_____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

___________________________________ 

Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JUNE 4, 2002
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant,
 

v	 No. 117041
 

REGINALD JOHN LETT,
 

Defendant-Appellee.
 

BEFORE THE ENTIRE BENCH
 

YOUNG, J.
 

We granted leave to appeal in this case to consider
 

whether defendant is entitled to the reversal of his
 

convictions on the ground that he was retried, following the
 

declaration of a mistrial, in violation of his constitutional
 

right to be free from double jeopardy. We conclude that the
 

trial court did not abuse its discretion in declaring a
 

mistrial and in dismissing the jury where the jury foreperson
 

indicated that the jury members were not going to reach a
 

unanimous verdict and defendant did not object to the
 
declaration of mistrial. We additionally conclude that
 

defendant’s retrial, following the proper declaration of a
 

mistrial, did not violate the constitutional protection
 

against successive prosecutions. Accordingly, we reverse the
 

decision of the Court of Appeals and remand this matter to
 

that Court for consideration of the additional issue that was
 

raised by defendant, but not decided.
 

I. FACTUAL AND PROCEDURAL BACKGROUND
 

On August 29, 1996, Adesoji Latona, a taxi driver, was
 

fatally shot at a Detroit liquor store. Latona was apparently
 

confronted by a group of men, including defendant, as he
 

entered the liquor store. One of the men, Charles Jones,
 

accused Latona of throwing him out of Latona’s cab, and an
 

argument ensued inside the store. Latona’s girlfriend
 

testified that she saw defendant draw a gun, after which she
 

heard two gunshots. In a statement given to police following
 

the incident, defendant admitted that he was at the party
 

store at the time of the shooting and that he and Jones had
 

fought with Latona inside the store. Defendant further stated
 

that he had retrieved a gun from another friend in the parking
 

lot, and that he went back inside and fired the gun into the
 

air before running back outside. Latona died from two gunshot
 

wounds, one to the head and one to the chest.
 

Defendant was charged with first-degree murder, MCL
 

750.316, and possession of a firearm during the commission of
 

2
 
a felony (felony-firearm), MCL 750.227b. Defendant’s first
 

trial, which took place in June 1997 before Detroit Recorder’s
 

Court Judge Helen E. Brown, consumed–from jury selection to
 

closing statements and jury instructions–a total of eight and
 

one-half hours spread out over six days. After approximately
 

four or five hours of deliberation,1 the jury sent Judge Brown
 

a note which stated: “What if we can’t agree? [M]istrial?
 

[R]etrial? [W]hat?”2 Upon receiving the note, Judge Brown
 

called the jury into the courtroom and, with the assistant
 

prosecuting attorney and defense counsel present,3 engaged in
 

the following exchange with the jury foreperson:
 

The Court: I received your note asking me what


if you can’t agree? And I have to conclude from
 

that that that is your situation at this time. So,


I’d like to ask the foreperson to identify


themselves [sic], please?
 

Foreperson: [Identified herself.]
 

The Court: Okay, thank you. All right. I
 

need to ask you if the jury is deadlocked; in other


words, is there a disagreement as to the verdict?
 

1The jury deliberated from approximately 3:24 p.m. to


4:00 p.m. on June 12, 1997, and ended its deliberations at


12:45 p.m. on June 13, 1997. 


2During its deliberations, the jury sent out seven notes.
 

Most of the notes were routine requests for evidence,


instructions, and breaks. However, one note, sent out early


on the second day of deliberations, stated that the jurors had


“a concern about our voice levels disturbing any other


proceedings that might be going on,” indicating that perhaps


the deliberations had already become somewhat acrimonious. 


3We are unable to discern from the trial transcript


whether any off-the-record discussion took place between Judge


Brown and counsel before the jury was called into the


courtroom concerning any proposed response to the jury’s note.
 

3
 
Foreperson: Yes, there is.
 

The Court: All right. Do you believe that it


is hopelessly deadlocked?
 

Foreperson: The majority of us don’t believe
 

that . . .
 

The Court: (Interposing) Don’t say what you’re


going to say, okay?
 

Foreperson: Oh, I’m sorry.
 

The Court: I don’t want to know what your


verdict might be, or how the split is, or any of


that. Thank you. Okay? Are you going to reach a


unanimous verdict, or not?
 

Foreperson: (No response)
 

The Court: Yes or no?
 

Foreperson: No, Judge.
 

The Court: All right. I hereby declare a


mistrial. The jury is dismissed.
 

In November 1997, defendant was retried before a
 

different judge on charges of first-degree murder and felonyfirearm. The second jury returned a verdict of guilty of the
 

lesser offense of second-degree murder, MCL 750.317, and
 

guilty as charged of felony-firearm.4
 

In his appeal before the Court of Appeals, defendant,
 

through appellate counsel, raised for the first time the claim
 

that he was retried in violation of the Double Jeopardy Clause
 

of the federal and state constitutions. Defendant argued that
 

Judge Brown had sua sponte terminated the first trial without
 

4The second jury deliberated for approximately three


hours and fifteen minutes before delivering its verdict. 


4
 
manifest necessity to do so and without his consent, and that
 

retrial therefore violated his constitutional right to be free
 

from successive prosecutions.
 

