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___________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

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 t o appe al 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 di scr etion 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 t o th edeclaration of mistrial. We additionall y conc lude 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. F ACTUAL AND P ROCEDURAL B ACKGROUND On A ugust 29, 1996, Adesoji Latona, a taxi driver, wa s fatallyshot at a Detroit liquor store. Latona was apparently confronted by a gro up 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

2a felony (felony-firearm), MCL 750.227b. Defe ndan t’s first trial, which took place in June 1997 before Detroit Recorder’s Co urt 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, withth e 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 fo repe rson 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?

1 The jury deliberated from ap prox imately 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.

2 During its deliberations, the jury sent out seven notes. Most of the notes were rout ine 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.

3 We are unable to discern from the trial transcript whether any off-the-record discussion took place between Judge Brown and counsel before the jury w as called into the courtroomconcerning any proposed response to the jury’s note. 3Foreperson : 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 juryreturned a verdict of guilty of the lesser offense of second-degree murder, MCL 7 50 .317, and guilty as charged of felony-firearm. 4 In his appeal before the Court of Appeals, defendant, throughappellate 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

4 The second jury deliberated for approximately three hours and fifteen minutes before delivering its verdict. 4manifest 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 manifes tly ne cessary, concluded that the trial court’s decision to discharge the jurywas not reasonable because it had failed to consider alternatives or to make findings on the record: Recognizing that the doctrine of double jeopardydoes not preclude retrial after the discharge of a jury because of inability to agree, our Supreme Court has s tated that the inquiry “turns upon [the] determination whether the trial ju dge was entitled to conclude that the juryin fact was unable to [agree].” People v Duncan , 373 Mich650, 660-661; 130 NW2d 3 85 (1964). This has led to th e a ccepted rule that a trial court must consider reasonable alternatives before sua sponte declaring a m istrial and the court should make explicit f indi ngs, after a hearing on the record, that no reasonable alternative exists. People v Hicks , 447 Mich 819, 841 (G RIFFIN , J.), 847 (C AVANAGH , C.J.); 528 NW2d 136 (1994); People v Benton , 402 Mich 47, 61; 260 NW2d 77 (1977) (L EVIN , J.); People vRutherford , 208 Mic h 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).

5In 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 no t reaso nablydeclare a mistrial. The trial court declared a mistrial without a hearing or discussion of any alternatives. No deadlock juryinstructions were given much less even consid ered by the trial court. See CJI2d 3.12. The jury had del iberat ed onlyfour o r f ive hours in a capital murder case following four days of trial testimony. There was clearlya 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 su a 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 necessaryfor 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 jeopardyas guaran teed 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. S TANDARD OF R EVIEW Aconstitutional double jeopardy challenge presents a

5 463 Mich 939 (2000). 6question of law that we review de novo. People v Herron , 464 Mich 593, 599; 628 NW2d 528 (2001). Necessarily intertwined withthe const itutional issue in this case is the threshold issue whether the trial court properly declar ed a mistrial. The trial judge’s decision to decl are 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 Mich661 (emphasis supplied).

III. ANALYSIS A. D OUBLE J EOPARDY I MPLICATIONS OF R ETRIAL F OLLOWING M ISTRIAL Under both the Double Jeopardy Clause of the Michigan Constitution 7 and its federal counterpart, 8 an accused may not

6 See Huss v Graves, 252 F3d 952, 956-957 (CA8, 2001) (a case involving the sua sponte declaration of a mistrial in a benchtrial, contrary to both the pros ecut ion’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 ju ry is unable to reach a verdict, a situation in which a finding of manifest necessity is almost always justified ”) (emphasis supplied).

7 Const 196 3, a rt 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).

8 US C ons t, Am V, made applicable to the states through the Fourteenth Amendment. Benton v Maryland , 395 US 784; 89 7be “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 arise s fro m 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 S tate with all its res ources and power should not be allowed to ma ke repeated at tempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling himto live in a continuing state o f a nxiety and insecurity, as well as enhancing the possibility that ev en though innocent he may be found guilty. [ Greenv United State s , 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).] Fromthis 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).

