State ex rel. Mitchell v. Walker, 74--122

• Decision Date: 24 April 1974
• Docket Number: No. 74--122,74--122
• Parties: STATE ex rel. Roney J. MITCHELL, Relator, v. Honorable David Seth WALKER, Circuit Judge, as Criminal Administrator of the Circuit Court of the Sixth Judicial Circuit of the State of Florida in and for Pinellas County, Respondent.
• Court: Florida District Court of Appeals

Page 124

294 So.2d 124

STATE ex rel. Roney J. MITCHELL, Relator, v. Honorable David Seth WALKER, Circuit Judge, as Criminal Administrator of the Circuit Court of the Sixth Judicial Circuit of the State of Florida in and for Pinellas County, Respondent.

No. 74--122.

District Court of Appeal of Florida, Second District.

April 24, 1974.

Rehearing Denied May 21, 1974.

Robert E. Jagger, Public Defender, and Raymond O. Gross, Asst. Public Defender, Clearwater, for relator.

Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for respondent.

McNULTY, Judge.

This is an original proceeding in prohibition in which the relator raises double jeopardy. He was on trial before a jury for robbery and using a firearm in the commission of a felony when during said trial the court, on its own motion, granted a mistrial over relator's objection. The question before us is whether there was any legally sufficient reason therefor.

The state presented one witness during its case in chief, the testimony of one Mrs. Hunter the victim of the robbery which, she said, was committed at her place of employment. The state indicated to the court that another witness, one Officer Napier who was under subpoena for that day, was still testifying in another court and would not be available until the following day. Whereupon, the court said:

'Wait a minute, hold it. Mr. Duncan, who is a juror in this case, is excused by me for (tomorrow), the whole . . . day. I remember when I called him up, he started to say something, but I know you had indicated before trial it was a three-witness type trial, and Mr. Duncan was excused for tomorrow.'

In view of the comments of the court, and at the court's instance, the parties then stipulated before the jury that Officer Napier, if he were present, would testify to the following facts:

'. . . That on Monday, July 30th, '73, this officer showed Mrs. Lee Hunter a group of five photographs which contained the photograph of the defendant Roney Mitchell; that Mrs. Hunter selected the photograph of Roney Mitchell as the perpetrator of this alleged robbery.'

At that point the state rested.

After the usual motion for directed verdict and denial thereof, defense counsel presented his opening statement to the jury during which he made the following comment:

'. . . (T)hough he isn't required to do so, our client, Roney, has asked for the opportunity to address the jury, and he will take the stand and he will tell you what transpired and what did not transpire, and he will undertake to tell you he is innocent of this charge, and this is a case of mistaken identification, that he, in fact, did not commit this crime, he has never committed any substantial crime in his life, and that, in fact, another person is responsible for this particular crime. . . .'

Thereafter, and before the defendant presented any evidence, the state requested a conference with the court outside the presence of the jury. It is patent from the record that counsel for the state requested this conference because he interpreted the foregoing comments of defense counsel as laying a predicate for the establishment of an alibi, to which he objected because of the defendant's failure to comply with the alibi rule, CrPR 3.200, 33 F.S.A. Subsequent colloquy between the court and counsel indicates, however, that all apparently finally agreed that even if the defendant's anticipated testimony could have been interpreted as 'alibi' evidence, notice pursuant to the aforesaid Rule 3.200 is inapplicable if the defendant himself intends to be the sole witness thereof. ¹ At which point counsel for the state than indicated that he was going to insist on the opportunity to call Officer Napier who, it was felt, could rebut certain testimony should the defendant himself give it.

When it became apparent, then, that the case would likely go over to the following day or even thereafter the court summarily stated:

'Because of the recurrence of rather bizarre events during the course of this trial, it is now the determination of this Court the defendant should be provided another day in Court.

On the Court's own motion and without prejudice to either party, I declare it is a mistrial in both cases.'

The 'rather bizarre events' alluded to by the court are nowhere specified by court or counsel in the record nor, from a careful reading thereof, are we able to find any which can be so classified. But in any case the court did declare a mistrial and the record clearly reflects timely and vociferous objection by the defendant-relator.

Now, in support of the mistrial the state cites Adkins v. Smith ² for the proposition that declaring a mistrial is a matter of discretion in the trial court and that such discretion is not shown to have been abused here. While we surely agree that the matter is one within sound judicial discretion, nevertheless the discretion involved is not the mere choice between declaring or not declaring a mistrial. Our observation on 'judicial discretion' in Utica Mutual Insurance Company v. Clonts, ³ though a civil case, is nonetheless appropriate here. We said:

'. . . (judicial discretion) is not a naked right to choose between alternatives. There must be a sound and logically valid reason for the choice made. If a trial court's exercise of discretion is upheld whichever choice is made merely because it is not shown to be wrong, And there is no valid reason to support the choice made, then the choice made may just as well have been decided by the toss of a coin. In such case there would be no certainty in the law and no guidance to bench or bar.'

In a criminal case, of course, because of double jeopardy sanctions, extreme caution ought be observed by the court in exercising such discretion in favor of declaring a mistrial over the defendant's objection. And the 'valid reason' for so declaring a mistrial must be predicated either on some misfortune which, although the fault of neither p...