Orvis v. State

• Decision Date: 08 June 1976
• Docket Number: No. 30816,30816
• Citation: 237 Ga. 6,226 S.E.2d 570
• Parties: Ronald Louis ORVIS v. The STATE.
• Court: Georgia Supreme Court

Page 570

226 S.E.2d 570

237 Ga. 6

Ronald Louis ORVIS v. The STATE.

No. 30816.

Supreme Court of Georgia.

June 8, 1976.

Glaze, Glaze & McNally, Kirby A. Glaze, Jonesboro, for appellant.

William H. Ison, Dist. Atty., J. W. Bradley, Asst. Dist. Atty., Jonesboro, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

HILL, Justice.

Ronald Orvis was tried and convicted of armed robbery in Clayton Superior Court. His appeal raises issues of speedy trial and double jeopardy.

The Clayton Superior Court has four terms a year, commencing on the first Mondays in February, May, August and November. Defendant was arrested in January 1975 and indicted in February for the armed robbery of a convenience store. In the February term of court, the defendant filed a demand for trial. He was brought to trial in July during the May term. A mistrial was declared July 25, 1975, after the jury was unable to reach a verdict. He was tried again the next week and a second mistrial was declared on July 30 for the same reason. Finally, on September 8, 1975, during the August term of court, he was found guilty in a third trial.

1. The defendant urges that he was denied a speedy trial in that he demanded trial during the February term, but that he was not tried during that term nor the next term (May) in violation of Code Ann. § 27-1901 and the Sixth Amendment. The defendant argues that the State did not seek the death penalty and that Code Ann. § 27-1901 is applicable to him as a '. . . person against whom a true bill of indictment is found for an offense not affecting his life' in which event he must be tried at the term when indicted and when the demand is made, or at the next term.

Code Ann. §§ 27-1901.1 and 27-1901.2 concern demands for speedy trial where the offense is a capital one. If the defendant is charged with a capital offense he must be brought to trial during the term of court in which the demand is made or within the next two regular terms. The defendant maintains that since the State was not seeking the death penalty for armed robbery, Code Ann. § 27-1901 was applicable because the offense was one 'not affecting his life.'

The penalty for armed robbery prescribed by the Criminal Code of 1968 is death, imprisonment for life, or imprisonment for not less than one nor more than twenty years. Code Ann. § 26-1902. However, the State did not seek the death penalty here. As noted, Code Ann. § 27-1901 and its two term limitation is applicable to an 'offense not affecting . . . life' and Code Ann. §§ 27-1901.1 and 27-1901.2 and the three term limitation are applicable to a 'capital offense.'

Because a mistrial based on the jury's inability to reach a verdict does not satisfy the speedy trial requirements of our Code, Geiger v. State, 25 Ga. 667 (1858), Rider v. State, 103 Ga.App. 184, 118 S.E.2d 749 (1961), at least where the defendant could have been retried before the expiration of the term, Little v. State, 54 Ga. 24 (1875), it becomes necessary to determine whether the offense of armed robbery for which the death penalty is not sought is a 'capital offense' or an 'offense not affecting . . . life' within the meaning of the cited Code sections.

In Letbedder v. State, 129 Ga.App. 196, 199 S.E.2d 270 (1973), the Court of Appeals had before it a similar inquiry. At that time the death penalty could not be imposed in Georgia by virtue of the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The Court of Appeals held that armed robbery nevertheless was a capital offense and was controlled by Code Ann. §§ 27-1901.1 and 27-1901.2, rather than § 27-1901, even though the death penalty could not be imposed at that time.

Applying Letbedder, supra, we find that the trial court did not err in overruling the defendant's motion to dismiss the indictment made at the August term of court based upon alleged denial of speedy trial. We find no denial of the Sixth Amendment right to speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975); Treadwell v. State, 233 Ga. 468, 211 S.E.2d 760 (1975).

2. The defendant argues that his plea of former jeopardy should have been sustained because he was tried three times for the same offense. The first two trials were declared mistrials because the juries in those trials were unable to agree. He contends that the trial court abused its discretion in declaring the mistrials and that even if there was no abuse, the State by having to resort to a third trial has failed to prove the defendant's guilt beyond a reasonable doubt.

