                                                                        Michigan Supreme Court
                                                                        Lansing, Michigan 48909
_____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




Opinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 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?



     1
      The 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. 

     2
      During 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. 

     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 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 felony­

firearm.   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




     4
      The 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




     5
         463 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



     6
      See 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).


     7
      Const 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). 

     8
      US 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).

     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 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



     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 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



     11
          See 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



     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 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.

     13
      We 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



     14
      Justice 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. 

     15
      Further, 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. 

     16
      See 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



     17
      This 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

             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,


v                                                   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

