Phillips v. State, 32058

• Decision Date: 20 April 1977
• Docket Number: No. 32058,32058
• Citation: 235 S.E.2d 12,238 Ga. 632
• Parties: Bobby PHILLIPS v. The STATE.
• Court: Georgia Supreme Court

Page 12

235 S.E.2d 12

238 Ga. 632

Bobby PHILLIPS v. The STATE.

No. 32058.

Supreme Court of Georgia.

April 20, 1977.

Merritt & Pruitt, Luman C. Earle, Buford, for appellant.

Clete D. Johnson, Dist. Atty., Royston, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

Bobby Phillips was a co-defendant in a trial with Jerry Painter and Dennis "Hog" Dale in Franklin Superior Court for armed robbery, motor vehicle theft, and aggravated assault. Painter and Dale were convicted but a mistrial resulted for appellant. At his second trial the jury found him guilty and a total sentence of 37 years was imposed. Appellant cites 10 enumerations of error for our consideration in this appeal.

The facts underlying the crimes involved here are set out in Painter v. State, 237 Ga. 30, 226 S.E.2d 578 (1976). The state contended that appellant was directly involved in the planning and execution of the crimes and was the driver of the get-away car which left the scene of the crimes during their commission. At the first trial the state introduced the testimony of one Roy Martin to the effect that appellant had planned the crimes with Painter and Dale. In the second trial the state introduced as additional evidence the testimony of Painter's wife who testified that appellant was directly involved with the crimes.

Appellant first cites as error two rulings by the trial court in his first trial: denial of a motion for a directed verdict of acquittal; and, denial of a motion for a judgment of acquittal notwithstanding the mistrial. The gravamen of these motions was that, as a matter of law, the circumstantial evidence consisting of the testimony of Roy Martin was insufficient to support a conviction because it was uncorroborated. We disagree. A directed verdict of acquittal is required only "where there is no conflict in the evidence." Code Ann. § 27-1802 (Rev.1972). Martin's testimony was sufficient under Code Ann. §§ 26-801 and 802 (Rev.1972), to present a jury issue. This enumeration of error is without merit.

Appellant also claims it was error for the trial court to refuse to direct a verdict of acquittal in the second trial. His ground for this assertion is that the evidence presented by the state did not exclude every other reasonable hypothesis save that of guilt. However, the testimony of Roy Martin and Mrs. Painter provided a sufficient basis to deny the appellant's motion. Cf. Cunningham v. State, 235 Ga. 126, 218 S.E.2d 854 (1975). This enumeration of error is also without merit.

It is also urged in this appeal that the trial court erred in declaring a mistrial, over defense objection, at the first trial and, therefore, the trial court erroneously overruled his plea of former jeopardy at the second trial. We find no merit in this argument. A retrial after a mistrial caused by the failure of the jury to reach a verdict does not constitute double jeopardy under the doctrine of "manifest necessity" as enunciated in United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824). And see Orvis v. State, 237 Ga. 6, 8, 226 S.E.2d 570 (1976); and, Code Ann. § 26-507(e)(2)(c) (Rev.1972). Of course, the basic question posed by appellant is whether the circumstances under which the trial court declared the mistrial constituted manifest necessity. Specifically, appellant argues that the declaration of a mistrial was error because the jury had deliberated only two hours and fifteen minutes.

The record in the first trial indicates that the jury began its deliberations at 4:00 P.M. At 6:15 P.M. verdicts of guilty were returned against appellant's co-defendants. The colloquy between the trial judge and the jury foreman indicated that the jury was deadlocked as to the appellant:

"The Court: Mr. Foreman, has the jury reached unanimous verdicts in these cases?

"The Foreman: On two of the defendants and we are hung up on one.

"The Court: Do you feel that you are helplessly deadlocked as to the one?

"The Foreman: We have just completed discussing and voting on it and everybody has stated that their vote is final, and I honestly think they are."

Subsequent questioning of the jury by the trial judge revealed that the jury was deadlocked ten to two. At this point the trial judge was between Scylla and Charybdis: should he declare a mistrial or attempt to force a verdict? Under the circumstances of this case, considering the unequivocal answer of the jury foreman, we do not think the mistrial was erroneously declared. The decisive factor is not the length of deliberation but the inability of the jury to agree on a verdict. Cf. Harwell v. State, 230 Ga. 480, 481(2), 197 S.E.2d 708 (1973); Lovett v. State, 80 Ga. 255, 256(1), 4 S.E. 912 (1877). We find no error.

In another enumeration appellant complains that it was error for the trial court to admit testimony concerning his conversation with a Georgia Bureau of Investigation agent after his arrest. The contention is that the admission of this testimony violated appellant's constitutional right to remain silent and that cross examination on this testimony violated the prohibitions of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We do not agree.

The testimony of the police officers in both trials indicates that prior to his questioning appellant was given Miranda warnings. After he was informed of his rights verbally, appellant was given a printed waiver form which enumerated all of his rights with particularity and contained an explicit waiver of those rights....