Adkins v. Smith

• Decision Date: 19 December 1967
• Docket Number: No. 36484,36484
• Citation: 205 So.2d 530
• Parties: Dorothy ADKINS, Petitioner, v. D. C. SMITH, Circuit Judge of the Ninth Judicial Circuit in and for Indian River County, Florida, Respondent.
• Court: Florida Supreme Court

Page 530

205 So.2d 530

Dorothy ADKINS, Petitioner, v. D. C. SMITH, Circuit Judge of the Ninth Judicial Circuit in and for Indian River County, Florida, Respondent.

No. 36484.

Supreme Court of Florida.

Dec. 19, 1967.

Rehearing Denied Jan. 16, 1968.

Walter T. Erickson, Vero Beach, for petitioner.

Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for respondent.

ROBERTS, Justice.

The petitioner brings here for review a decision of the District Court of Appeal, Fourth District, which denied a writ of prohibition sought to abate the prosecution of petitioner for first dergee murder. The historical background and questions presented are set forth in the opinion of the District Court reported in Adkins v. Smith, 197 So.2d 865, as follows:--

'Dorothy Adkins petitions this court for a rule absolute to prohibit further proceedings by the respondent in the circuit court in the prosecution of petitioner for first degree murder.

'Petitioner was indicted for first degree murder and brought to trial before the respondent, Circuit Judge D. C. Smith. A jury of twelve and one alternate juror were selected and sworn. The judge declared a recess and directed the jury to withdraw into the jury room. As the jurors were going into the jury room the alternate juror approached the bench and spoke briefly to the judge. The subject of the conversation was the concern of the juror over the possibility of being separated from his ill wife overnight with no one available to care for her. Immediately prior to this conversation between the alternate juror and the judge, defendant had left the courtroom and was in the hallway outside the courtroom. Defense counsel was present.

'At this point the state attorney pointed out to the court that the defendant was not present during the conversation between the court and the alternate juror and because of the recent case, Deans v. State, Fla.App.1965, 180 So.2d 178, consideration should be given to the declaration of a mistrial.

'After considerable discussion between the court and both counsel concerning the Deans case, the court inquired whether defense counsel would stipulate that the alternate juror be discharged. The court stated that, unless there was such a stipulation, the court would give consideration to a declaration of a mistrial.

'The state attorney indicated a willingness to so stipulate. The defense counsel suggested that the state attorney might move for a mistrial. The state attorney stated he would make such a motion if the court felt it necessary in the furtherance of justice. The counsel for the defendant responded to the court's request for comment on such a motion by saying 'No, sir. That motion is in the record.'

'The court thereupon on its own motion declared a mistrial and discharged the jury.

'The defendant then filed a motion to quash the indictment on the grounds that the discharge of the jury before verdict, without the consent of the defendant, for a reason legally insufficient and without necessity amounted to an acquittal and constituted a bar to the further trial or subsequent prosecution of defendant for the same offense. The court denied the motion to quash and set a date for the trial of defendant upon the same indictment.'

The District Court then proceeded to hold there was no proper basis for the entry of the mistrial, but that petitioner (defendant in the murder case) could not complain since the overall circumstances 'clearly manifest defendant's willingness to accept the declaration of a mistrial and thereby constituted sufficient consent to preclude petitioner from raising the defense of double jeopardy in her subsequent prosecution on the same indictment.' Thus, this court is presented with the following two points involved:--

'1. Whether petitioner's counsel's statement to the state attorney that 'You might even move for a mistrial' and his response to the court that he had nothing to say on a motion for mistrial amounted to a consent to the declaration of a mistrial?

'(2. Whether, after jeopardy has attached, the declaration of a mistrial because of the occurrence of an event, beyond the control of the court or counsel, sufficient to give the trial court reasonable grounds to believe that such occurrence would require a reversal if the trial proceeded, constitutes grounds for double jeopardy upon a retrial?'

As to the first point, we are in accord and approve the holding of the appellate court below that the conduct of petitioner was sufficient to preclude petitioner from raising the defense of double jeopardy in any subsequent prosecution.

As to the second point, we conclude that it was error for the appellate court below to hold that the trial court, under the circumstances present in this case, improperly entered a judgment of mistrial. At the outset it is noteworthy that the prisoner, with her counsel's consent, set in motion the circumstances by having walked out of the courtroom and into the hall immediately prior to the discussion by a juror with the judge relative to an illness of juror's wife which would make it very inconvenient for him to remain away from home overnight. In State ex rel. Dato v. Himes (Fla.), 184 So. 244, 247, this court listed as one circumstance for entering a mistrial with the right preserved for a second trial 'where the prisoner by his own misconduct places it out of the power of the jury to investigate his case correctly, thereby obtaining an unfair advantage of the state * * *'.

The question here under consideration was discussed by this court in State v. Grayson, Fla., 90 So.2d 710, in which it announced illustrations of urgent or necessary reasons that would justify the entry of an order declaring a mistrial. These reasons were illustrative but not exclusive. We announced the rule there that where a jury is discharged for legally insufficient reasons and without necessity and without the defendant's consent, such discharge would preclude a subsequent trial for the same offense. But in determining what is a legally sufficient reason, the trial court must be armed with discretion since he is conducting the trial and familiar with circumstances, tensions and conditions which may be present in the courtroom. The matter of the trial judge's discretion in such cases was discussed by the Supreme Court of the United States in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901, in which that court affirmed Gori's conviction at his second trial on a charge he had knowingly received and possessed goods stolen in interstate commerce. After his first trial had been terminated by the trial judge's declaration of a mistrial sua sponte and without petitioner's express consent but condedingly in the trial court's exercise of discretion out of regard for petitioner's interest, the court held that the second trial was not double jeopardy, and said:--

'Since 1824 it has been settled law in this Court that 'The double-jeopardy provision of the Fifth Amendment * * * does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.' Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 831, 93 L.Ed. 974; United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Keerl v. State of Montana, 213 U.S. 135, 137--138, 29 S.Ct. 469, 53 L.Ed. 734; see Ex parte Lange, 18 Wall. 163, 173--174, 21 L.Ed. 872; Green v. United States,...