Blueford v. State

2011 Ark. 8

370 S.W.3d 496

Alex BLUEFORD, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 10–554.

Supreme Court of Arkansas.

Jan. 20, 2011.

Rehearing Denied Feb. 24, 2011.

Sharon Kiel, Deputy Public Defender, by: Clint Miller, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Eileen W. Harrison, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant Alex Blueford brings this interlocutory appeal from the order of the Pulaski County Circuit Court denying his motions to prevent his retrial on a pending capital-murder charge because of double-jeopardy protections. On appeal, Blueford asserts that jeopardy attached and prevents his retrial because the jury determined during his trial that he was not guilty of capital murder and its lesser-included offense of first-degree murder. We find no error and affirm.

The record reflects that on July 15, 2008, Appellant was charged with capital murder in violation of Ark.Code Ann. § 5–10–101(a)(9)(A) (Repl.2006) based on the State's allegation that Blueford, acting under circumstances manifesting an extreme indifference to the value of human life, caused the death of Matthew McFadden, Jr., a person fourteen years of age or younger. Appellant was initially tried in August 2009. Following the presentation of evidence, the circuit court instructed the jury on the pertinent definitions of capital murder, first-degree murder, manslaughter, and negligent homicide. The circuit court also gave the transitional instruction, AMI Crim.2d 302, to guide the jury's transition from one offense to the next. The transitional instruction provided in relevant part that “if you have a reasonable doubt of the defendant's guilt on the charge[d offense or lesser included offense just considered], you will then consider the charge of [the next lesser included offense].”

During deliberations, the jury submitted a note to the circuit court stating that “a juror would like to know what happens if we cannot agree on a charge at all.” The jury was returned to the court room and the circuit court gave an “Allen instruction,” requesting that they retire for further deliberations in an attempt to reach a verdict. The jury sent out a second note indicating that they remained deadlocked. When the jurors returned to the courtroom, the following colloquy took place between the circuit court and the jury forewoman:

The Court: All right, Court's back in session. Madam foreman, the Court has a note from the jury stating, (as read), “The jury cannot agree on any one charge in this case.”

Are you telling this Court that you're hopelessly deadlocked on every charge?

Juror Number One: I'm not sure I understand what you mean, sir. To consider—

The Court: Well, you're obviously in your agreement—any—any charge, conviction of any charge, or even a not guilty finding has to be unanimous. All 12 have to agree.

Juror Number One: Right.

The Court: My question to you is, are you so deadlocked that you're not going to be able to reach an agreement no matter how long we stay here tonight?

Juror Number One: I would say that statement would be true, yes.

The court: Well, that's not my statement, that's a question.

Juror Number One: Oh, the answer is yes, we are deadlocked.

The Court: All right, hopelessly?

Juror Number One: I would say so, sir, yes.

The Court: All right. If you have your numbers together, and I don't want names, but if you have your numbers I would like to know what your count was on capital murder.

Juror Number One: That was unanimous against that. No.

The Court: Okay, on murder in the first degree?

Juror Number One: That was unanimous against that.

The Court: Okay. Manslaughter?

Juror Number One: Nine for, three against.

The Court: Okay. And negligent homicide?

Juror Number One: We did not vote on that, sir.

The court: Did not vote on that.

Juror Number One: No, sir. We couldn't get past the manslaughter. Were we supposed to go past that? I thought we were supposed to go one at a time.

The court then stated that it appeared the jury had not completed its deliberations, and the court again requested the jury to deliberate further. While the jury resumed deliberations, counsel for Appellant requested that the court submit verdict forms to be completed by the jurors on the counts that they had decided upon. The State objected, noting that the jury had resumed its deliberations and had not yet made any findings. The circuit court denied Appellant's request. A short time later, when the jury again indicated that it had not reached a verdict, the circuit court declared a mistrial. Neither the State nor Appellant objected to the declaration of a mistrial. Appellant's trial was then rescheduled for March 2010.