The Court of Appeals panel agreed and reversed
 

defendant’s convictions. The panel opined that defendant had
 

not consented to the declaration of the mistrial, citing
 

People v Johnson, 396 Mich 424, 432; 240 NW2d 729 (1976),
 

repudiated on other grounds in People v New, 427 Mich 482; 398
 

NW2d 358 (1986), for the proposition that a defendant’s mere
 

silence or failure to object to the jury’s discharge is not
 

“consent.” The panel, turning to defendant’s claim that the
 

declaration of a mistrial was not manifestly necessary,
 

concluded that the trial court’s decision to discharge the
 

jury was not reasonable because it had failed to consider
 

alternatives or to make findings on the record:
 

Recognizing that the doctrine of double
 

jeopardy does not preclude retrial after the
 

discharge of a jury because of inability to agree,


our Supreme Court has stated that the inquiry


“turns upon [the] determination whether the trial


judge was entitled to conclude that the jury in


fact was unable to [agree].” People v Duncan, 373


Mich 650, 660-661; 130 NW2d 385 (1964). This has
 

led to the accepted rule that a trial court must


consider reasonable alternatives before sua sponte


declaring a mistrial and the court should make
 

explicit findings, after a hearing on the record,


that no reasonable alternative exists. People v
 

Hicks, 447 Mich 819, 841 (GRIFFIN, J.), 847 (CAVANAGH,


C.J.); 528 NW2d 136 (1994); People v Benton, 402


Mich 47, 61; 260 NW2d 77 (1977) (LEVIN, J.); People
 

v Rutherford, 208 Mich App 198, 202; 526 NW2d 620
 

(1994); People v Little, 180 Mich App 19, 23-24;


446 NW2d 566 (1989); People v Dry Land Marina, 175


Mich App 322, 327; 437 NW2d 391 (1989).
 

5
 
In the present case, we must determine whether


the trial court reasonably concluded that the jury


was deadlocked. Based on the record before us, we
 

are forced to conclude that the court did not
 

reasonably declare a mistrial. The trial court
 

declared a mistrial without a hearing or discussion


of any alternatives. No deadlock jury instructions


were given much less even considered by the trial


court. See CJI2d 3.12. The jury had deliberated


only four or five hours in a capital murder case


following four days of trial testimony. There was
 

clearly a reasonable alternative in this case, that


is, to give the jury a deadlock jury instruction


and send it back for further deliberation. See,
 

e.g., Hicks, supra, pp 843-844; Benton, supra, pp


61-62; Rutherford, supra, p 203; Little, supra, pp


27-30.
 

Because a reasonable alternative existed in
 

this case, an alternative never given consideration


by the trial court, the trial court did not engage


in a scrupulous exercise of discretion in sua
 

sponte declaring a mistrial. Hicks, supra, p 829,


citing United States v Jorn, 400 US 470, 485; 91 S


Ct 547; 27 L Ed 2d 543 (1971). Put another way, it


was not manifestly necessary for the trial court to


have declared a mistrial given the shortness of the


jury’s deliberation and the court’s failure to give


a deadlock jury instruction. In fact, the trial


court never even found on the record that the jury


was genuinely deadlocked. Given these
 

circumstances, we are compelled to conclude that


retrial violated defendant’s rights against double


jeopardy as guaranteed by the United States and


Michigan Constitutions. Therefore, defendant’s


convictions are reversed. [Slip op, pp 4-5.] 


We granted the prosecution’s application for leave to appeal.5
 

Because we conclude that manifest necessity existed to support
 

the mistrial declaration, we reverse. 


II. STANDARD OF REVIEW
 

A constitutional double jeopardy challenge presents a
 

5463 Mich 939 (2000).
 

6
 
 

 

question of law that we review de novo. People v Herron, 464
 

Mich 593, 599; 628 NW2d 528 (2001). Necessarily intertwined
 

with the constitutional issue in this case is the threshold
 

issue whether the trial court properly declared a mistrial.
 

The trial judge’s decision to declare a mistrial when he
 

considers the jury deadlocked is accorded great deference by
 

a reviewing court. Arizona v Washington, 434 US 497, 510; 98
 

S Ct 824; 54 L Ed 2d 717 (1978).6 “At most, . . . the inquiry
 

. . . turns upon determination whether the trial judge was
 

entitled to conclude that the jury in fact was unable to reach
 

a verdict.” Duncan, supra, 373 Mich 661 (emphasis supplied).
 

III. ANALYSIS
 

A. DOUBLE JEOPARDY IMPLICATIONS OF RETRIAL 


FOLLOWING MISTRIAL
 

Under both the Double Jeopardy Clause of the Michigan
 

Constitution7 and its federal counterpart,8 an accused may not
 

6See Huss v Graves, 252 F3d 952, 956-957 (CA 8, 2001) (a


case involving the sua sponte declaration of a mistrial in a


bench trial, contrary to both the prosecution’s and the


defendant’s motions for entry of verdict of not guilty by


reason of insanity, was “not similar to those [cases] in which


a mistrial is declared when a jury is unable to reach a


verdict, a situation in which a finding of manifest necessity


is almost always justified”) (emphasis supplied).
 

