State v. Connors

Decision Date10 May 1962
Docket NumberNo. 35635,35635
Citation371 P.2d 541,59 Wn.2d 879
CourtWashington Supreme Court
PartiesThe STATE of Washington, Respondent, v. Timothy CONNORS, Appellant.

Irving C. Paul, Jr., Seattle, for appellant.

Charles O. Carroll, Pros. Atty., James A. Alfieri, Deputy Pros. Atty., Seattle, for respondent.

HILL, Judge.

The issue in this case is whether there was any necessity for the trial judge, in Department No. 18 of the Superior Court for King County, to declare a mistrial over the objection of the defendant. If there were such necessity, the defendant's conviction, on a subsequent trial in Department No. 4 of the Superior Court for King County, can be affirmed 1; if not, his plea of double jeopardy, on the subsequent trial, should have been sustained and the charge against him dismissed.

On the morning of May 2, 1960, Timothy Connors went to trial in Department No. 18 of the Superior Court for King County on a charge of robbery. After the jury had been impanelled and sworn to try the cause, but before counsel had made their opening statements, the trial judge said:

'It is fairly close to the noon hour. In think we will shortly take a recess until 1:30 but I want to give you a caution which I will remind you of at times throughout the trial and which you doubtless have heard before.

'You will not permit anyone to talk with you about this case during its trial and you will not talk with anyone about the case. You will not form any conclusion or reach any decision about the matter on trial until you have heard all of the evidence, have been instructed by me as to the law applicable to the case and have retired to the jury room to consider of your verdict. Please remember that at all times.

'You will be excused until 1:30.'

The defendant had not consented to any separation of the jury during the trial, and it was the understanding of the court and counsel that they were to be kept together. Some, at least, of the jury did not so understand it, and four had gone their way when the separation was discovered. The following colloquy, between the court and counsel, then ensued:

'THE COURT: They probably misunderstood what I said. I didn't mean to excuse them. I meant to declare a recess until 1:30. I wanted to hear some argument. MR. McGOUGH [deputy prosecuting attorney]: I am not sure if it is permissible to separate them before the trial actually starts or not. THE COURT: Mr. Paul, do you raise any exception at this time to what happened inadvertently? MR. PAUL [defense counsel]: I am thinking, your Honor. Well, since there has been no opening statement and no discussion of the case, I would be willing to let the rest of the jurors separate until 1:30 with the understanding that I haven't prejudiced my right to insist that they be kept together thereafter. THE COURT: Surely. I understood that from the start and I will not excuse the others now unless you say you are willing. MR. PAUL: I think what is sauce for the goose should be sauce for the gander. I think the others could go as well. THE COURT: All right, it is understood that these eight may go out now and have lunch and separate, in other words, but, upon their return, upon the entire jury's returning, they won't be separated again until the conclusion of the trial. Is that agreeable? MR. PAUL: That is fine. MR. McGOUGH. It is fine with us, your Honor.'

When the court reconvened at 1:30 p. m., the following colloquy occurred:

'THE COURT: Gentlemen, due to what happened this morning, the Court is going to grant, on its own motion, a mistrial in this case. You are asked to report to the Presiding Judge and he will immediately assign you to another department where you will select another jury. Please report to him at once. MR. PAUL: If you Honor please, the defendant in this case has not moved for a mistrial. THE COURT: I realize that, Mr. Paul, but the Court has a duty to do what he thinks best in his discretion in order to leave no question in the record as to a fair trial and I have considered the matter and that is my determination. So the case is now reassigned to the Presiding Judge and you and your opponent will report there and he will immediately assign it to another judge, another department, so you may select another jury. MR. PAUL: Your Honor, may I address the Court? THE COURT: Yes. MR. PAUL: In regard to this case of State v. Connors, I was taken aback by your Honor's ruling and I would like, for the record, to take exception to the granting of a mistrial and state that it has been over the objections of the defendant.'

The case was reassigned, that same afternoon, to Department No. 4 of the Superior Court for King County for trial. A plea of former jeopardy was seasonably interposed and denied. The jury selected in that department found the defendant guilty of robbery, and, from the judgment and sentence which followed, the defendant appeals.

We shall concern ourselves only with his contention: That when the first jury was impanelled and sworn to try the charge against him, he was in jeopardy; and that when that jury was discharged, without his consent and over his objection, that he should not be tried again because a subsequent trial for the same offense would constitute double jeopardy and be a violation of Art. I, § 9, of our state constitution: 'No person shall * * * be twice put in jeopardy for the same offense.' 2

In State v. Brunn (1945), 22 Wash.2d 120, 154 P.2d 826, 157 A.L.R. 1049, and, more recently, in State v. Stacy (1953), 43 Wash.2d 358, 261 P.2d 400, we discussed at considerable length what constitutes being 'twice put in jeopardy for the same offense.' It is unnecessary to repeat that discussion, but it should be read as background 3 to our present holding.

While counsel, and many cases, consider the problem before us in terms of 'double jeopardy,' we are not at all convinced that 'jeopardy' is something that attaches at a particular moment in a trial; and that, having once attached, it can be disattached for some reasons and not for others. (See discussion in State v. Brunn, supra.) We prefer to consider the problem from the standpoint of the right of a defendant to have his case determined by the jury which he has accepted and which has been impanelled and sworn to try his case.

A somewhat extended search satisfies us that the great weight of authority now supports the proposition that where, as in this case, a jury has been impanelled 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 effect as an acquittal, unless such discharge was necessary 4 in the interest of the proper administration of public justice. In short, the defendant's valued right to have his trial completed by a particular jury may, on proper occasions, be subordinated to the public's interests in fair trials designed to end in just judgments. Wade v. Hunter (1949), 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974.

Such general statements are usually followed by examples of that facts constitute a necessity or emergency justifying a discharge of a jury over the objection of the defendant. The necessity most frequently arising is a hung jury, and it is universally recognized that a jury which, after a reasonable time, cannot arrive at a verdict, may be discharged and the defendant tried again. Even so, a too quick discharge of a hung jury would he held a violation of the defendant's right to a verdict of that jury; and in Davis v. State (1942), 144 Tex.Cr.R. 474, 164 S.W.2d 686, it was held that the discharge of a jury, after deliberating only an hour and a half, supported a claim of double jeopardy on a retrial. Necessity or emergency rises from various causes: illness, disability or death of a juror, judge or counsel; misconduct of a juror or prosecutor; or discovery of a juror's bias. State v. Critelli (1946), 237 Iowa 1271, 24 N.W.2d 113.

Judge Black, in the Wade v. Hunter case supra, points out some of the situations that would present a necessity for the discharge of a jury without the consent of the defendant (336 U.S. p. 688, 69 S.Ct. p. 837):

'* * * The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. * * *'

Other cases, texts, and law review articles which deal with the character of the necessity which will justify a termination of the trial before a particular jury without the defendant's consent, and still leave him subject to again being put to trial for the same offense, are listed in a note 5 which, because of its length, will appear at the end of this opinion.

Our specific problem is whether, under the circumstances of the jury's separation, as shown by the record, there existed any necessity for the mistrial which the trial court granted on its own motion.

All parties had agreed to the separation of the jury during the noon hour. There is not the slightest indication that either the state or the defendant was...

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