State v. Jones
| Decision Date | 02 June 2021 |
| Docket Number | No. 3D19-1939,3D19-1939 |
| Parties | The STATE of Florida, Appellant, v. Michael JONES, Appellee. |
| Court | Florida District Court of Appeals |
Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney General, for appellant.
Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special Assistant Public Defender, and Mary Rojas and Daniela Tenjido, Certified Legal Interns, for appellee.
Before FERNANDEZ, HENDON and GORDO, JJ.
The State of Florida appeals the trial court's dismissal of its information charging Michael Jones with armed burglary of a dwelling with assault or battery and aggravated battery with a deadly weapon. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(A) ; State v. Mackey, 271 So. 3d 128, 129 (Fla. 3d DCA 2019). Following the court's sua sponte discharge of the jury without the consent of the defendant and without manifest necessity, the court dismissed the State's information against Jones based on double jeopardy. The State argues Jones implicitly consented to the mistrial and thereby waived double jeopardy. We reject that contention and affirm the order on appeal but write to address the circumstances compelling the discharge of the information in this case.
The State filed an information charging Jones with armed burglary of a dwelling with assault or battery and aggravated battery with a deadly weapon. Jones pleaded not guilty and demanded a jury trial. A jury was selected, impaneled and sworn. The following day, immediately before trial began, the State advised the court that it had filed late discovery and earlier that morning had provided the defense with tape recordings of several 911 calls made by the defendant's daughter. The State posited the evidence would be used solely for impeachment if the defense opened the door to its introduction. The defense objected and the court began to conduct a Richardson 1 hearing.
The State asserted it had obtained the discovery three weeks prior but the prosecutor herself did not see the recordings until the morning of trial when she was preparing her case. The State claimed there were two 911 calls by the defense witness, and they were very short. Defense counsel argued he was unable to apprise the court of the defense position without having heard the tapes. The court reserved ruling and called a recess for defense counsel to have an opportunity to listen to the calls, return, and have both sides present argument as to the Richardson violation.
Following a recess, defense counsel advised the court that he had not listened to the tapes and instead requested a State-charged continuance. Without hearing further argument or making any further inquiry, the court stated:
The Court is finding in light of the Richardson violation, the Court is making a finding that it's inadvertent but it is significant and accordingly prejudicial to the defense. So, it is going to be a State-charged continuance. How much time do you need? How are we running, Loren, on this case?
The parties then discussed the fact that the natural speedy trial window would soon expire. Perhaps tellingly, defense counsel represented to the court that he would not be filing a notice of speedy trial expiration because "[t]hat's not the way [he] want[ed] this case resolved."
Without any further discussion with the attorneys on the record, the court called the jurors back into the courtroom and discharged them advising the jurors that they did not have to return to court for this case. The judge asked the State and defense whether they had anything to say "in closing to [their] jurors." The State merely thanked them for their service. The defense said,
The parties and the court agreed to set the case for trial in September 2019. At no point in time did anyone—the court, the defense or the State—mention double jeopardy or the declaration of a mistrial.
Then, in August 2019, defense counsel moved to dismiss the information against Jones based on double jeopardy grounds arguing that there was no manifest necessity for a mistrial, there were other alternatives to declaring a mistrial including recessing for a day or two, and that the defendant only requested a continuance and never requested or consented to the mistrial. The State opposed the motion arguing that although the defendant did not request a mistrial his actions indicated implicit consent. The trial court granted Jones's motion finding that jeopardy attached when the jury was sworn and Jones could not be retried for the same offense.
A trial court's failure to conduct an adequate Richardson inquiry is error. See State v. Schopp, 653 So. 2d 1016, 1021 (Fla. 1995) (); Brown v. State, 165 So. 3d 726, 729 (Fla. 4th DCA 2015). A proper Richardson inquiry requires the lower court to address "whether the [discovery] violation was inadvertent or willful, trivial or substantial, and whether it caused prejudice or harm to the opposing party." Comer v. State, 730 So. 2d 769, 774 (Fla. 1st DCA 1999) (citations omitted); see Andres v. State, 254 So. 3d 283, 293 (Fla. 2018). "In assessing procedural prejudice, the trial court must determine, first, whether the discovery violation precluded the aggrieved party from adequately preparing for trial, and second, what is the proper sanction to invoke for the discovery violation." Comer, 730 So. 2d at 774.
"One cannot determine whether the state's transgression of the discovery rules has prejudiced the defendant (or has been harmless) without giving the defendant the opportunity to speak to the question." Scipio v. State, 928 So. 2d 1138, 1146 (Fla. 2006) (quoting Schopp, 653 So. 2d at 1019 ). Here, the court's failure to conduct a proper Richardson inquiry denied the State and defense an opportunity to be heard or present argument regarding procedural prejudice. Based on the State's proffer and the court's conjecture, the court found the late disclosure was inadvertent, but substantial. Then, without the court or defense counsel having reviewed the evidence, the court determined the defendant was prejudiced in his trial preparation and that a discharge of the jury was warranted.
The Double Jeopardy Clause of the United States and Florida constitutions guarantees the protection of an accused against being twice put in jeopardy for the same offense. See Amend. V, U.S. Const.; Art. I, § 9, Fla. Const. "[T]he constitutional protection also embraces the defendant's ‘valued right to have his trial completed by a particular tribunal.’ " Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (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.
"Jeopardy attaches in a criminal proceeding when the jury is impaneled and sworn." Thomason v. State, 620 So. 2d 1234, 1236 (Fla. 1993). Merchant v. State, 201 So. 3d 146, 151 (Fla. 3d DCA 2016) (citing Thomason, 620 So. 2d at 1237 ).
Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused. Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.
Arizona, 434 U.S. at 505, 98 S.Ct. 824. "For example, when the defendant requests declaration of a mistrial, double jeopardy usually is not a bar to reprosecution." Thomason, 620 So. 2d at 1237 (citing Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) ). Absent the defendant's motion for a mistrial or express consent, the court may only appropriately declare a mistrial on its own or a prosecution motion "if, after an assiduous inquiry into the possibility of another course of action, there is a ‘manifest necessity’ to do so." Merchant, 201 So. 3d at 154–55 (quoting Baez v. State, 699 So. 2d 305, 306 (Fla. 3d DCA 1997) ). The "doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings." United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) ).
As noted by the United States Supreme Court in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), and reaffirmed by the Florida Supreme Court:
The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant's...
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