7Const 1963, art 1, § 15. Our constitution provides no


greater protection than does the federal constitution with


respect to retrial following a mistrial caused by jury


deadlock. People v Thompson, 424 Mich 118, 125-129; 379 NW2d


49 (1985). 


8US Const, Am V, made applicable to the states through


the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89
 

7
 
be “twice put in jeopardy” for the same offense. The Double
 

Jeopardy Clause originated from the common-law notion that a
 

person who has been convicted, acquitted, or pardoned should
 

not be retried for the same offense. See United States v
 

Scott, 437 US 82, 87; 98 S Ct 2187; 57 L Ed 2d 65 (1978);
 

Crist v Bretz, 437 US 28, 33; 98 S Ct 2156; 57 L Ed 2d 24
 

(1978). The constitutional prohibition against multiple
 

prosecutions arises from the concern that the prosecution
 

should not be permitted repeated opportunities to obtain a
 

conviction:
 

The underlying idea, one that is deeply


ingrained in at least the Anglo-American system of


jurisprudence, is that the State with all its
 

resources and power should not be allowed to make


repeated attempts to convict an individual for an


alleged offense, thereby subjecting him to
 

embarrassment, expense and ordeal and compelling


him to live in a continuing state of anxiety and


insecurity, as well as enhancing the possibility


that even though innocent he may be found guilty.


[Green v United States, 355 US 184, 187-188; 78 S


Ct 221; 2 L Ed 2d 199 (1957).]
 

From this fundamental idea, the United States Supreme
 

Court has over the years developed a body of double jeopardy
 

jurisprudence that recognizes, among other related rights,9 an
 

C St 2056; 23 L Ed 2d 707 (1969).
 

9The 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. See Ohio
 

v Johnson, 467 US 493, 497; 104 S Ct 2536; 81 L Ed 2d 425
 

(1984); Justices of Boston Municipal Court v Lydon, 466 US


294, 306-307; 104 S Ct 1805; 80 L Ed 2d 311 (1984); Herron,
 

8
 
accused’s “valued right to have his trial completed by a
 

particular tribunal . . . .” Wade v Hunter, 336 US 684, 689;
 

69 S Ct 834; 93 L Ed 974 (1949); see also Washington, supra,
 

434 US 503; Illinois v Somerville, 410 US 458, 466; 93 S Ct
 

1066; 35 L Ed 2d 425 (1973). Jeopardy is said to “attach”
 

when a jury is selected and sworn, see Somerville, supra, 410
 

US 467; Hicks, supra, 447 Mich 827, n 13 (GRIFFIN, J.), 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. See Scott,
 

supra, 437 US 87-92; Crist, supra, 437 US 33-34. It is this
 

interest that is implicated when the trial judge declares a
 

mistrial, thereby putting an end to the proceedings before a
 

verdict is reached. Scott, supra, 437 US 92; Crist, supra,
 

437 US 33-34. However, the general rule permitting the
 

prosecution only one opportunity to obtain a conviction “‘must
 

in some instances be subordinated to the public’s interest in
 

fair trials designed to end in just judgments.’” Washington,
 

supra, 434 US 505, n 11, quoting Wade, supra, 336 US 689.
 

“[I]t is axiomatic that retrial is not automatically
 

barred whenever circumstances compel the discharge of a
 

factfinder before a verdict has been rendered.” Hicks, supra,
 

supra, 464 Mich 599; People v Vincent, 455 Mich 110, 120, n 5;


565 NW2d 629 (1997). However, as the Court noted in Crist,
 

supra, 437 US 32, the “deceptively plain language” of the


Double Jeopardy Clause “has given rise to problems both subtle


and complex . . . .” 


9
 
447 Mich 827 (GRIFFIN, J.). It is well settled, for instance,
 

that where a defendant requests or consents to a mistrial,
 

retrial is not barred unless the prosecutor has engaged in
 

conduct intended to provoke or “goad” the mistrial request.
 

See Oregon v Kennedy, 456 US 667, 675-676; 102 S Ct 2083; 72
 

L Ed 2d 416 (1982); United States v Dinitz, 424 US 600, 608;
 

96 S Ct 1075; 47 L Ed 2d 267 (1976); Hicks, supra, 447 Mich
 

828 (GRIFFIN, J.). Additionally, retrial is always permitted
 

when the mistrial is occasioned by “manifest necessity.” 


Kennedy, supra, 456 US 672; Washington, supra, 434 US 505;
 

Hicks, supra, 447 Mich 828 (GRIFFIN, J.). 


The concept of “manifest necessity” was introduced in
 

United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824),
 

in which the Court addressed the propriety of the retrial of
 

an accused following the discharge of a deadlocked jury
 

without the accused’s consent. Noting that in such a case the
 

accused has not been convicted or acquitted, the Court held
 

that the declaration of a mistrial under these circumstances
 

poses no bar to a future trial. Id. at 580. However, the
 

Court indicated that trial courts are to exercise caution in
 

discharging the jury before a verdict is reached:
 

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;
 

10
 
 

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; and, in capital cases especially, Courts


should be extremely careful how they interfere with


any of the chances of life, in favour of the


prisoner. 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. We are
 

aware that there is some diversity of opinion and


practice on this subject, in the American Courts;


but, after weighing the question with due
 

deliberation, we are of opinion, that such a


discharge constitutes no bar to further
 

proceedings, and gives no right of exemption to the


prisoner from being again put upon trial. [Id.
 

