City of Smithville v. Summers, WD

• Decision Date: 07 May 1985
• Docket Number: No. WD,WD
• Citation: 690 S.W.2d 850
• Parties: CITY OF SMITHVILLE, Missouri, Respondent, v. Dannie SUMMERS, Appellant. 35897.
• Court: Missouri Court of Appeals

Page 850

690 S.W.2d 850

CITY OF SMITHVILLE, Missouri, Respondent, v. Dannie SUMMERS, Appellant.

No. WD 35897.

Missouri Court of Appeals,

Western District.

May 7, 1985.

James R. Brown, Brown & Brown, Kansas City, for appellant.

Michael W. Manners, Paden, Welch, Martin, Albano & Graeff, Independence, for respondent.

Before KENNEDY, P.J., and SHANGLER and DIXON, JJ.

SHANGLER, Judge.

A jury found the defendant Summers guilty of the breach of the City of Smithville ordinances against careless and imprudent driving and driving while intoxicated. The court assessed a fine of $500 in each case.

The appeal contends, among other grounds, that the trial put Summers again in jeopardy of liberty for the same offense in violation of constitutional right. ¹

The jury verdicts, convictions, and penalties were incidents of a second trial of the offenses in the circuit court. The first trial commenced on March 19, 1984. The jury was selected and sworn, but before any evidence was presented, the court declared a mistrial ex mero motu, and then reset the cause for trial on the next day. That hearing proceeded to the jury verdict, conviction and penalty now on appellate review. The court aborted the trial on the day before, sua sponte and without other initiative. There is no record which preserves that action, but counsel agree that the court was prompted by the failure to give MAI-CR 2d 1.02, an oral instruction required to be given to the prospective jurors prior to the voir dire examination of the panel. The defendant on the first trial, immediately after the oath was administered to the jury as selected, moved for discharge "for failure to use criminal procedure" ² [presumably, for the failure to precede the voir dire of the panel by oral instruction MAI-CR 2d 1.02]. The court denied the motion, and entered the order of mistrial.

On this appeal, the defendant contends that there was no manifest necessity for the mistrial, nor does that action subserve the ends of justice, and thus the subsequent prosecution for the same offenses are interdicted by the double jeopardy principle.

The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant against multiple punishments or successive prosecutions for the same offense. United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975). That principle expresses a constitutional policy of finality for the benefit of the defendant in a criminal proceeding. It manifests the willingness of our society to limit government to a single proceeding to vindicate its very vital interest in the enforcement of the criminal laws. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). A criminal defendant owns "the valued right to have his trial completed by a particular tribunal." Thus, the declaration of a mistrial implicates that right. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); State v. Irving, 559 S.W.2d 301, 306 (Mo.App.1977).

In a trial to the jury, jeopardy attaches--for purposes of the Double Jeopardy Clause--when the jury is empaneled and sworn. Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 224, 2 L.Ed.2d 199 (1957). A declaration of mistrial, however, does not always incur the double jeopardy ban. A motion by the defendant for mistrial usually removes any barrier to reprosecution, even if made necessary by judicial or prosecutorial error. United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). In a case where the court declares a mistrial without initiative or consent of the defendant, double jeopardy interposes against a retrial unless, all the circumstances considered, "there is manifest necessity for the act [of mistrial], or the ends of public justice would otherwise be defeated.... [It is a power] to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes." United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824); Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). The valued right of a defendant to have the trial completed by a particular jury, therefore, gives way only when the ends of public justice would no longer be served by a continuation of the proceedings. Within that principle [ United States v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), l.c. 464, 93 S.Ct. 1070]:

A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve "the ends of public justice" to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court. [emphasis added]

These principles make clear that jeopardy attached when the jury to try defendant Summers was selected and sworn. The inquiry becomes, whether--all the circumstances considered--the subsequent declaration of mistrial by the court, without initiative or consent of the defendant, was a manifest necessity or compelled by the ends of justice. That is to say: whether the cause tried to a conclusion and conviction by the impaneled jury "would automatically be stripped of that success by an appellate court" because of the neglect of the court to give the panel oral instruction MAI-CR 2d 1.02. Illinois v. Somerville, supra, l.c. 464, 93 S.Ct. 1070. That determination, in turn, depends upon the error or irregularity which prompted the court to the uninvited declaration of mistrial.

