Washington v. Com.

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia

DARRELL WASHINGTON
OPINION BY
v. Record No. 0881-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge

Janell M. Wolfe for appellant.

Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.

Darrell Washington (appellant) was convicted in a jury

trial of robbery, in violation of Code § 18.2-58, and use of a

firearm while committing a robbery, in violation of Code

§ 18.2-53.1. On appeal, he contends (1) his second trial

violated the Fifth Amendment's Double Jeopardy Clause 1 and (2)

the evidence was insufficient to prove his guilt. We agree that

the double jeopardy prohibition bars his second trial and

reverse and dismiss his convictions.

1
The Commonwealth contends appellant failed to object to
the trial court's declaration of a mistrial and, thus, is barred
by Rule 5A:18 from raising the double jeopardy issue on appeal.
However, the record clearly indicates that appellant objected to
the trial court's sua sponte declaration of a mistrial and that
both the trial court and Commonwealth's attorney were aware that
appellant was objecting on double jeopardy grounds.
 I.

On December 15, 1999 appellant's case was called for trial

before the Honorable Paul Sheridan. Twenty people were called

as prospective jurors and seated in the jury box. When Juror

No. 5 approached the jury box, he informed the trial judge, "I'm

excused for tomorrow, Your Honor." The court asked counsel if

the case would carry over into the next day, and appellant's

counsel indicated that it was very possible it might do so. The

court then inquired if anyone else was excused for the following

day. Four of the prospective jurors noted they were excused for

the following day. Nevertheless, all the prospective jurors

were called for voir dire. Another juror indicated he would

have a problem if court lasted later than 5:00 p.m. on that day.

Prior to either counsel commencing voir dire, the court

once again inquired, "How many of you have been excused for

tomorrow?" and had the jurors keep their hands raised so that

counsel could see them. After both counsel finished voir dire,

the court again asked "those who are excused tomorrow, one more

time, put your hands up. Counsel observe." Defense counsel

informed the court that she would not use her strikes based upon

availability, and the court indicated that appellant was not

required to use strikes in that manner. Counsel also stated, "I

think, you know, the lateness of this trial starting, that there

is a good chance that it will go into tomorrow." The court

responded, "I'm going to wait and see."

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 After the strikes were completed, but prior to the jury

being sworn, one juror stated that she had to teach a class at

6:00 p.m. and needed to leave by 5:30 p.m. The trial judge

agreed to make sure the juror was excused on time. Another

juror stated, "I was excused for tomorrow." The court

responded:

THE COURT: "I will get to that now. We'll
see what we do with it."

[The jury was sworn immediately after the
court's comment.]

THE CLERK: Please stand and raise your
right hands.

(The jury panel was sworn as follows:)

THE CLERK: So you and each of you solemnly
swear to well and truly try and true
deliverance make between the Commonwealth of
Virginia and the defendant at the bar whom
you shall have the charge [sic] and a true
verdict render thereon according to the law
and the evidence so help you God?

The trial court, after having the jury panel sworn, sua

sponte determined a need for alternates.

THE COURT: Now, for one more time,
hands that are excused tomorrow. All right.
We have one juror excused for tomorrow.
We have one juror who I have told [sic] is
going to make her teaching commitment at 6
p.m. tonight.
Do you want alternates?
Hearing no immediate answer, I'm going
to answer the question for myself. Yes.

Only two prospective jurors were available who were not a

part of the twenty previously called. Thus, the court proposed

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adding two of the previously stricken jurors and allowing each

side one strike to select two alternates. At this point, the

jury and remaining prospective jurors were removed from the

courtroom. The appellant and Commonwealth objected to any

procedure to choose an alternate that included previously

stricken jurors. 2 Appellant also objected to selecting any

alternate jurors at this stage because the alternates would know

they were designated as such. Appellant indicated the court

knew enough jurors might not be present and should have

continued the case. The Commonwealth and appellant further

objected to the court's suggestion to seat the two remaining

prospective jurors and allow only the appellant to strike one.

The following colloquy occurred:

MR. HUDGINS [The Commonwealth's
Attorney]: Again, I have the same position
because now I'm basically out of a strike,
and she is left with the potential of
picking who is going to be the alternate.

THE COURT: 8.01-360 says, In no event
shall alternates be told they are
alternates.

MR. HUDGINS: I have --

THE COURT: You are both objecting?

