McGraw v. State

• Decision Date: 13 February 1997
• Docket Number: No. 93-CT-01431-SCT,93-CT-01431-SCT
• Citation: 688 So.2d 764
• Parties: Muldrow Mann McGRAW, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 764

688 So.2d 764

Muldrow Mann McGRAW, Jr. v. STATE of Mississippi.

No. 93-CT-01431-SCT.

Supreme Court of Mississippi.

Feb. 13, 1997.

Thomas E. Royals, Cynthia A. Stewart, Thomas E. Royals & Associates, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Jolene M. Lowry, Special Asst. Atty. Gen., for appellee.

En Banc.

ON PETITION FOR WRIT OF CERTIORARI

BANKS, Justice, for the Court:

We granted certiorari in this case in order to clarify the law regarding judgments notwithstanding the verdict in criminal cases. We are required to consider the temporal limits for motions requesting that relief and the effect of granting that relief from the standpoint of the Double Jeopardy Clauses of the Constitutions of the United States and the State of Mississippi. Our conclusions are that: (1) prior decisions of this Court have established that a judgment notwithstanding the verdict is available to the defendant in criminal cases where there is a guilty verdict or the failure to reach a verdict; (2) a motion for such a judgment must be made within the time allowed for motions for new trial; (3) relief granted on motions made outside of the allowable time period, where the jury was unable to reach a verdict, will be deemed pretrial motions for double jeopardy purposes subject to correction by the trial court or by this Court. Applying these conclusions to the case at bar we affirm the judgment of the trial court finding McGraw guilty as charged.

I.

McGraw was originally indicted by the grand jury of the Washington County Circuit Court on November 20, 1992, for aggravated assault, and the cause was tried initially before Circuit Judge Gray Evans on August 5th and 6th, 1993. McGraw asked for a directed verdict at the close of the State's case and the court ruled against the motion. After deliberation, the jury returned and advised the trial court that they were unable to reach a verdict. Thereafter, Judge Evans declared a mistrial which was evidenced by his filing an order of mistrial on August 6, 1993.

On September 15th, 1993, almost five weeks post-trial, McGraw submitted a Motion to Reconsider Motion for Directed Verdict. That motion was sustained and an Order of Dismissal was signed by Judge Evans on November 1, 1993, almost two months post-trial and two court terms following the entry of the order of mistrial.

The following day, November 2, the State filed a motion to reconsider the grant of the directed verdict, and Judge Evans, that same day, November 2, ordered that the November 1 dismissal be set aside and "held for naught." Thereafter, the case was set for trial on November 22, 1993. Judge Evans denied McGraw's motion for j.n.o.v. on November 17, 1993. McGraw was retried on November 23, 1993, resulting in a conviction for aggravated assault and a twenty year sentence.

McGraw filed an appeal urging that the retrial which resulted in his conviction violated jeopardy provisions of the state and federal constitutions and the Court of Appeals, upheld McGraw's conviction. This Court granted certiorari.

II.

McGraw and Rosalie Drago lived together in a mobile home for about six and one-half years. According to the testimony of McGraw, on the morning of October 24, 1992, Drago had an epileptic seizure during which she possibly hit her head. Her co-worker, Lynn Nichols, testified that when Drago arrived at work that day "she was fine; in a good mood ... ready to go to work," and that she worked a full shift.

When Drago arrived home that evening and saw that McGraw was still drinking beer, as he had been doing throughout the day, she became angry at him. When Drago went to bed, she awoke McGraw, and he attempted to kiss her. According to the testimony of McGraw, she became angry and clawed McGraw's face with her fingernails. She then allegedly began "punching and swinging and clawing and hitting" at him. McGraw then "slapped" her twice, and the second time caused Drago to fall from the bed and allegedly hit her head on a door facing. While Drago lay on the floor, McGraw then kicked her. She raised herself from the floor and returned to the bed. McGraw went into their living room and fell asleep in his recliner.

At approximately 3:00 a.m. and again at 5:30 a.m., McGraw tried to awaken Drago. When Drago did not respond for the second time, McGraw became worried and went to James Watson's mobile home in order to get help. A call was made for emergency help.

