Washington v. Com.
| Decision Date | 27 March 2001 |
| Docket Number | Record No. 0881-00-4. |
| Citation | 35 Va. App. 202,543 S.E.2d 638 |
| Parties | Darrell WASHINGTON v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Janell M. Wolfe, Arlington, for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: FITZPATRICK, C.J., and WILLIS and CLEMENTS, JJ.
Darrell Washington (appellant) was convicted in a jury trial of robbery, in violation of Code § 18.2-58, and use of a firearm while committing a robbery, in violation of Code § 18.2-53.1. On appeal, he contends (1) his second trial violated the Fifth Amendment's Double Jeopardy Clause1 and (2) the evidence was insufficient to prove his guilt. We agree that the double jeopardy prohibition bars his second trial and reverse and dismiss his convictions.
On December 15, 1999 appellant's case was called for trial before the Honorable Paul Sheridan. Twenty people were called as prospective jurors and seated in the jury box. When Juror No. 5 approached the jury box, he informed the trial judge, "I'm excused for tomorrow, Your Honor." The court asked counsel if the case would carry over into the next day, and appellant's counsel indicated that it was very possible it might do so. The court then inquired if anyone else was excused for the following day. Four of the prospective jurors noted they were excused for the following day. Nevertheless, all the prospective jurors were called for voir dire. Another juror indicated he would have a problem if court lasted later than 5:00 p.m. on that day.
Prior to either counsel commencing voir dire, the court once again inquired, "How many of you have been excused for tomorrow?" and had the jurors keep their hands raised so that counsel could see them. After both counsel finished voir dire, the court again asked Defense counsel informed the court that she would not use her strikes based upon availability, and the court indicated that appellant was not required to use strikes in that manner. Counsel also stated, "I think, you know, the lateness of this trial starting, that there is a good chance that it will go into tomorrow." The court responded, "I'm going to wait and see."
After the strikes were completed, but prior to the jury being sworn, one juror stated that she had to teach a class at 6:00 p.m. and needed to leave by 5:30 p.m. The trial judge agreed to make sure the juror was excused on time. Another juror stated, "I was excused for tomorrow." The court responded:
The trial court, after having the jury panel sworn, sua sponte determined a need for alternates.
Only two prospective jurors were available who were not a part of the twenty previously called. Thus, the court proposed adding two of the previously stricken jurors and allowing each side one strike to select two alternates. At this point, the jury and remaining prospective jurors were removed from the courtroom. The appellant and Commonwealth objected to any procedure to choose an alternate that included previously stricken jurors.2 Appellant also objected to selecting any alternate jurors at this stage because the alternates would know they were designated as such. Appellant indicated the court knew enough jurors might not be present and should have continued the case. The Commonwealth and appellant further objected to the court's suggestion to seat the two remaining prospective jurors and allow only the appellant to strike one. The following colloquy occurred:
(Emphasis added).
The court then recalled the jury and discharged them from service. After the jury left the courtroom, the trial judge heard additional argument:
Appellant's trial was rescheduled for March 6, 2000 before another judge.4 Prior to commencing jury selection, appellant moved to dismiss his case on double jeopardy grounds. The trial court denied appellant's motion, stating that while he believed the original trial should have been continued when the `judge was informed that the jury member was excused the following day, the granting of a mistrial and the determination of manifest necessity are matters left exclusively to the discretion of the trial judge at the time and, thus, he would not second guess the original trial judge's decision. Appellant was tried and convicted of robbery and use of a firearm while committing a robbery.
The Fifth Amendment to the Constitution of the United States provides that no person "shall be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Fifth Amendment's protection against double jeopardy applies to Virginia through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969)
. "Double jeopardy protection is implicated even though the trial may have terminated without a verdict." Brandon v. Commonwealth, 22 Va.App. 82, 88, 467 S.E.2d 859, 862 (1996). "The law is well settled `that jeopardy means the danger of conviction.'" Courtney v. Commonwealth, 23 Va.App. 561, 567, 478 S.E.2d 336, 338 (1996) (quoting Rosser v. Commonwealth, 159 Va. 1028, 1036, 167 S.E. 257, 259 (1933)). Jeopardy attaches "once the jury is sworn."5
Kemph v. Commonwealth, 17 Va. App. 335, 340, 437 S.E.2d 210, 213 (1993). Thus, because jeopardy attaches before the judgment becomes final, the constitutional protection encompasses the accused's "valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); see also Bennefield v. Commonwealth, 21 Va.App. 729, 733, 467 S.E.2d 306, 308 (1996), that is, "the right ... to have his...
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