MR. HUDGINS: Well, I'm objecting not
so much because the other person is going to
know they are the alternate, but because I
don't have a decision in who gets to be the
alternate.

2
We note that the method of selection of alternates in a
jury trial is set out in Code § 8.01-360.

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 THE COURT: That's a mistrial.

MS. WOLFE: Your Honor, and I'm going
to say this --

THE COURT: Now you are going to have
jeopardy.

MS. WOLFE: We have jeopardy, but the
Court --

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

MR. HUDGINS: There wasn't a jury
sworn.

THE COURT: No, sir.

MS. WOLFE: 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 don't have sufficient jurors to have
a replacement for the juror sworn.
That's a mistrial.

MS. WOLFE: Thank you, Your Honor. 3

3
The Commonwealth argues that appellant (through his
attorney Ms. Wolfe) did not object to the trial judge's sua
sponte declaration of a mistrial when Ms. Wolfe stated, "Thank
you, Your Honor." Thus the Commonwealth asserts that appellant
waived his right to argue that the double jeopardy prohibition
barred his retrial. However, "'[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.'" Allen v. Commonwealth, 252 Va. 105, 111, 472 S.E.2d
277, 280 (1996) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938); Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937))
(further citations omitted). Waiver can be either express or
implied. See United States v. Ham, 58 F.3d 78, 83 (1995). A
defendant impliedly consents to a mistrial if the defendant had
an opportunity to object to the mistrial but failed to do so in

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 MS. HUDGINS: 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.

MS. WOLFE: Well, I think there's
really an argument about --

THE COURT: Now she's going to claim
that jeopardy attaches.

MS. WOLFE: Well, it did attach because
the jurors were sworn.
We will get the transcript --

THE COURT: Now she 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.

(Emphasis added).

a timely manner. See id. Thus, an appellant must object to the
sua sponte declaration of a mistrial before the trial judge
discharges the jury. See id.; see also United States v.
Gantley, 172 F.3d 422, 428-29 (1999); United States v. Palmer,
122 F.3d 215, 218-19 (1997). We must look at the totality of
the circumstances to determine if appellant waived his
constitutional rights. See id. In the instant case, appellant
attempted to note his objection to the mistrial immediately
following the judge's initial statement, "that's a mistrial."
The judge clearly knew the grounds for appellant's objection, as
his interaction with Ms. Wolfe indicates. Appellant did not
say, "Thank you, Your Honor," until the judge stated a second
time, "[t]hat's a mistrial." After two declarations of a
mistrial, appellant continued to object to the mistrial. Only
after appellant attempted to object twice did the judge call the
jury back into the courtroom, inform the jury of the mistrial,
and discharge the jury from service. Therefore, we find,
considering the totality of the circumstances, that appellant's
objection to the sua sponte declaration of a mistrial outside
the presence of the jury was timely because it was made before
the jury was discharged from service and immediately upon the
judge indicating that he was going to declare a mistrial.

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 The court then recalled the jury and discharged them from

service. After the jury left the courtroom, the trial judge

heard additional argument:

THE COURT: The alternative, facing a
double objection, each with a correct legal
basis, 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.
Pick a new date.
Sorry to do that to all of the
witnesses and the victim and everybody else,
but that's --

MR. HUDGINS: Your Honor, may I just be
heard?

THE COURT: -- required by Virginia law.

MR. HUDGINS: Your Honor, may I be
heard with respect to the issue of whether
there is a mistrial or not?
My understanding is, Your Honor, we
were about -- I don't recall -- you correct
me if I'm wrong -- when we picked our 12
whether or not the clerk actually swore them
in.

THE COURT: The second oath was given.

MR. HUDGINS: Because I thought we were
about to pick --

THE COURT: The second oath was given.
The jury was sworn.
It is very important constitutionally.
The jury was sworn. There was no objection

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 to swearing them. The Court went ahead with
the clerk in the usual process. No comment
was made. That jury was sworn.

MR. HUDGINS: Well, I guess, Your
Honor, just so the Court understands I
didn't understand that because I thought we
were about to pick an alternate.
I couldn't see how swearing the jury --

THE COURT: The expectation of the
selection of alternates did not make it
unclear that the second oath was being
given.