The first retrial after a mistrial caused by the inability of the jury to agree does not constitute double jeopardy where there is manifest necessity for declaring the mistrial. United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902); Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974); Cameron v. Caldwell, 232 Ga. 611, 208 S.E.2d 441 (1974); Wood v. State,234 Ga. 758(1), 218 S.E.2d 47 (1975); Jessen v. State, 234 Ga. 791(1),218 S.E.2d 52 (1975); Code Ann. § 26-507(e)(2)(c).

As was stated by the court in United States v. Castellanos, 349 F.Supp. 720, 723 (E.D.N.Y.1972), rev'd 478 F.2d 749 (2nd Cir. 1973): 'The possibility of a retrial after the discharge of the jury for failure to agree serves to discourage the putting of excessive pressure on juries to agree, and reduces the risk that a verdict will not be a genuine jury decision freely arrived at.' We would add that the possibility of a retrial after the discharge of the jury for failure to agree also serves to prevent a single juror from unreasonably holding out for acquittal, causing a mistrial, and thereby invoking the bar of double jeopardy singlehandedly.

In the case before us, at the first trial the court charged the jury on the morning of the second day of trial. The trial judge checked with them before sending them to lunch to see if they were about to reach a verdict. Upon learning that they were not near agreement, the court sent them to lunch. Sometime later the judge called them in to inquire whether they were making progress. The foreman replied, slow progress. The jury continued to deliberate until late in the afternoon when they returned to hear the testimony of one of the witnesses. They returned to the jury room. Later they announced to the court that they were hopelessly deadlocked. The court asked if any member felt they could reach a verdict. After getting no response, he declared a mistrial.

The second trial was held July 28th, 29th and 30th. The jury began deliberations immediately after lunch on July 29th. They did not reach a verdict that afternoon. After deliberating from 9 a.m. until noon the next day, the court examined the panel and determined that they were hopelessly deadlocked.

We find manifest necessity in each instance for declaring a mistrial.

However, the question presented here is whether a third trial, after two mistrials caused by jury disagreement, constitutes double jeopardy. See United States v. Berniker, 439 F.2d 686 (9th CCA 1971).

In Preston v. Blackledge, 332 F.Supp. 681 (E.D.N.C.1971), the court held that a fifth trial, when juries in the four previous trials were unable to reach verdicts, constituted double jeopardy. In doing so, the court distinguished United States v. Persico, 425 F.2d 1375 (2d Cir. 1970).

In Persico, supra, the codefendant Hugh McIntosh was tried five times. The first trial ended in jury disagreement; the second trial resulted in convictions which were reversed on appeal; the third trial aborted as to Persico when he was shot during the trial but continued as to McIntosh and the jury disagreed; the fourth trial resulted in convictions which were reversed on appeal; the fifth trial resulted in convictions which were affirmed on appeal. As can be seen, McIntosh was convicted following two trials which ended in jury disagreement. The claim that the indictment should have been dismissed because of repeated retrials was rejected. See 425 F.2d p. 1385.

In United States v. Castellanos, supra, the district court held that where two previous trials resulted in deadlocked juries, a third trial was barred on the basis of double jeopardy. The Court of Appeals for the Second Circuit reversed (478 F.2d 749), pointing to defendant McIntosh in the Persico case, supra, and questioning Preston v. Blackledge, supra.

In Hyde v. State, 196 Ga. 475, 26 S.E.2d 744 (1943), this court reached the same result. There the jury found the defendant guilty after two prior trials had ended in mistrials because of hung juries. This court held that the trial judge did not abuse his discretion in declaring the mistrials and that the plea of former jeopardy was properly overruled.

The court below did not err in overruling the plea of former jeopardy.

3. The defendant moved for a directed verdict on the ground that the prosecutor had failed to prove with specificity the allegations of the indictment as to the amount of money taken.

The indictment charged the defendant with taking $84.00 in United States currency. The victim testified that 'between $80 and $100' was taken. As to fatal variance generally, see Dobbs v. State, 235 Ga. 800(3), 221 S.E.2d 576 (1976). As to variance between the amount of money alleged in the indictment and the amount shown by the evidence, see Bell v. State, 227 Ga. 800(1), 183 S.E.2d 357 (1971); Colton v. State, 231 Ga. 502, 202 S.E.2d 444 (1973). We find no error here.

Judgment affirmed.

All the Justices concur, except INGRAM, J., who concurs in the judgment only and GUNTER, J., who dissents.

GUNTER, Justice (dissenting...