United States Court of Appeals,
Eleventh Circuit.
No. 94-9455.
Richard Edward VENSON, Petitioner-Appellee,
v.
STATE OF GEORGIA, Respondent-Appellant.
Feb. 12, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 2:94-cv-066-WCO), William C. O'Kelley,
District Judge.
Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit
Judge.
PER CURIAM:
The State of Georgia appeals the district court's grant of
relief on a 28 U.S.C. § 2254 petition brought by Richard Edward
Venson. The district court held that Venson's second trial on
sexual battery charges violated his Fifth Amendment right against
double jeopardy. We affirm.
I. BACKGROUND
In January 1993, Venson was charged with three counts of
sexual battery in Hall County, Georgia. At that time, Venson was
a schoolteacher at East Hall High School ("East Hall"), and the
three counts involved three female students at East Hall. Venson's
first trial on these charges began on June 1, 1993 and ended the
next day in a mistrial. Venson's second trial on the same charges
was held in July, 1993 and resulted in a conviction for sexual
battery on Count One and an acquittal on Counts Two and Three.
A. The June Trial
At the first trial, the complaining witness on Count One,
Elizabeth McNeeley, testified that on October 26, 1992, Venson
invited her into his office after class was dismissed and hugged
her in a way that made her feel uncomfortable. The state also
introduced the testimony of three other witnesses in support of
Count One. Laura Sloan, McNeeley's friend, and Kelly Smith,
McNeeley's accounting teacher, both testified that they talked to
McNeeley soon after her class with Venson. Sloan and Smith both
testified that McNeeley was crying and that McNeeley said Venson
had hugged her. Kathy Meaders, a caseworker from the state
Department of Family and Children Services who interviewed
McNeeley, also testified.
The remaining two students testified about abuse that
allegedly occurred during the spring of 1992, the school year prior
to the incident described by McNeeley. Both Tammy Pressley, the
complaining witness on Count Two, and Cassaundra Shockley, the
complaining witness on Count Three, testified that Venson touched
them during class while they were seated at a table beside his
desk. Shockley testified that she and Pressley discussed the
incidents before together reporting them to school authorities.
During the cross-examination of Shockley, the following
interchange occurred between the witness and Venson's attorney:
Q: ... [W]hy didn't you and ... Ms. Presley [sic] ... go and
tell the school people then?
A: Because we didn't think nobody would believe us.
Q: You did not think anyone would believe you?
A: Yes.
Q: Is the reason for that they caught you forging notes out
at the school and caught you telling untruths?
(R.Ex. A, First Trial, Vol. 2 at 226). The state immediately
objected to the question and moved for a mistrial.
The court heard arguments on the motion outside the presence
of the jury. The state argued that the question was improper for
two reasons. First, the question represented an accusation which,
if true, would be a part of Shockley's confidential school
records.1 Second, the state argued that it was improper to impeach
a witness with a specific act rather than by evidence of general
bad character. See O.C.G.A. § 24-9-84 (1995). Finally, the state
argued that it was impossible to cure the effect of the improper
question by either disproving the accusation or instructing the
jury to ignore it. The state could only disprove the accusation or
explain that the incident was irrelevant by introducing the school
records, which were inadmissible under a pre-trial order. A
curative instruction, the state argued, would not effectively
remove the taint of the accusation from the jurors' minds.
Venson's attorney argued that his question was proper because
he was questioning Shockley about a specific act, not about the
contents of her school record. He contended that he was entitled
to question Shockley about why she thought the school officials
would not believe her. The defense also argued that a witness
properly could be impeached with evidence of prior false
1
In an order issued before the first trial, the court ruled
that the academic and disciplinary records of the complaining
witnesses kept by the Hall County School Board were confidential
under 20 U.S.C. § 1232g (1994). The trial court did, however,
inspect the records in camera for any material that tended to
exculpate Venson. Finding none, the trial court did not release
any of the records to the defendant, but agreed to release such
information if, during the course of the trial, the contents of
the records became relevant.
statements. Even if the court held that the question was improper,
the defense argued, a curative instruction was sufficient to remove
any prejudice from the jurors' minds. Finally, Venson's attorney
contended that the improper granting of a mistrial would subject
his client to double jeopardy.
After hearing argument on the propriety of the question, the
court examined case law on the issue and reviewed the school
records during a recess. The records revealed that the witness had
forged a note from her mother to school officials. However, the
note-forging incident occurred after the witness complained to
school authorities about Venson. When the defense attorney could
provide no evidence that any such incident occurred before the
witness reported Venson to school authorities, the court held the
question improper.
