Venson v. State of GA

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.