Washington v. State
Decision Date | 16 July 2015 |
Docket Number | No. A15A0277.,A15A0277. |
Citation | 775 S.E.2d 719,333 Ga.App. 236 |
Parties | WASHINGTON v. The STATE. |
Court | Georgia Court of Appeals |
The Hawk Firm, Jacque D. Hawk, Augusta, for Appellant.
Natalie Spires Paine, Joshua B. Smith, Asst. Dist. Attys., Rebecca Ashley Wright, Dist. Atty., for Appellee.
Following a trial by jury, Devin Washington was convicted of possessing a firearm during the commission of a felony and acquitted of malice murder. The trial court also declared a mistrial as to a charge against him for felony murder. On appeal, Washington argues, inter alia, that the trial court erred by declaring a mistrial as to the charge of felony murder and, accordingly, that double jeopardy bars a second prosecution such that the trial court should have granted his plea in bar. For the reasons set forth infra, we remand the case for further proceedings consistent with this opinion.
Viewed in the light most favorable to the verdict,1 the record reflects that in the early morning hours on the day in question, Devin Washington and the victim, Preshawn Williams, arrived at an Augusta nightclub in a Jeep driven by Williams. At the same time, Marcus Washington (no relation to Devin)2 arrived at the club in a Monte Carlo driven by an acquaintance and accompanied by Williams's cousin. When Marcus prepared to enter the club, he was suddenly attacked from behind by Devin, and the two continued to scuffle in the parking lot until the club's owner demanded that they leave the premises.
Marcus returned to the Monte Carlo and Devin returned to the Jeep, which was parked beside the Monte Carlo. Marcus demanded that the driver unlock the Monte Carlo so that he could get inside the vehicle, but she hesitated to do so and passed the keys to Williams's cousin. The cousin eventually unlocked the Monte Carlo and Marcus immediately retrieved a firearm from beneath the front-passenger seat. At that point, a gun battle erupted between Marcus and Devin (who, according to witnesses and Marcus, had been threatening to shoot if Marcus got into the Monte Carlo).3 At some point, Williams, who had reentered the Jeep, was shot in the leg and head by two of Marcus's bullets, and he subsequently died as a result of the head injury.
Thereafter, Marcus and Devin were jointly indicted on charges of malice murder, felony murder, and possession of a firearm during the commission of a felony.4 At the conclusion of the trial, the jury found both defendants not guilty of malice murder but guilty of possessing firearms during the commission of a felony. As to felony murder, the jury acquitted Marcus, but the trial court declared a mistrial as to Devin. Devin then filed a motion for new trial and a plea in bar as to felony murder. The trial court denied both, and Devin now appeals.
1. First, Devin contends that the trial court erred by declaring a mistrial as to felony murder when the verdict form reflects an acquittal on that charge, making a subsequent prosecution barred by double jeopardy. Thus, Devin contends that the trial court erred by denying his plea in bar. But because the state of the record is such that we cannot, at this time, conduct meaningful appellate review of these claims, we must remand to the trial court for additional findings of fact.
We begin by recognizing that the constitutional prohibition against double jeopardy was designed to “protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.”5 Indeed, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution6 serves to “limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws.”7 Thus, after a jury is impaneled and sworn, “jeopardy attaches, and the defendant normally has a right to have [his] trial completed by that particular tribunal.”8 Accordingly, if a mistrial is declared without a defendant's consent or over his objection, “the defendant may be retried only if there was a ‘manifest necessity’ for the mistrial.”9 The entry of a mistrial, then, is examined under the “manifest necessity” standard established by the Supreme Court of the United States in United States v. Perez,10 which the Supreme Court of Georgia has described as follows:
The test to be applied by a trial court hearing a double jeopardy plea is that retrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the end of public justice be defeated; the existence of “manifest necessity” is to be determined by weighing the defendant's right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.11
When there is no manifest necessity for “aborting a trial rather than using other less drastic remedies to cure problems, in the absence of defendant's motion for a mistrial, the granting of a mistrial is an abuse of discretion.”12 And on appeal, the standard of review of a grant or denial of a plea in bar is “whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion.”13 However, as will soon become clear, we currently lack the ability to review the trial court's decision to declare a mistrial and, likewise, its denial of Devin's plea in bar.
In pertinent part, the record reflects that both Marcus and Devin requested that the jury be instructed on voluntary manslaughter as a lesser-included offense of malice murder and felony murder, and the jurors were so charged. Then, after retiring to deliberate and requesting and receiving reinstruction as to the various offenses at issue, the jurors inquired as to whether they could “apply voluntary manslaughter instead of felony murder.” In response, the court reinstructed the jurors that should they find a defendant not guilty of malice murder or felony murder, they would be authorized to determine whether he was guilty of the lesser-included offense of voluntary manslaughter.
Ultimately, the trial court decided to issue an Allen charge to the jury.14 The court also decided to write back to the jurors, advising that they would “need to continue [their] deliberations.”
Although the transcript gives no indication as to the timing, either concurrent with the aforementioned communication or after it, the trial court requested in writing that the jurors, “[w]ithout specifying which way [they] [were] leaning, ... provide a count (number) as to each defendant and each count and what the split is.” This handwritten sheet submitted to the jury by the trial court referred to the various charges only by count number, not by the name of the charged offense; and in response, the jurors indicated that they were unanimous as to every count for the defendants except “Count 2” for Devin Washington, on which they were split eleven to one.
After receiving the Allen charge and again retiring to deliberate, the jurors sent another communication to inform the trial court that they had “exhausted all attempts to come to a unanimous decision on Count 2 for Devin Washington.” At that point, the following colloquy took place on the record:
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Washington v. State
...Smith, Rebecca Ashley Wright, for Appellee.Andrews, Presiding Judge.This is the second appearance of this case in this Court. In Washington v. State , we concluded that the state of the appellate record prevented us from reviewing Devin Washington's claim that "the trial court erred by decl......
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