Opinion
Docket No. 78-1618.
Decided July 18, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training and Appeals, and Maude D. Corrigan, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant.
This case was originally decided by this Court in People v Yarbrough, 78 Mich. App. 81; 259 N.W.2d 248 (1977). On April 28, 1978, the Supreme Court issued the following order:
"Leave to appeal is considered April 28, 1978, and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, the Court of Appeals decision is vacated and the case is remanded o the Court of Appeals for consideration of the question of whether, assuming pro arguendo that the trial court should have entertained defendant's final request for mistrial, it would have been error for the trial court to refuse to grant said motion. Unless it would have been error for the trial court to refuse to grant the motion, reversal on this basis should not be ordered. In addition, the matters raised by defendant in his application for cross-appeal are remanded to the Court of Appeals for such further consideration as the Court of Appeals shall deem necessary. This Court does not retain jurisdiction." 402 Mich. 920 (1978).
The following is in compliance with that order. We specifically readopt our previous opinion and the legal conclusions set forth therein. As to the issue posed by the Supreme Court, it is elementary that a motion for mistrial lies within the sound discretion of the trial court, e.g. People v Schram, 1 Mich. App. 279; 136 N.W.2d 44 (1965), aff'd, 378 Mich. 145; 142 N.W.2d 662 (1966). As noted in our previous opinion, " * * * the trial court expressed its willingness to grant the motion for mistrial". 78 Mich App at 87. We find no abuse of discretion. Defendant's conviction is reversed and the case is remanded for a new trial.
In addition, we have reconsidered the remaining issues posed by defendant. As to the issue of witness Willie Wilson's claim and later renunciation of his Fifth Amendment right not to incriminate himself, on retrial, the trial court is directed to People v Dortch, 84 Mich. App. 184; 269 N.W.2d 541 (1978). Defendant's other claims have no merit.
Reversed and remanded for a new trial.
F.J. BORCHARD, J., not participating.