Honester v. State

336 Ga.App. 166

784 S.E.2d 30

HONESTER

v.The STATE.

No. A15A2235.

Court of Appeals of Georgia.

March 11, 2016.

Robert Lee Chan, for Appellant.

Joshua Bradley Smith, for Appellee.

BRANCH, Judge.

Wayne L. Honester appeals from the denial of his plea in bar, arguing that the trial court erred when it terminated his first trial on a felony obstruction charge before the jury reached a verdict. Honester contends that instead of declaring a mistrial, the trial court should have provided the jury with an appropriate Allen charge¹ and instructed it to continue deliberating. Honester also asserts that because the trial court declared the mistrial over his objection and in the absence of any manifest necessity for doing so, he was entitled to a plea in bar as a matter of law. For reasons explained more fully below, we agree with Honester. We therefore reverse the trial court's order and remand this case with direction.

On an appeal from the grant or denial of a double jeopardy plea in bar, we generally review "the trial court's oral and written rulings as a whole" to determine whether any factual findings contained therein support the trial court's ruling as to whether the defendant was entitled to a plea in bar. Cotman v. State, 328 Ga.App. 822–823, 762 S.E.2d 824 (2014). See also Garrett v. State, 306 Ga.App. 429, 702 S.E.2d 470 (2010). But in those cases where the relevant facts are undisputed and "no question regarding the credibility of witnesses is presented, we review de novo the trial court's application of the law to undisputed facts." Cotman, 328 Ga.App. at 823, 762 S.E.2d 824, quoting Garrett, 306 Ga.App. at 429, 702 S.E.2d 470.

The facts relevant to this appeal are undisputed and many of them are set forth in our opinion in Honester v. State, 329 Ga.App. 406, 765 S.E.2d 376 (2014) ("Honester I ") (physical precedent only)² , as follows:

Honester was indicted on a single charge of felony obstruction of a law enforcement officer by fighting with the officer during a lawful arrest.... Honester was tried before a jury on March 11, 2011. After deliberating for about three hours, the jury sent a note to the judge, stating, "We cannot agree on the verdict. What are your instructions?" Both the state and the defense requested that the trial court give the jury an Allen charge for further deliberations.... The judge said that before giving such a charge he wanted to ask the jury two questions: 1) the numerical division of votes as to guilt or innocence, and 2) whether it was likely that further deliberations would result in a unanimous verdict. Honester objected to the court asking the jurors how they were voting as to guilt or innocence, but the court overruled the objection and sent the jury a note containing both questions. The jury responded that the vote was eleven to one in favor of acquittal and answered "no" to the second question.

Upon learning of the nature and numerical breakdown of the jury vote, the state withdrew its request for an Allen charge. Honester renewed his request for the charge and also suggested that the jurors be asked if anyone was refusing to deliberate. The court stated that it would ask that question before deciding whether to give an Allen charge. The court submitted the question to the jury, and the jury responded that no one was refusing to deliberate. Honester again requested that the court give the Allen charge.

The trial judge, however, expressed concern that such a charge would place "undue pressure on a juror." After further argument from the defense, the trial judge observed that the case "has had a lot of difficult evidence." The judge then refused to give an Allen charge and, over the express objection of the defense, sua sponte declared a mistrial. The court reasoned: "I don't think it appropriate to give the Allen charge and then put the jury back into a posture of further deliberations and pressuring when it's clear from two of the communications that they cannot reach a verdict so I'll declare a mistrial in the case."

Five days later, Honester was tried again before a different jury which returned a guilty verdict. But upon being polled in open court, one of the jurors indicated that the verdict had not been freely and voluntarily made by him. The judge then instructed the jury to return to the jury room and continue deliberating. A short time later, the jury returned with another guilty verdict. Before imposing sentence, the trial court asked Honester if he wanted to say anything on his own behalf. Honester responded, "Your Honor, ... I don't see how one week it's eleven my way and then next week all twelve say I'm guilty. I don't understand that Your Honor ... I feel I would have been entitled to a fair trial last week. You [should] have [done] the same thing you did today send them right back in the room." Thereafter, the trial court imposed the maximum sentence of five years.

Honester I, 329 Ga.App. at 406–408, 765 S.E.2d 376.