Appellant's trial was rescheduled for March 6, 2000 before

another judge. 4 Prior to commencing jury selection, appellant

moved to dismiss his case on double jeopardy grounds. The trial

court denied appellant's motion, stating that while he believed

the original trial should have been continued when the judge was

informed that the jury member was excused the following day, the

granting of a mistrial and the determination of manifest

necessity are matters left exclusively to the discretion of the

trial judge at the time and, thus, he would not second guess the

original trial judge's decision. Appellant was tried and

convicted of robbery and use of a firearm while committing a

robbery.

II. DOUBLE JEOPARDY

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." U.S.

4
The Honorable William T. Newman, Jr.

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Const. amend. V. The Fifth Amendment's protection against

double jeopardy applies to Virginia through the Fourteenth

Amendment. See Benton v. Maryland, 395 U.S 784, 795 (1969).

"Double jeopardy protection is implicated even though the trial

may have terminated without a verdict." Brandon v.

Commonwealth, 22 Va. App. 82, 88, 467 S.E.2d 859, 862 (1996).

"The law is well settled 'that jeopardy means the danger of

conviction.'" Courtney v. Commonwealth, 23 Va. App. 561, 567,

478 S.E.2d 336, 338 (1996) (quoting Rosser v. Commonwealth, 159

Va. 1028, 1036, 167 S.E. 257, 259 (1933)). Jeopardy attaches

"once the jury is sworn." 5 Kemph v. Commonwealth, 17 Va. App.

335, 340, 437 S.E.2d 210, 213 (1993). Thus, because jeopardy

attaches before the judgment becomes final, the constitutional

protection encompasses the accused's "valued right to have his

trial completed by a particular tribunal," Wade v. Hunter, 336

U.S. 684, 689 (1949); see also Bennefield v. Commonwealth, 21

Va. App. 729, 733, 467 S.E.2d 306, 308 (1996), that is, "the

right . . . to have his trial completed before the first jury

empanelled to try him," Oregon v. Kennedy, 456 U.S. 667, 673

5
Although the Commonwealth contends jeopardy never attached
because the trial judge sought alternate jurors who had not been
chosen or sworn in, the record establishes that jeopardy had
attached. The jury was sworn in as a twelve-member panel by the
clerk of court without objection. Only after swearing the jury
did the trial judge sua sponte determine that he would add
alternate jurors. Thus, alternates were not considered until
after the jury was empanelled. As such, it is irrelevant that
potential alternate jurors were not sworn.

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(1982). "Immediately before, and immediately after empanelling

and swearing of the jury things are much the same, but in one

jeopardy has not attached while, in the other, it has." Webb v.

Hutto, 720 F.2d 375, 379 (4th Cir. 1983). Therefore, when the

trial judge sua sponte, over defendant's objection, declares a

mistrial, the defendant is deprived of his "valued right to have

his trial completed by a particular tribunal." United States v.

Jorn, 400 U.S. 470, 484 (1971) (citing Wade, 336 U.S. at 689).

The United States Supreme Court has explained why this

"valued right" is so important.

Even if the first trial is not completed, a
second prosecution may be grossly unfair.
It increases the financial and emotional
burden on the accused, prolongs the period
in which he is stigmatized by an unresolved
accusation of wrongdoing, and may even
enhance the risk that an innocent defendant
may be convicted. The danger of such
unfairness to the defendant exists whenever
a trial is aborted before it is completed.

Arizona v. Washington, 434 U.S. 497, 503-04 (1978) (internal

citations omitted). Generally, the prosecutor is only allowed

to require the accused to stand trial once.

[However, u]nlike the situation in which the
trial has ended in an acquittal or
conviction, retrial is not automatically
barred when a criminal proceeding is
terminated without finally resolving the
merits of the charges against the accused.
Because of the variety of circumstances that
may make it necessary to discharge a jury
before a trial is concluded, and because
those circumstances do not invariably create
unfairness to the accused, his valued right
to have the trial concluded by a particular

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 tribunal is sometimes subordinate to the
public interest in affording the prosecutor
one full and fair opportunity to present his
evidence to an impartial jury.

Id. at 505. However, in proceeding to a second trial the trial

court must find "manifest necessity" for the mistrial declared

over the objection of the defendant. See id.; see also

Courtney, 23 Va. App. at 569, 478 S.E.2d at 339.

The sole issue presented in this case is whether the

original trial judge was faced with a "manifest necessity" to

declare a mistrial. "Manifest necessity" is not easily defined.