9 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 conv ictio n, and protection against multiple punishments for the same offense. See Ohio vJohnson , 467 US 493, 497; 104 S Ct 25 36; 81 L Ed 2d 425 (1984); Justices of Bo ston Municipal Court v Lydon , 466 US 294, 306-307; 104 S Ct 1805; 80 L Ed 2d 311 (1984); Herron , 8accused’s “v alued 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 (G RIFFIN , J.), and the Double Jeopardy Clause therefore protects an accused’s interest in avoidi ng 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 implic ated w hen 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 auto matically barred whenever circumstances compe l 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 Cou rt no ted in Crist, supra , 437 US 32, the “deceptively plain language” of the Double Jeopardy Clause “has given rise to problems bothsubtle and complex . . . .” 9447 Mich 827 (G RIFFIN , J.). It is well settled, for instance, that where a defendant requests or consents to a mistr ial , retrial is not barred unless the pro sec utor has engaged in conduct intended to provoke or “goad” t he m istrial 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 , sup ra , 447 Mich 828 (G RIFFIN , 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 (G RIFFIN , 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 deadloc ked jury without the accused’s consent. Noting that in sucha case the accused has not been conv icted or acquitted, the Court held that the declaration of a mistrial under these circumstances poses no bar to a f utu re 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 justic e wi th the authorityto di scharg e a jury from giving any verdict, whenever, in theiropinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice wou ld otherwise be defeated. They are to exercise a sound discretion on the subject ;
10and it is impossib le to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used withthe greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremelycareful how they interfere with anyof the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; an d 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 Jud ges , under their oaths of office. We are aw are that there is some diversity of opinion an d practi ce o n this subject, in the American Courts; but, after weighing the question with due del ibe ration, 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 a ga in put upon trial. [ Id . (emphasis supplied).] [ 10 ] As noted in Richardson v United States , 468 US 317, 323­ 3 24; 104 S Ct 3081; 82 L Ed 2d 242 (1984), “[i ]t has bee n 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 ins tanc e 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

10 Interestingly, 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 s ettl ing a problemarisi ng in the administration of federal criminal justice.” S ee also id. at 44-45 (Powell, J., dissenting) (“[a]s both Justices Was hington and Story believed that the Double Jeopardy Clause embraced only actual acquitta l an d conviction, they must have viewed Perez as involving the independent rule barring needless discharges of t he j ury”). However, the majority, declining to upset 150 years of settled FifthAmendment 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. 11be 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 hu ng jury remains the prototypical example” of a situation meeting the “manifest necessity” standard); People

vThompson , 424 Mich 118, 128; 379 NW2d 49 (1985) (“w e hav e consistentlyheld 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 vParker , 145 Mich 488, 499; 108 NW 999 (1906) (Michigan case lawhas without exception recognized that “the doctrine of former jeopardy does not preclude retrial afte r 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 constitute d a violation of his constitutional right to be free from successive prosecutions be cause the trial court precipitously declared a mist ria l 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. M ANIFEST N ECESSITY The Court of Appeals concluded that the trial court abused its disc reti on in discharging the jury without first

12examining alternatives, such as providin g a “h ung jury” instruction, and without conductin g a he aring 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 appella te s crutiny 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

11 See also Duncan , supra, 373 Mich 660: Defendant contends on appeal that discharge of the jury . . . bars his retrial because he has previouslybeen put in jeopardy of conviction of suchcharges. . . . In none of the cases 13judge’s decision to discharge a jury when he concludes that it [def endant 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, reaffi rmin g 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 necessityis the jury’s fail ure 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 beenterminated , i.e., th ere has not been an assessment of the sufficiency of the prosecution’s proofs. [Emphasis supplied.] We were recently guided b y th is principle in Herron , supra , in which we determined that the defendant could be tried in a second trial for second-degre e m urder 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 w as t he result of a hung jury, we conclud e t hat 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 4 2036 7 (WD VA, 2001) (defendants’ argument that retrial after a mistrial declared because of jurydeadlock was constitutionallyimpermissible 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’”).