The trial court then addressed the question of whether a
mistrial should be granted. The court considered the alternative
of giving a curative instruction and expressed misgivings about
declaring a mistrial. Specifically, the court stated:
Well, that's the question I've been wrestling with in
there is can I give a curative instruction? Of course, I can
say disregard the question Mr. Stroberg just asked. But is
that reasonable under the circumstances and is it going to get
it out of their minds? Now, I do not want to grant a mistrial
in this case.
This is traumatic. I realize this is awful to have to
put everybody through this another time. It's not something
I want to do.
(R.Ex. A, First Trial, Vol. 2 at 233-34). In a written order
granting the motion for a mistrial, the court stated that it found
that the prejudice to the State could not be eradicated with a
curative instruction. The court also refused to "cure[ ] a wrong
with another wrong" by allowing the State to admit the school
records to explain the incident. The court found a "moral and
legal necessity" for a mistrial. (Appellant's R. Excerpts D at 3).
B. The July Trial and Direct Appeal
At Venson's second trial on the same charges in July 1993, he
was convicted on Count One charging the sexual battery of McNeeley,
but acquitted on Counts Two and Three, involving Pressley and
Shockley. Before the second trial, Venson's attorney filed a plea
of former jeopardy in which he argued that no manifest necessity
existed for declaring a mistrial with respect to Counts One and Two
based on the improper question put to the complaining witness on
Count Three. The trial court denied the motion, responding:
... As to Count 3, I think that the order that the Court
entered on the mistrial states my position.
As to the issue of whether the counts could have been
separated, I don't know. You may have a point. I'm not
willing to tackle that at this point. If need be, that will
go up to the Court of Appeals....
(R.Ex. A, Second Trial, Vol. I at 6).2
On direct appeal, the Georgia Court of Appeals held that the
question asked by Venson's attorney was improper and that the trial
judge did not abuse her discretion in granting the mistrial. The
Supreme Court of Georgia denied certiorari.
C. The District Court
Venson filed this 22 U.S.C. § 2254 petition in federal
district court, claiming that the second trial and conviction
2
The trial judge who conducted Venson's first trial,
Kathlene F. Gosselin, was unable to preside at the second trial
due to illness. Judge Gosselin ruled on Venson's plea of former
jeopardy in a telephonic conference conducted just prior to
Venson's second trial.
violated his Fifth Amendment guarantee against double jeopardy.
The district court held that the question asked by Venson's
attorney was improper, and that the grant of a mistrial was proper
with respect to Counts Two and Three. However, the court held that
granting a mistrial on Count One was improper because the trial
court failed to make a finding that manifest necessity existed as
to Count One, and that therefore Venson's retrial on Count One
violated his right against double jeopardy. Without reaching the
question of whether manifest necessity actually existed for a
mistrial on Count One, the district court granted relief on the
petition. The State of Georgia appeals.
II. STANDARD OF REVIEW
The retrial of a defendant in a criminal case after a
mistrial is declared due to juror prejudice violates the Double
Jeopardy Clause if the first trial court abused its discretion in
granting the mistrial. Arizona v. Washington, 434 U.S. 497, 511-
14, 98 S.Ct. 824, 833-34, 54 L.Ed.2d 717 (1978). Where the
district court does not hold an evidentiary hearing on the
petitioner's claim but merely reviews the trial record and applies
the law, we review the decision of the district court de novo.
Abdi v. Georgia, 744 F.2d 1500, 1503 n. 5 (11th Cir.1984), cert.
denied, 471 U.S. 1006, 105 S.Ct. 1871, 85 L.Ed.2d 164 (1985). In
reviewing the trial court's decision that manifest necessity
existed for a mistrial, we may examine the entire record in
addition to the actual findings of the trial court. Id. at 1503.
III. DISCUSSION
The Fifth Amendment provides that "[n]o person shall ... be
subject for the same offence to be twice put in jeopardy...." U.S.
Const.Amend. V.3 The Double Jeopardy Clause clearly bars the
reprosecution of a criminal defendant on the same charges after a
judgment of conviction or acquittal. United States v. Wilson, 420
U.S. 332, 342-43, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975)
(quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.
