Commonwealth v. Leister

STEVENS, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying Appellant’s motion to bar retrial on double jeopardy grounds. Herein, Appellant contends that the trial judge improperly declared a mistrial sua sponte without “manifest necessity,” and, therefore, that the trial judge’s actions constituted judicial misconduct preventing Appellant’s retrial. We affirm.

The facts in this case are undisputed. On July 9,1996, Appellant proceeded to a bench trial on the charges of corrupting the morals of a minor,1 indecent assault,2 making terror-istic threats,3 intimidating a witness,4 and retaliation against a witness.5 During a competency hearing to determine the testimonial fitness of the six-year-old alleged victim as well as during the child’s subsequent testimony, defense counsel employed abusive trial tactics. While standing only several feet from the child witness, defense counsel objected to the presence of the witness’ child advocate, accused the Commonwealth of coaching the witness, repeated questions that the witness could not answer, called the witness incompetent, and quarreled with opposing counsel. The result of counsel’s tactics was an intimidated child witness, unable to further testify.

The trial judge called a recess, excused the witness, and sternly reprimanded both counsel for arguing before the child. The judge then instructed both to refrain from such displays for the remainder of the trial. Rather than accept these instructions, defense, counsel chose, instead, to challenge the trial judge’s narration of events.6

Tolerant at first, the trial judge grew increasingly irate, until, finally, he denounced the proceedings as futile. In addition, the trial judge claimed to suffer abuse by defense counsel. Admitting that he had adopted a personal, condemnatory opinion of the entire defense approach and strategy, the trial judge recused himself and declared a mistrial sua sponte.

Before a new trial began, Appellant moved to bar retrial, relying on the double jeopardy provisions of both the Federal and State Constitutions. Though jeopardy had attached before the trial judge recused himself, See Commonwealth v. Culpepper, 221 Pa.Super. 472, 293 A.2d 122, 123 (1972) (jeopardy attaches in a case without a jury when the accused has been subjected to a charge and the court has begun to hear evidence),. the lower court denied the motion. The trial judge found the mistrial issue within an exception to the double jeopardy prohibition, and held that the need for recusal was manifestly necessary. Lower Court Opinion, 6/27/97. This appeal followed.

It is within the trial judge’s discretion to declare a. mistrial, and, absent an abuse of that discretion, no reversal of its exercise will result. Commonwealth v. Gains, 383 Pa.Super. 208, 556 A.2d 870 (1989). Nonetheless, a judge may declare a mistrial sua sponte only when manifestly necessary or where the ends of public justice *335would otherwise be defeated. United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165 (1824); Commonwealth v. Balog, 395 Pa.Super. 158, 576 A.2d 1092, 1094 (1990). Where there is “manifest necessity” for a trial judge to declare a mistrial sua sponte, neither the Fifth Amendment to the United States Constitution nor Article I, § 10 of the Pennsylvania Constitution will bar retrial. Commonwealth, ex. rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976). However, any doubt about the manifest necessity of declaring a mistrial must be resolved in the defendant’s favor. Commonwealth v. Diehl, 532 Pa. 214, 217, 615 A.2d 690, 691 (1992).

Reviewing courts use no mechanical formula in determining whether a trial court had a manifest need to declare a mistrial. Balog, 576 A.2d at 1095. Rather, “.. .varying and often unique situations aris[e] during the course of a criminal trial.. .[and] the broad discretion reserved to the trial judge in such circumstances has been consistently reiterated_” Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). Far more conversant with the factors relevant to the determination than any reviewing court can possibly be, the trial judge, who is the foremost authority in his or her courtroom, is usually best-positioned to determine the necessity of recusal in any individual ease. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); In Interest of Morrow, 400 Pa.Super. 339, 583 A.2d 816, 818 (1990). This principle assumes great weight when the issue involves how the presentation of evidence or the conduct of parties affects a trial’s fact-finder. See Arizona v. Washington, 434 U.S. 497, 514, 98 S.Ct. 824, 834-35, 54 L.Ed.2d 717 (1978); Commonwealth v. Smith, 321 Pa.Super. 51, 467 A.2d 888, 891 (1983).

When judges doubt their own ability to adjudicate impartially, they should re-cuse themselves. Commonwealth v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252 (1982); In Interest of Morrow, 583 A.2d at 819. Such an inability to be objective' creates a manifest necessity for the declaration of a mistrial, particularly when a judge must exert the broad discretion that a bench trial demands. Smith, supra. See also Commonwealth v. Berrigan, 369 Pa.Super. 145, 535 A.2d 91 (1987) (holding that while a judge need not have declared a mistrial where his bias never infected the jury, necessity required his recu-sal during sentencing to allow “one without hint of animosity toward appellant” to exercise such “largely unfettered ... discretion.”). Id. 535 A.2d at 104.

