Commonwealth v. Washington

Present: All the Justices

COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 010913 March 1, 2002

DARRELL WASHINGTON

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether a defendant waived

his double jeopardy protections afforded by the Fifth

Amendment to the United States Constitution.

I.

Darrell Washington was indicted by a grand jury in

Arlington County for robbery in violation of Code § 18.2-58

and use of a firearm during the commission of a robbery in

violation of Code § 18.2-53.1. His trial commenced in the

Circuit Court of Arlington County on December 15, 1999. The

jury panel consisted of 20 persons. One juror, identified as

Juror No. 5, informed the court that he was excused from jury

service for the next day. Four other jurors also informed the

court that they had been excused from jury service for the

following day. The court, however, permitted each of these

jurors to remain seated as members of the panel.

Before counsel began to conduct their voir dire, the

circuit court asked the jurors how many were excused for the

next day and directed defendant's counsel and the

Commonwealth's Attorney to observe the members of the panel
who raised their hands. After voir dire had been conducted,

and before counsel began to exercise their peremptory strikes,

the court asked members of the panel to raise their hands if

they were excused from jury service the next day.

Defendant's counsel approached the bench and informed the

court that she was not going to exercise her peremptory

strikes based upon the availability of members of the jury

panel. The court responded that she was not required to do so

and that it would seek to seat a jury and alternates.

Defendant's counsel and the Commonwealth's Attorney exercised

their peremptory strikes. After the oath had been

administered to the jury, the court directed the jurors who

were excused the following day to raise their hands, and one

juror did so. The court suggested seating an alternate.

There were only two potential veniremen available to

serve as an alternate who were not among the original 20

individuals selected as members of the jury panel. The

circuit court suggested that it would use the two members of

the venire who were not called among the original 20 panel

members, and the court decided to add two of the jurors who

had been stricken by defendant's counsel and the

Commonwealth's Attorney. Defendant's counsel and the

Commonwealth's Attorney objected to this procedure.

2
 Next, the following colloquy occurred among the court,

the Commonwealth's Attorney, and defendant's counsel:

"[DEFENDANT'S COUNSEL]: But, Your Honor, under
normal circumstances, an alternate would not know
that [he was an alternate]. . . . I would object to
that system being used.

"THE COURT: Commonwealth.

"[COMMONWEALTH'S ATTORNEY]: Again, I have the
same position because now I'm basically out of a
strike, and [defendant's counsel] is left with the
potential of picking who is going to be the
alternate.

"THE COURT: [Code § ] 8.01-360 says, In no
event shall alternates be told they are alternates.

"[COMMONWEALTH'S ATTORNEY]: I have --

"THE COURT: You are both objecting?

"[COMMONWEALTH'S ATTORNEY]: Well, I'm
objecting not so much because the other person is
going to know they are an alternate, but because I
don't have a decision in who gets to be the
alternate.

"THE COURT: That's a mistrial.

"[DEFENDANT'S COUNSEL]: Your Honor, and I'm
going to say this --

"THE COURT: Now you are going to have
jeopardy.

"[DEFENDANT'S COUNSEL]: We have jeopardy, but
the Court --

"THE COURT: The Commonwealth won't agree to
the cure.

"[COMMONWEALTH'S ATTORNEY]: There wasn't a
jury sworn.
3
 "THE COURT: No, sir.

"[DEFENDANT'S COUNSEL]: The jurors were sworn.

"THE COURT: I tried to get this case tried and
tried to get it done, but we are going to fight over
this. And you want your statutory right. You want
your statutory right.
"We do not have sufficient jurors to have a
replacement for the juror sworn.
"That's a mistrial.

"[DEFENDANT'S COUNSEL]: Thank you, Your Honor.

"[COMMONWEALTH'S ATTORNEY]: I'm going to ask,
Your Honor -- could we place it on the docket for
another day?

"THE COURT: Well, of course that's what we are
going to do.

"[DEFENDANT'S COUNSEL]: Well, I think there's
really an argument about --

"THE COURT: Now [defendant's counsel is] going
to claim that jeopardy attaches.

"[DEFENDANT'S COUNSEL]: Well, it did attach
because the jurors were sworn.
"We will get the transcript --

"THE COURT: Now [defendant's counsel] is going
to move to dismiss on double jeopardy grounds.
"You're objecting to my attempted cure to get a
jury in the box, and you have a right to do that,
and you have statutory authority for it.