(emphasis supplied).][10]
 

As noted in Richardson v United States, 468 US 317, 323­

324; 104 S Ct 3081; 82 L Ed 2d 242 (1984), “[i]t has been
 

established for 160 years, since the opinion of Justice Story
 

in [Perez], that a failure of the jury to agree on a verdict
 

was an instance of ‘manifest necessity’ which permitted a
 

trial judge to terminate the first trial and retry the
 

defendant, because ‘the ends of public justice would otherwise
 

10Interestingly, in Crist, supra, 437 US 34, n 10, the
 

Court questioned whether the Perez Court was actually deciding


a constitutional question, or was rather “simply settling a


problem arising in the administration of federal criminal


justice.” See also id. at 44-45 (Powell, J., dissenting)


(“[a]s both Justices Washington and Story believed that the


Double Jeopardy Clause embraced only actual acquittal and


conviction, they must have viewed Perez as involving the


independent rule barring needless discharges of the jury”).


However, the majority, declining to upset 150 years of settled


Fifth Amendment jurisprudence, stated that “to cast such a new


light on Perez at this late date would be of academic interest
 

only.” Id. at 34, n 10. 


11
 
be defeated.’” See also Washington, supra, 434 US 509 (“the
 

mistrial premised upon the trial judge’s belief that the jury
 

is unable to reach a verdict [has been] long considered the
 

classic basis for a proper mistrial”); Kennedy, supra, 456 US
 

672 (“the hung jury remains the prototypical example” of a
 

situation meeting the “manifest necessity” standard); People
 

v Thompson, 424 Mich 118, 128; 379 NW2d 49 (1985) (“we have
 

consistently held that retrial after a mistrial caused by jury
 

deadlock does not violate the Michigan Constitution or the
 

United States Constitution”); Duncan, supra, 373 Mich 660,
 

quoting People v Parker, 145 Mich 488, 499; 108 NW 999 (1906)
 

(Michigan case law has without exception recognized that “the
 

doctrine of former jeopardy does not preclude retrial after
 

discharge of a jury ‘for inability to agree, or for some other
 

overruling necessity’”).
 

Defendant nevertheless contends, and the Court of Appeals
 

agreed, that his retrial constituted a violation of his
 

constitutional right to be free from successive prosecutions
 

because the trial court precipitously declared a mistrial
 

without manifest necessity to do so. We disagree and hold
 

that the Double Jeopardy Clause did not bar defendant’s second
 

trial or convictions.
 

B. MANIFEST NECESSITY
 

The Court of Appeals concluded that the trial court
 

abused its discretion in discharging the jury without first
 

12
 
 

 

examining alternatives, such as providing a “hung jury”
 

instruction, and without conducting a hearing or making
 

findings on the record. We hold that, because the record
 

provides sufficient justification for the mistrial
 

declaration, the trial court did not abuse its discretion in
 

dismissing the jury.
 

The constitutional concept of manifest necessity does not
 

require that a mistrial be "necessary" in the strictest sense
 

of the word. Rather, what is required is a “high degree” of
 

necessity. Washington, 434 US 506-507. 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. At one end of the spectrum is a mistrial
 

declared on the basis of the unavailability of crucial
 

prosecution evidence, or when the prosecution is using its
 

resources to achieve an impermissible tactical advantage over
 

the accused. The trial judge’s declaration of a mistrial
 

under those types of circumstances will be strictly
 

scrutinized. Id. at 508. At the other end of the spectrum is
 

the mistrial premised on jury deadlock, “long considered the
 

classic basis for a proper mistrial.” Id. at 509.11 The trial
 

11See also Duncan, supra, 373 Mich 660:
 

Defendant contends on appeal that discharge of


the jury . . . bars his retrial because he has


previously been put in jeopardy of conviction of


such charges. . . . In none of the cases
 

13
 
judge’s decision to discharge a jury when he concludes that it
 

[defendant has] cited is it even suggested that


discharge of a jury, without the defendant’s
 

consent, for its inability to agree upon a verdict


thereby bars subsequent retrial. 


When a mistrial is declared on the basis of juror


deadlock, double jeopardy interests will rarely, if ever, be


implicated, because jeopardy “continues” following the
 

mistrial declaration. See Richardson, supra, 468 US 325-326,


reaffirming that “a trial court’s declaration of a mistrial


following a hung jury is not an event that terminates the


original jeopardy” to which the defendant was subjected. See
 

also People v Mehall, 454 Mich 1, 4-5; 557 NW2d 110 (1997):
 

One circumstance that constitutes a manifest
 

necessity is the jury’s failure to reach a
 

unanimous verdict. When this occurs, and the trial
 

court declares a mistrial, a retrial is not
 

precluded because the original jeopardy has not
 

been terminated, i.e., there has not been an
 

assessment of the sufficiency of the prosecution’s


proofs. [Emphasis supplied.]
 

