People v. Ferguson

• Citation: 115 A.D.2d 215,496 N.Y.S.2d 178
• Parties: PEOPLE of the State of New York, Respondent, v. Edward FERGUSON, Appellant.
• Decision Date: 15 November 1985
• Court: New York Supreme Court — Appellate Division

Page 178

496 N.Y.S.2d 178

115 A.D.2d 215

PEOPLE of the State of New York, Respondent, v. Edward FERGUSON, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 15, 1985.

John J. Olszewski, Buffalo, for appellant.

Richard J. Arcara, Erie County Hall by Louis Haremski, Buffalo, for respondent.

Before HANCOCK, J.P., and CALLAHAN, DENMAN, O'DONNELL and SCHNEPP, JJ.

MEMORANDUM:

Defendant appeals from a judgment of conviction of second degree murder and primarily argues that the trial court's declaration of a mistrial during his first trial precluded his retrial for the same offense. From the sparse record it appears that during his first trial information was received by the Trial Judge that a trial juror had been injured in an automobile accident on the evening of the fourth day of trial and was in the hospital receiving treatment for his injuries. This was confirmed by unidentified hospital emergency room personnel who further advised that the juror was not available to speak on the phone. The Trial Judge announced to counsel in chambers that she was considering a mistrial since no alternate juror remained available. Following this conference in chambers, the Trial Judge, in open court and in the presence of the jury and counsel, informed the remaining jurors of the inability of the injured juror to continue the trial and sua sponte declared a mistrial. Defense counsel waived the presence of the defendant, but did not respond to the Trial Judge's inquiry as to whether the proposed action in declaring a mistrial was "agreeable" and otherwise remained silent.

The record gives no indication that the trial court considered the possibility of an adjournment to gather definite information concerning the injured juror's condition before ordering a mistrial. "Since the court did not consider, or have before it the facts necessary for thorough consideration of, an obvious alternative to a mistrial, we cannot say that there was a 'manifest necessity' to terminate the trial" (United States v. Smith, 9th Cir., 621 F.2d 350, 351, cert. denied 449 U.S. 1087, 101 S.Ct. 877, 66 L.Ed.2d 813; see Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 200, 464 N.Y.S.2d 418, 451 N.E.2d 176; Matter of Wilson v. Chesworth, 96 A.D.2d 742, 465 N.Y.S.2d 331). However, despite the absence of a "manifest necessity" a defendant cannot plead double jeopardy where the jury before which he was first on trial was discharged with his consent, which "need not be express, but may be implied from the totality of circumstances attendant on a declaration of mistrial" (United States v. Goldstein, 2nd Cir., 479 F.2d 1061, 1067, cert. denied 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113; see United States v. Smith, supra; People v. Lawton, 127 Misc.2d 800, 487 N.Y.S.2d 273).

Defense counsel did not object to the proposed mistrial nor suggest any alternative course of action and had twice previously during the course of the trial requested a mistrial based on other grounds (see Matter of Harris v. Justices of Supreme Ct., Kings County, 44 N.Y.2d 874, 407 N.Y.S.2d 478, 378 N.E.2d 1048; see also, United States v. Grasso, 2nd Cir., 552 F.2d 46, 55-57 [Timbers, C.J., dissenting]; vacated 438 U.S. 901, 98 S.Ct. 3117, 57 L.Ed.2d 1144, on remand, 2nd Cir., 600 F.2d 342, appeal after remand, 2nd Cir., 629 F.2d 805). Moreover, in an affidavit in support of the motion to dismiss the indictment on double jeopardy grounds, counsel admitted that "while in Chambers [he] did state that the Judge must do what she feels must be done". This statement, which defense counsel sought to minimize as "not an unqualified consent to a mistrial" (emphasis added), plainly could have led the Trial Judge to believe that a mistrial was the desirable course to follow (see Riley v. Commonwealth, 190 Ky. 204, 206, 227 S.W. 146, [holding that defense counsel's statement that the court should "take whatever course he thought was proper" was clearly indicative of an implied consent to discharging a juror] ). In our view, it is clear from the totality of the circumstances that defense counsel impliedly consented to the mistrial.