"[DEFENDANT'S COUNSEL]: And we can set a
date."

At a subsequent trial, the defendant made a motion to

dismiss the indictments on the basis that he was placed in

jeopardy twice in violation of the Fifth Amendment to the
4
Constitution of the United States. The circuit court, with a

different judge presiding, denied the motion, and the case

proceeded to trial. The jury convicted the defendant of both

charges and fixed his punishment at five years in the

penitentiary on the robbery charge and three years in the

penitentiary on the use of a firearm charge. The circuit

court confirmed the judgment of the jury, and the defendant

appealed to the Court of Appeals.

The Court of Appeals held that the Double Jeopardy Clause

of the Constitution of the United States barred the

defendant's second trial, and the Court entered a judgment

that reversed the judgment of the circuit court and dismissed

the defendant's convictions. Washington v. Commonwealth, 35

Va. App. 202, 220, 543 S.E.2d 638, 646 (2001). The

Commonwealth appeals.

II.

The Fifth Amendment to the Constitution of the United

States provides that no person shall "be subject for the same

offense to be twice put in jeopardy of life or limb."

Explaining this constitutional provision, which is referred to

as the Double Jeopardy Clause, the United States Supreme Court

has stated:

"The underlying idea, one that is deeply ingrained
in at least the Anglo-American system of
5
 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."

Green v. United States, 355 U.S. 184, 187-88 (1957); accord

Monge v. California, 524 U.S. 721, 732 (1998); Digital Equip.

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 869-70 (1994);

Abney v. United States, 431 U.S. 651, 661-62 (1977); Allen v.

Commonwealth, 252 Va. 105, 108-09, 472 S.E.2d 277, 279 (1996).

The Double Jeopardy Clause also grants a defendant the

right to have his trial completed by a particular tribunal,

Wade v. Hunter, 336 U.S. 684, 689, reh'g denied, 337 U.S. 921

(1949), which means "the right . . . to have his trial

completed before the first jury empaneled to try him." Oregon

v. Kennedy, 456 U.S. 667, 673 (1982); accord Allen, 252 Va. at

109, 472 S.E.2d at 279.

Even though jeopardy attaches once the jury has been

sworn, a defendant's double jeopardy protection can be waived.

For example, we have stated that "[a] person on trial for a

capital or lesser offense may waive his right to plead former

jeopardy. This waiver may be expressed or implied." Mack v.

Commonwealth, 177 Va. 921, 930, 15 S.E.2d 62, 65 (1941).

Indeed, other courts have recognized that a defendant's double
6
jeopardy protection is not an absolute bar to reprosecution

once a jury has been empaneled and sworn and that the right

guaranteed by the Double Jeopardy Clause may be waived by

consent. United States v. Nichols, 977 F.2d 972, 974 (5th

Cir. 1992), cert. denied, 510 U.S. 833 (1993); United States

v. DiPietro, 936 F.2d 6, 9-12 (1st Cir. 1991); United States

v. Bauman, 887 F.2d 546, 549 (5th Cir. 1989), cert. denied sub

nom. Talamas v. United States, 493 U.S. 1077 (1990); United

States v. Miller, 742 F.2d 1279, 1284 (11th Cir. 1984), cert.

denied, 469 U.S. 1216 (1985); Raslich v. Bannan, 273 F.2d 420,

420-21 (6th Cir. 1959).

The various United States Courts of Appeals have held

that a defendant's consent to a mistrial is implied when a

defendant had an opportunity to object to a mistrial but

failed to do so. United States v. Buljubasic, 808 F.2d 1260,

1265-66 (7th Cir.), cert. denied, 484 U.S. 815 (1987); United

States v. Puleo, 817 F.2d 702, 705 (11th Cir.), cert. denied,

484 U.S. 978 (1987); United States v. Goldstein, 479 F.2d

1061, 1067 (2d Cir.), cert. denied, 414 U.S. 873 (1973). And,

in Peretz v. United States, 501 U.S. 923, 936 (1991), the

Supreme Court cited with approval the legal principle

articulated in United States v. Bascaro, 742 F.2d 1335, 1365

(11th Cir. 1984), cert. denied sub nom. Hobson v. United

7
States, 472 U.S. 1017, and cert. denied sub nom. Waldrop v.

United States, 472 U.S. 1021 (1985), that the absence of an

objection by a defendant constitutes a waiver of the

defendant's double jeopardy protection.