14is 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 th e ju ry. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is dep rived of his “valued right to have his trial completed bya 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 d efendant were barred whenever an appellate court views the “necessity” for a mistrial differently from the trial judge, there wo uld 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 ju dg ments. The trial judge’s decision to declare a mistrial when he consid ers th e 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

12 As 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 Hea ders Corp , 461 Mich 219, 227; 600 NW2d 638 (1999); Spalding v Spalding , 355 Mich382, 384; 94 NW2d 810 (1959). Rather, “such abuse occurs onlywhen the result is ‘so palpably and grossly violative of 15Consistent with the special respect accorded to the court’s declaration of a mistrial on the basis of jury deadlock, thi s Co urt has never required an examination of alternatives before a trial judge declares a mistrial on the basis of jury deadlock; 13 nor have w e ever r equired 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 inqui ry in [such a case] turns upon determination whetherthe trial judge was entitled to conclude that the jury infact was unable to reach a verd ict .” Duncan , supra , 373

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

13 We acknowledge that we have required the examination of alternatives in othermistrial conte xts. See Hicks , supra , 447 Mich 843-845 (G RIFFIN , 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 constitutionallyimpermissible. We note, however, that in support of the proposition that consideration of alternative measures is constitutionally required in these other contexts, this Court in Bentoncited 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 vGrasso , 552 F2d 46, 49-50 (CA 2, 1977), vacated bythe Supreme Court at 438 US 901; 98 S Ct 3117; 57 L Ed 2d 1144 (1978) (directing the Court of Appeals to reconsider in li ght of Washington , supra ). See Benton , supra , 402 Mich 57, n 11, 61, n 19. 16Mich661 (emphasis supplied). Moreover, the United States Supreme Court has expres sly in dicated 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 , th e ruling will be upheld. Washington, supra , 434 US 515-517. 14 Althoughwe 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

14 Justice Marshall, joined by Justice Brennan, dissented: “What the ‘manifest necessity’ doctrine . . . require[s], in myview, 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 termin ation of the proceedings.” Id. at 525 (Marshall, J.). The Court of Appeals panel’s view in the instant case, althoughapparently consistent with the viewof Justices Marshall and Brennan, was specifically rejected by the Washingtonmajority.

15 Further, it appears fromthe 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 decla rati on was supported by manifest necessity. See Hicks , supra , 447 Mich 858, n 3 (B OYLE , J., dissenting) (“[t]he S upreme Court appears to use ‘consent’ . . . to refer t o 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 vBeckerman , 516 F2d 905, 909 (CA 2, 1975); United State s v Phillips , 431 F2d 949, 950 (CA 3, 1970) ; United States vHam , 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 17of 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 necessarilyaccompany a requirement that a deadlocked jury be forced to engage in protracted deliberations. See Washington , supra, 434 US 509-510; People v Hardin , 421 Mich296; 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 indi cate that its discussions mayhave 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 determinat ion that the mistrial declaration was manifestly necessary, we save for another day the issue of implied consent.

16 See also United States v Klein , 582 F2d 186, 194 (CA 2, 1978): The appellant argues that a retrial is barred becau se of the failure of the trial court to make explicit findings that there were no reasonable alternatives to a mistrial . . . . The short answerto this claim is the holding of Arizona v Washington that such findings are not constitutionally required. [Emphasis supplied.] See also Hic ks , supra, 447 Mich 867 (B OYLE , J., diss enting)(“[t]he assumption that, as a matter of l aw , manifest necessity requires the e xplo ration of less drastic alternatives to mistrial . . . ignores that the United States Supreme Court has specifically rejected [this] proposition”). 18fact 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, an d def endant’s retrial did not constitute a constitutionally impermissible successive prosecution.

C. R ESPONSE TO THE D ISSENT 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 v erdict is an instance of manifest necessity, allowing the trial court to declare a mistrial, discharge the jury, and retry the defendant. Althoughthe dissent ostensibly agrees that “no specific inquiryinto alternatives to declaring a mi strial is required,” post at 3, the dissent nevertheless points out that

17 This Court long ago indi cated that “the court is justified in accepting [the jury’s] statement that [it] cannot agree as proper evidence in determining the question.” People vParker , 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"). 19the trial court did not poll the jurors, di d not give a deadlocked jury instruction, and did not ask defense counsel for his thoughts. Post at 4. These, of course, would have been alte rnatives 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 juryinstruction,

or ask defense counsel for his thoughts. As we have explained above , the United States Supreme Court has specifical ly rejected such a requirement. See Washin gton , supra, 434 US 516-517: The absence of an explicit finding of “manifest necessity” appears to have been d eter minative 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 provid es su fficient 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 Washingtonrecognized 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

ne cessityon 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 20going to be able to reach a unanimous verdict.