Following his conviction, Honester moved for a new trial, asserting that his lawyer's failure to file a plea in bar after Honester's first trial constituted ineffective assistance. Id. at 408, 765 S.E.2d 376. The trial court denied that motion, Id. at 408(1), 765 S.E.2d 376, but this Court reversed, finding both that Honester's trial counsel had performed deficiently in failing to file a plea in bar and that Honester had suffered prejudice as a result of that deficient performance. Id. at 413(1), 765 S.E.2d 376. On remand, Honester filed a plea in bar, and the trial court held a brief hearing on that motion, at which it heard arguments of counsel as to whether the mistrial was prompted by manifest necessity and whether Honester was entitled to a plea in bar as a matter of law. Following that hearing, the trial court denied Honester's motion in a summary order which states simply that "[a]fter a full hearing on the matter, consideration of the evidence^{[3 ]}, and argument[s] [of the parties], Defendant's plea in bar is hereby denied." Honester now appeals from that order.⁴

At the time an accused's jury is impaneled and sworn, jeopardy attaches and the accused is entitled, under the double jeopardy provisions of both the State and Federal Constitutions, to have his trial proceed either to conviction or acquittal before that particular tribunal. Smith v. State, 263 Ga. 782, 783(1), 439 S.E.2d 483 (1994). See also Jones v. State, 232 Ga. 324, 326, 206 S.E.2d 481 (1974). Thus, the declaration of a mistrial over the defendant's objection will bar a retrial unless the record shows that the mistrial resulted from "manifest necessity."

Harvey v. State, 296 Ga. 823, 830(2)(a), 770 S.E.2d 840 (2015). See also United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). "The United States Supreme Court has clarified that the [term] ‘manifest necessity’... cannot be interpreted literally, and that a mistrial is appropriate when there is a ‘high degree’ of necessity." Harvey, 296 Ga. at 830–831(2)(a), 770 S.E.2d 840, quoting Renico v. Lett, 559 U.S. 766, 774(II), 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). And the "urgent circumstances" that give rise to the manifest necessity to declare a mistrial include cases "where ‘an impartial verdict cannot be reached, or where a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.’ " Smith, 263 Ga. at 783(1), 439 S.E.2d 483, quoting Illinois v. Somerville, 410 U.S. 458, 464(II), 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). See also Glass v. State, 250 Ga. 736, 738(2), 300 S.E.2d 812 (1983) ("[w]here the jury is hopelessly deadlocked, this constitutes manifest necessity for declaring a mistrial") (citations omitted).

The question of whether a jury is "hopelessly deadlocked," and thus the existence of manifest necessity for a mistrial, is within the discretion of the trial court. See Harvey, 296 Ga. at 832(2)(a), 770 S.E.2d 840 ; Romine v. State, 256 Ga. 521, 525(1)(b), 350 S.E.2d 446 (1986). That discretion, however, "is not unbridled," Haynes v. State, 245 Ga. 817, 819, 268 S.E.2d 325 (1980), and it must be exercised carefully, particularly where the trial court is declaring a mistrial either sua sponte or at the request of the State and over the objection of the defendant. State v. Johnson, 267 Ga. 305, 305, 477 S.E.2d 579 (1996) (" ‘the power of the trial judge to interrupt the proceedings on his own or the prosecutor's motion by declaring a mistrial is subject to stringent limitations' ") (citation omitted), quoting Jones, 232 Ga. at 326–327, 206 S.E.2d 481. The careful exercise of its discretion, in turn, requires the trial court to take certain steps before concluding that the jury is hopelessly deadlocked and that a mistrial is necessary.

Given "the severe consequences of ordering a mistrial without the accused's consent," Smith, 263 Ga. at 783(1), 439 S.E.2d 483 (citation and punctuation omitted), it is "highly important" that the trial court undertake "a consideration of alternative remedies" before declaring a mistrial based on a jury's alleged inability to reach a verdict. Haynes, 245 Ga. at 819, 268 S.E.2d 325.

Specifically, a trial court must " ‘give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes.’ " Harvey, 296 Ga. at 832(2)(a), 770 S.E.2d 840 (punctuation omitted), quoting Smith, 263 Ga. at 783(1), 439 S.E.2d 483. Accordingly, a trial court may not allow itself to be bound by a jury's pronouncement that it is hopelessly deadlocked. See Sears, 270 Ga. at 838(1), 514 S.E.2d 426 ("[a]lthough the jury twice stated that it was at an eleven to one ‘deadlock,’ the trial court was not bound by those pronouncements") citing Todd v. State, 243 Ga. 539, 542(3), 255 S.E.2d 5 (1979) ("[t]he trial judge is not bound to accept the jury's feeling that it is hopelessly...