Thomason v. State

• Decision Date: 24 June 1993
• Docket Number: No. 79705,79705
• Citation: 620 So.2d 1234
• Parties: 18 Fla. L. Week. S353 Roy Dwayne THOMASON, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1234

620 So.2d 1234

18 Fla. L. Week. S353

Roy Dwayne THOMASON, Petitioner, v. STATE of Florida, Respondent.

No. 79705.

Supreme Court of Florida.

June 24, 1993.

Anthony C. Musto, Miami, for petitioner.

Robert A. Butterworth, Atty. Gen., Joan Fowler and James J. Carney, West Palm Beach, and Michael J. Neimand, Miami, Asst. Attys. Gen., for respondent.

BARKETT, Chief Justice.

We have for review Thomason v. State, 594 So.2d 310 (Fla. 4th DCA 1992), in which the district court certified the following question as one of great public importance:

Under what circumstances may a trial judge sua sponte declare a mistrial, free of double jeopardy consequences, based on his subjective impression that defense counsel is not competent to proceed?

We have jurisdiction. ¹ We restate the question in conformity with the facts of this case:

Does double jeopardy preclude a retrial when a trial judge sua sponte, without considering and rejecting all possible alternatives, declares a mistrial based on the subjective impression that defense counsel is not competent to proceed?

We answer the question in the affirmative based on article I, section 9 of the Florida Constitution and quash the decision of the district court.

Thomason was charged with one count of armed kidnapping, two counts of armed sexual battery, and one count of aggravated assault stemming from an alleged attack on a thirteen-year-old girl while she was babysitting a younger child. When the trial began on March 5, 1990, the State nolle prossed the aggravated assault count.

The trial ended on March 9 when the judge declared a mistrial over the objection of both the defendant and the State. The judge stated that based on his observations of the appearance and demeanor of defense counsel, he had no choice but to declare a mistrial. At the time the mistrial was declared, the State had rested its case, and the defense had put on six witnesses. The defense was in the process of questioning its seventh witness, and the defendant's counsel said that the only possible additional witness was Thomason. The prosecutor said that he might call one rebuttal witness.

The defendant later filed a motion to dismiss and for discharge, asserting that there was no manifest necessity for the mistrial and that it would constitute double jeopardy to retry him. The judge entered an order removing himself from consideration of the motion.

The basic facts prompting the mistrial declaration are not in dispute. On the third day of the trial the defendant's attorney became white and shaky and had to be physically supported by the prosecutor. Trial was adjourned for the day and postponed the following day after the judge learned that the attorney had collapsed. The next morning, the defendant's counsel indicated that she was able to proceed. The defendant, who had talked with his counsel for between forty and fifty minutes the previous evening, expressed confidence in her and indicated his desire to proceed with the trial.

The judge, however, expressed concern about resuming the trial in light of the attorney's physical condition and the lack of any assurances from a doctor that she was capable of proceeding. The defendant's counsel then informed the judge that she had just talked with a doctor on the telephone who had seen her the previous day and that the doctor was "perfectly willing to tell you that I am fine and that he discharged me." The attorney also asked for a thirty-minute recess so that she could attempt to contact one of the other doctors who had examined her the day before. The judge made no effort to contact either of these doctors, noting instead that he had received a call from the office of another of the attorney's doctors and that someone from that office had requested that the trial be postponed so that the attorney could attend to her personal medical needs. The judge apparently did not speak directly with the doctor. The attorney explained that although she was regularly treated by the doctor whose office called the judge, she had not seen him in the last few days because he was in California.

The prosecutor repeatedly expressed the opinion that if the court ordered a mistrial, double jeopardy would preclude a retrial, and he twice asked the court to consider a two-week postponement. The court never addressed the prosecutor's request. Instead, the court called as its own witness an attorney, in court for another matter, who testified that he had observed the defendant's counsel and thought she was behaving inappropriately because she did not realize at one point that the defendant was in the courtroom and that she might be on medication. ²

The new trial judge denied the motion to dismiss and for discharge. A petition for writ of prohibition, asserting that double jeopardy provisions barred defendant's retrial and that the trial court should be prohibited from proceeding in the case, was filed in the Fourth District Court of Appeal. The petition was denied without opinion. Following the denial of the petition, the defendant entered a plea of nolo contendere to the charge of armed kidnapping and to two counts of aggravated battery, as lesser included offenses of the armed sexual battery counts. Thomason specifically reserved his right to appeal the denial of the motion to dismiss and for discharge. Adjudication was withheld and the defendant was placed on probation for five years, with credit for the time spent in custody. The plea was accepted by the court. Without opinion, the Fourth District Court of Appeal affirmed the order placing defendant on probation, Thomason, 594 So.2d at 310, but on rehearing the court certified the question as one of great public importance. Id. at 318.

The protection of an accused against being twice put in jeopardy for the same offense is a right guaranteed by both the Fifth Amendment to the United States Constitution and article I, section 9 of the Florida Constitution. Jeopardy attaches in a criminal proceeding when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978); State ex rel. Williams v. Grayson, 90 So.2d 710, 713 (Fla.1956). The reason that a defendant is put in jeopardy before the trial ends with a verdict has been explained by the United States Supreme Court as follows:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

Thus, a defendant has a "valued right" to have his or her trial completed by a particular tribunal. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). However, the right is not absolute. For example, when the defendant requests declaration of a mistrial, double jeopardy usually is not a bar to reprosecution. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982). Even in cases where a mistrial is declared over the objection of the defendant, the double jeopardy clause does not guarantee that a defendant cannot be retried. The right to have a trial concluded by a particular tribunal sometimes must give way to the public interest in allowing the State one "full and fair opportunity" to present evidence to an impartial jury. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978).

However, absent circumstances thwarting the State's one full and fair opportunity to present its case, the right of a defendant to completion of his or her trial by a particular tribunal should control. As the United States Supreme Court noted in United States v. Dinitz:

The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendants's request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire "to go to the first jury and, perhaps, end the dispute then and there with an acquittal."

424 U.S. 600, 608, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976) (quoting United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971)). See also Jorn, 400 U.S. at 485, 91 S.Ct. at 557 ("[T]he defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial.").

Because the right not to be subjected to double jeopardy is so important and because it is frustrated when a trial ends before a verdict is reached, the State bears a heavy burden in justifying a mistrial over the objection of a defendant. Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830. Doubt about whether the mistrial is appropriate is resolved "in favor of the liberty of the citizen." Downum v. United States, 372 U.S. 734, 738, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963), (quoting United States v. Watson, 28 F.Cas. 499, 500-01 (D.C.S.D. N.Y.1868) (No. 16,651)). The State must demonstrate "manifest necessity" for the mistrial, a requirement that has been part of this country's jurisprudence since 1824. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). ³ The manifest necessity standard must be applied on a case-by-case basis and cannot be applied mechanically. See, e.g., Arizona v. Washington; Strawn v. State ex rel. Anderberg, 332 So.2d 601 (Fla.1976); Adkins v. Smith, 205 So.2d 530, 532 (Fla.1967).

The United States Supreme Court has not always been clear about how...