

tial, and then later attack the court's

conduct.

While we do not condone a party

deliberately refusing to object to

"error" and then awaiting an adverse

verdict before asserting it as error, we

beiieve the circumstances here should not

preclude defendant from now raising this

issue. In this case, defendart was never

sufficiently informed of what took place

during the in camera hearing to request a

mistrial. While the court did suggest

that what took place in chambers may have

affected his impartiality, defendant did

not know why. Defendant may have assumed

that what took place in chambers, was not

significant enough to clearly affect the

court's impartiality. In other words, he

e 38 «

may have assumed that the court could set

aside what took place in chambers and

decide this case in a fair and impartial

manner. This defendant chose to be tried

without a jury before that judge. With-

out knowing what took place in chambers,

defendant could not make an informed

decision as to whether or not to request

a mistrial. By refusing the opportunity

to obtain a mistrial, defendant did not

waive his right to assert a violation of

his constitutional rights when the facts

of what took place in chambers, became

known to hin.

In reversing the trial court, it is

important to note that we find the trial

judge's motives in holding the in camera

hearing beyond reproach.

"Judges in our system are not mere

bureaucrats. They have the ultimate

responsibility to see that a trial is

conducted fairly, and in difficult

circumstances such as occurred here,

they must do what they think right."

LaChappelle, supra, at 567.

» 36 @

The trial judge suspected that a witness

may have been threatened. He was faced

with a difficult decision and he dealt

with it in a manner that he thought was

appropriate. His integrity is not in

question.

However, for the reasons indicated

above, a new trial must be ordered.

Reversed.

/s/ Roman S. Gribbs

/s/ Walter P. Cynar

/s/ Patrick J. Duggan

7

va

”

- 37 «-

ORDER OF THE MICHIGAN SUPREME COURT

AT A SESSION OF THE SUPREME COURT OF THE

STATE OF MICHIGAN, Held at the Supreme

Court Room, in the City of Lansing, on

the llth day of April in the year of our

Lord one thousand nine hundred and

eighty-six.

Present the Honorable G. MENNEN WILLIAMS,

Chief Justice

CHARLES L. LEVIN,

JAMES H. BRICKLEY,

MICHAEL F. CAVANAGH,

PATRICIA J. BOYLE,

DOROTHY COMSTOCK RILEY,

DENNIS W. ARCHER,

Associate Justices

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

Vv SC: 77920

COA: 76159

Le: 83-01917

GARY LAMAR JOHNSON,

Defendant~-Appellee.

- 38 -

On order of the Court, the application

for leave to appeal is considered, and it

is DENIED, because the Court is not

persuaded that the question presented

should be reviewed by this Court.

Boyle and Riley, JJ., would grant

leave to appeal.

STATE OF MICHIGAN -~- ss.

I, CORBIN R. DAVIS, Clerk of the

Supreme Court of the State of Michigan,

do hereby certify that the foregoing is a

true and correct copy of an order entered

in said court in said cause; that I have

compared the same with the original, and

that it is a true transcript therefron,

and the whole of said original order.

IN TESTIMONY WHEREOF, I

have hereunto set my hand and

affixed the seal of said Supreme

(seal) Court at Lansing this 11th day of

April in the year of our Lord one

thousand nine hundred and

eighty-six.

/8/

Deputy Clerk