State v. Odom

• Decision Date: 02 April 1986
• Docket Number: No. 707A84,707A84
• Citation: 316 N.C. 306,341 S.E.2d 332
• Parties: STATE of North Carolina v. James Manuel ODOM.
• Court: North Carolina Supreme Court

Page 332

341 S.E.2d 332

316 N.C. 306

STATE of North Carolina v. James Manuel ODOM.

No. 707A84.

Supreme Court of North Carolina.

April 2, 1986.

Gary Berman, Durham, for defendant-appellant.

FRYE, Justice.

Defendant was charged in separate bills of indictment, filed 7 November 1983, with robbery with a dangerous weapon, first degree rape, and first degree kidnapping. He was initially tried for these offenses in January of 1984 before Brannon, J., in the Superior Court, Durham County. When the jury announced itself unable to agree on any verdict, Judge Brannon declared a mistrial. Upon retrial before Bailey, J., at the 23 July 1984 Criminal Session of Superior Court, Durham County, a new jury found defendant guilty as charged. Judge Bailey sentenced defendant to consecutive terms of life imprisonment for the first degree rape conviction and forty years for each of the two other convictions. Defendant appealed his conviction for first degree rape to this Court; his motion to bypass the Court of Appeals on the two lesser offenses was granted 21 December 1984.

Defendant brought four issues before this Court:

1) whether the declaration of a mistrial at defendant's first trial was error entitling him to have the charges against him dismissed;

2) whether the out-of-court account of an eyewitness, since deceased, given to a police officer approximately ten minutes after the victim was abducted from a public sidewalk was admissible at trial as a present sense impression under Rule 803(1);

3) whether the out-of-court statement by a codefendant who was neither tried with defendant nor called to testify was admissible; and

4) whether there was a fatal variance between the charge in the indictment and the charge to the jury on first degree kidnapping.

We find no reversible error as to the first two issues but agree with defendant that there was error with respect to the last two.

A lengthy recitation of the distressing facts surrounding the commission of these crimes is unnecessary for discussion of the issues raised on appeal. The evidence the State introduced at trial showed that defendant and Darris Brown confronted their victim ¹ as she entered her car in front of the Angier Avenue Post Office in East Durham on 14 September 1983. Brown pointed "something" at the victim and demanded that she hand over her money. Defendant then got in the car and demanded her car keys. The two forced her to accompany them in the car to a more isolated location. Upon stopping, defendant clearly revealed a gun, took the victim's rings and watch, then told her to remove her clothes and lie down on the back seat of the car. There the victim was raped by both defendant and Brown. The two men then took the victim to a parking lot near Durham Technical Institute and left her there, otherwise unharmed. She drove home and called her parents and her boyfriend; her parents called the police.

I.

The record shows that at defendant's first trial, the jury returned to the courtroom after approximately five or six hours of deliberation. The foreman told the judge that the jury was deadlocked. He said that the jurors were split evenly on the question of defendant's guilt in all three offenses and had been so for two to three hours. The jury believed that there was no reasonable possibility for agreement. After a consultation off the record with counsel at the bench, the judge declared a mistrial ex mero motu. His order reads in pertinent part:

It is now ORDERED:

(xx) Other The jurors return into open court and state to the Court that they are unable to agree upon a verdict and were split 6 and 6 whereupon the Court withdraws juror # 1 and declares a Mistrial on all three cases.

Prior to defendant's second trial, he moved for a dismissal of the charges against him on two grounds: that the judge failed to make the findings required by N.C.G.S. § 15A-1064, and that a second trial on these charges would violate the defendant's constitutional right against being placed in double jeopardy. The trial judge denied both motions.

The courts in this country have long held that the prohibition against double jeopardy does not prevent defendant's retrial when his previous trial ended in a hung jury. See State v. Simpson, 303 N.C. 439, 279 S.E.2d 542 (1981); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). See also State v. Booker, 306 N.C. 302, 293 S.E.2d 78 (1982), and State v. Battle, 279 N.C. 484, 183 S.E.2d 641 (1971) (the general rule in North Carolina is that an order of mistrial will not support a plea of former jeopardy). The decision to order a mistrial lies within the discretion of the trial judge. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978); State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838 (1962). Nevertheless, where the order of mistrial has been improperly entered over a defendant's objection, defendant's motion for dismissal at a subsequent trial on the same charges must be granted. State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838; State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954); State v. Jones, 67 N.C.App. 377, 313 S.E.2d 808, cert. denied, --- N.C. ---, 315 S.E.2d 699 (1984). There must be a showing of "manifest necessity" for an order of mistrial over defendant's objection to be proper. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717.

