State v. Ambrose
| Decision Date | 09 July 1979 |
| Docket Number | No. 15903,15903 |
| Citation | 598 P.2d 354 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Byron AMBROSE, Defendant and Appellant. |
| Court | Utah Supreme Court |
Stott, Young & Wilson, Provo, D. John Musselman, for defendant and appellant.
Robert B. Hansen, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant appeals from the denial by the district court of his motion to dismiss a charge of attempted homicide, claiming he has been once in jeopardy for this offense. We conclude defendant is correct, and order the district court to dismiss the charge against defendant. All statutory references are to Utah Code Ann., 1953, as amended.
Defendant was charged with attempted homicide 1 and the case was tried before a jury in the Fourth District Court for Utah County on May 22, 1978. At 4:15 p. m. that day, the jury retired to deliberate. Subsequently, the bailiff indicated to the court that the jurors were having difficulty reaching a verdict; and at 5:30 p. m. the jurors were reconvened in the courtroom in the presence of defendant and his counsel. The following colloquy then took place:
THE COURT: Let the record show that all the jurors are present in the jury box and the defendant is in court with his counsel.
Members of the jury, I am informed by the bailiff that you are having some difficulty, is that correct?
(Heads of the jurors were nodded.)
Do you have the jury list?
(The clerk handed the jury list to the court.)
Do you suppose if you were able to deliberate further, go over the instructions one by one further that you may be able to come to an agreement? Betty Lue Gonzales?
On May 30, 1978, defendant filed a motion to dismiss on the grounds that retrial of the case would violate his constitutional right to be placed only once in jeopardy for the same offense. 2 The motion was denied by the court on June 2, 1978, and defendant brings his appeal from that denial.
The State first argues the appeal is inappropriate under the terms of § 77-39-3, which provides for an appeal only from a final judgment or an order made after judgment which affects substantial rights of the party. The denial of defendant's motion is a "final" judgment. The denial effectively prevents defendant from obtaining his requested relief, which is based on a substantial constitutional right guaranteed him under both the Utah and the United States Constitutions. 3 The order denying defendant's motion is clearly a complete and final rejection of his double jeopardy claim, a claim by which defendant essentially argues not the Merits of the charge against him, but rather that the State has forfeited the Power to again subject him to a criminal proceeding.
Furthermore, to require defendant to pursue his claim after retrial would, as a practical matter, emasculate the guarantee against double jeopardy, subjecting defendant to the very trauma the provision intends to prevent. The double jeopardy clause protects an individual not simply from subjection to more than one punishment, but from being twice Put to trial for the same offense. The guarantee assures that, with certain exceptions, an individual will not be forced to endure the strain, embarrassment, anxiety and expense of a criminal trial. 4 These important aspects of the guarantee would clearly be negated if the defendant were forced to endure a second trial before an appeal could be taken. Thus, the rights protected by this provision cannot be fully vindicated on appeal following a second trial. 5
Our Constitution guarantees not only that no "person be twice put in jeopardy for the same offense," 6 but also "the right to appeal in all cases." 7 As discussed above, the rights protected by the double jeopardy guarantee necessitate review on appeal before a second trial if the defendant is to enjoy full protection of the clause; the statutory provisions for appeal cannot be in derogation of the constitutional rights, and we therefore hold defendant's appeal to be properly taken.
Defendant argues he may not be retried because the above-quoted comments by the prosecutor were made in bad faith effort to motivate defendant to move for a mistrial, which would allow the State to retry the case. 8 We perceive the remarks of the prosecutor in the presence of the jury as unnecessary and improper, but we cannot say from the state of the record that they were initiated out of a bad faith desire to provoke a request for a mistrial from defendant.
On the other hand, the State claims the court ordered the mistrial because the jury was hopelessly deadlocked. 9 The transcript belies the State's claim, however; the court queried defense counsel, After the statements of the prosecutor concerning the cost of retrying defendant, whether defense counsel "considered that error in the present state of the record." Counsel replied, "Yes, Your Honor," after which the court immediately declared a mistrial and discharged the jury. Thus it clearly appears the court considered its conversation with the prosecutor to be detrimental to defendant's position, and the mistrial was declared at least in part because of the remarks of the prosecutor. The question to defense counsel concerning "error in the record" obviously was not referring to the state of the jury. Whether the court also based its action upon its belief of a "hung" jury is impossible to discern, since the court failed to put the reasons for its action in the record. In any event, the Sua sponte declaration of a mistrial by the court prevents retrial of defendant.
It is well established in Utah that jeopardy attaches when an accused is put on trial in a court of competent jurisdiction, upon a valid indictment (or information), and a jury has been sworn and impaneled. 10
Utah law also establishes that discharge of the jury without a verdict operates as an acquittal, unless: (1) the defendant consents to the discharge, or (2) "legal necessity" requires the discharge in the interest of justice. 11 Although the concept of legal necessity has been variously expressed as "special necessity," "absolute necessity," or "manifest necessity," the terms all imply that, absent the consent of the defendant to a mistrial, the court must refrain from prematurely discharging the jury unless it determines, after careful inquiry, that discharging the jury is the only reasonable alternative to insure justice under the circumstances. Courts have steadfastly refused to lay down specific rules in this area, following instead the admonition of Justice Story in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824):
We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes. . . . But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.
The United States Supreme Court has in more recent cases reiterated that courts must exercise their discretion to discharge a jury without the consent of an accused very carefully, in view of the accused's "valued right to have his trial completed by a particular tribunal." 12 In United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1970), the court explained:
If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution . . . . In...
To continue reading
Request your trial
-
State v. Lafferty
...more favorable opportunity to convict. See Trafny, 799 P.2d at 709; State v. Jones, 645 P.2d 656, 656-57 (Utah 1982); State v. Ambrose, 598 P.2d 354, 357 n. 8 (Utah 1979). While a prosecutor has a constitutional duty to volunteer obviously exculpatory evidence that is "so clearly supportive......
-
State v. Kay
...434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); State v. Whitman, 93 Utah 2d 557, 74 P.2d 696 (1973); State v. Ambrose, Utah, 598 P.2d 354 (1979). Some courts, in determining whether a mistrial should be granted, have used a balancing test: the potential prejudice to the defend......
-
State v. Werneth
...v. Compton, 6 Cal.3d 55, 98 Cal.Rptr. 217, 490 P.2d 537 (1971); People v. Hoffman, 81 Mich.App. 288, 265 N.W.2d 94 (1978); State v. Ambrose, 598 P.2d 354 (Utah 1979). While something more than mere silence on the defendant's part must be shown to establish his consent to being placed in dou......
-
McNair v. Hayward
...trial without the consent of the defendant and without some special necessity, double jeopardy prevents a second trial. State v. Ambrose, Utah, 598 P.2d 354 (1979); State v. Thompson, 58 Utah 291, 199 P. 161, 38 A.L.R. 697 (1921); State v. Hows, 31 Utah 168, 87 P. 163 (1906). Of course, dou......