EX PARTE ANTHONY MCMILLIAN v. <<

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Court of Appeals of Texas, Dallas.

EX PARTE ANTHONY MCMILLIAN, Appellant

No. 05–11–00642–CR

Decided: August 29, 2011

Before Justices O'Neill, Francis, and Myers

OPINION

Opinion By Justice O'Neill

Anthony McMillian appeals the trial court's order denying his pretrial application for writ of habeas corpus complaining he is being subjected to double jeopardy.   In two points of error, appellant contends the trial court abused its discretion in denying the application and improperly shifted the burden to prove manifest necessity for a mistrial from the State to the defense.   We affirm the trial court's order.

Standard of Review

In reviewing the trial judge's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial judge's ruling.   Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App.2007).   We will uphold the trial court's ruling absent an abuse of discretion.  Id. In conducting our review, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor.  Id. We afford the same amount of deference to the trial judge's application of the law to the facts, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor.  Id. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo.  Id.

Facts

On August 24–28, 2009, appellant was tried before a jury for the offense of murder.   After receiving the case on August 28th, the jury began deliberating at 11:30 a.m. and took an hour long break for lunch.   During deliberations, the jury sent the trial court three notes.   The first note asked if the trial court judge could come back to the jury room and answer questions about the law.   The trial court responded that it could not, but it invited the jury to submit questions in writing.   At 2:13 p.m., the jury sent a second note reporting, “We have been divided @ 11:1 since the start and it appears that the one individual will not be persuaded towards the other 11.   What do we do now?”   The trial court responded to the jury with an Allen charge 1 exhorting them to continue their deliberations.   At approximately 3:30 p.m., the jury sent a final note informing the trial court, “We are caught 11 not guilty, 1 guilty.   The juror 1 refuses to abide by the written law.   She states she will not change her decision.”  (Emphasis in original).

The trial court then discussed with the parties whether to declare a mistrial.   The State did not object.   Appellant objected, asking the trial court to grant the jury more time to deliberate and stating that a mistrial would prejudice appellant.   The trial judge agreed with appellant that four hours of deliberation on a trial of this length “is somewhat suspect,” but mused that “whether it's four minutes or four days, if a juror is adamantly refusing to change her mind, what good would waiting do?   You got anything?”   After hearing additional argument from appellant, the trial judge excused himself “to look something up real quick.”   When he returned, the trial court brought the jury back into the courtroom and declared a mistrial at 4:08 p.m.

Appellant filed his application for writ of habeas corpus to forestall a second trial on the murder charge.   On May 23, 2011, the trial court conducted a hearing on appellant's application.   The trial court denied relief and this appeal ensued.

Double Jeopardy

In his first point of error, appellant contends the trial court abused its discretion by denying the application for writ of habeas corpus because a retrial is barred by double jeopardy.   Appellant contends the trial court prematurely declared a mistrial, over his objection, without a manifest necessity.   The State responds the trial court did not abuse its discretion because the jury's swift, early deadlock, unchanging after hours of deliberation demonstrated manifest necessity.

A defendant may not be twice put in jeopardy for the same offense.   U.S. Const. amend.   V;  Tex. Const. art. 1, § 14;  Arizona v. Washington, 434 U.S. 497, 503 (1978).   Jeopardy attaches when the jury is impaneled and sworn.   Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App.2002).   A mistrial, declared after jeopardy attaches and over the defendant's objection, ordinarily bars further prosecution for the same offense.   Ex parte Garza, 337 S.W.3d 903, 909 (Tex.Crim.App.2011).

