COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
EUGENE CLAYTON TYLER, JR.
OPINION BY
v. Record No. 2622-94-2 JUDGE LARRY G. ELDER
FEBRUARY 20, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
Samuel Taylor Powell, III, Judge
Craig S. Cooley for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Eugene C. Tyler, Jr. (appellant) appeals his conviction for
voluntary manslaughter in violation of Code § 18.2-35.
Appellant's sole contention is that his conviction violated the
prohibition against double jeopardy. Because the trial court
erroneously rejected the jury's inconsistent, yet valid, verdicts
in appellant's first trial and ordered a retrial, we reverse and
dismiss appellant's conviction.
I.
Appellant shot and killed Gerald Washington on January 30,
1994, after Washington, with whom appellant had prior
altercations, approached appellant in a threatening manner.
On July 6, 1994, appellant was tried by a jury in a
bifurcated trial in the Circuit Court of King William County on
indictments for murder and use of a firearm in the commission of
a murder. The jury found appellant guilty of voluntary
manslaughter and use of a firearm in the commission of a murder.
At the conclusion of the guilt phase of the trial, appellant
moved to set aside and strike the conviction of use of a firearm
in the commission of a murder because it was "irregular." In
response, the prosecutor argued the trial court could not allow
the inconsistent verdicts to stand and urged it to instruct the
jury to deliberate further in order to reach consistent verdicts.
The trial court agreed with the Commonwealth, ruled the verdicts
inconsistent, and ordered the jury to deliberate further.
Appellant objected to this ruling. After the jury informed the
trial court it could not reach verdicts, the trial court then
read the "Allen charge" to the jury, which deliberated again.
When the jury once again declared it could not reach verdicts,
the trial court declared a mistrial. Appellant asserted that the
jury had returned a valid manslaughter verdict in the first
instance and he renewed his motion to dismiss any further
prosecution as being barred by the prohibition against double
jeopardy.
After trial, the trial court admitted it erred in (1) not
accepting the original inconsistent, yet valid, verdicts and
(2) in directing the jury to deliberate further in order to
render consistent verdicts. The trial court ruled appellant's
retrial would therefore be limited to the charges of voluntary
manslaughter and the use of a firearm in the commission of a
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murder. The trial court also stated that it exercised its broad
discretion in declaring a mistrial, which it did after
determining that no alternatives existed to the jury's inability
to reach verdicts.
After a second trial on September 27, 1994, a jury acquitted
appellant of the firearm charge but could not reach a verdict on
the voluntary manslaughter charge.
On October 26, 1994, after a third trial, conducted over
appellant's double jeopardy objection, a jury convicted appellant
of voluntary manslaughter. The trial court sentenced appellant
to five years in the state penitentiary in accordance with the
jury's recommendation. Appellant now appeals to this Court. 1
II.
Appellant contends that the trial court erred in not
accepting the jury's verdicts in the first trial and instead
ordering a retrial. We agree with appellant and hold that the
trial court's actions violated the prohibition against double
jeopardy.
"The constitutional prohibition of double jeopardy consists
of three separate guarantees: (1) 'It protects against a second
prosecution for the same offense after acquittal. (2) It
1
For sake of clarity, we note that the instant appeal
involves the validity of the conviction arising from appellant's
third trial, not appellant's first trial. The mistrial order
issued after appellant's first trial, which became final twenty-
one days after its entry, see Rule 1:1, is not before us on the
instant appeal.
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protects against a second prosecution for the same offense after
conviction. (3) And it protects against multiple punishments for
the same offense.'" Turner v. Commonwealth, 221 Va. 513, 529,
273 S.E.2d 36, 46 (1980)(quoting Illinois v. Vitale, 447 U.S.
410, 415 (1980)), cert. denied, 451 U.S. 1011 (1981). In this
case, we concern ourselves with the second guarantee, as
appellant argues that his two subsequent prosecutions for
voluntary manslaughter occurred after a jury validly convicted
him of voluntary manslaughter in the first trial.
The record reveals the trial court declared a mistrial and
dismissed the jury after deciding that the jury reached
inconsistent, and in the court's view, invalid, verdicts. After
twice ordering the jury to deliberate further, the trial court
determined that the jury was unable to reach consistent verdicts
and discharged the jury. A "court may discharge the jury when it
appears that they cannot agree on a verdict or that there is
manifest necessity for such discharge." Code § 8.01-361. No
bright-line rule exists for determining when manifest necessity
exists, but, in making this determination, the trial court is
vested with broad discretion. Smith v. Commonwealth, 239 Va.
243, 267, 389 S.E.2d 871, 884 (citing Turnbull v. Commonwealth,
216 Va. 328, 335, 218 S.E.2d 541, 546 (1975)), cert. denied, 498
U.S. 881 (1990).