2072, 2076, 23 L.Ed.2d 656 (1969)). Retrial may also be barred
after a trial that is terminated prior to final judgment, although
the Supreme Court has repeatedly rejected a categorical approach to
deciding when, under such circumstances, retrial is barred. United
States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d
543 (1971). At a minimum, the criminal proceeding must have
reached a point when the policies underlying the Double Jeopardy
Clause are implicated, at which time jeopardy "attaches." Id. at
480, 91 S.Ct. at 555; Serfass v. United States, 420 U.S. 377, 388,
95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). In cases tried to a
jury, jeopardy attaches when the jury is empaneled and sworn.
Serfass, 420 U.S. at 388, 95 S.Ct. at 1062.
Once jeopardy has attached, the question remains whether,
under the circumstances of the particular case, the Fifth Amendment
dictates that the defendant not be retried. Jorn, 400 U.S. at 480,
91 S.Ct. at 555. Our law strikes the balance between the
defendant's interest in completing his trial and society's interest
in enforcing criminal laws with this test: where the trial court
3
The guarantee applies to defendants in state as well as
federal criminal proceedings through the Due Process Clause of
the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 796,
89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969).
grants a mistrial over a defendant's objection, reprosecution of
the defendant is not constitutionally prohibited if manifest
necessity exists for the mistrial. Arizona v. Washington, 434 U.S.
at 505, 98 S.Ct. at 830 (citing United States v. Perez, 22 U.S. (9
Wheaton) 579, 579, 6 L.Ed. 165 (1824) (Story, J.) as the "classic
formulation of the test").
The prosecution bears the burden at trial of showing manifest
necessity when the defendant objects to the grant of a mistrial.
Id. The trial judge must exercise sound discretion in deciding
whether manifest necessity exists. Granberry v. Bonner, 653 F.2d
1010, 1014 (5th Cir. Unit A Aug. 1981). The judge should consider
whether any alternatives to a mistrial are available, but the
failure to adopt or consider a particular alternative is not
constitutional error. Cherry v. Director, State Bd. of
Corrections, 635 F.2d 414, 418 (5th Cir.), cert. denied, 454 U.S.
840, 102 S.Ct. 150, 70 L.Ed.2d 124 (1981) (quoting Arizona v.
Washington, 434 U.S. at 517, 98 S.Ct. at 836). Judicial economy is
not a proper factor for the judge to consider when deciding whether
manifest necessity exists. United States v. Chica, 14 F.3d 1527,
1533 (11th Cir.1994).
The decision of a state trial court to retry a criminal
defendant may be reviewed by a federal court for a violation of the
petitioner's right against double jeopardy on a petition for habeas
corpus. However, that review must be undertaken with the
understanding that the writ serves a limited, secondary purpose.
See Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3392,
77 L.Ed.2d 1090 (1983). Once a defendant has exhausted direct
review of a conviction, a presumption of finality and legality
attach to the conviction, and for this reason the petitioner bears
the burden on habeas review of making a prima facie case that his
detention is in violation of some federal right. Id.; Cherry, 635
F.2d at 419. The federal court must assume in the face of an
ambiguous trial record that the state court judge complied with
federal law, even if the applicable legal standard is not mentioned
in the record. Cherry, 635 F.2d at 419 n. 7 (quoting Townsend v.
Sain, 372 U.S. 293, 315, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (1963)).
What that means in the context of this case is that the federal
court must assume that the trial court found manifest necessity
existed for a mistrial whether or not the record affirmatively
reflects such a finding. A state trial court's finding that
manifest necessity existed for retrial is not subject to attack
simply because the words "manifest necessity" do not appear in the
record. Arizona v. Washington, 434 U.S. at 516-17, 98 S.Ct. at
836.
Venson argues, and the district court found, that the trial
court failed to make any determination that manifest necessity
existed as to Count One. The district court erred, however,
because it failed to presume that the trial court complied with the
requirements of the Due Process Clause, and that the conviction was
legal and final. The court stated in its order that, "The decision
was wrong ... because the trial judge did not consider whether
manifest necessity existed before declaring a mistrial as to Count
One. The trial court made no indication in the record that the
jury could not render an impartial verdict as to Count One." (R.
10 at 11.) Contrary to the district court's order, the trial judge
was not required to make the manifest necessity determination
explicit in the record. See Arizona v. Washington, 434 U.S. at
516-17, 98 S.Ct. at 836.