The record here leads this Court to conclude that during Appellant’s bench trial, the presiding judge, reacting to what he perceived as a continuing defense tactic of procedural abuse and witness intimidation, doubted his own ability to preside fairly and effectively and thus recused himself. Specifically, the judge articulated his concerns about his ability to remain impartial when he stated “we are not getting anywhere, and I don’t like the things that you are doing here .... When you do something like that, I don’t like it here. I’m not going to put up with it_ You abused the court today_ This is a big mistake,” N.T. 7/9/96 pp. 31-32. Given the factual basis before the judge, we cannot doubt the sincerity of this judicial response.7

Even though the trial judge’s decision to declare a mistrial under these circumstances is entitled to great deference, See Arizona, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), our inquiry does not end there. A judge must still exercise “sound discretion” in declaring a mistrial by considering those factors contributing to the trial problem as well as possible remedies less drastic than a mistrial. Diehl, 532 Pa. at 217, 615 A.2d at 691. Indeed, it is when the “... judge acts for reasons completely unrelated to the trial problem which purports to be the basis for the mistrial ruling [that] close appellate scrutiny is appropriate.” Arizona, 434 U.S. at 510 n. 28, 98 S.Ct. at 832-33 n. 28, 54 L.Ed.2d 717. Appellant argues that the trial judge abandoned the requisite exercise of sound discretion by declaring a *336mistrial rather than by attempting to defuse matters with a recess. We disagree.

Appellant misconstrues the manifest necessity standard to require the judge to choose, whenever practicable, an alternative less drastic than recusal. However, “manifest necessity” does not require proof that a mistrial was the only option facing a judge. Rather, the United States Supreme Court has indicated that reviewing courts should not assign a strict, literal definition to the term “necessity.” Instead, the courts should simply insist that a trial judge first consider less drastic options before declaring a mistrial. Arizona, 434 U.S. at 511, 98 S.Ct. at 833, 54 L.Ed.2d 717. Where the record reveals such consideration, the trial judge allays any fear that he failed to appreciate the gravity of a defendant’s valued right to have his fate determined in one tribunal. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Arizona, supra.

In the within case, the trial judge not only considered less drastic measures, but also exhausted those measures in attempting to adjudicate fairly. Indeed, before recusal, the trial judge called the tumultuous proceeding to recess and allowed a shaken child witness time to collect herself. The trial judge could have considered recusal at that point in the proceedings, but he favored, instead, the temperate route of admonishment and instruction. Only after the failure of less drastic measures did the trial judge turn to mistrial as a solution.

Moreover, the trial judge allayed any fear that he failed to consider Appellant’s interest in standing trial in one tribunal when he acknowledged, on the record, that Appellant would “suffer the consequences” of defense counsel’s abusive tactics. N.T. 7/9/96 p. 32. Thus, the significance of a mistrial to Appellant was apparent to the trial judge and obviously factored into his decision. Therefore, we are convinced that the trial judge exercised “sound discretion” before acting in this matter.

Finally, we note that the Pennsylvania Supreme Court has held that animosity, standing alone, between a lawyer and a judge is irrelevant to a recusal issue. Reilly by Reilly v. Southeastern Pa. Transp., 507 Pa. 204, 489 A.2d 1291 (1985). However, unlike the circumstances in Reilly, the animosity in this case developed during AppeEant’s own case rather than in an unrelated case, was directed at the entire defense strategy rather than merely at the defense counsel, and was candidly admitted by the trial judge. The within ease, therefore, is distinguishable from Reilly.

Accordingly, we find that the trial judge neither abused his discretion nor made an error of law in declaring a mistrial sua sponte. There was manifest necessity permitting the trial judge to so act, and Appellant’s right to avoid double jeopardy was not violated. Accordingly, we affirm.

Affirmed.

Dissenting opinion by POPOVICH, J.

. 18Pa.C.S. § 6301.

. 18 Pa.C.S. § 3126.

. 18Pa.C.S. § 2706.

. 18 Pa.C.S. § 4952.

. 18 Pa.C.S. § 4952.

. Contrary to the conclusion reached in the dissent, there is nothing in the record to indicate that defense counsel was merely seeking instruction from the court when the court interrupted counsel and declared a mistrial.

. The record clearly shows confrontation between the judge and defense counsel in this emotionally charged case, especially defense counsel’s election to debate the judge following judicial instructions.