IV. C ONCLUSION Th e tria l court did not abuse its discretion in declaring a mistrial, in the absen ce of objection by either par ty, where the jury expressly indicated that it was deadlocked. Accordingly, defendant’s retrial did not violate the constitutional ba r ag ainst successive prosecutions. We therefore reverse the decision of the Court of Appeal s a nd 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. C ORRIGAN , C.J., a nd WEAVER , T AYLOR , and M ARKMAN , JJ., concurred with Y OUNG , 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 do uble jeopardy evaporates simply because a defendant fails to object when a jury expresses d isc ord, I respectfully dissent. It is not apparent from the record that it was manifestly necessary to declare a mistrial. “Because of the high value placedon defendant’s not being require d to undergo thediscommodity of a second trial, the declarationof a mistrial shouldnot be made lightly, even when it is made ostensibly for the protection of defendant.” People v Johnson, 396 Mich 42 4, 438; 240 NW2d 729 (1976). As a “general r ule, . . . 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]nthe absence of a motion by a defendant for a mistrial, “‘the Perez doctrine of manifest necessity stands as a command to trial jud ges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the con cl usion that the ends of public justice wouldnot 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 affectedby any mistrial decis ion. 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 a nd fo r all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favo rabl y 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 2d717 (1978) (citations omitted).] [Emphasis added.] 2Thus, sound discretion requires a thoughtful, prudent analysis. Eventhough no sp ecific 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 onthe record must make clear the trial judge exercised “sound discretion” before declaring a mistrial. Unfortunately, no sound discretion was exercisedhere. Although this first-degree murd er trial spanneda ten-day period, triedintermittently over six days, the deliberations lasted just over four hours. 1 Th e jury likely spent the first thirty-five minutes, l ate T hursday afternoon, do ing li ttle 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 c onsequ ences 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 ver dict. The foreperson responded, “no.” The trial judge thenimmediately 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 reconvenedJune 13, 1997, I have assumed deliberations got under way at 9:00 a.m. 3the trial judge consider alternatives or otherwise provide evidence that she exercised sound discreti on. For example, the judge did not poll the jurors, give an instruction ordering further deliberations, query defense counsel about his thoughts on co ntin ued deliberations, or indicate on the record why a mistrial declaration was necessary. ThoughI 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 sucha grave act was required. Washington at 516-517 (the record must provide “sufficient justification” of the manifest needfor a mistrial). In this case, where the jurors had been deliberating only a short time, where the note from the jurors merely questioned what mig ht 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 forepersonthat 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 declarationof a mistrial, I cannot agree that subj ecting 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

4declaration. Ante at 20-21, n 15. However, it was not necessary that defendant object at the very moment the mistrial had been declared, partic ular ly because the jurors

were simultaneously dismissed. Though an objection on the recordwould have been helpful in determining defe ndant’s positiona nd in refreshing the judge concerning her duty to exercise sound discretion, defense counsel’s failure to voice

anobjection 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 prope rly declared a mistrial on the basis of manifest necessity, or she di d not. If she had, retrial would have beenproper. If not, defendant’s right to be free from double jeopardy was violated by the second trial. If defendant had succeededin 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 ob je ctively 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. 5thanthe lawful protection of his inherent co nstit utional 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

onthe most meager record without even a cursory attempt to

assure that the publ ic interest in such a declaration outweighs the defendant’s clear interest in resolution by the first factfinder, this narrow interpretation of “sound disc re tion” must be rejected. The majority’s conclusion ignores precedent from this Court and cursorily dismisses the manda te 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 r ight t o 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 withthe trial court’s resu lt. To clarify, I object not to the trial court’s concern that the jurors held irreconcilable differences–infact, I share that concern–but to its utter failure to make the pronouncement in a manner that evidences the e xercise of “sound discretion.” Because the judge did nothing more than act on a hunch with the most meager record for support, I cannot agre e that “sound discretion” was exercised. 6jeopardy. Even though defense counsel faile d to timely object, causing defendant to suffer unnece ssar ily through a secondtrial, such an error does not excuse a violation of constitutional magnitude. T he refore, I would affirm the decision of the Court of Appeals. K ELLY , J., concurred with C AVANAGH , J.

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