Strawn v. State ex rel. Anderberg

• Citation: 332 So.2d 601
• Decision Date: 21 April 1976
• Docket Number: No. 47092,47092
• Parties: Honorable David U. STRAWN, Petitioner, v. STATE of Florida ex rel. Jon ANDERBERG, Respondent.
• Court: United States State Supreme Court of Florida

Page 601

332 So.2d 601

Honorable David U. STRAWN, Petitioner, v. STATE of Florida ex rel. Jon ANDERBERG, Respondent.

No. 47092.

Supreme Court of Florida.

April 21, 1976.

Rehearing Denied June 22, 1976.

Robert L. Shevin, Atty. Gen., and Stephen R. Koons, Asst. Atty. Gen., for petitioner.

Franklin D. Kelley, Public Defender, and Jerrold A. Bross, Asst. Public Defender, for respondent.

ROBERTS, Justice.

This cause is before us on certiorari granted to review the decision of the District Court of Appeal, Fourth District, reported at 307 So.2d 213, which purportedly conflicts with Adkins v. Smith, 205 So.2d 530 (Fla.1968); State ex rel. Cacciatore v. Drumright, 116 Fla. 496, 156 So. 721 (1934), and State ex rel. Johnson v. Anderson, 37 So.2d 910 (Fla.1948). We have jurisdiction pursuant to Article V, Section 3(b)(3), Constitution of Florida.

Respondent, Anderberg, was charged by information with the crime of breaking and entering a dwelling with intent to commit a misdemeanor, to-wit: petit larceny. At the conclusion of the State's case, defense counsel called the defendant as a witness. After lengthy examination, cross-examination, and redirect examination of the defendant, defense counsel stated as follows:

'Your honor, if I may at this time, if it please the court, we would allow the defendant to answer any questions that the jury may wish to ask him.'

The Court then excused the jury from the courtroom at which time defense counsel explained its position to the court in requesting that the jury ask defendant any questions and stated that this had been done in several other courts in this State and that it is in keeping with finding proof and justice in a court of law. The trial judge remarked that no mention had been made to the court that it was defense counsel's intention to request this and determined that it was a highly inappropriate procedure and that making such request in the presence of the jury so contaminated the trial as to require declaration of a mistrial. In explaining to the jury his reason for declaring a mistrial, the trial judge stated, inter alia:

'Obviously, you are not trained in the law. It is quite possible that things that could be of interest to you would be objectionable to the State or to the Defendant. They are placed in a bad position if they have to object to a juror's question, and I am placed in a bad position if I have to sustain it, and they the jurors become adversaries, too. And to ensure that impartiality that is so important to our system, and to ensure the fact that your decision is based only upon the evidence this is admissible in this courtroom, and that you not have any feeling of having been shut off in anything, which you would if someone objected to your question and I had to sustain it. In our system for many centuries, jurors have not been permitted to ask questions, and perhaps some day if we don't need lawyers for the system, then jurors could be permitted to ask any question they liked, and there wouldn't be any need for lawyers in the courtroom, the jurors could investigate it fully and make a decision. But that is not our system. Our system depends on utter impartiality and upon having two trained counsel to ask questions, to object to each other's questions at times, and to ask those questions for the purpose of eliciting admissible evidence.'

Subsequently, pursuant to Rule 3.190(b) and Rule 3.190(c)(2), Florida Criminal Rules of Procedure, defendant moved to dismiss the information on the ground that to try defendant again would constitute double jeopardy since the trial court abused its discretion in directing a mistrial with there being no manifest necessity for mistrial. With detailed explanation pertaining particularly to the need for impartial jury, the trial judge denied the motion to dismiss and found that his declaration of mistrial was properly made and, that, therefore, jeopardy had not attached.