Rather, "Mr. Justice Story's classic formulation of the test has

been quoted over and over again to provide guidance" in

examining the unique factual situation in each case.

Washington, 434 U.S. at 506; see also Allen v. Commonwealth, 252

Va. 105, 109, 472 S.E.2d 277, 279 (1996) (utilizing Story's

analysis defining "manifest necessity" for Fifth Amendment

double jeopardy analysis and Virginia Code § 8.01-361, which

allows the trial court to discharge a jury in cases of "manifest

necessity").

We think, that in all cases of this nature,
the law has invested Courts of justice with
the authority to discharge a jury from
giving any verdict, whenever, in their
opinion, taking all the circumstances into
consideration, there is a manifest necessity
for the act, or the ends of public justice
would otherwise be defeated. They are to
exercise a sound discretion on the subject;
and it is impossible to define all the
circumstance, which would render it proper
to interfere. To be sure, the power ought

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 to be used with the greatest caution, under
urgent circumstances, and for very plain and
obvious causes; and in capital cases
especially, Courts should be extremely
careful how they interfere with any of the
chances of life, in favour of the prisoner.
But, after all, they have the right to order
the discharge; and the security which the
public have for the faithful, sound and
conscientious exercise of this discretion,
rests, in this, as in other cases, upon the
responsibility of the Judges, under their
oaths of office.

United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). The

term "necessity" cannot "be interpreted literally . . .

[because] we assume that there are degrees of necessity and we

require a 'high degree' before concluding that a mistrial is

appropriate." Washington, 434 U.S. at 506. While the

Commonwealth bears the burden of establishing that "manifest

necessity" requires a mistrial, the trial judge is allowed to

exercise "broad discretion" in deciding whether "manifest

necessity" exists to justify discharging the jury when the trial

judge has identified possible jury bias as the grounds for his

or her mistrial order. Washington, 434 U.S. at 509-10.

However, when jury bias is not at issue, "[w]e resolve any doubt

'in favor of the liberty of the citizen, rather than exercise

what would be an unlimited, uncertain, and arbitrary judicial

discretion.'" Downum v. United States, 372 U.S. 734, 738 (1963)

(quoting United States v. Watson, 28 Fed.Cas. 499, 501 (1868));

see Brandon, 22 Va. App. at 91, 467 S.E.2d at 863.

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 The emphasis is not whether the trial judge considered a

potential problem that he or she might encounter, but rather

whether the trial judge "acted responsibly and deliberately, and

accorded careful consideration to respondent's interest in

having the trial concluded in a single proceeding." Washington,

434 U.S. at 516. The trial judge cannot "act arbitrarily or

without good cause to believe that [declaring a mistrial] was

necessary to prevent great injustice either to the Commonwealth

or to the defendant." Brandon, 22 Va. App. at 91, 467 S.E.2d at

863. In exercising his or her sound discretion, a trial judge

must consider all 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 (4th Cir. 1995)

(holding that the critical inquiry is whether less drastic

alternatives were available to the court); Harris v. Younger,

607 F.2d 1081, 1085 (4th Cir. 1979) ("if less drastic

alternatives than a mistrial were available, they should have

been employed to protect the defendant's interest in promptly

ending the trial"). Thus, the trial court should consider 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 (4th Cir. 1993)

(holding that an abuse of discretion occurs if the trial judge

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fails to fully consider all alternatives, including a

continuance, before declaring a mistrial).

The instant case is analogous to Jorn. In Jorn, after the

jury was empanelled, the government called five witnesses whom

the defendant allegedly aided in preparing fraudulent tax

returns. Defense counsel requested that the court advise the

witnesses of their constitutional rights before testifying. The

trial court informed the witnesses that anything they said

during the trial could be used against them in a subsequent

criminal trial. The witnesses acknowledged that they were aware

of their rights and were previously warned of their rights by

the IRS. "The trial judge indicated, however, that he did not

believe the witness[es] had been given any warning at the time

[they were] first contacted by the IRS, and refused to permit

[them] to testify until [they] had consulted an attorney."

