Com. v. Balog

• Decision Date: 19 June 1990
• Citation: 395 Pa.Super. 158,576 A.2d 1092
• Parties: COMMONWEALTH of Pennsylvania v. James Edward BALOG, Appellant.
• Court: Pennsylvania Superior Court

Page 1092

576 A.2d 1092

395 Pa.Super. 158

COMMONWEALTH of Pennsylvania v. James Edward BALOG, Appellant.

Superior Court of Pennsylvania.

Argued March 21, 1990.

Filed June 19, 1990.

William E. Duffield, Uniontown, for appellant.

Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.

DEL SOLE, Judge:

In this case we are asked to decide whether the trial court abused its discretion when it ordered a mistrial, over defense counsel's objections, as a result of Appellant/Defendant's statement that his co-conspirator had been found not guilty in an earlier trial. Because we find that there was no "manifest necessity" to order a mistrial, we reverse the trial court's denial of Appellant's motion to dismiss, and order the instant action dismissed on the basis that Appellant's re-prosecution would violate the Double Jeopardy provisions of the United States and Pennsylvania Constitutions. Commonwealth v. Gains, 383 Pa.Super. 208, 556 A.2d 870, 876 (1989).

Appellant, James Edward Balog, was charged with rape, corruption of minors, involuntary deviate sexual intercourse, indecent assault, and criminal conspiracy to commit these crimes. An alleged accomplice, Charles Belch, was charged with the same offenses. At his earlier, separate trial, a jury convicted Mr. Belch of corruption of minors and acquitted him of the other offenses.

Mr. Balog testified at trial that he had just briefly met the alleged victim, Marlene Hackney, at Charles Belch's house during a New Year's Eve party. He also stated that he had attended several other parties that evening where he had been drinking heavily, and then returned to Mr. Belch's house where he fell asleep on the couch. On cross-examination he was asked about certain inconsistencies between this account of his activities and a prior statement he made to State Trooper Fuller. Assistant District Attorney Heneks asked:

Q. (By Mr. Heneks) Now, Mr. Balog, again I will ask you the question, did Trooper Fuller ask you anything in regard to Marlene Hackney?

A. I don't believe he did. He jsut [sic] said that she made some allegations.

Q. And in response to that, did you tell him that you don't recall messeing [sic] with the girl?

A. I told him I don't recall.

Q. That's right.

A. That's what I told him.

Q. Well, isn't that, in fact, a different statement that I don't recall messing with the girl?

A. I can't tell you exactly what I told him on that day.

Q. But you're not quarreling with Trooper Fuller putting that information down that you don't recall messing with the girl?

A. He could have put down anything that he wanted.

Q. And are you saying that you said that?

A. I don't recall what I said. It has been 15 or 16 months ago.

Q. But if I understand, you are not really denying that either?

A. Of course, I am denying it. I didn't say I did anything with her. Charlie was not guilty; why should I be found guilty? (N.T. May 4, 1989 at 287-288).

At this point the Commonwealth moved for a mistrial, and the defense objected stating that to a declare a mistrial at this time would be highly prejudicial to the defendant, and that the statement was just a spontaneous response from a layman who was not familiar with trial procedure. Nevertheless, the court ruled that the statement that Charles Belch was not guilty was highly prejudicial to the Commonwealth and granted a mistrial.

Following the discharge of the jury, Appellant moved for dismissal of the information claiming that the trial judge abused his discretion in granting a mistrial, and alternatively, that the conspiracy charges against the Appellant should be dismissed because of the acquittal of the alleged co-conspirator on the same charges. The trial court denied this motion holding that there was manifest necessity to grant the mistrial. It stated, "for defendant to blurt out that since Belch was not guilty why should he be found guilty was certainly prejudicial to the Commonwealth". (Opinion and Order, July 10, 1989 at 5).

Pennsylvania Rule of Criminal Procedure 1118(b) provides that:

When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.