We have repeatedly and consistently held that a litigant

must object to a ruling of the circuit court if that litigant

desires to challenge the ruling upon appeal. Remington v.

Commonwealth, 262 Va. 333, 356, 551 S.E.2d 620, 634 (2001)

(defendant could not challenge a verdict form on appeal

because he failed to make an objection to that form in the

circuit court); Schmitt v. Commonwealth, 262 Va. 127, 138, 547

S.E.2d 186, 194 (2001), cert. denied, ___ U.S. ___, 122 S.Ct.

840 (2002) (defendant could not challenge on appeal the

admissibility of evidence because he failed to object to that

evidence in the circuit court and, therefore, his objection

was waived); Lenz v. Commonwealth, 261 Va. 451, 467, 544

S.E.2d 299, 308, cert. denied, ___ U.S. ___, 122 S.Ct. 481

(2001) (defendant could not challenge jury instruction on

appeal because he did not object in the circuit court);

Overton v. Commonwealth, 260 Va. 599, 603-04, 539 S.E.2d 421,

423 (2000), cert. dismissed, 532 U.S. 968 (2001) (defendant

could not challenge the admissibility of photographs that had

been admitted in the circuit court because he failed to make

8
an objection); Vinson v. Commonwealth, 258 Va. 459, 466, 522

S.E.2d 170, 175 (1999), cert. denied, 530 U.S. 1218 (2000)

(defendant could not challenge the admissibility of certain

expert testimony because he failed to raise an objection in

the circuit court); Cherrix v. Commonwealth, 257 Va. 292, 310,

513 S.E.2d 642, 654, cert. denied, 528 U.S. 873 (1999)

(defendant could not challenge the circuit court's failure to

advise the jury of his eligibility, or lack thereof, for

parole because he failed to object in the circuit court and

his failure to object constituted a waiver); Barnabei v.

Commonwealth, 252 Va. 161, 177, 477 S.E.2d 270, 279 (1996),

cert. denied, 520 U.S. 1224 (1997) (defendant could not

challenge jury instructions on appeal because he failed to

object in the circuit court when the instructions were given).

We hold that based upon the record before this Court, the

defendant implicitly consented to the circuit court's

declaration of a mistrial. Having consented to the mistrial,

the defendant waived his double jeopardy rights. We note that

during oral argument of this appeal, defendant's counsel

conceded that she could point to no part of the record of the

defendant's first trial to show that she had made an express

objection to the circuit court's declaration of a mistrial.

9
 In this case, the defendant does not contend that he was

deprived of an opportunity to make a meaningful objection to

the circuit court's declaration of a mistrial. Indeed, after

the circuit court declared the mistrial, defendant's counsel

and the Commonwealth's Attorney continued a dialogue with the

circuit court, and the defendant made no objection.

We observe that our holding is consistent with our

decision in Allen v. Commonwealth, 252 Va. 105, 472 S.E.2d 277

(1996). In Allen, a jury convicted a defendant of breaking

and entering in violation of Code § 18.2-91 and grand larceny

in violation of Code § 18.2-95. The circuit court dismissed

the jury and continued the case for sentencing. The following

day, the Commonwealth's Attorney moved for a mistrial on the

basis that one of the jurors was a non-resident of the county

where the case was tried. The circuit court stated in a

letter opinion that "the defendant concurred that there was an

improper jury but requested that the case be dismissed on the

basis that jeopardy had already attached and the case could

not be retried." The circuit court overruled the defendant's

objection to a new trial, sustained the Commonwealth's motion

for a mistrial, and ordered the case continued to the next

criminal docket call. 252 Va. at 107, 472 S.E.2d at 278.

10
 The defendant's second trial concluded in a hung jury and

a second declaration of mistrial. The circuit court ruled

that "the defendant has not waived his right to object to a

[third] trial . . . based on the [D]ouble [J]eopardy [C]lause

[but that] a [third] trial . . . will not amount to double

jeopardy." At a third trial, a police officer testified that

the defendant had refused to make a statement to the police.

