State v. Jones

• Decision Date: 03 April 1984
• Docket Number: No. 8310SC912,8310SC912
• Citation: 313 S.E.2d 808,67 N.C.App. 377
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Andrew Lynn JONES.

Page 808

313 S.E.2d 808

67 N.C.App. 377

STATE of North Carolina v. Andrew Lynn JONES.

No. 8310SC912.

Court of Appeals of North Carolina.

April 3, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Thomas F. Moffitt, Raleigh, for the State.

Dement, Askew & Gaskins by Johnny S. Gaskins, Raleigh, for defendant-appellant.

JOHNSON, Judge.

The substantive facts outlined above are not seriously disputed. Rather, defendant raises errors of procedure resulting in violation of the constitutional guarantee against double jeopardy.

I

The underlying error which defendant asserts, and upon which all his other assignments of error are predicated, is that the trial court improperly declared a mistrial at his first trial. The proceedings leading up to the declaration of mistrial were as follows:

The trial began 18 April 1983 in Wake County Superior Court before the Honorable Samuel E. Britt and a duly empanelled jury. After presentation of evidence by both sides, the court gave its charge to the jury. (No errors are alleged, nor are any apparent, in these or any other instructions given). The jury retired at 2:40 p.m. on 20 April. At approximately 3:40 p.m. the jury returned and asked the court to redefine murder in the first degree, murder in the second degree, and voluntary manslaughter. The court repeated the instructions as requested and repeated its mandate. At the request of the foreman, the court also gave a definition of malice. At 5:03 p.m. the court called the jury in, ordered the verdict sheet sealed, and declared a recess. At 9:30 a.m. the next morning, the court recovened with all jurors present. Before they resumed deliberation, the foreman indicated that several members had asked the day before for a redefinition of malice and under what conditions it could be eliminated from consideration, and "any other pertinent information you think might help us." The court carefully and correctly defined malice as it applies to the varying degrees of homicide. The jury retired at 9:45 a.m.

At 12:50 p.m., the jury returned again and the following ensued:

COURT: All right, all parties to the trial are now back in the courtroom in the case of State of North Carolina verses [sic] Andrew Lynn Jones. Will the foreman please rise. The bailiff indicated you wanted me to call you in shortly before the lunch hour for the purpose of a question, is that correct?

FOREMAN: Yes, it is, Your Honor.

COURT: What's the question?

FOREMAN: Your Honor, the question arises from a question of law that the Prosecutor read concerning a case. I believe it said and stated that mere words alone cannot raise a heat of passion, something of that affect [sic]. Our question is: Can words alone provoke heat of passion? And the second question: What all can provoke heat of passion?

COURT: Thank you, you may be seated. It is true, members of the jury, that a true statement of the law is that mere words alone can provoke a passion, a state of passion, and I will instruct you that is a correct statement of law. Now your next question as to what possibly could provoke passion is beyond my ability to answer. I have no knowledge of all the endless list of things that might occur in this world that might provoke passion and could not express it in terms of the law.

FOREMAN: Your Honor, for clarification, it was our understanding that the Prosecutor, the case that he read said mere words alone cannot provoke a heat of passion.

COURT: Is that what you stated to this jury? I was out of the room during the argument. Is that what you stated to the jury?

MR. KNUDSEN [Assistant District Attorney]: I read a case from the State of North Carolina that stated mere words alone would not constitute adequate provocation, which I have reason to believe that's the case. I read from the Supreme Court of North Carolina.

COURT: We have reached an impasse. I withdraw Juror Number One and declare a mistrial. Thank you very much, members of the jury, for your services.

The court thereafter entered an order which read in its entirety as follows: "The judgment of this court is that the jury has reached an impasse and further deliberation would not resolve this matter. The Court therefore withdraws juror # 1 and declares a mistrial." To this order defendant properly and timely objected.

