D People of Michigan v. Devante Kyran Jennings ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 20, 2023
Plaintiff-Appellee,
v No. 359837
Macomb Circuit Court
DEVANTE KYRAN JENNINGS, LC No. 2019-001800-FH
Defendant-Appellant.
Before: RICK, P.J., and SHAPIRO and LETICA, JJ.
SHAPIRO, J. (dissenting).
I respectfully dissent and would find that defendant may not be retried under the federal
standard set forth in Oregon v Kennedy, 456 US 667; 102 S Ct 2083; 72 L Ed 2d 416 (1982). In
addition, as we are not bound by the federal standard, I would adopt the objective standard defined
in Pool v Superior Court, 139 Ariz 98; 677 P2d 261 (1984), which is both easier to apply than
Kennedy’s subjective standard and a more appropriate means of protecting the right against double
jeopardy and deterring prosecutorial misconduct.
It is difficult to imagine a principle of constitutional criminal procedure more universally
known to attorneys than the rule that a defendant’s decision to remain silent is constitutionally
protected and may not be introduced or commented upon at trial. And it is difficult to imagine
how a prosecutor could be unaware that purposely introducing a defendant’s silence as evidence
of guilt is grounds not only for reversal, but also for mistrial.
I. BACKGROUND
In this case, the investigating officer was called as a witness by the prosecution. The officer
reviewed the statements made by defendant after he waived his Miranda rights. However, during
the interview, defendant unambiguously relied on his right to remain silent, reviving his
constitutional right to do so. Rather than ending his questioning about the conversation, the
prosecutor pressed on to bring out defendant’s reliance on his right to remain silent and to contrast
it with the behavior of the other individuals in the car:
Q. How did the interview end?
-1-
A. He did not wish to speak to us anymore.
Q. Did you also speak to the other occupants in the vehicle?
A. Yes, they were both interviewed. As typical and routine, we separate
them, they were all separated and interviewed separately.
Q. Did they agree to speak to you?
A. No.
Q. So they provided a full statement?
A. They did.
Not long thereafter, closing arguments were given. The prosecutor argued:
Now, during the officer’s questioning, [defendant] admits that he was
present for this disturbance and he had agreed to speak to the officers, he knew what
it was about. He agreed to waive his Miranda rights, he said he understood
everything, he didn’t want an attorney, he—he was waving [sic] his right to remain
silent at that point in time, but low [sic] and behold, after answering a few questions
he says, no, I don’t want to talk anymore. Why would he do that? Well, that shows
a guilty conscience, like, well, okay, if I start going down this road further I am
going to get into some territory that’s not good for me. I am going to start making
admissions that I know are going to put me in further trouble. Maybe if I keep my
mouth shut at this point, I can kind of walk out of this. [Emphasis added.]
The record indicates that during his closing argument, the prosecutor placed the words
“guilty conscience” in red on a board for the jury to view, and in granting the mistrial, the trial
court noted that the prosecutor had “essentially weaponized [defendant’s] invocation as
consciousness of guilt.” Notably, the prosecution elected to not file a brief in this appeal. It
provides no evidence to suggest that the prosecutor’s actions were not intended to goad the
defendant into requesting a mistrial, other than the prosecutor’s self-serving statement that he “was
trying . . . to get the jury to find [defendant] guilty, not for a mistrial.”
II. ANALYSIS
A. RETRIAL IS BARRED UNDER THE KENNEDY STANDARD
Summarizing the Kennedy standard, our Supreme Court stated in People v Dawson, 431
Mich 234, 253; 427 NW2d 886 (1988):
Where [a] motion for mistrial was made by defense counsel, or with his
consent, and the mistrial was caused by innocent conduct of the prosecutor or
judge, or by factors beyond their control, or by defense counsel himself, retrial is
also generally allowed, on the premise that by making or consenting to the motion
the defendant waives a double jeopardy claim. [Emphasis added.]
-2-
The prosecutor’s conduct in this case was not “innocent” nor was the mistrial caused by “factors
beyond [his] control.” Dawson went on to hold that
[w]here a defendant’s motion for mistrial is prompted by intentional
prosecutorial conduct, however, the defendant may not, by moving for a mistrial,
have waived double jeopardy protection. The United States Supreme Court has
held that the Double Jeopardy Clause bars retrial where prosecutorial conduct was
intended to provoke the defendant into moving for a mistrial. [Id., citing Kennedy,
456 US 667.]
The trial court concluded that defense counsel’s failure to object during the officer’s
testimony established that the prosecution did not intend to cause a mistrial. However, the initial
lack of objection is irrelevant to the applicable analysis. Even if it was, the prosecution’s closing
argument demonstrated a determination to make the issue so central that a mistrial would be the
likely result.