Venson has the burden of establishing a prima facie case that
his conviction violated the Double Jeopardy Clause. He has pointed
to no evidence in the record of the first trial demonstrating that
the trial court did not consider manifest necessity with respect to
Count One. The record of the first trial is ambiguous on this
point. Venson's only evidence that the trial court failed to
consider manifest necessity with respect to Count One is the
statement of the trial judge made before the second trial that the
counts perhaps could have been separated. This passing comment,
made over a month after the declaration of the mistrial, is
insufficient to show that the judge failed to consider manifest
necessity with respect to Count One at the time that the mistrial
was declared. In the absence of sufficient evidence to the
contrary, we must assume that the trial court found a manifest
necessity for mistrial on all three counts.
Our inquiry does not end here, however, because the district
court did not reach the question of whether the trial court's
decision that manifest necessity existed for a mistrial on Count
One was a sound exercise of discretion. This question is a
fact-intensive one. Chica, 14 F.3d at 1531. However, neither
Venson nor the state requested an evidentiary hearing on the
manifest necessity issue, and nothing in this case suggests that an
evidentiary hearing would have been appropriate. See Abdi v.
Georgia, 744 F.2d at 1500, 1503 (11th Cir.1984). Because the
district court has not held an evidentiary hearing, the manifest
necessity determination simply involves applying the legal standard
to the facts in the trial record. See id. at 1503 n. 5. Review of
a trial record is a task at which this court is competent, and both
parties have briefed the manifest necessity issue in this court.
Although we could properly remand to the district court, we choose,
for the reasons we have noted, to address the issue ourselves.
The trial court's decision to grant a mistrial in Venson's
case deserves an added degree of respect because it was based on
juror prejudice, a factor which the trial court is best situated to
observe. See Arizona v. Washington, 434 U.S. at 513-14, 98 S.Ct.
at 834. Nonetheless, we hold that the trial court abused its
discretion in granting a mistrial on Count One. We agree with the
trial court that the question asked by Venson's attorney was
improper under Georgia law. See O.C.G.A. § 24-9-84, Williams v.
State, 251 Ga. 749, 799, 312 S.E.2d 40, 81 (1983) (holding that
specific acts cannot be used to impeach a witness unless the
misconduct resulted in a conviction for a crime of moral
turpitude); cf. Fed.R.Evid. 608(b). Furthermore, the taint
produced by the improper question was prejudicial to the state's
case against Venson on Counts Two and Three. However, the improper
question resulted in such minimal prejudice to the state on Count
One that finding manifest necessity for a mistrial on that count
was an abuse of discretion.
Venson's attorney sought to impeach Shockley, the complaining
witness on Count Three, with character evidence of a specific act.
He argued that this evidence tended to show the witness's
propensity for untruthfulness. (R.Ex. A, First Trial, Vol. 2 at
2332-33.) Impeachment with such evidence is not allowed under
Georgia evidence law. O.C.G.A. § 24-9-84. The question was
clearly prejudicial to the state's case on Count Three because it
improperly attacked the credibility of the complaining witness on
that count.
The question was also prejudicial to the state's case on
Count Two for at least two reasons. First, Shockley's testimony
was critical evidence for the state because Shockley was a witness
to the alleged abuse of Pressley that was the subject of Count Two.
Second, Shockley was a "similar transaction" witness on Count Two
because her testimony about what Venson did to her was very similar
to Pressley's testimony about Venson's conduct.
The improper impeachment of Shockley had a very minimal
prejudicial impact on the state's case against Venson on Count One.
Shockley did not witness the incident between Venson and McNeeley
that formed the basis for Count One, and the two girls never
discussed Venson's behavior with each other before reporting it.
The only possible theory on which Shockley's testimony was relevant
to Count One was that Venson's conduct, as described by Shockley,
was similar to the conduct made the subject of the charge in Count
One. The accounts of Shockley and McNeeley are similar in that
they both describe Venson improperly touching female students, but
the similarity ends there. McNeeley testified that Venson hugged
her when they were alone after class, but Shockley testified that
she was touched by Venson while class was in session. The
incidents described by the two girls also occurred during different
school years. Finally, the fact that the state's case on Count One
was supported by the testimony of three other witnesses buttresses
our conclusion that the state suffered little prejudice on that
count.
IV. CONCLUSION
Because the trial judge abused her discretion in granting a
mistrial on Count One, we AFFIRM the district court's grant of
relief on Venson's habeas petition.
AFFIRMED.