Woods v. State

• Decision Date: 24 January 1978
• Docket Number: 5 Div. 393
• Parties: Ethel Morgan WOODS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 974

367 So.2d 974

Ethel Morgan WOODS v. STATE.

5 Div. 393.

Court of Criminal Appeals of Alabama.

Jan. 24, 1978.

Rehearing Denied Feb. 21, 1978.

Edward C. Greene, Mobile, for appellant.

William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The appellant was charged with murder in the second degree. A jury found her guilty of manslaughter in the first degree and fixed her punishment at five years imprisonment. On this appeal the only question presented for review is whether the constitutional prohibition against double jeopardy barred a second trial where the court discharged the jury in the first trial and granted the state's motion for a mistrial on the basis of "juror conduct".

The factual background for the argument on appeal is not complex. The appellant was brought to trial and members of the petit jury venire were qualified by the court and questioned on voir dire by the prosecution. The district attorney announced satisfied with the qualifications of the venire and a jury was selected, sworn and impaneled. The jury was not questioned as to whether anyone knew the accused or her family. The only inquiry in this regard was whether any of the prospective jurors were related by blood or marriage to the appellant.

After the testimony of the first witness for the state, the trial was recessed for lunch. The jurors were instructed that they would have to stay together during the recess and were warned not to "talk about the case". When court reconvened, the district attorney informed the trial judge that as the jury returned to the courtroom he noticed one of the jurors, Mr. Doc Woodson, talking to the mother of the appellant. The trial judge placed Mr. Woodson under oath and discovered that the juror had known the appellant for practically all of her life. The district attorney requested a mistrial on the basis that some communication had been made between the juror and the mother of the appellant and because the juror admitted that he did know the appellant and her mother. The trial judge then made the following comment without further investigation.

"THE COURT: Well, let the record reflect that I did observe the communication between the lady in the courtroom and it was called to my attention that a communication was going on between the lady in the courtroom and the juror. I observed that communication, that it was in Court, and at this time I will direct that the case be mistried.

"A mistrial is granted to the District Attorney.

"It's probably my fault that we have gotten to this point because it has wasted your time for the day and we have wasted the jury expenses for today.

"I hope that you will accept my apologies for this because I should have asked the question myself, even if the attorneys did not, if any of the jurors knew the family or knew the defendant.

"However, I want it to be entirely clear that and I don't mean, here I am young and this is my first time and my first day I will not tolerate communication between jurors and parties at trial while the case is in session. And I'm not blaming you, Mr. Woodson, because I probably did not make that clear; but I will make sure that I make that clear tomorrow and I will take the blame for it."

The minute entry of the trial court reflects that the mistrial was granted on motion of the state "due to conduct of juror". No inquiry was made into the substance of the communication before the mistrial was granted.

When the state attempted to reprosecute the appellant one week later the defense filed a plea of former jeopardy alleging that a second trial would subject her to double jeopardy because the mistrial was granted for insufficient reason. In support of the plea the testimony of the juror, Mr. Woodson, and the appellant's mother, Fanny Morgan, was offered. Mrs. Morgan testified that during the lunch recess the daughter of Mr. Woodson asked her to tell Mr. Woodson that, since his daughter had to go to work, he should catch a ride home from the courthouse with the Morgans. Mrs. Morgan relayed this message to Mr. Woodson in the courtroom as the jury returned from lunch. Mr. Woodson testified that Mrs. Morgan "called me and told me my wife told me to come back with them".

Upon consideration of the argument of counsel and the testimony of these witnesses, the trial court denied the plea of former jeopardy and in doing so made the following comments.

"The granting of the mistrial was primarily based on the conversation between the defendant's mother and the juror, when I had instructed them not to talk to anyone about the case. I observed, personally, the conversation between the lady and the juror, which the District Attorney called to my attention, and said, 'you see what's going on' and I saw it, and called Mr. Woodson over before the bench and asked him the questions that would appear on record."