Invoking the Fifth Amendment guarantee against self-

incrimination, the defendant moved for a mistrial, which was

granted. At a fourth trial, the defendant was convicted on

both charges. Id.

We held that the defendant in Allen did not consent to

the prosecutor's motion for a mistrial in the first trial. We

stated:

"As we read the record, [the defendant] never
consented to the prosecutor's motion for mistrial.
[The Commonwealth's] motion [to dismiss] had
multiple objectives, viz., vacation of the penalty
verdict rendered by a jury mistakenly believed to be
unqualified, the assembly of a new jury, and a new
trial by that jury. [The defendant], laboring under
the same misconception, 'concurred that there was an
improper jury'. Nowhere does the record before us
show that [the defendant] ever agreed that 'the
verdicts were invalid'; or that the judge should
'set aside the jury verdicts'; or that there should
be a new trial by a new jury. Rather, as the
[circuit court's] letter opinion indicates, [the
defendant] merely 'requested that the case be
dismissed on the basis that jeopardy had already
attached and the case could not be retried.'"

11
Id. at 111, 472 S.E.2d 280. The circuit court ruled that the

defendant in Allen had "preserved the objection to a [second]

trial . . . by noting his objection on the record" and that

"the defendant has not waived his right to object to a [third]

trial . . . based upon the [D]ouble [J]eopardy [C]lause." Id.

Unlike the defendant in Allen, the defendant in this case

tacitly consented to the mistrial. For example, defendant's

counsel in this case did not object to a new trial once the

circuit court had declared a mistrial. Indeed, defendant's

counsel in this case actually requested that the court set a

date for a new trial and she participated, without objection,

in the selection of the new trial date. Moreover, the record

in this case clearly shows that during the first trial,

defendant's counsel made clear and unequivocal objections to

rulings of the circuit court that were adverse to her

position. When she desired to object, she made specific

objections. And, as we have already stated, she made no such

objection to the court's declaration of a mistrial.

Accordingly, we will reverse the judgment of the Court of

Appeals, and we will enter a final judgment reinstating the

defendant's convictions.

Reversed and final judgment.

JUSTICE KOONTZ, with whom JUSTICE LACY and JUSTICE KEENAN
join, dissenting.
12
 I respectfully dissent. The record in this case clearly

establishes, as the Court of Appeals of Virginia determined,

that Darrell Washington was twice put in jeopardy in violation

of his rights under the Fifth Amendment to the Constitution of

the United States as a result of his two jury trials in the

Circuit Court of Arlington County for the same offenses. I

cannot join an opinion which nevertheless declines to address

and enforce those rights by concluding, in effect, that

Washington is procedurally precluded on appeal from asserting

his constitutional claim because he did not expressly object

to the original trial judge’s sua sponte declaration of a

mistrial during the first trial. In this particular case, the

undisputed facts do not support the majority’s application of

a procedural bar and, moreover, those facts considered under

established legal principles do not support the majority’s

holding that Washington “implicitly consented” to the mistrial

and, thus, “waived his double jeopardy rights.”

The following well established principles are pertinent

to the proper analysis of this case. The right not to be

subjected to double jeopardy attaches in a criminal case when

the jury is impaneled and sworn. Serfass v. United States,

420 U. S. 377, 388 (1995); see also Martin v. Commonwealth,

242 Va. 1, 8 406 S.E.2d 15, 18 (1991). The Double Jeopardy
13
Clause not only protects the accused from retrial after being

acquitted, but also gives the accused a “valued right to have

his trial completed by a particular tribunal,” Wade v. Hunter,

336 U.S. 684, 689 (1949), that is, “the right . . . to have

his trial completed before the first jury impaneled to try

him.” Oregon v. Kennedy, 456 U.S. 667, 673 (1982); see also

Allen v. Commonwealth, 252 Va. 105, 109, 472 S.E.2d 277, 279

(1996).

However, there are well recognized circumstances in which

a defendant may be retried even though a prior jury was

impaneled and sworn, and a mistrial was declared before that

jury reached a verdict. Downum v. United Stated, 372 U.S.

