
    PEOPLE v BROOKS
    Docket No. 31222.
    Submitted August 29, 1979, at Lansing.
    Decided September 19, 1979.
    Joseph C. Brooks was convicted of breaking and entering an occupied dwelling with intent to commit larceny therein, Washtenaw Circuit Court, William F. Ager, J. The defendant appeals, alleging that he was denied a fair trial since his trial was held partially in concert with the trial of a codefendant whose defense tended to incriminate the defendant. Held:
    
    The trial court employed a dual jury system in the trial of the defendant and his codefendant. With this procedure two separate juries were selected, one to hear the case against the defendant and one to hear the case against the codefendant. Both juries were present for the prosecutor’s opening statement and the prosecutor’s direct examination of witnesses. At all other times only one jury was present, each hearing the matters relevant to its own case. The trial court successfully avoided pitting one defendant against the other and successfully avoided convicting one defendant through the efforts of the other defendant. The conviction of defendant Brooks could only have been based on the evidence presented by the prosecution and in defense of defendant Brooks. The dual jury trial afforded the defendant a trial which was in compliance with the rights and protections afforded by the United States and Michigan Constitutions. The defendant had a fair trial.
    Affirmed.
    Criminal Law — Fair Trial — Dual Jury Trial — Constitutional Law.
    A defendant was not denied a fair trial by the use of a dual jury trial, wherein the defendant and a codefendant were tried in a joint trial before two separate juries, one for each defendant, where the court avoided the problem of "pitting one defendant against the other, each trying to save himself at the detriment of the other” by removing the defendant’s jury during the presentation of evidence by the codefendant and where all of the constitutional guarantees pertaining to a criminal trial were provided by the dual jury trial.
    
      Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 223, 235.
    
      
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and James S. Sexsmith, Assistant Prosecuting Attorney, for the people.
    
      Hazlett & Judge, for defendant on appeal.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   R. B. Burns, J.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny therein. MCL 750.110; MSA 28.305. He appeals raising three issues, two of which became moot when a corrected transcript of the trial was filed. The third puts in issue the fairness of the defendant’s trial which was partially held in concert with the trial of his codefendant, Harold Martin.

A motion to consolidate the trials of defendant Brooks and Martin had been made, but at the beginning of trial it became apparent that Martin’s defense would incriminate defendant Brooks. After a conference with the prosecutor and both defense counsel, the trial court decided that in the interest of judicial economy the cases would be tried in part together with separate juries. Upon the suggestion of counsel a procedure was arrived at in which both juries would be present for the prosecutor’s opening statement and the prosecutor’s direct examination of witnesses. At all other times only one jury would be present, each hearing the matters relevant to its own case. The trial court stated that the jury would be excused at the request of either defendant. No objections were made to this procedure during the dual trials.

During his instructions, the trial court commented on the success of the procedure:

"Things have gone quite smoothly. This is sort of a new procedure that we have followed here. It has helped the Court, assisted the Court in that where it has taken us four days, we have been able to handle it in a little over two days. It is because of the cooperation of Counsel, parties in the case, and, of course the Juries. We have had, I guess, a couple of times, traffic jams going in and out of the Courtroom but these are very, very sferious proceedings and are important both to the People and to the Defendant.”

Defendant now asserts that the dual trial procedure was totally unacceptable and resulted in confusion and chaos. Defendant claims that he was denied a fair trial under the United States and Michigan Constitutions and also that he was deprived of a separate trial which was mandated by the inconsistent defense of defendant Martin.

The trial court recognized the problem inherent in jointly trying defendant Brooks and Martin. The trial court’s solution to this problem, rather than separate trials, was simultaneous trials before separate juries. The first question which this Court must answer is whether that solution provided defendant with the same protections as he would have enjoyed through a separate trial.

In People v Hurst, 396 Mich 1, 9; 238 NW2d 6 (1976), the Michigan Supreme Court pinpointed the difficulty which arose in a joint trial of defendants who presented inconsistent defenses: "By insisting on a joint trial, the state succeeded in pitting one defendant against the other, each trying to save himself at the detriment of the other.” The Court noted that such a situation may produce a "spectacle” in which the prosecution is relieved of carrying its burden of proof by the attempt of a defendant to clear himself at the expense of his codefendant. Id., 7.

This Court believes that the dual jury procedure used in this case successfully avoided convicting one defendant through the efforts of the other. The Brooks jury heard none of the evidence presented by defendant Martin. Their verdict could only have been based on the evidence presented by the prosecution and in defendant Brooks’ defense.

Having found that the dual jury procedure avoided the pitfalls inherent in a joint trial of defendant Brooks and Martin, the Court must next determine if defendant was afforded a trial which comports with the rights and protections of the United States and Michigan Constitutions.

US Const, Art III, § 2(3) provides: "The Trial of all Crimes * * * shall be by Jury.”

US Const, Am VI, provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * * and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Const 1963, art 1, § 14, provides: "The right of trial by jury shall remain.”

And in the course of trial no person shall be "deprived of life, liberty, or property, without due process of law”. US Const, Am V. Const 1963, art 1, § 17.

Each of the rights guaranteed to defendant have been provided by the dual jury trial. Defendant’s challenge of the dual jury rests upon three events, none of which appear to the Court to be significant. They are "traffic jams” in the courtroom, the seating of one of the juries outside the jury box, and the ability of the juries to observe each other. Certainly there is nothing sacrosanct in the placement of the jury in the jury box and in all trials individual jurors are able to observe the other jurors with whom they sit. Finally, there is no indication that any rowdiness or breach of decorum accompanied the complained-of traffic jam. In fact, the trial court had commented that "[t]hings have gone quite smoothly”.

In approving the dual jury procedure, the Court briefly notes that dual juries have been used in the Federal system. United States v Rowan, 518 F2d 685 (CA 6, 1975), cert den 423 US 949; 96 S Ct 368; 46 L Ed 2d 284 (1975), and United States v Sidman, 470 F2d 1158 (CA 9, 1972), cert den 409 US 1127; 93 S Ct 948; 35 L Ed 2d 260 (1973). We note, in particular, the statement of the Third Circuit in Byrne v Matczak, 254 F2d 525, 529 (CA 3, 1958), cert den 358 US 816; 79 S Ct 24; 3 L Ed 2d 58 (1958), adopted by the Ninth Circuit in Sidman, at 1168, that "fair 'new procedures which tend to facilitate proper fact finding, are allowable, although not traditional”’.

Finding that defendant was afforded a fair trial, we affirm his conviction. 
      
       It is obvious that the dual jury procedure will impose upon the good natures and skills of the court reporters upon whom will fall the duty of keeping separate records of the proceedings. The Court believes that this does not outweigh the advantages gained and that this difficulty does not affect the fairness of the trial.
     