State v. Houston

• Decision Date: 03 March 2010
• Docket Number: No. E2009-00352-CCA-R9-CD.,No Application for Permission to Appeal Filed.,E2009-00352-CCA-R9-CD.,Application for Permission to Appeal Filed.
• Citation: 328 S.W.3d 867
• Parties: STATE of Tennessee v. Rocky Joe HOUSTON.
• Court: Tennessee Court of Criminal Appeals

328 S.W.3d 867

STATE of Tennessee

v.Rocky Joe HOUSTON.

No. E2009-00352-CCA-R9-CD.

No Application for Permission to Appeal Filed.

Court of Criminal Appeals of Tennessee, at Knoxville.

Nov. 24, 2009 Session.

March 3, 2010.

Randy G. Rogers, Athens, Tennessee, for the appellant, Rocky Joe Houston.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General Pro Tempore; Kenneth Irvine, District Attorney General Pro Tempore; and Jason Demastus, Assistant District Attorney General Pro Tempore, for the appellee, State of Tennessee.

OPINION

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which NORMA McGEE OGLE, J., and D. MICHAEL SWINEY., Sp. J., joined.

JAMES CURWOOD WITT, JR., J.

The issue presented in this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure is whether the manner of discharge of the jury prior to the jury's reaching a verdict on all counts and the jury's unorthodox consideration of the charged and lesser included offenses prohibit a retrial of the defendant, Rocky Joe Houston, on the charged offenses under the state and federal constitutional protections against double jeopardy. Because the record establishes that the jury reached a verdict of not guilty on the charge of the first degree premeditated murder of Gerald Michael Brown and several lesser included offenses before it was discharged, the defendant stands acquitted of those charges, and his retrial on those offenses is barred by the state and federal constitutions. Regarding the remainder of the charges, the record establishes that the trial court improperly dismissed the jury without declaring a mistrial, without the defendant's consent, and without finding a manifest necessity to terminate the proceedings. Because the improper discharge of the jury operates as an acquittal, the principles of double jeopardy bar the defendant's retrial for any offense in the indictment. Therefore, the judgment of the trial court permitting retrial of the defendant is reversed, and the charges are dismissed.

On October 15, 2007, the Roane County grand jury returned a three-count indictment charging the defendant, Rocky Joe Houston, and his brother, Clifford Leon Houston, with the May 11, 2006 first degree premeditated murder of William Birl Jones, the first degree premeditated murder of Gerald Michael Brown, and the first degree felony murder of Gerald Michael Brown perpetrated during the first degree premeditated murder of William Birl Jones. Following the designation of a district attorney general pro tempore and a special judge to hear the case,¹ the defendant'sseparate trial commenced in December 2008.²

On December 19, 2008, the jury sent a note to the trial judge indicating that it had been unable to reach a unanimous verdict. Upon the jury's return to the court room, the jury foreman reported, "[W]e as a jury panel have ... not been able to reach a unanimous verdict." ³ The following exchange then occurred:

THE COURT: All right, you can be seated.

Is what you are reporting to me that you haven't been able to reach a unanimous verdict on any of the charges submitted to you for consideration?

FOREMAN: That's correct, sir.

THE COURT: Am I correct in interpreting what you are saying to me as to count one; let me read you this.

First degree, premeditated murder of William B[i]rl Jones, you could not unanimously agree as to that charge; is that what you are saying to me, Mr. Foreman?

FOREMAN: That is correct, sir.

THE COURT: If that is the verdict of each of you please signify by raising your right hand.

Let the record note that all 12 jurors have raised their right hand.

Do you wish to poll the jury as to this count one?

ATTORNEY ROGERS: Yes, Your Honor.

THE COURT: All right, proceed.

ATTORNEY ROGERS: Sir, is it your verdict or your position that the jury has not reached a verdict on that one aspect of count one of the indictment on whether or not it is first degree murder?

FOREMAN: Yes, sir. We've not reached a verdict.

ATTORNEY ROGERS: Has there been a ... vote taken on any of the defenses down that list under count one?

FOREMAN: Every one of them.

ATTORNEY ROGERS: And there is no unanimous verdict on any of those offenses?

FOREMAN: None.

Thereafter, Mr. Rogers, the defendant's counsel, inquired of each juror whether he or she agreed that the jury had been unable to reach a verdict on any of the charged offenses or any lesser included offenses of count one. Each agreed. Similar colloquies regarding the remaining two counts established that the jury had been unable to reach a unanimous verdict on the charged offenses or the lesser included offenses.

At that point, the following exchange occurred:

THE COURT: ....