734, 735-36 (1963); Wade, 336 U.S. at 688. When those

circumstances arise in a particular case, the underlying

rationale for permitting a retrial is that the defendant’s

right to have his trial completed by a particular jury is

“subordinated to the public’s interest in fair trials designed

to end in just judgments.” Wade, 336 U.S. at 689.

In this regard, the United States Supreme Court has

developed a two-part test to be used in determining whether

double jeopardy principles have been violated when a trial

results in a mistrial. The first part of the test requires

the court to determine whether the accused consented to the

14
declaration of a mistrial. If so, then double jeopardy

principles do not apply, and no further inquiry need be made

unless it appears that improper actions of the prosecutor or

the trial court were intended to provoke the mistrial. Oregon

v. Kennedy, 456 U.S. at 676; United States v. Dinitz, 424 U.S.

600, 611 (1976). If the accused did not consent to the

declaration of a mistrial, then, under the second prong of the

Supreme Court’s test, the mistrial will bar retrial unless

there was a “manifest necessity” for the mistrial. United

States v. Perez, 22 U.S. 579, 580 (1824); see also Allen, 252

Va. at 109, 472 S.E.2d at 279.

In the present case, it is undisputed that the first jury

was sworn and, thus, that Washington was put in jeopardy at

his first trial. Neither counsel requested that an alternate

juror be seated. The original trial judge 1 thereafter sua

sponte declared a mistrial because there were not sufficient

prospective jurors in the venire from whom to select an

alternate juror in accord with the requirement of Code § 8.01-

360 that alternate jurors initially not be made aware of that

status. Beyond question, the judge simply wanted to

accommodate a juror who was to be excused from jury service

1
Judge Paul F. Sheridan presided at Washington’s first
trial. Judge William T. Newman, Jr. presided at Washington’s
second trial.
15
the following day. The judge explained his declaration of a

mistrial in the following way:

The alternative . . . was to try the case and
see if it got in and done by 6 o’clock tonight.

It is 12:18 on the Court’s clock. I’m told
there were seven or eight Commonwealth witnesses.
Both attorneys imply that they couldn’t do that.

Therefore, rather than make this jury wait
around all day and see if it can be done properly,
the mistrial for the inability to have 12 jurors
hear and decide this case properly is equivalent to
a sick juror or a missing juror, taking us under the
12 [required by Code § 19.2-262(B)].

The record further establishes that the judge was fully

aware of the constitutional implications of his sua sponte

declaration of a mistrial. Indeed, he explained to the

Commonwealth’s Attorney that “[i]t is very important

constitutionally. The jury was sworn.” Moreover, the judge

was aware that Washington was not consenting to a mistrial in

light of Washington’s repeated assertions that jeopardy had

attached when the jury was sworn. Again, the judge stated

that “[n]ow [Washington’s counsel is] going to claim that

jeopardy attaches.” In this context, the judge’s statements

reflect that he considered the inability properly to select an

alternate juror to create a manifest necessity for a mistrial

so that a retrial would not violate Washington’s double

jeopardy rights. The judge was simply wrong.

16
 The majority, acknowledging as it must that Washington

did not expressly consent to the mistrial, concludes that he

“implicitly” or “tacitly” consented to the mistrial because he

failed to make an “express objection” in the circuit court

during the first trial. The express objection to which the

majority refers is that contained in our Rule 5:25, which is

frequently referred to as the contemporaneous objection rule.

Its counterpart is Rule 5A:18 applicable in the Court of

Appeals. Rule 5:25, in pertinent part, provides that: “Error

will not be sustained to any ruling of the trial court . . .

unless objection was stated with reasonable certainty at the

time of the ruling.” This rule requires that an objection be

made with sufficient specificity to enable the trial judge to

rule intelligently and, thus, to avoid unnecessary reversals

on appeal. Absent such objection, the issue will not be

considered for the first time on appeal. See, e.g., Fisher v.

Commonwealth, 236 Va. 403, 414, 374 S.E. 46, 52 (1988), cert.

denied, 490 U.S. 1028 (1989). The majority correctly states

that we have repeatedly and consistently held that a litigant

must object to a ruling of the trial court if that litigant

desires to challenge the ruling on appeal and cites numerous

prior decisions of this Court that confirm that proposition.

None of those decisions, however, requires the use of the

17
specific words “object” or “objection” as if such words are

somehow magic talismans which the majority now seems to

suggest are required by Rule 5:25. Facially, this rule merely

requires that an objection be made “with reasonable

certainty.”