The trial court may discharge a jury if it cannot agree and both parties consent to the discharge or the trial court may exercise its discretion and discharge the jury if the jury “has been kept together for such time as to render it altogether improbable that it can agree.”  Tex.Code Crim. Proc. Ann. art. 36.31 (West 2006).   A discharge without the defendant's consent will not bar retrial if the mistrial occurred with the defendant's consent or arose from manifest necessity.  Hill, 90 S.W.3d at 313.   Manifest necessity exists only in very extraordinary and striking circumstances demonstrating a high degree of necessity that the trial come to an end.   Ex parte Fierro, 79 S.W.3d 54, 56 (Tex.Crim.App.2002).   The circumstances must render it impossible to arrive at a fair verdict, to continue the trial, or involve trial error that would trigger an automatic reversal on appeal if a verdict was returned.   Garza, 337 S.W.3d at 909.   The trial court abuses its discretion if it declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out.  Id. The record need not contain the trial court's reasoning for declaring the mistrial if the manifest necessity is apparent from the record.  Id. at 909–10.

A manifest necessity for discharge of a jury may arise when the jury is unable to agree on a verdict.   See Arizona, 434 U.S. at 505.   The trial court's determination that a deadlock should result in a mistrial is committed to the trial court's broad discretion and such a decision should be accorded great deference on appeal.   See id. at 509–10.   In reviewing the trial court's exercise of its discretion to declare a mistrial because the jury is deadlocked, we consider the amount of time the jury deliberated in light of the nature of the case and the evidence.  Beeman v. State, 533 S.W.2d 799, 800 (Tex.Crim.App.1976).   In evaluating the nature of the case and the evidence, we look at the type and complexity of the evidence, whether expert testimony was admitted, the number of witnesses and exhibits, the complexity of the charge, whether the jury moved toward agreement during their deliberations, and the nature and extent of the communications from the jury.  Torres v. State, 961 S.W.2d 391, 393 (Tex.App.—Houston [1st Dist.] 1997, pet. ref'd).

Appellant contends the trial court delivered an Allen charge and declared a mistrial too quickly because the jury deliberated only three hours on a murder case involving three days of testimony, fourteen fact witnesses, two experts, and sixty-nine exhibits.2  Appellant contends the trial court relied too heavily on the jury notes, it did not ascertain whether there had been any movement, nor did it give the jurors sufficient time to shift positions.   Appellant contends the jury notes do not prove the jury was hopelessly deadlocked as the trial court assumed, and the jury should have been asked whether deliberations should continue.   Appellant points out that the juries were polled in the Patterson and Smithwick cases upon which the State relies.   See Patterson v. State, 598 S.W.2d 265, 268 (Tex.Crim.App. [Panel Op.] 1980);  Smithwick v. State, 732 S.W.2d 768, 770–71 (Tex.App.—Fort Worth 1987, pet. ref'd).

The State responds that although the trial was lengthy with many witnesses, the only issues were appellant's mental intent and whether he acted in self-defense.   The State points out that the jury notes show eleven jurors swiftly concluded appellant was not guilty and the twelfth juror reached the opposite conclusion just as quickly.   Thus, the State argues, the deliberations were never about complex evidence and the jury was deadlocked throughout its deliberations.

Although the jury deliberations were short, the record reveals the trial court explored taking less drastic steps before declaring a mistrial.   When the jury sent out its second note declaring it had been divided “11–1 since the start,” the trial court delivered an Allen charge to the jury, after offering both parties an opportunity to object.   See Ex parte Perusquia, 336 S.W.3d 270, 276-77 (Tex.App.—San Antonio 2010, pet. ref'd) (describing an Allen charge as less drastic alternative to declaring a mistrial).   After receiving a final note indicating the jury remained divided eleven-to-one and the lone holdout would not change her mind, the trial court asked appellant's counsel if he had any further suggestions.   The only suggestion forthcoming was offering the jury more time.   The trial court then left the courtroom apparently to conduct its own research into what it could do.   We cannot conclude on this record that the trial court acted precipitously in declaring a mistrial or that it did not exhaust its available, less drastic alternatives.   See Garza, 337 S.W.3d at 909.

