State v. Witt

• Citation: 4 A.L.R.4th 1266,572 S.W.2d 913
• Parties: STATE of Tennessee, Petitioner, v. Myles WITT and Claude W. Folk, Respondents.
• Decision Date: 06 November 1978
• Court: Supreme Court of Tennessee

Page 913

572 S.W.2d 913

4 A.L.R.4th 1266

STATE of Tennessee, Petitioner, v. Myles WITT and Claude W. Folk, Respondents.

Supreme Court of Tennessee.

Nov. 6, 1978.

Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, for petitioner.

Philip P. Durand, Ambrose, Wilson Lockridge & Grimm, Knoxville, for respondents.

OPINION

FONES, Justice.

The trial judge, upon motion of defendants, dismissed the indictments for murder in the first degree, after three mistrials had been declared because of deadlocked juries. The issue is whether the trial judge had authority to dismiss this prosecution either in the exercise of a sound judicial discretion or upon the constitutional grounds of double jeopardy, cruel and unusual punishment or due process.

Defendants Witt and Folk and one Marvin E. Kelley were indicted for murder in the first degree in August, 1974. The first trial required six days in October of 1974, the second trial required five days in June, 1975, and the third trial required five days in June, 1976. All three juries reported hopelessly deadlocked as to the guilt or innocence of Witt and Folk. The third trial jury acquitted Marvin Kelley.

The record brought to this Court does not reflect the length of time that each of the three juries deliberated. ¹ However, no contention was made by the State or defendants that the trial judge declared a mistrial prematurely on any of the three occasions. We are therefore entitled to, and do, assume that each of the three juries deliberated until it was clearly demonstrated to the satisfaction of all the parties, counsel and the trial judge, that a unanimous verdict of guilt or innocence could not be returned as to Witt and Folk at any one of the three trials. The trial judge at the first trial was H. C. Smith and Tillman Grant presided at the second and third trials and granted defendants' motion to dismiss.

All three defendants moved to dismiss the indictments, following the second mistrial, which motions were overruled. Similar motions were filed by Witt and Folk after the third jury failed to agree on a verdict. The motions were predicated on the constitutional grounds of double jeopardy, cruel and unusual punishment and due process. A hearing on defendants' motions was held on December 13, 1976, at which time defendants and the State presented oral argument. Defendants' motions were supported by the affidavits of two jurors who served on the third trial jury, each to the effect that that jury voted 8 for acquittal and 4 for conviction of various offenses and expressing the belief that no jury would ever agree on a verdict on substantially the same evidence presented at that trial. The State questioned the efficacy of the affidavits as proof, and the trial judge continued the hearing to December 28, 1976, at which time defendants presented eight witnesses. Among the eight witnesses were jurors from each of the three trials and all of those testifying expressed the opinion that no future jury would agree on a verdict, assuming the presentation of substantially the same evidence which they had heard.

At the first hearing the trial judge said that the "big question" in his opinion was, "can this court, or any court ever get a jury that will decide this case in view of the past history?" After hearing defendants' proof and argument of counsel at the second hearing on the motions, the experienced and distinguished trial judge, from the vantage point of having presided over the second and third trials and having studied Judge Smith's extensive notes on the evidence presented at the first trial observed, in essence, that both the State and defendants had received three fair and impartial trials before three competent juries; that he particularly recalled that the third jury was an exceptionally good jury, that they knew little or nothing about the case, being from the Sweetwater area, that the Attorney General and defense attorneys "almost beg(ged) the jury to reach a verdict one way or the other, and still they didn't reach a verdict." The trial judge, exercising the "Courts discretionary right . . . in the interest of justice" dismissed the indictments, implicitly answering the question of whether any future jury would agree on a verdict in the negative. The Court of Criminal Appeals affirmed.

In 1824, the United States Supreme Court rejected a plea of double jeopardy, based upon the trial judge's discharge of the jury, without defendant's consent, when the jury could not agree upon a verdict following defendant's first trial for a capital offense. United States v. Perez, 22 U.S. (9 Wheaton) 579, 6 L.Ed. 165 (1824). Mr. Justice Story writing for the Court reasoned as follows:

"The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases, especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office." 22 U.S. at 580.

In Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), the Supreme Court was considering a case wherein the trial judge had declared a mistrial over the defendant's objection because he concluded the indictment was insufficient to charge a crime under Illinois law. The issue was whether the mistrial met the manifest necessity requirement which would defeat defendant's double jeopardy claim under Perez. After quoting from Perez the Somerville Court continued as follows:

"This formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court. . . .

In reviewing the propriety of the trial judge's exercise of his discretion, this Court, following the counsel of Mr. Justice Story, has scrutinized the action to determine whether, in the context of that particular trial, the declaration of a mistrial was dictated by 'manifest necessity' or the 'ends of public justice.' The interests of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest. This consideration, whether termed the 'ends of public justice,' United States v. Perez, supra, at 580 of 22 U.S. or, more precisely, 'the public's interest in fair trials designed to end in just judgments,' Wade v. Hunter, supra, at 689 of 336 U.S., at 837 of 69 S.Ct. has not been disregarded by this Court." 93 S.Ct. at...