Since Justice Story's 1824 opinion in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165, it has been well settled that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant's request or consent depends on where there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976). "Where the judge, acting without the defendant's consent aborts the proceeding, the defendant has been deprived of his valued right to have his trial completed by a particular tribunal." United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971),

Reprosecution and the subjection of an individual to the hazard of trial and possible conviction more than once for an alleged offense, is only "grudgingly allowed." United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232 (1975), cited in Commonwealth v. Williams, 373 Pa.Super. 270, 541 A.2d 7 (1988). "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense." Id. at 273, 541 A.2d 7, citing, Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). In determining whether the circumstances surrounding the declaration of a mistrial constitute manifest necessity, we apply the standards established by both Pennsylvania and federal decisions. Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980).

The Perez doctrine of manifest necessity stands as a command to trial judges not to declare a mistrial without the defendant's consent until a scrupulous exercise of judicial discretion leads to the conclusion that a termination of the trial is manifestly necessary. United States v. Jorn, supra, 91 S.Ct. at 557. Failure to consider if there are less drastic alternatives to a mistrial creates doubt about the propriety of the exercise of the trial judge's discretion and is grounds for barring retrial because it indicates that the court failed to properly consider the defendant's significant interest in whether or not to take the case from the jury. Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976).

It is well established that any doubt relative to the existence of manifest necessity should be resolved in favor of the defendant. Bartolomucci, supra, 468 Pa. at 347, 362 A.2d 234; Commonwealth v. Bradley, 311 Pa.Super. 330, 457 A.2d 911 (1983). Therefore, the failure of the court to consider less drastic alternatives before declaring a mistrial, which we have said creates doubt about the propriety of the exercise of the trial judge's discretion, may bar retrial because of double jeopardy protections.

Our supreme court has intentionally avoided establishing a catalog of situations in which a mistrial is dictated by manifest necessity, and has instead stated that each case must "turn on the particular facts". Commonwealth v. Bolden, 472 Pa. 602, 638, 373 A.2d 90, 107 (1977). However, there are certain circumstances in which the courts commonly grant a mistrial for manifest necessity. The illness of the presiding judge which is expected to delay trial for a significant period (two weeks or more), is one of those circumstances, Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573, cert. denied, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1975); Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290, vacated on other grounds, 491 Pa. 461, 421 A.2d 636 (1977). However, the most frequently encountered circumstance constituting manifest necessity, and thus justifying discharging a jury without placing the defendant twice in jeopardy, is the inability of the jury to agree on a verdict such that the jury is hopelessly deadlocked. Commonwealth v. Kivlin, 267 Pa.Super. 270, 406 A.2d 799 (1979); Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978); Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983); Commonwealth v. Williams, 373 Pa.Super. 270, 273, 541 A.2d 7 (1988); 21 Am.Jur.2d Criminal Law § 194 et seq. (1965). In such cases a mistrial is the natural result of the practical inability of the original tribunal to complete the trial.

Nevertheless, if there is any doubt that a deadlocked jury exists, then manifest necessity for a mistrial is not present. Thus, in Bartolomucci, supra, 468 Pa. at 348, 362 A.2d 234, where the trial court failed to inquire directly of the jury, either individually or through the foreman, about its inability to agree, our supreme court held that the declaration of a mistrial was an improper exercise of discretion. Such an inquiry would have provided greater certainty about the hopelessness of breaking that deadlock, or the possibility of overcoming the impasse by further deliberations, and therefore the necessity for the mistrial was open to doubt.

In other cases where findings of manifest necessity were predicated upon an uncorroborated and therefore doubtful assertion that a Commonwealth witness was ill, our courts have ruled that the trial court did not have the facts to justify subjecting appellants to the continuing ordeal of a pending trial. Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971); Commonwealth v. Dull, 257 Pa.Super. 192, 390 A.2d 777 (1978).

Similarly, the existence of doubts about whether it was necessary to terminate a trial when a juror was released from sequestration, resulted in a holding that the declaration of a mistrial was not manifestly necessary. Walton v. Aytch, supr...