Jones v. State, 28759

• Decision Date: 28 May 1974
• Docket Number: No. 28759,28759
• Citation: 206 S.E.2d 481,232 Ga. 324
• Parties: Gary L. JONES v. The STATE.
• Court: Georgia Supreme Court

Page 481

206 S.E.2d 481

232 Ga. 324

Gary L. JONES v. The STATE.

No. 28759.

Supreme Court of Georgia.

May 28, 1974.

Nicholson, Fleming & Blanchard, John Fleming, B. H. Barton, Augusta, for appellant.

Richard E. Allen, Dist. Atty., Augusta, Arthur K. Bolton, Atty. Gen., Thomas P. Burke, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Justice.

This criminal appeal is solely concerned with the constitutional protection against double jeopardy, and presents the question whether Jones was properly tried by a second jury for the offenses charged, following an earlier trial at which the court declared a mistrial over his objections after a jury had been impaneled and sworn but prior to the introduction of any evidence.

Jones was indicted for rape, aggravated assault, and two counts of armed robbery; he pled not guilty; on May 16, 1973, his case was called for trial. Following voir dire, twelve jurors were impaneled and sworn, and the court recessed for lunch. When court reconvened following the recess, prior to the introduction of any evidence the district attorney asked that the jury retire and the courtroom be cleared except for the prosecuting witness and her husband. He then informed the court that it had come to his attention that one juror sworn, (hereinafter referred to as 'Mr. B.'), was a man with whom the prosecuting witness and her husband had had unfriendly contact concerning matters related to the prosecution of Jones. He summarized the facts of that encounter, and asked for the defense attorney's agreement to proceed with a jury of eleven persons. The defense attorney refused. The district attorney then moved for a mistrial on grounds that on voir dire Mr. B. had made a false answer in denying any acquaintance with the prosecuting witness or her family and that the state could not receive a fair trial with him on the jury.

The transcript of the voir dire shows that the panel as a whole, including Mr. B., were asked 'is there any one here acquainted with either of those ladies or any members of their family,' identifying the prosecuting witness and another witness. The transcript notes that there was no response. On individual voir dire, Mr. B. was asked four questions, including 'Do you know anything about this case?' The transcript reflects for all four answers 'Reply inaudible.'

In support of the mistrial motion the district attorney introduced testimony of the prosecuting witness' husband who testified that he and his wife had gone together to the B. home 'and told Mr. B. and Mrs. B. the fact that on the (school) bus that day his son had made insulting remarks to my daughter in front of other students and these remarks were to the effect that he heard that she and her mother had been raped and that-as to when they were to get an abortion. I asked Mr. B. to-if he could stop his son from making these remarks and that I thought he should know about what had occurred and that he should take some action to prevent it. The next morning-Mrs. B. asked whether it did occur and my wife remarked that that wasn't the point, that the point was such discussion shouldn't occur- . . . It was not a friendly conversation.' (Name of juror abbreviated by the Court.) After further colloquy, and after the reporter's re-reading of the voir dire transcript, but without questioning Mr. B. further, the trial judge ruled that the termination of the trial was necessary because of Mr. B.'s false statement on voir dire which prevented a fair trial. The mistrial motion was granted.

Jones filed a plea of former jeopardy on May 29, and a hearing was held on the plea when the case was again called for trial on May 30th. The plea was denied. The case, however, was continued at the request of defendant whose material witness, though under subpoena, was absent. The trial was held in September, 1973, and the defendant was convicted of all charges, following the renewal of, and another denial of, his plea of former jeopardy.

Jones appeals on the single point of double jeopardy. We note at the outset that there is no doubt that jeopardy had attached prior to the mistrial. Ferguson v. State, 219 Ga. 33, 35, 131 S.E.2d 538. The question presented is the extent to which the court may enter a mistrial over defendant's objection and retry him at a later date even though jeopardy had attached prior to termination of the first trial. The state grounds its position in Code Ann. § 26-507(e)(2)(d) which allows retrial following a former prosecution for the same offense if the former prosecution was terminated because 'false statements of a juror on voir dire prevent a fair trial.'

The double jeopardy provisions of our State and Federal Constitutions recognize the valued right of a criminally accused, once his jury has been sworn and impaneled and thus jeopardy has attached, to have his trial proceed to acquittal or conviction before that tribunal. E.g., Nolan v. State, 55 Ga. 521. Therefore, the power of the trial judge to interrupt the proceedings on his own or the prosecutor's motion by declaring a mistrial is subject to stringent limitations. The double jeopardy clause operates with respect to a proposed retrial of the defendant by examining the entry of the mistrial under the test of United States v. Perez, 22 U.S. 579, 580, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824):

'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 sicretion 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 cases; and, in capital cases especially, Courts should be 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.'

The Perez requirement for 'manifest necessity' to terminate the trial by mistrial over defendant's objection exists today. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425. The test to be applied by the trial court hearing a double jeopardy plea is that retrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the end of public justice be defeated; the existence of 'manifest necessity' is to be determined by weighing the defendant's right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances. United States v. Kin Ping Cheung, 485 F.2d 689, 690-691 (5th Cir.) and cits. However, there are occasions upon which the defendant's right to have his trial completed by the particular tribunal must be subordinated to the public's interest in securing a just judgment. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974; Whitfield v. Warden, 486 F.2d 1118, 1121 (4th Cir.).

Concerning the action of the trial judge at Jones' trial, the question is presented whether prior to discharging the jury the judge erred in failing to examine the juror himself as to his possible disqualification, and if such disqualification was found, whether the judge should have investigated alternatives less drastic than mistrial in determining the existence of 'manifest necessity.'

On the question whether direct examination of the juror himself was required prior to determining his disqualification, the answer on these facts is no. Considering specifically a situation in which a juror was urged to have become disqualified through having accidentally overheard arguments on motions for acquittal of the defendants, the Fourth Circuit in Whitfield v. Warden, 486 F.2d 1118, supra, wrote:

'The cases in which mistrials have been declared because of suspected juror bias support the conclusion that Whitfield's reliance on Jorn is misplaced. See e.g., Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73 39 L.Ed. 146 (1894); United States v. Chase, 372 F.2d 453 (4th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); United States v. Smith, 390 F.2d 420 (4th Cir. 1968). In each of these cases, after the jury had been impaneled and sworn, the trial judge received information which rendered suspect the ability of one or more of the jurors to reach an impartial verdict. The exercise of the trial judge's discretion in declaring a mistrial was upheld, and reprosecution was permitted over objections based on the double jeopardy clause. Significantly, in each case, after the trial judge had ascertained that a juror had received an improper communication, the reviewing court did not require the judge to determine whether the communication had in fact prejudiced the juror. Discovery of the harmful communication in itself afforded grounds for mistrial. And in the recent case of Smith v. Mississippi, 478 F.2d 88 (5th Cir. 1973), a mistrial was held not to bar reprosecution, even though the juror insisted that an improper conversation with a bailiff would not influence his judgment. It is with these precedential applications of the Perez standard in mind that we examine the ruling of the state trial judge.' Id. 486 F.2d p. 1122.

The Fourth Circuit concluded that questioning the juror was permissible but not necessary....