We note that defendant made no objection preserved in the record to the trial judge's order. He apparently had an opportunity to do so, during the bench conference, and he does not argue here that he was denied this opportunity. He has therefore waived objection on appeal. State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983). Even if defendant had objected, however, the trial judge's declaration of mistrial would not have been improper under the constitutional standard. A "hung" jury is a classic example of manifest necessity. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717. To comply with the requirements of the United States Constitution, the presiding judge need make no specific findings so long as there is sufficient evidence in the record to justify his decision. Id. There is sufficient evidence in the record here to support a reasoned conclusion that the jury was truly hung: the jury had deliberated for several hours; the foreman said that they were divided six--six on each charge, that the vote had remained constant for two or three hours, and that the jurors themselves did not feel that they would ever agree. After eliciting these facts, the judge was acting within his sound discretion when he declared a mistrial.

North Carolina, on the other hand, does require by statute that the judge make findings of fact to support an order declaring a mistrial. This Court has long required such findings in capital cases. See State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838; State v. Crocker, 239 N.C. 446, 80 S.E.2d 243. The legislature in 1977 extended this requirement to all grants of mistrial. § 15A-1064. Mistrial; finding of facts required.

Before granting a mistrial, the judge must make finding [sic] of facts with respect to the grounds for the mistrial and insert the findings in the record of the case.

N.C.G.S. § 15A-1064 (1983). The official commentary to the statute adds:

This provision will be important when the rule against prior jeopardy prohibits retrial unless the mistrial is upon certain recognized grounds or unless the defendant requests or acquiesces in the mistrial. If the defendant requests or acquiesces in the mistrial, that finding alone should suffice.

The making of findings sufficient to support the judge's decision to grant a mistrial is therefore mandatory, and the failure to make such findings would be error. Our Court of Appeals has so held. See State v. Jones, 67 N.C.App. 377, 313 S.E.2d 808, cert. denied, --- N.C. ---, 315 S.E.2d 699, and State v. Coviel, 69 N.C.App. 622, 317 S.E.2d 917 (1984), cert. denied, 312 N.C. 799, 325 S.E.2d 634 (1985).

In the case at hand, defendant contends that the trial judge failed to make such findings. The State does not contest this assertion or contend that the judge's order did in fact contain sufficient information. We note that the judge's order included only facts suggesting that the jury had not been able to agree up to that point without referring to any of the evidence that supported a conclusion that it was not likely to agree at some later point.

However, as noted previously, the defendant failed to make any objection at trial. He has therefore failed to preserve any error for appellate review under the requirements of Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure.

Defendant relies for relief upon the mandatory nature of N.C.G.S. § 15A-1064 as that statute was interpreted by the Court of Appeals in Jones and Coviel. As the State correctly contends, the defendants in Jones and Coviel did object to the declaration of mistrial while defendant here did not. The statute's mandatory nature does not relieve defendant of his responsibility to "prevent avoidable errors and the resulting unnecessary appellate review," State v. Walker, 316 N.C. 33, ---, 340 S.E.2d 80, 82 (1986), by lodging an appropriate objection.

Because defendant was therefore not entitled to have the charges against him dismissed, Judge Bailey did not err in refusing to dismiss them.

II.

Defendant argues secondly that the trial court erred in admitting as substantive evidence the out-of-court statement of one Willie Hartell, an eyewitness to the abduction of the victim. Immediately after the abduction, Mr. Hartell went into the post office, told a clerk what had occurred and asked him to call the police. Officer Roberts, a Durham Public Safety Officer, responded to the call and arrived on the scene ten minutes later. Mr. Hartell then described the abduction, the victim's car, and the appearance of...