We were recently guided by this principle in Herron,
 

supra, in which we determined that the defendant could be


tried in a second trial for second-degree murder after the


first jury arrived at a verdict with respect to one charge,


but was unable to reach a verdict with respect to the murder


charge:
 

Where criminal proceedings against an accused


have not run their full course, the Double Jeopardy


Clause does not bar a second trial. . . . Thus,


because the prosecutor’s retrial of defendant on


the charge of second-degree murder was the result


of a hung jury, we conclude that there was no


violation of double jeopardy principles aimed at


multiple prosecutions. [Id. at 602-603 (citations


omitted).]
 

See also, e.g., United States v Streett, ___ F Supp ___;


2001 WL 420367 (WD VA, 2001) (defendants’ argument that


retrial after a mistrial declared because of jury deadlock was


constitutionally impermissible is without merit, both because


of the “broad discretion” enjoyed by the trial court in making


this determination and because “the Supreme Court has
 

expressly held that the failure of a jury to reach a verdict


is ‘not an event which terminates jeopardy’”).
 

14
 
 

is deadlocked is entitled to great deference. Id. at 510.
 

As the United States Supreme Court has opined:
 

[T]here are especially compelling reasons for


allowing the trial judge to exercise broad
 

discretion in deciding whether or not “manifest


necessity” justifies a discharge of the jury. On
 

the one hand, if he discharges the jury when


further deliberations may produce a fair verdict,


the defendant is deprived of his “valued right to


have his trial completed by a particular tribunal.”


But if he fails to discharge a jury which is unable


to reach a verdict after protracted and exhausting


deliberations, there exists a significant risk that


a verdict may result from pressures inherent in the


situation rather than the considered judgment of


all the jurors. If retrial of the defendant were
 

barred whenever an appellate court views the
 

“necessity” for a mistrial differently from the


trial judge, there would be a danger that the


latter, cognizant of the serious societal
 

consequences of an erroneous ruling, would employ


coercive means to break the apparent deadlock.


Such a rule would frustrate the public interest in


just judgments. The trial judge’s decision to


declare a mistrial when he considers the jury


deadlocked is therefore accorded great deference by


a reviewing court. [Id. at 509-510.]
 

Therefore, 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.12
 

12As noted, a trial court’s decision to declare a mistrial


on the basis of juror deadlock is entitled to a high degree of


deference. It is well established that “[a]n abuse of


discretion involves far more than a difference in judicial


opinion.” Alken-Ziegler, Inc v Waterbury Headers Corp, 461


Mich 219, 227; 600 NW2d 638 (1999); Spalding v Spalding, 355


Mich 382, 384; 94 NW2d 810 (1959). Rather, “such abuse occurs


only when the result is ‘so palpably and grossly violative of
 

15
 
 

 

Consistent with the special respect accorded to the
 

court’s declaration of a mistrial on the basis of jury
 

deadlock, this Court has never required an examination of
 

alternatives before a trial judge declares a mistrial on the
 

basis of jury deadlock;13 nor have we ever required that the
 

judge conduct a “manifest necessity” hearing or make findings
 

on the record. In fact, we long ago stated that, “[a]t most,
 

. . . the inquiry in [such a case] turns upon determination
 

whether the trial judge was entitled to conclude that the jury
 

in fact was unable to reach a verdict.” Duncan, supra, 373
 

fact and logic that it evidences not the exercise of will but


perversity of will, not the exercise of judgment but defiance


thereof, not the exercise of reason but rather of passion or


bias.’” Alken-Ziegler, supra at 227, quoting Spalding, supra
 

at 384-385. We simply cannot conclude that the trial court


abused its discretion in such a manner here.
 

13We acknowledge that we have required the examination of


alternatives in other mistrial contexts. See Hicks, supra,


447 Mich 843-845 (GRIFFIN, J.) (declaration of a mistrial after


the trial judge recused herself over the defendant’s
 

objection); Benton, supra, 402 Mich 47 (sua sponte declaration


of a mistrial on the basis of prosecutorial error). We need
 

not determine whether the failure to consider alternatives to
 

mistrial in circumstances other than jury deadlock is
 

constitutionally impermissible. We note, however, that in


support of the proposition that consideration of alternative


measures is constitutionally required in these other contexts,


this Court in Benton cited two federal circuit court opinions


that were subsequently overturned by the United States Supreme


Court: Arizona v Washington, 546 F2d 829, 832 (CA 9, 1976),


was reversed on appeal to the Supreme Court at 434 US 497 (in


which the Court rejected the notion that the trial judge was


required to consider or utilize alternatives before declaring


a mistrial), and United States v Grasso, 552 F2d 46, 49-50 (CA


2, 1977), vacated by the Supreme Court at 438 US 901; 98 S Ct


3117; 57 L Ed 2d 1144 (1978) (directing the Court of Appeals


to reconsider in light of Washington, supra). See Benton,
 

supra, 402 Mich 57, n 11, 61, n 19.
 