Now my interpretations of what you are telling me Mr. Foreman, is that youhave not considered the lesser crimes because you couldn't reach a verdict to the greater crime; is that right?

FOREMAN: Well, that's not completely right sir. We did go down the list and try to consider some of the secondary crimes. There were a couple that we were able to vote unanimously on. I have that on my note that there were only a couple.

THE COURT: Well, that's the reason for the polling and we need to take that up. And ... do you have that marked on your verdict form, sir?

FOREMAN: I do not, sir.

THE COURT: I see.

FOREMAN: I have it marked on a note where we made a chart of sorts to go down the list and to vote on each item and each count.

THE COURT: I see.

I'm going to send the jury back.

And make that out on the form and make sure that you have a unanimous verdict as to the ones upon which you can agree.

Okay, sir?

FOREMAN: Yes, sir.

THE COURT: I'm going to send the jury back for further deliberation.

Before the jury returned to render its verdict, General Irvine noted the State's objection to the procedure the trial court intended to employ. Citing Tennessee Rule of Criminal Procedure 31, he stated that it was "the State's position that the [c]ourt's inquiry should be at the highest level have them reach an agreement. If they have not, then that is as far as the [c]ourt goes." General Irvine warned the court of the "legal complications" that he believed would arise should the court inquire about the lesser included offenses if the jury was deadlocked on the greater offense. Attorney Rogers countered that the defendant was "entitled to any verdict that this jury has reached which Your Honor can determine is unanimous." He went on,

And I think Your Honor has now impressed upon them ... tell us what you can reach a unanimous verdict on so that Your Honor can make a Rule 31 determination whether or not this jury has now reached a verdict that we are entitled to have. And all we want is what we are entitled to have under Rule 31.

The judge observed that the purpose of Rule 31 was to provide "an orderly process" for finding out "what [the jury] is trying to tell us" and stated that he sent the jury back with the verdict form in hopes that the form "would be more in keeping in the orderly process as it relates to Rule 31." The court stated, "I thought that they didn't go further as it relates to those other crimes because I thought they had found that they could not reach a verdict as to count one, two, and three." Finally, the court added, "I have to find out what this jury has done. We have quite a time invested in this and I'm going to find out."

The jury then returned to the court room, and the following exchange took place:

THE COURT: All right, sir, would you announce that by telling us what your form contains?

FOREMAN: My form does contain a few items that we ... were able to reach a unanimous not guilty verdict and in view of not knowing exactly—

THE COURT: Well, let me see the form if you don't mind.

Thereafter, the trial court held a bench conference during which it showed the verdict form to the attorneys. The State noted that it "continue[d] to object to the procedure employ[ed]." Mr. Rogers observedthat the jury had apparently misunderstood the court's instructions and that "they thought that they had to have a requirement of a unanimous verdict they thought that was across the board unanimous." Acknowledging the irregularities in the verdict as reported, Mr. Rogers stated his belief that the defendant was "entitled" to the verdict. The court then polled the jury regarding the verdict forms, and each juror agreed that the verdict was his or her own.

The jury reached the following verdicts:

COUNT	CHARGE	VERDICT
1	Premeditated first degree murder of William Birl Jones	Unable to reach a verdict
1	Second degree murder	Unable to reach a verdict
1	Facilitation of first degree premeditated murder	Unable to reach a verdict
1	Facilitation of second degree murder	Unable to reach a verdict
1	Voluntary Manslaughter	Unable to reach a verdict
1	Facilitation of voluntary manslaughter	Not guilty
1	Reckless homicide	Unable to reach a verdict
1	Criminally negligent homicide	Unable to reach a verdict
2	First degree premeditated murder of Gerald Michael Brown	Not guilty
2	Second degree murder	Unable to reach a verdict
2	Facilitation of first degree premeditated murder	Not guilty
2	Facilitation of second degree murder	Not guilty
2	Voluntary manslaughter	Unable to reach a verdict
2	Facilitation of voluntary manslaughter	Not guilty
2	Reckless homicide	Unable to reach a verdict
2	Criminally negligent homicide	Unable to reach a verdict
3	First degree felony murder of Gerald Michael Brown	Unable to reach a verdict
3	Second degree murder	Unable to reach a verdict
3	Facilitation of first degree felony murder	Not guilty
3	Facilitation of second degree murder	Not guilty
3	Voluntary manslaughter	Unable to reach a verdict
3	Facilitation of voluntary manslaughter	Not guilty
3	Reckless homicide	Unable to reach a verdict
3	Criminally negligent homicide	Unable to reach a verdict

Following the court's polling of the jury, the court asked the parties if they wished to poll the jury further, and the defense declined while the State elected to "stand on its earlier...