Ex Parte Benford

• Decision Date: 27 January 2006
• Docket Number: 1040790.
• Citation: 935 So.2d 421
• Parties: Ex parte Darius M. BENFORD and Jarvis Sales. (In re Darius M. Benford and Jarvis Sales v. State of Alabama).
• Court: Alabama Supreme Court

Page 421

935 So.2d 421

Ex parte Darius M. BENFORD and Jarvis Sales (In re Darius M. Benford and Jarvis Sales v. State of Alabama).

1040790.

Supreme Court of Alabama.

January 27, 2006.

COPYRIGHT MATERIAL OMITTED

Robert B. Tuten, Huntsville, for petitioner Darius Benford.

John Langland, Huntsville, for petitioner Jarvis Sales.

Troy King, atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for respondent.

PER CURIAM.

Darius M. Benford and Jarvis Sales petition this Court for a writ of mandamus directing Judge Laura W. Hamilton of the Madison Circuit Court to grant their motions to dismiss the charges against them. We grant the petition and issue the writ.

Benford and Sales ("the defendants") were indicted for attempted murder; their cases were consolidated for trial. Before jury selection began, the trial court arraigned the defendants, read the indictments to them, and accepted "not guilty" pleas from them. The panel of prospective jurors was then brought into the courtroom. The trial court introduced the parties and counsel, notified the prospective jurors of the charges against the defendants, informed the prospective jurors of the time and location of the offenses charged, and asked the prospective jurors if they had served on the grand jury that had indicted the defendants or if they otherwise had any knowledge of the case. The trial court also asked the prospective jurors other questions concerning their ability to serve on the jury. The trial court then conducted a voir dire examination of the prospective jurors.

During voir dire, after prospective jurors were dismissed for cause, the jury panel was left with one person fewer than the required 36 members. Rule 18.4(f)(1), Ala. R.Crim. P., requires 24 prospective jurors if the offense charged is a felony not punishable by death. Rule 18.4(f)(2), Ala. R.Crim. P., provides that "[i]f two (2) or more persons are being tried jointly, to the minimum number of names otherwise required for striking there shall be added twelve (12) additional names for each additional defendant." Therefore, because Benford and Sales were being tried together, 36 prospective jurors were required for the panel. However, Rule 18.4(h)(2), Ala. R.Crim. P., allows the parties to consent to the use of a lesser number of prospective jurors than the number required by subsection (f). Both Benford and Sales consented on the record to proceed with striking the jury even though the panel contained only 35 prospective jurors. Jury selection continued, and a jury was chosen. The jury was seated and sworn by the trial court. The trial court then gave the jury some preliminary instructions and dismissed the jury for the day.

The following day the trial court called the parties into chambers and sua sponte declared a mistrial. The conference in chambers was not recorded. Benford and Sales allege in their mandamus petition that the trial court "announced that a mistrial was declared, sua sponte, due to insufficient members on the jury venire from which to strike a jury." They further allege in their petition that "[b]oth defendant's [sic] objected to a mistrial" and that the trial court "declared a mistrial over the defendants' objections."

In an affidavit submitted in response to the petition for a writ of mandamus, the trial judge stated:

"My name is Laura Hamilton. I am over the age of nineteen years. I am currently a circuit judge for Madison County. Cases numbered CC-02-3275 and CC-03-195, State v. Darius Marques Benford and Jarvis Sales[,] are currently pending in my court.

"On March 1, 2004, I utilized the `on-call' jury system developed by the Madison County Court Administrator. I understood that the jury pool had been qualified before entering my courtroom and, therefore, I did not qualify the potential jurors. Jury selection began. One of the thirty-six members of the venire was struck for cause, leaving thirty-five remaining in the jury pool. Both parties agreed to continue with voir dire although there were fewer jurors in the pool than required.

"Following voir dire, twelve jurors were chosen. Just before I swore in the jurors, I mentioned that I was going to issue another oath to them like they had taken before — and the jury looked puzzled, as if they did not know what I was talking about. This did raise a `red flag' for me, but I swore in the jury anyway. After this, I gave them some preliminary instructions and called a recess.

