Wood v. State

• Decision Date: 01 July 1975
• Docket Number: No. 29794,29794
• Court: Georgia Supreme Court
• Parties: Stanley M. WOOD v. The STATE.

Page 47

218 S.E.2d 47

234 Ga. 758

Stanley M. WOOD v. The STATE.

No. 29794.

Supreme Court of Georgia.

July 1, 1975.

Rehearing Denied July 15, 1975.

Robert D. Peckham, Jack H. Affeck, Athens, for appellant.

Harry N. Gordon, Dist. Atty., James Wilson Smith, Asst. Dist. Atty., Athens, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Deputy Asst. Dist. Atty., Atlanta, for appellee. HALL, Justice.

Appellant Wood appeals from a conviction and sentence of 20 years for rape. The original indictment for rape and aggravated battery was on April 8, 1974. Wood filed a formal demand for trial during the April term of court. His trial on both counts during the July term of court resulted in a mistrial due to the judge's determination that the jury was unable to reach a verdict. Wood was again brought to trial on the charge of rape during the October term of the court, resulting in the verdict from which he appeals. Prior to this trial, the court granted a motion to acquit on the charge of aggravated battery. A plea of former jeopardy on the rape charge was denied.

1. The appellant contends that his plea of former jeopardy should have been granted because the trial court abused its discretion in declaring a mistrial without the appellant's consent where the members of the jury were unable to agree upon a verdict of guilt or innocence. We disagree.

The transcript shows that the jury deliberated in excess of eleven hours in the first trial prior to the court's declaration of a mistrial. On three separate occasions the jury reported to the court that they were hopelessly deadlocked and unable to reach a decision. On the first two occasions, the court admonished the jury to reconsider their opinions in view of the evidence and the opinions of the other jurors. On the third occasion, the court polled the jury, asking each juror if it was conceivable that the jury could arrive at a decision with further deliberation. After determining that further deliberation would be fruitless, the court declared a mistrial.

This is a clear case of manifest necessity for the declaration of the mistrial lest otherwise the end of public justice be defeated. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165; Cameron v. Caldwell, 232 Ga. 611, 208 S.E.2d 441. For a discussion of the Perez test see Jones v. State, 232 Ga. 324, 206 S.E.2d 481.

2. The appellant was sworn with other witnesses at the start of the trial but elected not to testify. No witnesses were presented in his defense. He contends that the trial court committed reversible error in failing to grant a motion for mistrial based upon the following remarks of the District Attorney made during his concluding argument: 'Now, Mr. Scott (appellant's trial attorney) is going to go right on into alibi. He is talking about not injecting things not in evidence. I submit to you at this time that there is no evidence of any alibi in this case even though we have heard alibi, alibi, alibi. You have heard him ask about him playing baseball. I don't see any evidence of that. I saw a whole group of witnesses swron earlier in the trial last Tuesday evening. I saw that, but I have seen none of them testify. Now, I don't know what his argument is going to be-'

The above statement was a comment on the appellant's failure to produce evidence. It was not a comment on the appellant's failure to testify as prohibited by Code § 38-119. Dorsey v. State, 204 Ga. 345(3), 49 S.E.2d 886. The comment here is inapposite to the one found in Salisbury v. State, 221 Ga. 718, 146 S.E.2d 776.

3. The appellant contends the trial court erred in admitting testimony of the aggravated battery for the reason that the court had previously discharged the battery count under Code § 27-1901. We disagree. "One of the exceptions to the rule that on prosecution for a particular crime evidence which tends to show that the defendant committed another crime wholly independent from that for which he is on trial is irrelevant and inadmissible, is where the other crime is a part of the res gestae." King v. State, 230 Ga. 581(2), 198 S.E.2d 305; Katzensky v. State, 228 Ga. 6(1), 183 S.E.2d 749; Floyd v. State, 143 Ga. 286(2), 84 S.E. 971.

Judgment affirmed.

All the Justices concur, except GUNTER, J., who dissents to Division 1 and the judgment.

GUNTER, Justice (dissenting).

United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), has been consistently cited for the proposition that manifest necessity to meet the ends of public justice is present when a criminal trial is aborted by the inability of the jury to reach a verdict of guilty or not guilty; and on the basis of this premise, a mistrial may be declared and the accused re-tried on the same criminal charge before another jury without offending the constitutional principle of double jeopardy. I dissented in Cameron v. Caldwell, 232 Ga. 611, 208 S.E.2d 441 (1974), and said: 'Such a procedure, in my opinion, makes the double jeopardy provision in the Fifth Amendment and the due process provision in the Fourteenth Amendment, in combination, meaningless.' P. 613, 208 S.E.2d p. 442.

Perez was a federal case, and the Due Process Clause of the Fifth Amendment was applicable to it. The Fourteenth Amendment was not in existence in 1824 when Perez was decided. However, I do not believe that 'due process of law' pursuant to the Fifth Amendment was considered in Perez by the Court, or if it was considered, the due process concept in 1824 had no legal resemblance to the present-day concept of procedural due process of law mandated by the Fourteenth Amendment.

The state must prove an accused guilty beyond a reasonable doubt. The reasonable-doubt standard required in criminal cases has now achieved constitutional stature: 'Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368.

In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the accused had been tried for first-degree murder; the jury did not return a verdict on that charge; but the jury did return a verdict of guilty for second-degree murder. The accused secured a reversal of the second-degree murder conviction, he was granted a new trial, the government tried him again for first-degree murder over his objection, he was convicted at the second trial of first-degree murder, and his conviction for first-degree murder was set aside by the Supreme Court as 'contrary to both the letter and spirit of the Fifth Amendment.' P. 198, 78 S.Ct. p. 229.

Writing for the Court in Green, Justice Black said: 'Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country regarded the jury's verdict as an implicit acquittal on the charge of first degree murder. But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green's consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green's jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense.' Pp. 190, 191, 78 S.Ct. p. 225.

In Green, Justice Black also said: '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. . . . Moreover it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again.' Pp. 187, 188, 78 S.Ct. p. 223.

Green means to me that since the jury did not return a verdict...