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

Page 1312

398 So.2d 1312

Howard JONES v. STATE of Mississippi.

No. 52536.

Supreme Court of Mississippi.

May 27, 1981.

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.

HAWKINS, Justice, for the Court:

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:

"In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial 'on the merits' of the crime for which he is again sought to be convicted. Mississippi Constitution § 22."

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:

"We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should by extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office." 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:

"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, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

"Moreover, it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again... This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where 'unforeseeable circumstances... arise during (the first) trial making its completion impossible, such as the failure of a jury to agree on a verdict.' "

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:

"... it has been agreed that there are occasions when a second trial may be had although the jury impaneled for the first trial was discharged without reaching a verdict and without the defendant's consent. The classic example is a mistrial because the jury is unable to agree... Discovery by the judge during a trial that a member or members of the jury were biased pro or con one side has been held to warrant discharge of the jury and direction of a new trial... At times the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest when there is an imperious necessity to do so... Differences have arisen as to the application of the principle... Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches... But those extreme cases do not mark the limits of the guarantee. The discretion to discharge the jury before it has reached a verdict is to be exercised 'only in very extraordinary and striking circumstances ' to use the words of Mr. Justice Story in United States v. Coolidge (CC Mass.) 2 Gall. 364 (25) F.Cas.No. 14858. For the prohibition of the Double Jeopardy Clause is 'not against being twice punished; but against being twice put in jeopardy.' "

" 'The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were...