Jorn, 400 U.S. at 473. When the prosecutor attempted to explain

to the trial court that he intended to prosecute the case in a

manner that did not require the witnesses to incriminate

themselves, the trial judge abruptly declared a mistrial and

discharged the jury. Id. at 487. The United States Supreme

Court held,

[i]t is apparent from the record that no
consideration was given to the possibility
of a trial continuance; indeed, the trial
judge acted so abruptly in discharging the
jury that, had the prosecutor been disposed
to suggest a continuance, or the defendant
to object to the discharge of the jury,

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 there would have been no opportunity to do
so. When one examines the circumstances
surrounding the discharge of this jury, it
seems abundantly apparent that the trial
judge made no effort to exercise a sound
discretion to assure that, taking all the
circumstances into account, there was a
manifest necessity for the sua sponte
declaration of this mistrial. United States
v. Perez, 9 Wheat., at 580. Therefore we
must conclude that in the circumstances of
this case, appellee's reprosecution would
violate the double jeopardy provision of the
Fifth Amendment.

Jorn, 400 U.S. at 487.

The instant case also contains an element discussed in

United States v. Sartori, 730 F.2d 973, 975 (4th Cir. 1984). In

Sartori, the trial judge, prior to empanelling the jury, knew of

a potential conflict of interest with his hearing the case.

After the third witness testified, the trial judge believed "his

continued presence at trial was not consistent with the

appearance of judicial propriety." Id. at 975. After the

fourth witness testified, the trial judge concluded there were

no alternatives and declared a mistrial. The Fourth Circuit

first emphasized that alternatives, particularly substitution of

another judge was a viable alternative to declaring a mistrial.

See id. at 976. The Fourth Circuit also held, "[if the trial

judge] had serious doubts about his ability to remain impartial,

he should have recused himself before empanelling the jury.

Similarly, his concerns about the appearance of judicial

impropriety should have been addressed before jeopardy

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attached." Id. (emphasis added). Once the trial judge chose to

proceed with the trial, "completing the trial offered a less

drastic alternative to declaring a mistrial over the defendant's

objections." Id. Thus, when a potential problem is known

before the jury is empanelled, the trial judge must take

precautions to deal with it before empanelling the jury. If the

same problem is the basis for the trial court's declaration of a

mistrial later in the proceeding, the double jeopardy protection

is implicated.

The timing of the sua sponte declaration of the mistrial

also must be considered. See Grandberry v. Bonner, 653 F.2d

1010 (5th Cir. Unit A 1981) (the court could not have considered

alternatives to mistrial when the court declared a mistrial

within minutes of learning that a juror had become slightly ill;

alternatives might have prevented the necessity for declaring a

mistrial if the court had considered them and given counsel a

chance to speak); see also Brady v. Samaha, 667 F.2d 224 (1st

Cir. 1981) (a quickly reached decision, reflected by a rapid

sequence of events culminating in a mistrial indicates that the

judge could not have considered alternatives to declaring a

mistrial and thus could not have accorded careful consideration

to defendant's right to have the trial concluded in one

proceeding).

In the instant case, before empanelling the jury, the trial

court, Commonwealth's attorney and defense counsel were aware

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that several prospective jurors were excused from service on the

following day. No additional jurors were called. The problem

was discussed at least three times prior to the swearing of the

jury and the court was reminded of this problem only seconds

prior to having the clerk swear the jury. Both the

Commonwealth's attorney and defense counsel informed the trial

court that the trial was likely to extend into the following

day. This was discussed at an early stage of the proceeding.

The alternatives were to bring in additional jurors or if none

were available to continue the case until a proper jury could be

made available. See generally Sartori, 730 F.2d at 976. The

trial court failed to consider or discuss with counsel

alternatives other than a mistrial. The trial court could have

begun the trial, adjourned early on the first day, if necessary,

and ordered a continuance until the jury members were available

to return and hear the remainder of the case. The mistrial was

declared in a matter of minutes, implicating the concerns of

Grandberry, 653 F.2d 1010, and Brady, 667 F.2d 224. No matter

the salutary motives of the original trial judge, the double

jeopardy protections of the United States Constitution are

mandatory.

In sum, we hold that when the jury was empanelled and

sworn, the trial judge was aware of the issues which led to his

later declaration of the mistrial. He failed to consider

possible alternatives, such as a continuance, prior to his sua

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sponte declaration of a mistrial. Thus, because no manifest

necessity required the trial judge to declare a mistrial, the

double jeopardy prohibition bars the retrial of appellant. 6

Reversed and dismissed.

6
Because we reverse on double jeopardy grounds, we do not
address the additional issue granted.

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