Prior to the time scheduled for retrial, Appellant filed several motions in circuit court, arguing that the Fifth Amendment's double-jeopardy provision, as well as Arkansas's double-jeopardy statutes, barred his retrial on the capital-murder charge and the lesser-included offense of first-degree murder. In support of his motions, he argued that the jury forewoman's announcement in open court that the jury had found him not guilty on those two charges amounted to an acquittal, such that he could not again be tried on those charges. The circuit court entered an order on February 26, 2010, denying Appellant's motions. In so ruling, the circuit court stated as follows:

This Court finds, after review of the transcript of Defendant Blueford's first trial, that the jury foreperson was explicit that the jury was unanimous in voting against finding Defendant Blueford guilty of capital murder and first degree murder. However, there were no “findings” or “verdicts” as intended by the law. The jury was unable to complete its deliberations and this Court had to declare a mistrial.

The sole issue on appeal is whether the circuit court erred in finding that jeopardy had not attached, thus, allowing the State to retry Appellant on the charges of capital murder and first-degree murder. This court reviews de novo a circuit court's denial of a motion to dismiss on double-jeopardy grounds. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008). When the analysis presents itself as a mixed question of law and fact, the factual determinations made by the circuit court are given due deference and are not reversed unless clearly erroneous. Id. However, the ultimate decision by the circuit court that the defendant's protection against double jeopardy was not violated is reviewed de novo, with no deference given to the circuit court's determination. Id. Finally, we note that a double-jeopardy claim may be raised by interlocutory appeal because if a defendant is illegally tried a second time, the right would have been forfeited. See Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007).

Appellant argues that we are called upon to decide the implications of Arkansas's transitional jury instruction, which is given in criminal cases where the jury is allowed to consider lesser-included offenses. According to Appellant, because the jury was instructed that it could not consider his guilt on a lesser-included offense until it made a determination on the greater offense and the jury forewoman then announced in open court that the jury had found him not guilty of capital murder and first-degree murder, he was acquitted on those two charges. Appellant further argues that entry of a formal judgment is not essential, as the jury's finding of not guilty is sufficient to bar further prosecution on those two charges. Finally, Appellant asserts that the jury determinations were final because they were not given any type of step-back instruction that would have allowed the jury to resume deliberations on the capital-murder or first-degree murder charges.

The State counters that where a jury is discharged before completion of a case, a defendant may invoke his right against double jeopardy, except in cases of overruling necessity. The State further asserts that where a defendant consents to a mistrial, there is no requirement of demonstrating overruling necessity. Thus, according to the State, Appellant, who impliedly agreed to the mistrial by failing to object to the granting of the mistrial, may be tried again. Moreover, the State asserts that the deadlocked jury in the first trial constituted an overruling necessity warranting the mistrial.

This court has explained as follows:

Both the Fifth Amendment to the United States Constitution and article 2, § 8 of the Arkansas Constitution require that no person be twice put in jeopardy of life or liberty for the same offense. The Double Jeopardy Clause protects criminal defendants from: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.”

Koster, 374 Ark. at 81, 286 S.W.3d at 159 (quoting Hughes v. State, 347 Ark. 696, 702, 66 S.W.3d 645, 648 (2002)) (citation omitted). Thus, once the jury has been sworn and jeopardy attaches, the court can grant a mistrial without barring subsequent prosecution only if there is an “overruling necessity.” See Smith v. State, 307 Ark. 542, 545, 821 S.W.2d 774, 776 (1992) (quoting Wilson v. State, 289 Ark. 141, 145, 712 S.W.2d 654, 656 (1986)). Under Arkansas law it is well settled that a deadlocked jury is a circumstance that qualifies as an overruling necessity. Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991). The decision to order a mistrial due to a jury's inability to reach a verdict is within the sound discretion of the circuit court, and will be upheld absent an abuse of discretion. Id.

Here, Appellant does not challenge the fact that the hung jury in the first trial was an overruling necessity that required the declaration of a mistrial. Instead, he argues that he was acquitted on the two charges by virtue of the fact that the jury, which was given the transitional instruction, announced in open co...