Defendant's petition for writ of prohibition to the District Court of Appeal, Fourth District, was granted, and the District Court determined that prohibition was an appropriate remedy and that defendant's contention of double jeopardy was meritorious. Although recognizing two earlier cases which held to the contrary on the prohibition question, the District Court explicated that the more recent decisions of this Court and the District Courts find that under these circumstances prohibition is the proper remedy. As to the second point, the District Court determined that under the circumstances, the declaration of mistrial was not a matter of manifest, urgent or absolute necessity. The District Court determined that the offer by defense counsel to submit his client to juror interrogation made in the presence of the jury could not have been misconduct or in any event could not have been misconduct of such a nature as to prevent the State from receiving a fair trial.

Initially, we remark that the District Court correctly concluded that prohibition was an appropriate and available remedy to respondent under the circumstances. Cf. State ex rel. Williams v. Grayson, 90 So.2d 710 (Fla.1956); State ex rel. Manning v. Himes, 153 Fla. 711, 15 So.2d 613 (1943); State ex rel. Wheeler v. Cooper, 157 So.2d 875 (Fla.App.1963).

However, we cannot agree with the District Court's determination that the trial judge erred in declaring a mistrial and that, therefore, jeopardy attached and the charge against respondent should be dismissed. The constitution does not guarantee a defendant a perfect trial (which would be difficult if not virtually impossible), but it does guarantee a fair trial. The trial judge is the man on the ground in full view of the premises. In the conducting of a complicated criminal trial, he finds it necessary to rule many times and, like the referee in an athletic contest, must rule quickly. Generally speaking, he has neither the time, convenient library, nor a staff to research each legal and evidentiary question with which he is confronted in a fast moving trial. It is, therefore, necessary that he be given broad discretion in disposing of such matters.

Sub judice the trial judge was suddenly confronted with a difficult situation created by trial counsel conducting himself in an unorthodox manner. After defense counsel had made the aforementioned remark, the trial judge stated:

'We have had one problem in this court, and it is that you made no mention to me that this was your intention to request this. I regard it as highly inappropriate procedure. Who is to object to a Juror's question? And you're (sic) asking it in the presence of the Jury so contaminates this trial that I am at this time declaring a mistrial.'

The defendant should not now be allowed to take advantage of a confusing situation which he and his counsel created. Cf. Adkins v. Smith, supra. There well may have been better ways, after meditation, to dispose of the crisis but the trial judge exercised his discretion to declare a mistrial, and we are unable to say that his decision was an abuse of that discretion. Since it was not an abuse of discretion to enter the mistrial, the plea of former jeopardy is not available to the defendant as a defense.

At this point, we must restate the following relevant portion of our decision in Adkins v. Smith, supra:

'The question here under consideration was discussed by this court in State v. Grayson, Fla., 90 So.2d 710, in which it announced illustrations of urgent or necessary reasons that would justify the entry of an order declaring a mistrial. These reasons were illustrative but not exclusive. We announced the rule there that where a jury is discharged for legally insufficient reasons and without necessity and without the defendant's consent, such discharge would preclude a subsequent trial for the same offense. But in determining what is a legally sufficient reason, the trial court must be armed with discretion since he is conducting the trial and familiar with circumstances, tensions and conditions which may be present in the courtroom. The matter of the trial judge's discretion in such cases was discussed by the Supreme Court of the United States in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901, in which that court affirmed Gori's conviction at his second trial on a charge he had knowingly received and possessed goods stolen in interstate commerce. After his first trial had been terminated by the trial judge's declaration of a mistrial sua sponte and without petitioner's express consent but concedingly in the trial court's exercise of discretion out of regard for petitioner's interest, the court held that the second trial was not double jeopardy, and said:--

"Since 1824 it has been settled law in this Court that 'The double-jeopardy provision of the Fifth Amendment * * * does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.' Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 831, 93 L.Ed. 974; United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Keerl v. State of Montana, 213 U.S. 135, 137--138, 29 S.Ct. 469, 53 L.Ed. 734; see Ex parte Lange, 18 Wall. 163, 173--174, 21 L.Ed. 872; Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199.

Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. Illinois, 187 U.S. 71, 85--86, 23 S.Ct. 28, 47 L.Ed. 79. It is also clear that 'This Court has...