In any event, the procedural bar of Rule 5:25 is not

applicable in this particular case for a number of reasons

that also distinguish this case from those cited by the

majority. Initially, I note that at Washington’s second

trial, the Commonwealth asserted that the mistrial of the

first trial was the result of a manifest necessity when the

prospective jury pool proved inadequate to permit the trial to

be heard on the scheduled day. The Commonwealth did not

contend at that time that Washington had waived his right to

assert former jeopardy by failing to make an express objection

to the original trial judge’s declaration of a mistrial. The

Commonwealth makes this assertion for the first time on

appeal. The trial judge merely acquiesced in the original

trial judge’s determination of a manifest necessity for a

mistrial as being a matter of discretion. In this context,

surely Washington had objected to the mistrial with sufficient

certainty to satisfy Rule 5:25 because the original trial

judge, the Commonwealth, and the subsequent trial judge were

18
aware that Washington was asserting that a retrial would

violate his double jeopardy rights. Manifest necessity was

the focus of the issue to be resolved; waiver was not.

Moreover, the issue to be determined in this appeal is

whether, under the circumstances of this particular case,

Washington implicitly consented to the mistrial so as to have

waived his double jeopardy claim, or in the absence of such

consent, whether a manifest necessity existed at the time of

the mistrial to permit a retrial. The Commonwealth does not

assert that the original trial judge was unaware of the

constitutional implications of his sua sponte declaration of a

mistrial and the record would refute such an assertion had it

been made. Thus, for purposes of satisfying the requirements

of Rule 5:25, there is no dispute that Washington did not

consent to the mistrial. Whether the failure expressly to

object to the mistrial constitutes a waiver of Washington’s

constitutional claim is a separate and distinct issue from the

issue of consent, although the two are closely related.

Because the record establishes beyond question that the

original trial judge was made aware that Washington was

asserting that his constitutional right against double

jeopardy would be violated by retrial, the procedural bar of

19
Rule 5:25 is not applicable. Accordingly, the merits of the

issues presented by this appeal must be addressed.

The Commonwealth contends that in the absence of an

express objection, there is an implied consent to the

declaration of a mistrial and urges that we adopt the rule,

applied by several of the federal circuits, that if the

defendant had an opportunity to object to a declaration of a

mistrial, but failed to do so, the consent thus implied acts

as a waiver to any subsequent claim of double jeopardy. 2 See,

e.g., United States v. DiPietro, 936 F.2d 6, 9-10 (1st Cir.

2
Although the United States Supreme Court has never squarely
held that retrial is permissible following a defendant’s
implied consent to a declaration of a mistrial, see, e.g.,
Escobar v. O’Leary, 943 F.2d 711, 716 n.3 (7th Cir. 1991), it
has recognized that there can be no question of consent where
the defendant was not given the opportunity to object. United
States v. Jorn, 400 U.S. 470, 487 (1971).

Among the federal circuits that have considered the
issue, some have taken a more restrictive view than that
advocated here by the Commonwealth, holding that the totality
of the circumstances attendant on a declaration of a mistrial,
and not merely the opportunity for and the absence of an
express objection by the defendant, are to be considered in
determining whether there has been an implied consent which
would justify finding a waiver of double jeopardy rights.
See, e.g., United States v. Smith, 621 F.2d 350, 352 (9th Cir.
1980), cert. denied, 449 U.S. 1087 (1981); United States v.
Goldstein, 479 F.2d 1061, 1067 (2d Cir.), cert. denied, 414
U.S. 873 (1973). At least one circuit has been even more
restrictive, holding that consent should be implied “ ‘only
where the circumstances positively indicate a defendant’s
willingness to acquiesce in the [mistrial] order.’ ” Glover
v. McMackin, 950 F.2d 1236, 1240 (6th Cir. 1991) (quoting
Jones v. Hogg, 732 F.2d 53, 57 (6th Cir. 1984)).
20
1991); Camden v. Circuit Court of Second Judicial Dist.,

Crawford County, Ill., 892 F.2d 610, 614-18 (7th Cir. 1989),

cert. denied, 495 U.S. 921 (1990); United States v. Puleo, 817

F.2d 702, 705 (11th Cir.), cert. denied, 484 U.S. 978 (1987).

