Jones v. State
Citation | 398 So.2d 1312 |
Decision Date | 27 May 1981 |
Docket Number | No. 52536,52536 |
Parties | Howard JONES v. STATE of Mississippi. |
Court | United States State Supreme Court of Mississippi |
Tom Tullos, Bay Springs, for appellant.
Bill Allain, Atty. Gen., Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
The appellant Howard G. Jones was convicted by the Circuit Court of Jasper County of aggravated assault in the shooting of Mrs. Doris Hutto with a .22 calibre pistol, and sentenced to serve a term of 15 years. He was indicted by the grand jury of that county March 7, 1979, and his first trial began September 7, 1979.
During the course of the first trial several law enforcement officers, prefatory to offering into evidence a taped recording of Jones's confession, testified before the court as well as the jury that allMiranda warnings had been given.
When the tape was played before the jury, however, the first words heard were a request by the defendant for a lawyer.
Defense counsel promptly objected, and the court declared a recess. Out of the presence of the jury it was revealed the officers had two taped recordings of statements made by the defendant. The first was played to the jury by the state, the prosecution apparently being totally unaware of the content of the first statement before it was actually played to the jury. The court directed both tapes be played in chambers. Discomfited, the state's attorney then told the court the state could not proceed with the case before that jury.
The court called the jury back into the courtroom, and announced the court was excluding the confession.
The state then announced it was not able to proceed "with this particular trial and the state moves for a mistrial."
The court thereupon announced: "The mistrial will be granted," and dismissed the jury.
Prior to the second trial, the defendant made a motion to dismiss because of the double jeopardy proscription of the Fifth Amendment of the United States Constitution. Nevertheless, another trial was held March 6, 1980, at which time the defendant was convicted.
The critical issues raised by this appeal are first, whether or not the prohibition against double jeopardy had attached when the state made its motion for a mistrial, and secondly, did the court abuse its discretion in granting a mistrial, thereby giving the defendant immunity from further prosecution. We are compelled to answer both propositions in the affirmative. Mandated by decisions of the United States Supreme Court, the rule in this state beginning with this case is that double jeopardy attaches in any criminal proceeding at the moment the trial jury is selected and sworn to try the case. Because of the guarantee against double jeopardy granted to all citizens by the Fifth Amendment to the United States Constitution no retrial for the same offense will be permitted in any criminal case in which the first trial, following the swearing and impaneling of the jury, was aborted prior to conclusion, unless exceptional circumstances existed in the first case, and there was a manifest necessity for the trial judge to declare a mistrial.
In the halcyon days of prosecution of criminal cases in Mississippi, the rule in all our state courts was double jeopardy prohibition did not attach until there had been a verdict by the jury or judgment of the court. In Lovern v. State, 140 Miss. 635, 105 So. 759 (1925), this Court held:
This rule was followed in the cases of State v. Pace, 210 Miss. 448, 49 So.2d 710 (1951) and Bounds v. State, 271 So.2d 435 (Miss.1973).
The federal courts, however, have consistently applied a different rule. In United States v. Perez, 22 U.S. 579, 9 Wheat 579, 6 L.Ed. 165 (1824), in the first trial a mistrial was declared because of a hung jury. Upon retrial, the defendant pleaded double jeopardy. This claim was rejected by the United States Supreme Court, but with the following cautionary language:
1
In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the defendant's indictment charged arson in the first count and murder in the first degree in the second count. As to the second count, on the trial, the trial judge instructed the jury on both first and second degree murder. The jury returned a verdict finding the defendant guilty of arson under the first count and of second degree murder under the second count. Upon the defendant's appeal from his conviction of second degree murder, the Court of Appeals reversed that conviction. On remand the defendant was tried again for first degree murder under the original indictment, and at the outset of the second trial he raised the defense of former jeopardy, which was overruled. He was found guilty of first degree murder and sentenced to death. This conviction was affirmed by the nine judges sitting en banc in the Court of Appeals, but the case was reversed by the United States Supreme Court. The United States Supreme Court held that the defendant could not be tried again for first degree murder. The Court used the following language:
In the case of Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) during a criminal prosecution in the United States District Court for the Western District of Texas, after the jury had been selected and sworn, and instructed to return that afternoon, the prosecution asked that the jury be discharged because its key witness had not yet been found. Over the objection of the defendant, the court discharged the jury, and two days later empaneled a second jury, which found the accused guilty. The United States Supreme Court held this to be impermissible, that the government should not be permitted to try the defendant a second time under the circumstances of this case. Again, the language of the court is very instructive:
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Beckwith v. State, 91-IA-1207
...proceedings against him. A double jeopardy right "attaches" when the jury is sworn and empanelled to hear the case. Jones v. State, 398 So.2d 1312, 1314 (Miss.1981). In order for his double jeopardy right not to be re-prosecuted for the same offense to accrue, however, the original jeopardy......
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...To find error from a trial judge's failure to declare a mistrial, there must have been an abuse of discretion. Jones v. State, 398 So.2d 1312, 1318 (Miss.1981); Schwarzauer v. State, 339 So.2d 980, 982 ¶ 115. Trial judges in this state are further guided by Uniform Criminal Rules of Circuit......
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