And thereafter during the argument of the attorneys the following occurred:

"MR. GREENE (Defense Counsel): I think that the record will bear out the fact that even though the defense counsel, at the time of the state's motion, didn't object per se, we did ask that the substance of the conversation be admitted, or that we be made known of what was said. And at that time the District Attorney pointed out that he did not inquire into the substance of the conversation, he just determined that the juror and the defendant and the defendant's family were close friends, and that on those grounds, he moved for a mistrial. I think that the State is entitled to a fair trial, but I don't think the State is entitled to two fair trials.

"MR. HARPER (Assistant District Attorney): I don't think that was the basis for the request for mistrial, what Mr. Greene has just stated. It was not the fact that there was a close friendship there between the defendant and the juror. It was the fact that there was a communication in violation of the Court's specific instructions to the jury.

"THE COURT: For clarification of the record, I did not grant it simply because they were friends."

When a mistrial is declared by a trial court without the consent of the defendant, the double jeopardy clause of both the Alabama and United States constitutions permits retrial of the accused only if there was a manifest necessity for the mistrial or if the ends of public justice would otherwise be defeated. Section 9, Alabama Constitution of 1901; Amendment V, Constitution of the United States; United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). Section 9 of the Alabama Constitution provides that "courts may, for reasons fixed by law, discharge juries from the consideration of any case." The reasons fixed by law for discharge are set forth in § 12-16-233, Code of Alabama 1975.

"The court or presiding judge in all cases of jury trial may discharge the jury without giving a verdict, with the consent of all parties to the trial or without the consent of the parties, when, in the opinion of the court or judge, there is a manifest necessity for the discharge or when the ends of justice would otherwise be defeated. In all cases in which the jury is discharged without a verdict, a mistrial shall be entered upon the minutes of the court, assigning the reason or cause for the mistrial, and no person shall gain any advantage by reason of such discharge of the jury."

This section fixes the reasons for a discharge and leaves it to the opinion of the trial judge to determine whether or not the reason, as fixed by law for the discharge, really exists. Andrews v. State, 174 Ala. 11, 56 So. 998 (1911); Brewer v. State, 24 Ala.App. 410, 137 So. 454 (1931).

Time and time again the courts have refused to formulate rigid or mechanical rules governing the circumstances under which a trial judge could declare a mistrial without giving rise to a defense of double jeopardy. United States v. Perez, supra, 22 U.S. at 850, 6 L.Ed. at 165; Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 837-838, 93 L.Ed. 974 (1949); Illinois v. Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973). The very vagueness of the manifest necessity and ends of justice formulation, while maintaining the verity of the test, necessarily makes application imprecise. United States v. Grasso, 552 F.2d 46, 51 (2nd Cir. 1977). "Virtually all (double jeopardy) cases turn on the particular facts . . ." Illinois v. Somerville, supra, 410 U.S. 458, 464, 93 S.Ct. 1066, 1070.

A mistrial only springs into being upon a manifest or pressing necessity or when the ends of justice would otherwise be defeated. Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312 (1974). Examples of proper manifest necessity may be found in Parham v. State, 47 Ala.App. 76, 79, 250 So.2d 613 (1971) and Hawes v. State, 88 Ala. 37, 62, 7 So. 302 (1889). In legal effect a mistrial is the equivalent of no trial at all and should only be granted because of some circumstances indicating that justice may not be done if the trial continues. Long v. City of Opelika, 37 Ala.App. 200, 66 So.2d 126 (1953). A motion for a mistrial implies a miscarriage of justice if the trial continues. The word is not ordinarily used to indicate a mere erroneous ruling of law but specifies such fundamental error in a trial as would vitiate the result. Hallman v. State, 36 Ala.App. 592, 61 So.2d 857 (1952). The entry of a mistrial is not lightly to be undertaken and should only be ordered as a last resort. Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501 (1967).

Where there is no legal necessity for abandoning the trial and declaring a mistrial, the discharge of the jury operates as an acquittal of the accused and will sustain a plea of former jeopardy and bar a second trial of the accused. Ned v. State, 7 Port. 187 (1838); McCauley v. State, 26 Ala. 135 (1855); Spelce v. State, 20 Ala.App. 412, 103 So. 694, cert. denied, 212 Ala. 559, 103 So. 705 (1924).

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