Counsel offer the consensus that the mistrial was induced by the recognition by the court of the failure to give oral instruction MAI-CR 2d to the panel of prospective jurors prior to voir dire examination. The minutes entered by the judge of the March 19, 1984, proceedings--the only contemporaneous record of the mistrial event [see fn. 2]--mentions no reason for the order of mistrial. That entry does mention, not once but twice, that the oath administered to the panel and then to the twelve jurors was the oath in a civil cause [case]. The next day, at the outset of the retrial, the defendant moved for dismissal on the ground that the successive trial put him twice in jeopardy. The motion alleged simply that on March 19, 1984, the trial of the offenses was commenced, the jury sworn, and "[t]hat without the consent or waiver of the defendant the court declared a mistrial." The trial event which prompted the declaration was not described.

The court formally denied the motion with the explanation:

The jury proceedings we were following yesterday--no instructions had been read to the jury. The oath administered was the oath in a civil case, administered without benefit of One and Two [sic--One 0 Two? [1.02?] ]. And the instruction the Court had prepared to read to the jury was a MAI Instruction, general instruction, and not MAI-CR. I feel that the jury would have been without authority to punish this defendant in any event, had we proceeded on the civil instruction. Obviously that is the reason I stopped the trial, realizing I had erred in proceeding with the civil instructions. Therefore, since they did not have any authority to punish him, I do not feel double jeopardy was attached. [emphases added]

That explanation leaves uncertain whether the mistrial was prompted because the "oath as in a civil case" was administered to the panel prior to voir dire and then to the jury selected and constituted [as the March 10, 1984, order of mistrial also recites], or because the court had "proceed[ed] with the civil instructions" for the voir dire, or simply [as the agreement of counsel tenders for presentation of the point on appeal] that the court neglected to preface the voir dire of the prospective jurors with oral instruction MAI-CR 2d 1.02. That "explanation" confounds understanding. A jury panel as well as the constituted jury discharges an identical duty--whether the trial be a civil or criminal action--and elicits an identical pledge. ³ Furthermore, the practice in a civil case does not provide for a formal oral instruction to the panel of prospective jurors on the order of MAI-CR 2d 1.02: that procedure appertains to a criminal case only. If the "explanation" means that a civil instruction was given the twelve selected and impaneled as a jury, then the propriety of the order of mistrial assumes a different dimension. Thus, the "explanation" by the court [among the several] "that is the reason I stopped the trial, realizing I had erred in proceeding with civil instructions" neither defines nor clarifies the perceived error which induced the order of mistrial.

The litigants, as we note, tender agreement that the court declared the mistrial because MAI-CR 2d 1.02 was not given to the panel of prospective jurors as criminal procedure directs. That consensus emerged among counsel and the court at the motion for new trial hearing on April 20, 1984, some month after the mistrial and retrial. It is evident nonetheless that the court was induced to the order of mistrial because--whatever the antecedent error or errors--as the "explanation" iterates and reiterates, "the jury would have been without authority to punish this defendant." Thus, the declaration of mistrial rests on the premise that the jury was disabled from a verdict: that is, that the judicial error was jurisdictional.

We assume for purpose of decision that the neglect to give MAI-CR 2d 1.02 prompted the court to declare the mistrial. The question remains whether, the circumstances considered, there was a manifest necessity for the act, or that the ends of public justice would otherwise be defeated. United States v. Perez, supra. In terms of the Illinois v. Somerville, supra, formulation: A trial...