In determining whether, and to what extent, the failure

to make an express objection to a declaration of a mistrial

should act as an implied consent, the focus must be on the

consequence that the implied consent is also an implied waiver

of the defendant’s “valued right to have his trial completed

by a particular tribunal.” Wade, 336 U.S. at 689. In Allen,

we recognized that “ ‘[w]aiver is ordinarily an intentional

relinquishment or abandonment of a known right or privilege,’

and with respect to fundamental constitutional rights, ‘courts

indulge every reasonable presumption against waiver.’ ” 252

Va. at 111, 472 S.E.2d at 280 (citations omitted). In that

case, the Commonwealth requested a mistrial and the defendant

did not make an express objection to the trial court’s

granting that request. Rather, “[the defendant] merely

‘requested that the case be dismissed on the basis that

jeopardy had already attached and the case could not be

retried.’ ” Id. Agreeing with an opinion expressed by the

trial court in a subsequent proceeding, we held that the

21
defendant had thus “‘preserved the objection to a [second]

trial.’ ” Id.

Although we did not expressly adopt in Allen the “implied

consent rule” urged by the Commonwealth in this case, our

reasoning in that case is closely analogous to that used by

the federal circuits which have applied a “totality of the

circumstances” standard in determining whether the absence of

an express objection to a declaration of a mistrial amounts to

an implied consent thereto and a waiver of double jeopardy

rights thereafter. Moreover, our reasoning in Allen is

inconsistent with the Commonwealth’s position in the present

case that the failure to expressly object to a mistrial,

standing alone, will constitute an implied consent to a

declaration of a mistrial. Accord Minnesota v. Olson, 609

N.W.2d 293, 300 (Minn. Ct. App. 2000); Benson v. Nevada, 895

P.2d 1323, 1327 (Nev. 1995); Ex parte Little, 887 S.W.2d 62,

66 (Tex. Crim. App. 1994); Missouri v. Tolliver, 839 S.W.2d

296, 299 (Mo. 1992).

Contrary to the majority’s view, I am of opinion that the

circumstances of Washington’s case are virtually

indistinguishable from those in Allen. As in that case,

Washington’s counsel, while not expressly objecting to the

mistrial, asserted that jeopardy had attached and that any

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retrial would violate the defendant’s double jeopardy rights.

Indeed, in the present case, this assertion was more

forcefully made. Accordingly, this assertion precludes a

finding of an implied consent to the sua sponte declaration of

a mistrial that would act as a waiver of the very

constitutional rights Washington’s counsel was asserting. In

its attempt to distinguish Allen from the present case, the

majority effectively overturns this Court’s decision in that

case sub silentio.

Absent consent, express or implied, to the declaration of

a mistrial, the question becomes whether manifest necessity

permitted Washington’s retrial. A trial court “may discharge

the jury when it appears . . . that there is a manifest

necessity for such discharge.” Code § 8.01-361. “There is no

general rule as to what facts and circumstances constitute

such a necessity but the trial court is authorized by the

statute to exercise its discretion in making the determination

according to the circumstances of the case.” Turnbull v.

Commonwealth, 216 Va. 328, 335, 218 S.E.2d 541, 546 (1975).

“[T]he key word ‘necessity’ cannot be interpreted literally;

instead . . . there are degrees of necessity and . . . a ‘high

degree’ [is required] before . . . a mistrial is appropriate.”

Arizona v. Washington, 434 U.S. 497, 506 (1978). Because the

23
defendant’s right to have his trial concluded by a particular

tribunal is frustrated by any mistrial, the Commonwealth has

the burden of justifying the mistrial to avoid the double

jeopardy bar and that “burden is a heavy one.” Id. at 505.

Thus, “any doubt ‘in favor of the liberty of the citizen,

rather than exercise what would be an unlimited, uncertain,

and arbitrary judicial discretion,’ ” will be resolved in the

favor of the defendant. Downum, 372 U.S. at 738 (quoting

United States v. Watson, 28 F. Cas. 499, 501 (1868)).

