State ex rel. Charles v. Bellingham Municipal Court, 7464-4-I
| Decision Date | 12 May 1980 |
| Docket Number | No. 7464-4-I,7464-4-I |
| Citation | 26 Wn.App. 144,612 P.2d 427 |
| Parties | The STATE of Washington ex rel. Becky Ellen CHARLES, Appellant, v. BELLINGHAM MUNICIPAL COURT, Respondent. |
| Court | Washington Court of Appeals |
M. Kathryn Lee, Asst. City Atty., Bellingham, for respondent.
The defendant, Becky Ellen Charles, was tried on December 5, 1978 in Bellingham Municipal Court on charges of negligent driving and hit-and-run of an occupied vehicle. A jury found her not guilty of the negligent driving charge, but did not reach a verdict on the hit-and-run charge. When the City refiled the hit-and-run charge, the defendant moved to dismiss the charge on the grounds of double jeopardy. The Municipal Court denied defendant's motion, and she petitioned the Superior Court for a writ of prohibition to enjoin the City from re-trying her on the second offense. She appeals from the dismissal of her petition.
Without a verbatim report of proceedings, the Superior Court was limited, as are we, to reviewing the following findings and conclusions entered by the Municipal Court:
FINDINGS OF FACT
1. The jury returned a verdict of "not guilty" to the charge of negligent driving and indicated they were unable to agree on the charge of hit and run.
2. Jury deliberations loasted (sic ) one to one and a half hours.
3. Normal time for jury deliberations in Municipal Court is 45 minutes.
4. The jury deliberations continued until well after 5:00 p. m. in the afternoon.
5. The length of trial was approximately 4 hours.
6. No questions were asked of the jury by the judge except for the request for their verdict.
1. The lenth (sic ) of time the jury deliberated was sufficient to allow them to fully consider the evidence and the issues presented.
2. No due process violation occurred in releasing the jury without requiring them to deliberate further with respect to the hit and run charge.
3. The release of the jury was based on the exercise of judicial discretion and the conclusion that they would not reach a verdict even if further deliberations were required.
4. There is no violation of double jeopardy in allowing Ms. Charles to be re-tried for the offense of hit and run.
In addition to the findings and conclusions, the Superior Court had before it an affidavit of defense counsel that incorporated his letter to the assistant city attorney written shortly after the events in question, reciting what occurred in the municipal courtroom. This recitation, which is part of the record on appeal, has been unchallenged by the City. Defense counsel's letter stated that the jury deliberated from about 4 p. m. to about 5:15 p. m., then returned to the courtroom where the following occurred:
In any event, in response to the Judge's question about whether a verdict had been reached, the jury foreman rose and said "yes Your Honor, we find the defendant", . . . and then I recall that the foreman said "we are unable to reach a verdict with respect to the 'two other forms' ". The two other forms relate to the other charge at issue which is the hit and run occupied.
After this had happened, I stood up and asked the Court to poll the jury which I, after saying this, amended to say, ask questions of the jury. As this was happening, Judge Moynihan excused the jury saying something to the effect "you may leave" and they began to proceed to file out and as I was simultaneously asking the Court to make inquiries of the jury, Judge Moynihan said to me that "you can ask them (the jury) outside".
The parties do not dispute that during deliberations, there was no communication between the court and the jury, nor any indication that the jury was having difficulty in reaching a verdict. Defense counsel's affidavit claims that the municipal judge did not expressly declare a mistrial, and that defendant did not consent in any way to the jury's release. The record does not reflect that any motion for mistrial was made by either party, nor that the term mistrial was ever used in the Municipal Court proceedings.
We are asked to determine if the Superior Court erred in finding that the Municipal Court did not abuse its discretion in discharging the jury under the circumstances.
Our concern is that a precipitous discharge of a jury could result in a defendant being placed twice in jeopardy for the same offense, contrary to well-established principles. Const. art. 1, § 9; U.S.Const. Amend. 5; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Eldridge, 17 Wn.App. 270, 562 P.2d 276 (1977), review denied, 89 Wash.2d 1017 (1978). However, the United States Supreme Court has long recognized that a court may discharge a genuinely deadlocked jury and require a criminal defendant to submit to a second trial, when "taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). 1
Our own courts have adopted the "manifest necessity" rule above with insignificant variation. See, e. g., State v. Connors, 59 Wash.2d 879, 371 P.2d 541 (1962); accord, State v. Eldridge, supra ; State v. Bishop, 6 Wash.App. 146, 491 P.2d 1359 (1971), review denied, 80 Wash.2d 1006 (1972). Our Supreme Court has explained:
(W)here, . . . a jury has been impaneled and sworn to try the cause, the defendant has the right to have his case determined by that jury; and a discharge of that jury without his consent, has the same e ffect as an acquittal, unless such discharge was necessary in the interest of the proper administration of public justice.
State v. Conners, supra, 59 Wash.2d at 883, 371 P.2d at 544.
The relevant statutes and rules also provide that discharge of a jury is appropriate if it satisfactorily appears to the trial judge that there is no reasonable probability of the jury arriving at an agreement even if given more time. RCW 4.44.330; CrR 6.10; see generally ABA Standards Relating to Trial by Jury § 5.4(c) (Approved Draft 1968), commentary at pages 156-58.
Normally, great deference is given to a trial court judge's decision...
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...disclose some basis upon which the court determines that the jury necessarily must be discharged." State ex rel. Charles v. Bellingham Mun. Court, 26 Wn. App. 144, 149, 612 P.2d 427 (1980). But as discussed above, the presiding juror's responses to the court's WPIC 4.70 inquiry provide a su......
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