A second trial took place before the Honorable Anthony M. Brannon and a jury on 20 June 1983; defendant moved to dismiss on the ground of former jeopardy and the court denied the motion. Defendant immediately gave notice of appeal, but the trial went forward nonetheless. It resulted in a mistrial on the motion of defendant. At a third trial before the Honorable Robert L. Farmer and a jury, defendant unsuccessfully renewed his motion to dismiss. That trial resulted in a verdict of guilty of second degree murder on 27 July 1983. The judgment entered on this verdict is the jurisdictional basis of this appeal; the earlier appeal was dismissed as interlocutory. State v. Jones, 67 N.C.App. 413, 313 S.E.2d 264 (1984) (Johnson, J., dissenting). Defendant's only real contention here is that his motions to dismiss for former jeopardy were improperly denied because the first mistrial was erroneously ordered.

II

A defendant's right to have his trial completed before a particular tribunal is a "valued right," guaranteed by the constitutional prohibition of double jeopardy. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). As stated by the United States Supreme Court in Arizona v. Washington, 434 U.S. 497, 503-5, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717, 727-28 (1978):

The reasons why this "valued right" merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial. (Footnotes omitted.)

This right has also been recognized in North Carolina. See State v. Williams, 51 N.C.App. 613, 277 S.E.2d 546 (1981) ("cherished right").

Consequently, a standard and long-established feature of American jurisprudence has been that the jury may only be discharged with the defendant's consent where "there is a manifest necessity for the act." United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824); see also Arizona v. Washington, supra. North Carolina courts have long adhered to this rule, requiring either "physical necessity" or "the necessity of doing justice" to discharge the jury. State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954); see also State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838 (1962). As pointed out in Arizona v. Washington, supra 434 U.S. at 506, 98 S.Ct. at 830-31, 54 L.Ed.2d at 728, such words "do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge." Therefore, the trial court must exercise its discretion in applying the standard of necessity. Id.; United States v. Perez, supra; State v. Birckhead, supra.

This discretion is a limited one, however, and must be exercised with care, in view of the important rights at stake. True necessity must exist. Although the United States Constitution does not require that a state trial court make an explicit finding of "manifest necessity" or "articulate on the record all the factors which informed the deliberate exercise of his discretion," Arizona v. Washington, supra at 517, 98 S.Ct. at 836, 54 L.Ed.2d at 735, it does require that the record adequately disclose the necessity on which the order rests. Id. North Carolina, however, requires more. Before 1977, trial courts, in capital cases such as this, had to fully find the facts supporting mistrial orders and place them in the record so that their actions could be reviewed on appeal. State v. McKenna, 289 N.C. 668, 224 S.E.2d 537 (1976); State v. Boykin, 255 N.C. 432, 121 S.E.2d 863 (1961). Findings were not required in non-capital cases, and the trial court's decision was reviewable only in cases of gross abuse of discretion. State v. Daye, 281 N.C. 592, 189 S.E.2d 481 (1972).

In 1977, the General Assembly enacted Article 62 of Chapter 15A of the General Statutes, "Mistrial." It codified existing law and spelled out the limited number of situations in which the court may declare a mistrial. More importantly for this case, the act included G.S. 15A-1064, which provides: "Before granting a mistrial, the judge must make findings of fact with respect to the grounds for the mistrial and insert the findings in the record of the case." This section is mandatory. As stated in State v. Johnson, 60 N.C.App. 369, 372, 299 S.E.2d 237, 239, disc. rev. denied, 308 N.C. 679, 304 S.E.2d 759 (1983):

Our statute specifically requires, and we strongly urge adherence thereto, that findings be made and entered into the record before a declaration of mistrial. Even the most exigent of circumstances do not justify circumvention of this rule. (Emphasis original).

The purpose of G.S. 15A-1064 is clearly to ensure that mistrial is declared only where there exists real necessity for such an order. The right of the accused to completion of the proceedings before the same tribunal is thereby protected from sudden and arbitrary judicial action. Judicial action, before being taken, must have support in the record. The pre-1977 cases support this interpretation: required findings ensure that the court's power is "exercised with caution and only after a careful consideration of all available evidence and only after making the requisite findings of fact on the basis of evidence before ...