The jury reported an 11–1 impasse existed from the start of deliberations, and the holdout juror “will not be persuaded.”   The final note sets out that juror's position:  “She states she will not change her decision.”  (Emphasis in original).   With the firmness of the holdout juror's position established in the final jury note, and the trial court stating during the writ hearing that it had the opportunity to observe the jurors' demeanor while responding to their notes, we cannot conclude the trial court abused its discretion in not polling the jury under the circumstances presented.

When, as here, the jurors immediately adopt concrete positions and deadlock, despite receiving an Allen charge and several hours to persuade each other, we cannot conclude the trial court abused its discretion in finding a manifest necessity for a mistrial.   See Patterson, 598 S.W.2d at 267–68 (upholding mistrial for manifest necessity after jury delivered two successive notes indicating it was deadlocked at 7–5 vote from beginning of deliberations);   Perusquia, 336 S.W.3d at 276–77 (finding manifest necessity for a mistrial after the jury sent two successive notes reporting it was deadlocked);  Smithwick, 732 S.W.2d at 771 (concluding manifest necessity existed where jury sent two successive notes announcing it had been deadlocked throughout deliberations at 11–1).   See also Arizona, 434 U.S. at 509–10 (affording the trial court broad discretion entitled to great deference on appeal in determining whether a deadlock necessitates a mistrial).   Accordingly, we overrule appellant's first point of error.

Burden To Prove Manifest Necessity

In his second point of error, appellant contends the trial court improperly shifted the burden of proof on the existence of manifest necessity from the State to appellant.   Once the defendant shows he is being prosecuted again for the same offense after declaration of a mistrial to which he objected, the burden shifts to the State to justify the trial court's declaration of a mistrial as a manifest necessity.  Garza, 337 S.W.3d at 909.

Appellant points to the trial court's interactions with counsel during the habeas proceeding as evidence the burden was shifted.   Appellant notes that as he argued his position, the trial court interrupted and asked if he had any witnesses or evidence to present, ultimately stating:  “I need facts.   I need witnesses.   I need evidence to support any of what you're saying.”

At the beginning of the hearing, the trial court announced, “I've reviewed the Defense's motion.   There's some things that the Defense wishes to put on the record, though, so go ahead.”   The record shows the trial court disagreed with appellant's premise and rejected the contention that it had declared a mistrial without manifest necessity.   The trial court stated it had read appellant's application, understood the argument, and disagreed with appellant's contentions.   The trial court's remarks appear aimed at insuring appellant had the opportunity to develop a full record on an application upon which he would not prevail rather than at trying to make him carry an undue burden.   We cannot agree the record shows the trial court was trying to shift the burden to prove manifest necessity to appellant.   We overrule appellant's second point of error.

We affirm the trial court's order.

FOOTNOTES

FN1. An Allen charge informs the jury of the consequences if they do not reach a verdict.   See Allen v. United States, 164 U.S. 492, 501–02 (1896)..  FN1. An Allen charge informs the jury of the consequences if they do not reach a verdict.   See Allen v. United States, 164 U.S. 492, 501–02 (1896).

FN2. Appellant filed most of the trial record as Writ Exhibit 5. That record in turn, was filed with this Court.   One volume of the reporter's record, referred to in appellant's brief as RR3 and containing the testimony of seven State's witnesses, was omitted from the record on appeal.   The record on appeal instead contains two copies of the reporter's record labeled by appellant as RR4. The omission is immaterial because the parties make no use of RR3 on appeal other than to note that the volume contains testimony from two expert witnesses:  a firearms expert and a medical examiner..  FN2. Appellant filed most of the trial record as Writ Exhibit 5. That record in turn, was filed with this Court.   One volume of the reporter's record, referred to in appellant's brief as RR3 and containing the testimony of seven State's witnesses, was omitted from the record on appeal.   The record on appeal instead contains two copies of the reporter's record labeled by appellant as RR4. The omission is immaterial because the parties make no use of RR3 on appeal other than to note that the volume contains testimony from two expert witnesses:  a firearms expert and a medical examiner.

MICHAEL J. O'NEILL JUSTICE

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