16
 
 

 

Mich 661 (emphasis supplied). Moreover, the United States
 

Supreme Court has expressly indicated that the failure of a
 

trial judge to examine alternatives or to make findings on the
 

record before declaring a mistrial does not render the
 

mistrial declaration improper. Instead, where the basis for
 

a mistrial order is adequately disclosed by the record, the
 

ruling will be upheld. Washington, supra, 434 US 515-517.14
 

Although we acknowledge that the “deadlocked jury”
 

instruction, CJI2d 3.12, might have appropriately been given
 

to the jury in this case, the fact remains that defendant did
 

not request that this instruction be given.15 We are not aware
 

14Justice Marshall, joined by Justice Brennan, dissented:


“What the ‘manifest necessity’ doctrine . . . require[s], in


my view, is that the record make clear either that there were


no meaningful and practical alternatives to a mistrial, or


that the trial court scrupulously considered available
 

alternatives and found all wanting but a termination of the


proceedings.” Id. at 525 (Marshall, J.). The Court of
 

Appeals panel’s view in the instant case, although apparently


consistent with the view of Justices Marshall and Brennan, was


specifically rejected by the Washington majority. 


15Further, it appears from the record that defendant did


not object to the trial court’s decision to discharge the


jury. The prosecution contends that under these circumstances


defendant “implicitly consented” to the declaration of
 

mistrial, thus rendering it unnecessary to determine whether


the declaration was supported by manifest necessity. See
 

Hicks, supra, 447 Mich 858, n 3 (BOYLE, J., dissenting) (“[t]he


Supreme Court appears to use ‘consent’ . . . to refer to


mistrials not requested by the defendant, but only acquiesced
 

to”) (emphasis supplied); see also United States v
 

Aguilar-Aranceta, 957 F2d 18, 22 (CA 1, 1992); United States
 

v Beckerman, 516 F2d 905, 909 (CA 2, 1975); United States v
 

Phillips, 431 F2d 949, 950 (CA 3, 1970); United States v Ham,


58 F3d 78, 83-84 (CA 4, 1995); United States v Palmer, 122 F3d


215, 218 (CA 5, 1997); United States v Gantley, 172 F3d 422,


428-429 (CA 6, 1999); Camden v Crawford Co Circuit Court, 892
 

F2d 610, 614-618 (CA 7, 1989); United States v Gaytan, 115 F3d
 

17
 
of any requirement that a trial court sua sponte instruct a
 

deadlocked jury to resume deliberations. Moreover, we remain
 

cognizant of the significant risk of coercion that would
 

necessarily accompany a requirement that a deadlocked jury be
 

forced to engage in protracted deliberations. See Washington,
 

supra, 434 US 509-510; People v Hardin, 421 Mich 296; 365 NW2d
 

101 (1984).16
 

We conclude that the judge did not abuse her discretion
 

in declaring a mistrial under the circumstances of this case.
 

The jury had deliberated for at least four hours following a
 

relatively short, and far from complex, trial. The jury had
 

sent out several notes over the course of its deliberations,
 

including one that appears to indicate that its discussions
 

may have been particularly heated. Most important here is the
 

737, 742 (CA 9, 1997); Earnest v Dorsey, 87 F3d 1123, 1129 (CA


10, 1996); United States v Puleo, 817 F2d 702, 705 (CA 11,


1987). In light of our determination that the mistrial


declaration was manifestly necessary, we save for another day


the issue of implied consent. 


16See also United States v Klein, 582 F2d 186, 194 (CA 2,
 

1978):
 

The appellant argues that a retrial is barred


because of the failure of the trial court to make
 

explicit findings that there were no reasonable


alternatives to a mistrial . . . . The short
 

answer to this claim is the holding of Arizona v
 

Washington that such findings are not
 

constitutionally required. [Emphasis supplied.]
 

See also Hicks, supra, 447 Mich 867 (BOYLE, J.,


dissenting)(“[t]he assumption that, as a matter of law,


manifest necessity requires the exploration of less drastic


alternatives to mistrial . . . ignores that the United States


Supreme Court has specifically rejected [this] proposition”).
 

18
 
fact that the jury foreperson expressly stated that the jury
 

was not going to reach a verdict.17 We conclude that, in the
 

absence of an objection by either party, the declaration of a
 

mistrial in this case constituted a proper exercise of
 

judicial discretion. Accordingly, manifest necessity for the
 

jury’s discharge existed, and defendant’s retrial did not
 

constitute a constitutionally impermissible successive
 

prosecution. 


C. RESPONSE TO THE DISSENT
 

Our dissenting colleague opines that “the majority
 

eviscerates established precedent requiring that trial judges
 

exert reasonable efforts to avoid a mistrial.” Post at 1. We
 

disagree. In holding that double jeopardy considerations did
 

not preclude defendant’s retrial, we have merely set forth the
 

unremarkable proposition that the failure of the jury to agree
 

on a verdict is an instance of manifest necessity, allowing
 

the trial court to declare a mistrial, discharge the jury, and
 

retry the defendant.
 

Although the dissent ostensibly agrees that “no specific
 

inquiry into alternatives to declaring a mistrial is
 

required,” post at 3, the dissent nevertheless points out that
 

17This Court long ago indicated that “the court is
 

justified in accepting [the jury’s] statement that [it] cannot


agree as proper evidence in determining the question.” People
 

v Parker, 145 Mich 488, 502; 108 NW 999 (1906). See also
 

United States v Cawley, 630 F2d 1345, 1349 (CA 9, 1980)


("[t]he most critical factor is the jury's own statement that


it is unable to reach a verdict").
 