The prosecutor’s questions and closing argument were not minor foot faults. They were
sufficient enough errors for the judge to sua sponte raise the question of a mistrial. Under these
circumstances, I would conclude that there was an intent to cause a mistrial, or at minimum to take
the very substantial risk that one would be granted in order to introduce prejudicial and
unconstitutional evidence.
B. THE MICHIGAN SUPREME COURT HAS NEVER “ADOPTED” THE KENNEDY
STANDARD FOR PURPOSES OF STATE LAW AND SHOULD INSTEAD ADOPT THE
POOL STANDARD
There has never been a decision of record in Michigan that holds that the test under the
Michigan Constitution is identical to the one set forth in Kennedy.
In Dawson, whether the defendant could be retried was initially addressed by the Court of
Appeals. This Court adopted the standard defined in Pool, 139 Ariz 98, which held that the Double
Jeopardy Clause barred retrial when it results from “intentional conduct which the prosecutor
knows to be improper and prejudicial, and which he pursues for any improper purpose with
indifference to a significant resulting danger of mistrial or reversal.” People v Dawson, 154 Mich
App 260, 272; 397 NW2d 277 (1986), aff’d 431 Mich 234 (1988), quoting Pool, 139 Ariz at 108-
109. After this Court concluded in Dawson that the federal standard defined in Kennedy would
not bar a retrial, it adopted the Pool standard for purposes of the Michigan Constitution and quoted
the following statement in Pool:
We agree with the Oregon Supreme Court that when such conduct occurs
the burden of another trial cannot be attributed to defendant’s preference to start
anew rather than “completing the trial infected by error” and is, rather, attributable
to the “state’s readiness, though perhaps not calculated intent, to force the defendant
to such a choice.” State v Kennedy, 295 Or at 276, 666 P2d at 1326. In such a
situation, the State has intentionally exposed the defendant to multiple trials for the
same crime and had destroyed his expectation of completing the proceeding before
the original tribunal. This is exactly what the double jeopardy provision was
-3-
intended to prevent. [Dawson, 154 Mich App at 272, quoting Pool, 139 Ariz at
109.]
Applying that standard, this Court concluded that retrial was precluded in that case because the
record showed “that the prosecutor consciously and wilfully engaged in improper conduct
indifferent to the probability that a mistrial would result.” Dawson, 154 Mich App at 274.
In its appeal to the Michigan Supreme Court, the prosecution changed its appellate strategy.
It conceded that a retrial was barred under the Kennedy test and so there was no need for the Court
to consider whether or not to adopt the Pool standard. The Court made clear that the prosecution’s
change in strategy was the reason it did not address the Pool standard. It stated, “In light of the
prosecutor’s concession that the trial prosecutor’s conduct was improper under the Oregon v
Kennedy standard, there is no need in the instant case to decide whether this Court should go
further than the federal standard.” Dawson, 431 Mich at 257.
To reiterate, the Michigan Supreme Court did not “adopt” the Kennedy standard. Rather,
the Court held that given the prosecution’s concession it was not necessary to consider whether to
adopt the more stringent Pool test. And since Dawson, no other case of record has required a
Michigan court to make that determination. Accordingly, I believe we should request
supplemental briefing as to whether this Court should adopt the Pool standard for determining
whether the Double Jeopardy Clause bars a retrial for purposes of the Michigan Constitution.
Demonstrating that a prosecutor specifically intended to cause a mistrial insufficiently
protects the principles of double jeopardy because absent an admission of such (as in Dawson), it
is virtually impossible to determine what the prosecutor’s subjective intent was. In contrast, the
Pool standard provides the necessary protection by changing the standard from specific intent to
cause a mistrial to “intentional conduct which the prosecutor knows to be improper and prejudicial,
and which he pursues for any improper purpose with indifference to a significant resulting danger
of mistrial or reversal[.]” Dawson, 154 Mich App at 272 (citation omitted). This objective test
provides the necessary deterrence against purposeful prosecutorial error or misconduct that invites
a mistrial.
Finally, I submit that this is an appropriate case for the Supreme Court to finally determine
whether the Pool standard or some other standard should be adopted rather than the Kennedy
standard and so respectfully urge the Court to grant leave to appeal for that purpose.
/s/ Douglas B. Shapiro
-4-