In Arizona v. Washington, the United States Supreme Court

recognized “the spectrum of trial problems which may warrant a

mistrial and which vary in their amenability to appellate

scrutiny.” 434 U.S. at 510. In that context, I am of opinion

that the appropriate standard of review for a double jeopardy

claim following a mistrial is to be determined by whether the

underlying reasons for the mistrial concern issues best left

to the informed discretion of the trial judge or issues that

more nearly invoke questions of law for which closer appellate

review is appropriate.

In Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871,

cert. denied, 498 U.S. 881 (1990), for example, we upheld the

trial court’s determination that a single misstatement by the

Commonwealth’s Attorney in closing argument, which was

24
immediately noted by the trial court and retracted by the

Commonwealth’s Attorney, did not warrant granting the

defendant’s request for a mistrial. Id. at 266-67, 389 S.E.2d

at 884. Implicit in the Court’s holding is that this issue

was clearly a matter best left to the discretion of the trial

court because the trial judge was in the better position to

evaluate the effect of the misstatement and the subsequent

curative efforts on the jury. However, for the reasons that

follow, such deference to the original trial judge’s

discretion is not appropriate in the present case. Rather,

the record must be reviewed to determine whether it

establishes that the judge “acted responsibly and

deliberately, and accorded careful consideration to [the

defendant’s] interest in having the trial concluded in a

single proceeding.” Arizona v. Washington, 434 U.S. at 516.

In exercising his discretion to declare a mistrial in

this case, the original trial judge was required to consider

whether there were less severe alternatives “to assure that,

taking all the circumstances into account, there was a

manifest necessity for the sua sponte declaration of this

mistrial.” Jorn, 400 U.S. at 487; see also Gilliam v. Foster,

61 F.3d 1070, 1081 (4th Cir. 1995) (holding that the critical

inquiry is whether less drastic alternatives were available to

25
the court); Harris v. Young, 607 F.2d 1081, 1085 (4th Cir.

1979), cert. denied, 444 U.S. 1025 (1980) (“If less drastic

alternatives than a mistrial were available, they should have

been employed in order to protect the defendant's interest in

promptly ending the trial”). Thus, the judge should have

considered the possibility of a trial continuance before

abruptly declaring a mistrial and discharging the jury. Jorn,

400 U.S. at 487; see also United States v. Shafer, 987 F.2d

1054, 1058 (4th Cir. 1993) (holding that an abuse of

discretion occurs if the trial judge fails to fully consider

all alternatives, including a continuance, before declaring a

mistrial).

It is the duty of the trial judge to apply the statutes

governing jury selection in order to procure an impartial jury

for the defendant. Slade v. Commonwealth, 155 Va. 1099, 1106,

156 S.E. 388, 391 (1931); Code §§ 8.01-357 and -360. The

record of this case is clear that before the voir dire process

began, the judge was aware that the number of prospective

jurors in the jury pool was barely adequate to provide

Washington with a jury properly selected in accordance with

the governing law. Nonetheless, the judge elected to proceed

to “see if we don’t cure this as we go.” Moreover, when it

became apparent that the jury that had been selected and sworn

26
would not be able to hear the case in the timeframe that the

judge desired, he first attempted to fashion a remedy outside

that permitted by the governing statutes and then abruptly

declared a mistrial. In doing so, the judge did not consider

a continuance of the trial as an alternative.

A continuance of the trial, either prior to voir dire or

after the jury was sworn but before any evidence was heard,

would not have injured Washington’s interest in having his

trial concluded in a single proceeding. Though a continuance

might have caused some inconvenience to all concerned, that

inconvenience would have been no greater than that occasioned

by the mistrial. 3 Under these circumstances, the judge gave

insufficient consideration to other alternatives before

reaching the conclusion that there was a manifest necessity to

declare a mistrial. Indeed, the Commonwealth has not borne

its burden to establish that a manifest necessity for a

mistrial existed. The possible inability to complete a felony

criminal trial in one day does not constitute a manifest

necessity for a mistrial. Accordingly, in my view, the Court

of Appeals did not err in reversing the judgment of the trial

3
There is no indication in the record that there were any
speedy trial concerns that would have arisen as a result of
the judge’s ordering a continuance of Washington’s first
trial.
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court in Washington’s second trial deferring to the discretion

of the original trial judge on that issue.

For these reasons, I would affirm the judgment of the

Court of Appeals reversing the judgment of the trial court and

dismissing the indictments against Washington with prejudice.

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