19
 
the trial court did not poll the jurors, did not give a
 

deadlocked jury instruction, and did not ask defense counsel
 

for his thoughts. Post at 4. These, of course, would have
 

been alternatives to declaring a mistrial. However, this
 

Court has never required the trial court to explain why it
 

chose to declare a mistrial on the basis of jury deadlock,
 

rather than poll the jury, give a deadlocked jury instruction,
 

or ask defense counsel for his thoughts. As we have explained
 

above, the United States Supreme Court has specifically
 

rejected such a requirement. See Washington, supra, 434 US
 

516-517: 


The absence of an explicit finding of
 

“manifest necessity” appears to have been
 

determinative for the District Court and may have


been so for the Court of Appeals. If those courts
 

regarded that omission as critical, they required


too much. Since the record provides sufficient


justification for the state-court ruling, the
 

failure to explain that ruling more completely does


not render it constitutionally defective.
 

Further, even the dissent in Washington recognized that, where
 

the necessity for a mistrial is “manifest on the face of the
 

record,” the trial court does not have to make findings of
 

necessity on the record to justify the declaration of a
 

mistrial. Id. at 526. 


In this case, the record provides sufficient
 

justification for the trial court’s declaration of a mistrial,
 

and thus there was no need for the trial court to articulate
 

a rationale on the record. The reasons were plain and
 

obvious: the jury foreperson indicated that the jury was not
 

20
 
going to be able to reach a unanimous verdict.
 

IV. CONCLUSION


 The trial court did not abuse its discretion in
 

declaring a mistrial, in the absence of objection by either
 

party, where the jury expressly indicated that it was
 

deadlocked. Accordingly, defendant’s retrial did not violate
 

the constitutional bar against successive prosecutions. We
 

therefore reverse the decision of the Court of Appeals and
 

remand this matter to that Court for consideration of the
 

additional issue that was raised by defendant, but not
 

decided. We do not retain jurisdiction.
 

CORRIGAN, C.J., and WEAVER, TAYLOR, and MARKMAN, JJ.,
 

concurred with YOUNG, J.
 

21
 
 

___________________________________ 

v 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

PEOPLE OF THE STATE OF MICHIGAN
 

Plaintiff-Appellant,
 

No. 117041
 

REGINALD JOHN LETT,
 

Defendant-Appellee.
 

CAVANAGH, J. (dissenting).
 

I disagree with the majority’s conclusion that a manifest
 

necessity required a mistrial. In reaching its holding, the
 

majority eviscerates established precedent requiring that
 

trial judges exert reasonable efforts to avoid a mistrial.
 

Because I cannot agree that the prohibition against placing a
 

defendant in double jeopardy evaporates simply because a
 

defendant fails to object when a jury expresses discord, I
 

respectfully dissent.
 

It is not apparent from the record that it was manifestly
 

necessary to declare a mistrial. “Because of the high value
 

placed on defendant’s not being required to undergo the
 
discommodity of a second trial, the declaration of a mistrial
 

should not be made lightly, even when it is made ostensibly
 

for the protection of defendant.” People v Johnson, 396 Mich
 

424, 438; 240 NW2d 729 (1976). As a “general rule, . . .
 

trial judges must consider reasonable alternatives before
 

declaring a mistrial.” People v Hicks, 447 Mich 819, 841; 528
 

NW2d 136 (1994) (opinion of Griffin, J.).
 

[I]n the absence of a motion by a defendant


for a mistrial, “‘the Perez doctrine of manifest
 

necessity stands as a command to trial judges not


to foreclose the defendant’s option until a
 

scrupulous exercise of judicial discretion leads to


the conclusion that the ends of public justice


would not be served by a continuation of the


proceedings. . . .’” [People v Benton, 402 Mich
 

47, 57; 260 NW2d 77, 81 (1977), quoting United
 

States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed


2d 267 (1976).]
 

Contrary to the majority’s assertions, this Court’s
 

precedent finds support in the guidance provided by the United
 

States Supreme Court, which has affirmed that
 

a constitutionally protected interest is inevitably


affected by any mistrial decision. The trial
 

judge, therefore, “must always temper the decision


whether or not to abort the trial by considering


the importance to the defendant of being able, once


and for all, to conclude his confrontation with


society through the verdict of a tribunal he might


believe to be favorably disposed to his fate.” In


order to ensure that this interest is adequately


protected, reviewing courts have an obligation to


satisfy themselves that, in the words of Mr.
 

Justice Story, the trial judge exercised “sound


discretion” in declaring a mistrial. [Arizona v
 

Washington, 434 US 497, 514; 98 S Ct 824; 54 L Ed
 

2d 717 (1978) (citations omitted).] [Emphasis
 

added.]
 

2
 
Thus, sound discretion requires a thoughtful, prudent
 

analysis. 