"After dismissing the jurors, I learned from the Madison County Court Administrator's Office that they had changed their policy regarding `on-call jurors.' Originally, the `on-call jurors' were to come from a jury pool after it was qualified. Then jurors would be asked to come back for `on-call' jury service at a later date. I was informed that this procedure was changed from drawing from a qualified pool to a pool of jurors who were originally dismissed and requested to return at a later date. They were dismissed before any of the jurors were qualified or sworn and were not qualified when they returned at the later date for jury duty.

"Very concerned that the jurors had never been qualified, I immediately contacted Lynn Thrower at the Administrative Office of Courts for advice. Pursuant to my conversation with Ms. Thrower, I decided that, in order to protect the defendants' right to a fair trial, it was necessary to declare a mistrial so that a new jury pool could be properly qualified before jury selection.

"On the following morning, I called counsel for both sides into my chambers to explain that I, along with the Administrative Office of Courts, determined that a manifest necessity for a mistrial existed. As I did not perceive any undue prejudice to either side, I declared a mistrial and set the case for a new trial."

(Emphasis added.) The trial court discharged the jury and rescheduled the case for trial.

The record is unclear as to whether Benford and Sales were aware of the failure to qualify the jury generally or to give the initial oath, although the affidavit of the trial judge states that the jurors "looked puzzled" when told that another oath was about to be administered. Presumably, this reaction was in open court and was also observed by Benford and Sales. In all events, there is no allegation in the petition or mention in the materials submitted with the petition of an objection by them to the failure to qualify the jury generally or to the failure to administer the first oath before the mistrial was declared. Assuming that Benford and Sales were unaware of the omission, there is nothing in the materials before this Court to indicate that the trial court informed them of it and asked them if they would waive any objection before the Court declared a mistrial.

Benford and Sales filed motions to dismiss the charges against them, arguing that because a jury had been empaneled and sworn, jeopardy had attached as to the charges against them and any subsequent trial, therefore, on those same charges would violate their Fifth Amendment rights to protection from double jeopardy. See Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) ("[T]he double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and... it should apply to the States through the Fourteenth Amendment."). See also Art. I, § 9, Constitution of Alabama of 1901 ("[N]o person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury."). The trial court denied the motions to dismiss. Benford and Sales petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial court to grant their motions; that court denied their petition by an order. Ex parte Benford (No. CR-04-0952, March 3, 2005), 925 So.2d 1026 (Ala.Crim.App.2005) (table). They then petitioned this Court pursuant to Rule 21(e)(1), Ala. R.App. P., for a writ of mandamus directing the trial court to grant their motions.

A defendant's double-jeopardy claim is properly reviewed by a petition for a writ of mandamus. Ex parte Ziglar, 669 So.2d 133 (Ala.1995). In order for this Court to issue a writ of mandamus, Benford and Sales must establish: "`(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.'" Ex parte Bloodsaw, 648 So.2d 553, 554 (Ala. 1994) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)).

Benford and Sales argue that because jeopardy had attached before the trial court declared the mistrial, they cannot be retried for the same offense unless the trial court declared the mistrial because of a manifest necessity. They recognize that they did not object to the apparent failure to qualify the jury generally and to swear in the jury venire before voir dire, and, they argue, no manifest necessity therefore existed that required the trial court to declare a mistrial. The State argues that the trial court's declaration of a mistrial was based on a manifest necessity caused by, as stated in the trial judge's affidavit, the dismissal of the jury pool "before any of the jurors were qualified or sworn" and the fact that the jurors "were not qualified when they returned at the later date for jury service."

In Ex parte Tribble, 783 So.2d 69 (Ala.2000), this Court stated:

"The Fifth Amendment protects a defendant against a second prosecution for the same offense after an acquittal. Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Once jeopardy attaches, retrial of a defendant after a mistrial is barred unless the trial court declared the mistrial because of `manifest necessity.' Further, for the trial...