Defendant was not present either in chambers during discussion of the possibility of a mistrial or in the courtroom when the court announced its decision to abort the trial. Although a defendant has a constitutional and statutory right to be present during the trial of an indictment (U.S. Const., 14th amend., § 1; N.Y. Const, art I, § 6; CPL 260.20), his presence is not constitutionally required while counsel and the court discuss the advisability of declaring a mistrial (see People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 246 N.Y.S.2d 399, 196 N.E.2d 56, mod. 13 N.Y.2d 1178, 248 N.Y.S.2d 57, 197 N.E.2d 543, cert. denied 376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976), nor is defendant's personal consent to a mistrial required to eliminate any double jeopardy bar to retrial (see United States v. Dinitz, 424 U.S. 600, 609 n. 11, 96 S.Ct. 1075, 1080 n. 11, 47 L.Ed.2d 267 [standard of knowing, intelligent and voluntary waiver does not apply in double jeopardy cases based on mistrials] ). Consequently, it is clear that the express or implied consent of defense counsel is binding on the defendant (see Adkins v. Bordenkircher, 4th Cir., 674 F.2d 279, 283, cert. denied 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104; United States v. Smith, 9th Cir., 621 F.2d 350, 352 n. 3, supra; United States v. Bobo, 5th Cir., 586 F.2d 355, cert. denied 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795). Because defendant, through his counsel, consented to the mistrial the Constitution did not bar his retrial. We have considered the other issues raised by the defendant and find them to be without merit.

Judgment affirmed.

All concur except DENMAN and O'DONNELL, JJ. who dissent and vote to reverse the judgment and dismiss the indictment in the following Memorandum:

We agree with the majority that the circumstances herein did not present a case of "manifest necessity" for declaration of a mistrial. If the court had made further inquiry or explored alternative remedies, it may well have been possible to continue with the trial after a brief adjournment. Indeed, since defense counsel's subsequent investigation revealed that the missing juror was in fact released from the emergency room later that day with relatively minor injuries and may well have been available within a day or two if a continuance had been granted, there was clearly no "manifest necessity" for declaring a mistrial. Thus, the prohibition against double jeopardy precludes retrial unless it can be established that the mistrial was declared with the express or implied consent of defendant (see United States v. Dinitz, 424 U.S. 600, 607-608, 96 S.Ct. 1075, 1079-1080, 47 L.Ed.2d 267; United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543; Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 200, 464 N.Y.S.2d 418, 451 N.E.2d 176; People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134). It is the latter point on which we depart from the view of the majority.

The majority finds that the "totality of the circumstances" indicates that defense counsel impliedly consented to the mistrial. That conclusion is based on three factors: defense counsel's statement in chambers that "the judge must do what she feels must be done"; the fact that the defense had moved twice previously for a mistrial on other grounds; and defense counsel's purported waiver of defendant's presence and his right not to be placed twice in jeopardy. We adopt a different analysis with respect to each of those factors.

The majority concludes that defense counsel's failure to object to the declaration of a mistrial and his statement in chambers after being informed of the judge's intention to declare a mistrial that "the judge must do what she feels must be done" constitutes an implied consent. First, we note that no record was made of the discussion in chambers so that the remark appears only as the recollection of defense counsel in an affidavit submitted two months later on a motion to dismiss the indictment on double jeopardy grounds. Secondly, the remark is clearly neutral, a statement of resignation, not acquiescence. Although concededly there is a lack of uniformity of opinion in this nebulous area, the weight of authority supports the view that, when the defense has done nothing to precipitate the events leading to the mistrial, such innocuous remarks and conduct do not constitute consent (see generally Ann. 63 A.L.R.2d 782, 790-795, "What constitutes accused's consent to court's discharge of jury or to grant of state's motion for a mistrial which will constitute waiver of former jeopardy plea").

In the context of this trial, we consider the fact that defense counsel had moved twice previously for a mistrial on other grounds totally irrelevant to a determination of whether he consented to the declaration of mistrial at this stage of the proceedings. The two previous motions had been addressed to the composition of the jury and to remarks by the prosecutor during his opening statement. Those early objections do not diminish the possibility that, after four days of proof, the trial may have been progressing to defendant's advantage, thus entitling him to the protection of his "valued right to have his trial completed by a particular tribunal" (Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974...