Even though no specific inquiry into alternatives to
 

declaring a mistrial is required, such an inquiry would make
 

clear the justification for retrial. Where no consideration
 

of alternatives is evident, something else on the record must
 

make clear the trial judge exercised “sound discretion” before
 

declaring a mistrial. Unfortunately, no sound discretion was
 

exercised here. Although this first-degree murder trial
 

spanned a ten-day period, tried intermittently over six days,
 

the deliberations lasted just over four hours.1 The jury
 

likely spent the first thirty-five minutes, late Thursday
 

afternoon, doing little more than electing a foreperson. A
 

few hours into the deliberations on Friday morning, the jurors
 

sent a note to the judge that indicated concern over their
 

voice levels during deliberation. Some time later, the jury
 

sent another note that asked about the consequences if they
 

failed to agree. On that basis, the trial judge ordered the
 

jury into the courtroom at 12:45 p.m. and asked the foreperson
 

whether the jury could reach a verdict. The foreperson
 

responded, “no.” The trial judge then immediately declared a
 

mistrial, and by 12:48 p.m., the jury was excused. Never did
 

1 Although it is not clear from the record when the jury


reconvened June 13, 1997, I have assumed deliberations got


under way at 9:00 a.m.
 

3
 
the trial judge consider alternatives or otherwise provide
 

evidence that she exercised sound discretion. For example,
 

the judge did not poll the jurors, give an instruction
 

ordering further deliberations, query defense counsel about
 

his thoughts on continued deliberations, or indicate on the
 

record why a mistrial declaration was necessary. 


Though I acknowledge that a trial judge need not perform
 

any explicit act to ensure a mistrial is manifestly necessary,
 

there must be some indication on the record that such a grave
 

act was required. Washington at 516-517 (the record must
 

provide “sufficient justification” of the manifest need for a
 

mistrial). In this case, where the jurors had been
 

deliberating only a short time, where the note from the jurors
 

merely questioned what might happen if they did not agree,
 

where the judge–albeit in an attempt to properly keep the
 

jurors’ positions concealed–suppressed all comments by the
 

foreperson that could have shed light on the need for a
 

mistrial, and where the record as a whole fails to reveal that
 

“the ends of public justice” would be served by the
 

declaration of a mistrial, I cannot agree that subjecting
 

defendant to a new trial was manifestly necessary. Benton at
 

57.
 

The majority makes special note of defendant’s silence,
 

observing that defense counsel did not object to the mistrial
 

4
 
declaration. Ante at 20-21, n 15. However, it was not
 

necessary that defendant object at the very moment the
 

mistrial had been declared, particularly because the jurors
 

were simultaneously dismissed. Though an objection on the
 

record would have been helpful in determining defendant’s
 

position and in refreshing the judge concerning her duty to
 

exercise sound discretion, defense counsel’s failure to voice
 

an objection cannot be considered evidence that a mistrial
 

declaration was manifestly necessary.
 

The majority insinuates that defendant tried to have his
 

cake and eat it too by failing to object to the mistrial
 

declaration. However, defendant gained nothing as a result of
 

his counsel’s failure to timely object.2 Either the trial
 

judge properly declared a mistrial on the basis of manifest
 

necessity, or she did not. If she had, retrial would have
 

been proper. If not, defendant’s right to be free from double
 

jeopardy was violated by the second trial. If defendant had
 

succeeded in convincing a majority of this Court that the
 

mistrial declaration was improper, he would gain nothing other
 

2 Defense counsel’s failure to raise the double jeopardy


issue any time before or during the second trial was not


objectively reasonable. No trial strategy could justify


failing to object to the second trial. Defendant had nothing


to gain by exposing himself to a second trial and, instead,


lost the very thing the right was meant to protect: subjection


to a trial in which the state had a second shot to get it


right, i.e., to get a conviction.
 

5
 
than the lawful protection of his inherent constitutional
 

rights. That the state was able to try defendant a second
 

time and to secure a conviction cannot make an
 

unconstitutional second trial retrospectively valid.
 

The new standard articulated by the majority negates any
 

substance the manifest necessity inquiry might have. Though
 

the majority may feel that trial judges can declare a mistrial
 

on the most meager record without even a cursory attempt to
 

assure that the public interest in such a declaration
 

outweighs the defendant’s clear interest in resolution by the
 

first factfinder, this narrow interpretation of “sound
 

discretion” must be rejected. The majority’s conclusion
 

ignores precedent from this Court and cursorily dismisses the
 

mandate from the Supreme Court affirming the need for trial
 

judges to exercise “sound discretion.”3
 

In erroneously finding that manifest necessity required
 

mistrial, the majority diminishes the constitutional rights of
 

our citizens, specifically the right to be free from double
 

3 The majority attempts to escape its duty to execute the


Supreme Court’s mandate, i.e., to assure the trial court


exercised “sound discretion,” by implying that I simply differ


with the trial court’s result. To clarify, I object not to


the trial court’s concern that the jurors held irreconcilable


differences–in fact, I share that concern–but to its utter


failure to make the pronouncement in a manner that evidences


the exercise of “sound discretion.” Because the judge did


nothing more than act on a hunch with the most meager record


for support, I cannot agree that “sound discretion” was


exercised.
 

6
 
jeopardy. Even though defense counsel failed to timely
 

object, causing defendant to suffer unnecessarily through a
 

second trial, such an error does not excuse a violation of
 

constitutional magnitude. Therefore, I would affirm the
 

decision of the Court of Appeals.
 

KELLY, J., concurred with CAVANAGH, J.
 

7