In this case, the trial court issued a memorandum opinion
after declaring the mistrial, in which it detailed its reasons
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for doing so. In its opinion, the trial court admitted it "erred
when it did not accept the original apparent inconsistent guilty
verdicts," which it conceded were valid verdicts. However, the
trial court explained its actions by stating:
The court further finds that a court has
broad discretion in declaring a mistrial and
that the court, in this case, considered the
alternatives before ordering a mistrial
because the jury was unable to reach a
verdict after the court twice ordered the
jury to deliberate further, gave the "Allen
instruction" and inquired of the jury foreman
about the possibility of reaching a verdict.
The court did not abuse its discretion
in declaring the mistrial considering the
totality of the circumstances, manifest
necessity being present in the jury's
inability to reach a final verdict.
We hold that the trial court abused its discretion in
declaring a mistrial because the original verdicts were valid and
no manifest necessity existed for declaring a mistrial. See
Gilliam v. Foster, __ F.3d __, (4th Cir. 1996)(holding that
because no manifest necessity existed to do so, the trial court
abused its discretion in declaring a mistrial; double jeopardy
barred defendant's subsequent retrial). The law regarding
inconsistent verdicts is well settled in this Commonwealth. As
this Court has held, "[t]he fact that verdicts may, on their
face, arguably appear inconsistent does not provide a basis to
reverse either conviction on appeal, provided the evidence is
sufficient to support each verdict." Pugliese v. Commonwealth,
16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993)(citing United States
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v. Powell, 469 U.S. 57, 66 (1984) 2 (emphasis added). "Jury
verdicts may appear inconsistent because the jury has elected
through mistake, compromise, or lenity to acquit or to convict of
a lesser offense for one charged crime that seems in conflict
with the verdict for another charged offense." Pugliese, 16 Va.
App. at 96, 428 S.E.2d at 26. Courts may uphold each verdict
despite the apparent inconsistency, provided the evidence
supports each verdict. Id. See Wolfe v. Commonwealth, 6 Va.
App. 640, 371 S.E.2d 314 (1988)(holding inconsistent verdicts do
not provide a basis for appeal).
As the law of Virginia provides, inconsistent verdicts are
nonetheless valid verdicts. Therefore, in this case, the fact
that the jury's two verdicts may have appeared inconsistent did
not necessitate or permit the trial court to declare a mistrial
and discharge the jury. Although the jury was unable to reach
consistent verdicts after being instructed to do so, the trial
court lacked authority to order the jury to reconsider its
verdicts, as each found support in the evidence. The prohibition
against double jeopardy is designed to prevent subjecting the
accused "to the hazards of vexatious, multiple prosecutions" and
2
In Powell, the United States Supreme Court concluded,
"[t]he most that can be said in such cases is that the verdict
shows that either in the acquittal or the conviction the jury did
not speak their real conclusions, but that does not show that
they were not convinced of the defendant's guilt." 469 U.S. at
63. The Powell Court also explained that where juries reach
inconsistent verdicts, it is "unclear whose ox has been gored,"
the government's or the defendant's. Id. at 65.
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the "embarrassment, expense, and ordeal [of] compelling [the
accused] to live in a continuing state of anxiety or insecurity."
Hall v. Commonwealth, 14 Va. App. 892, 899, 421 S.E.2d 455, 460
(1992)(citation omitted).
Furthermore, the bifurcated trial procedure does not broaden
a trial court's authority to disturb a jury's inconsistent guilty
verdicts. 3 The justifications for allowing inconsistent verdicts
are not diminished simply because the verdicts are entered at the
conclusion of the guilt phase of a bifurcated trial instead of at
the end of a unitary proceeding. In either a unitary or a
bifurcated proceeding, mistake, lenity, or compromise may
underlie the jury's decision. Trial courts lack the authority to
disturb inconsistent valid verdicts rendered at the conclusion of
the guilt phase because such verdicts are final determinations of
guilt or innocence. While the same jury may subsequently fail to
reach a unanimous verdict in the punishment phase, this failure
does not diminish the fact that the jury's determinations of
guilt became final verdicts at the moment they were unanimously
reached. See Powell, 469 U.S. at 67 ("with few exceptions . . .
3
Code § 19.2-295.1, Sentencing proceeding by the jury
after conviction for a felony, states that "[i]n cases of trial
by jury, upon a finding that the defendant is guilty of a felony,
a separate proceeding limited to the ascertainment of punishment
shall be held as soon as practicable before the same jury." In a
case where the jury is unable to reach a unanimous verdict in the
punishment phase, the trial court must declare a mistrial. This
case does not present us with this issue, however, as the trial
court in appellant's original case did not give the jury the
opportunity to decide punishment.
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once the jury has heard the evidence and the case has been
submitted, the litigants must accept the jury's collective
judgment").
Accordingly, we reverse and dismiss the conviction.
Reversed and dismissed.
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