Lamar Gardner and Marilyn Lance-Flora, two of the emergency personnel, testified at trial that McGraw told them that he had struck Drago with his fist. Drago was taken to the hospital where she was treated by Dr. Andre Solomon, a neurosurgeon. Dr. Solomon testified that in his expert opinion Drago "was severely injured." Dr. Solomon also testified that Drago suffered severe injury to her brain stem, and a large blood clot had formed on the right side of her brain which caused swelling of the brain around the clot.

Dr. Solomon further testified that it would not have been possible for Drago to have reported to work on October 24, 1992, if she had suffered those injuries as a result of the alleged seizure that morning. Rosalie Drago remained in a coma for several months after the incidents which occurred on October 24 and 25, 1992. She later died from complications of the brain damage she sustained. On November 20, 1992, McGraw was indicted for aggravated assault.

III.

McGraw argues that his second trial, following an interim order of dismissal, placed him in double jeopardy. To summarize, McGraw argues that pursuant to Mississippi case law, and decisions of the United States Supreme Court, when a court dismisses criminal charges against a defendant on the merits, even if by mistake, the dismissal amounts to an acquittal and the defendant may not again be put to trial, he cites, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Reed v. State, 506 So.2d 277 (Miss.1987); Estes v. State, 502 So.2d 1184 (Miss.1987).

McGraw argues that when the trial court entered the Order of Dismissal on November 1, 1993, the trial ended with his acquittal, and his double jeopardy rights precluded a subsequent retrial for aggravated assault. Double jeopardy serves to protect a defendant from being twice prosecuted for the same offense. A defendant's double jeopardy right not to be re-prosecuted for the same offense accrues instantly upon the happening of some event in criminal proceedings against him. There are only three possible jeopardy terminating events: (1) an acquittal; (2) a trial court determination of insufficiency leading to a directed verdict of acquittal; and (3) an unreversed determination on direct appeal that there was insufficient evidence to support the conviction. Vanderbilt v. Collins, 994 F.2d 189, 195 (5th A double jeopardy right "attaches" when the jury is sworn and empaneled 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 must be "terminated." Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).

Cir.1993), citing Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981) (trial court determination of insufficiency); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (unreversed determination on direct appeal of insufficiency).

It is settled law that a court-directed verdict to the jury to find the defendant not guilty has the same effect as a jury deliberated verdict of not guilty. See e.g., State v. Russell, 358 So.2d 409, 412-13 (Miss.1978); Agregaard v. Duncan, 252 Miss. 454, 457, 173 So.2d 416, 417 (1965); State v. Thornhill, 251 Miss. 718, 726, 171 So.2d 308, 312 (1965).

"Defendants may be repeatedly retried, however, following mistrial granted because the jury was deadlocked and could not reach a unanimous verdict. (Citations omitted.)" Beckwith v. State, 615 So.2d 1134, 1147 (Miss.1992).

The Court of Appeals reasoned that "the issue which must first be determined before addressing any argument that McGraw's double jeopardy rights were violated, is whether the trial court had the authority in the first place to grant a "Motion to Reconsider Motion for Directed Verdict" after an "Order of Mistrial" had been entered in the case." The Court of Appeals held that, "this Court concludes that the trial judge was without authority to entertain and rule on any motion made subsequent to the order granting a mistrial."

The Court of Appeals based their conclusion and affirmance of the lower court's conviction on 75 Am.Jur.2d Trials § 907 (1972), citing Grooms v. Zander, 246 S.C. 512, 144 S.E.2d 909 (1965), which held, "[the] circuit court lacked jurisdiction to enter order undertaking to direct a verdict for defendant and dismiss action following declaration of mistrial and discharge of jury because of failure to agree on verdict." According to that court, "[t]he motion for a directed verdict could not be granted after the termination of the trial for the obvious reason that there was no jury to which an instruction for the defendant could have been given." Grooms, 144 S.E.2d at 910.

The Court of Appeals concluded and held:

Here, the mistake was that the trial judge granted an "Order of Dismissal" that he was without authority to enter based on the fact that he had previously granted a mistrial in the case. The first trial of McGraw for aggravated assault and any motions made before, during, or after that trial were all null and void. For this reason, the "Order of Dismissal" granted on November 1, 1993, was a nullity. It is as if it was not granted and has no effect. There can be no double jeopardy concerns where no directed verdict of acquittal has been granted.

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