Haynes v. State

• Decision Date: 27 May 1980
• Docket Number: No. 35955,35955
• Citation: 268 S.E.2d 325,245 Ga. 817
• Parties: HAYNES v. The STATE.
• Court: Georgia Supreme Court

Page 325

268 S.E.2d 325

245 Ga. 817

HAYNES v.The STATE.

No. 35955.

Supreme Court of Georgia.

Argued Feb. 12, 1980.

Decided May 7, 1980.

Rehearing Denied May 27, 1980.

McAllister & Roberts, J. Dunham McAllister, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., James W. Bradley, Jack T. Wimbish, Jr., Asst. Dist. Attys., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.

CLARKE, Justice.

Appellant appeals his conviction for the murder of Robert Harris Madaris.The conviction came at the third trial for the same offense which followed two previous mistrials.In the first trial, the state failed to list a necessary witness on the witness list provided to appellant pursuant to Code Ann. § 27-1403.At the beginning of the trial, appellant's counsel objected to the unlisted witness being allowed to testify.The court offered to order a continuance to enable appellant to interview the witness and to gather any information necessary for impeachment.The court also offered to grant a mistrial.Appellant refused to agree to a continuance or to a mistrial but, rather, insisted that the state be required to proceed without the witness in question.Rather than allowing the witness to testify or forcing the state to proceed without the witness, the court declared a mistrial to which appellant objected.In the second trial, the jury was unable to reach a verdict and therefore another mistrial was declared.Following the third trial, a verdict of guilty was returned by the jury.

The sole question before this court is whether the trial court erred in failing to bar further prosecution of appellant after his first trial ended in a mistrial.Appellant contends further prosecution would subject appellant to double jeopardy within the meaning of the Fifth Amendment to the Constitution of the United States, CodeAnn. § 1-805, and the Constitution of the State of Georgia,Code Ann. § 2-115.

The Fifth Amendment to the Constitution of the United States, made applicable to the states through the Fourteenth Amendment, provides: ". . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . ."The Constitution of the State of Georgia at Art. I, Sec. I, Par. XV, Code Ann. § 2-115, provides: "No person shall be put in jeopardy of life or liberty more than once for the same offense, save on his, or her own motion for a new trial after conviction, or in case of mistrial."The threshold question to be addressed in any case involving double jeopardy is whether jeopardy has attached to defendant during the proceedings which he contends preclude further prosecution.It is well settled that jeopardy attaches when a jury is impaneled and sworn.Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425(1973);Cornero v. United States, 48 F.2d 69(9th Cir.1931).Once the jury has been impaneled, the court may not discharge the jury from giving a verdict unless there is a case of ". . . manifest necessity for such an act, or the ends of public justice would otherwise be defeated."United States v. Perez, 22 U.S. (9 Wheat.) 579(1824).The most common reason for discharge of a jury prior to verdict is that the jury is unable to reach a verdict.Under these circumstances, there is no bar to a subsequent trial of the defendant for the same offense.Id.The United States Supreme Court has long recognized the discretion of a trial judge to declare a mistrial and to permit the retrial of the defendant when the ends of justice would be best served by such action.Further, the court has ". . . consistently declined to scrutinize with sharp surveillance the exercise of that discretion."Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901(1960).The granting of mistrial upon defendant's own motion never acts as a bar to further prosecution.This is true even if the defendant's motion for mistrial is necessitated by error of the prosecutor or of the court.United States v. Dinitz, 424 U.S. 600, 606-608, 96 S.Ct. 1075, 1078-80, 47 L.Ed.2d 267(1976).

Although the decision whether to grant a mistrial is the decision of the trial judge, and he alone determines what facts would authorize the granting of a mistrial, Stocks v. State, 91 Ga. 831, 839, 18 S.E. 847(1893), the discretion of the trial judge is not unbridled."(T)he strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused."Arizona v. Washington, 434 U.S. 497, 508, 98 S.Ct. 824, 832, 54 L.Ed.2d 717(1978).Where the prosecutor begins his case without sufficient evidence to convict and the court grants a mistrial over defendant's objection, defendant's plea of former jeopardy should be sustained should the state attempt to call the case again.Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100(1962).In cases in which there is no manifest necessity for aborting a trial rather than using other less drastic remedies to cure problems, in the absence of defendant's motion for a mistrial, the granting of a mistrial is an abuse of discretion.United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543(1971).

The rule that only "manifest necessity" justifies a mistrial in the absence of defendant's motion for mistrial indicates that a consideration of alternative remedies is highly important.We find that the trial court here carefully considered alternative remedies.Code Ann. § 27-1403 provides: "Without the consent of the defendant, no witness shall be permitted to testify for the State whose name does not appear upon a list of witnesses as furnished to the defendant unless the solicitor or prosecuting attorney shall state in his place that the evidence sought to be presented is newly-discovered evidence which the State was not aware of at the time of its furnishing the defendant with a list of the witnesses."This language has been interpreted as authorizing ". . . the sanction of exclusion of the witnesses' testimony but same is not mandatory where the trial judge in his discretion determines that the defendant can be protected by some other form of relief."Davis v. State, 135 Ga.App. 203, 207, 217 S.E.2d 343(1975).Noncompliance by the state with the provisions of Code Ann. § 27-1403 does not entitle defendant to a directed verdict of acquittal.Rather,...