Case No. GCG99-0022
April 2, 2000

JAMES PATTEY,

Petitioner/Defendant,

vs.

STATE OF FLORIDA,

Respondent/Plaintiff.

_____________________________

This matter came before the court on a petition for writ of prohibition. Petitioner, James Pattey, alleges he is entitled to an order restraining The Honorable Steven Selph, County Judge, from engaging in any further criminal proceedings arising out of circumstances of a jury trial on September 22 and 23, 1999. The trial judge declared a mistrial, and rescheduled the trial. The trial judge denied Petitioner’s motion to dismiss the second trial. Petitioner filed this action alleging specifically that the trial judge declared a mistrial absent manifest necessity; therefore, double jeopardy bars retrial.

Petitioner has properly invoked the jurisdiction of this court by his petition. Fla. R. App. P. 9.030(3). Petitioner also filed a motion to strike Respondent’s response as untimely. This court finds that the response is in fact untimely. The motion to strike is granted, and the writ is denied.

The trial judge empaneled a jury on September 27, 1999 to serve in a drunk driving case against Petitioner. The trial judge released the jury for the day and admonished them against speaking with anyone about the case or speaking with the attorneys in the case. As the jurors left the courtroom, one juror, Smith, met her mother in the Public Defender’s Office where her mother worked. Smith had once worked in the Public Defender’s Office, although this fact did not come up in voir dire. Smith’s mother introduced her to several attorneys including defense counsel. Defense counsel recognized Smith, said she could not speak with Smith, and walked away immediately. Smith returned to the Public Defender’s Office the following morning.

Defense counsel notified the trial judge of the encounter with a juror in her office. She told the judge that she overheard the juror talking about jury selection. When proceedings opened on September 28, 1999 defense counsel moved for mistrial. The trial judge delayed ruling on the motion, and interviewed Smith. Smith testified under oath that on September 27, and on the morning of September 28 she saw an attorney, whom she recognized as defense counsel, in the Public Defender’s Office. Although Smith stated that she believed she could be fair to defendant despite the fact that he was represented by a public defender, the trial judge expressed his reservation in retaining Smith because she could possibly taint other jurors.

The following morning just prior to trial, Smith returned to the Public Defender’s Office with her mother. Smith told the court that she spoke of having been selected for a jury while she was in the Public defender’s Office. While the trial judge found the conduct highly improper, he noted that nothing in the record indicated that Smith’s or her mother’s actions were intentionally malefic or intended to undermine the integrity of the trial.

The trial judge inquired further and discovered that Smith had spoken with at least one other juror regarding her trips to the Public Defender’s Office, having seen defense counsel there, and having worked there. He stated his concern that the panel had learned or were able to deduce that the defendant was represented by a public defender, and dismissed Smith. The second juror, whom Smith had identified, denied having spoken directly with Smith. Instead, she testified that Smith had made general comments in the jury room of having seen an attorney, having gone to her mothers office, and of having worked for the Public Defender’s Office. The trial judge stopped the prosecutor’s questions when he inadvertently disclosed that Smith had worked for the Public Defender’s Office. The second juror returned to the jury room. After more discussion on the record, defense counsel withdrew the motion for mistrial. The trial judge decided against questioning the remaining jurors, and declared a mistrial over defense counsel’s objection.

A writ of prohibition is the proper means to challenge an order denying a motion to dismiss based upon double jeopardy. Luther v. State, 661 So. 2d 906 (Fla. 2d DCA 1995). Because a defendant has a right to trial by a particular tribunal, the state’s failure to establish manifest necessity for mistrial is cause for reversal. Id.; Rodriguez v. State, 719 So. 2d 1215, 1216 (Fla. 2d DCA 1998). While a finding of manifest necessity is a matter of judicial discretion, Arizona v. Washington, 434 U.S. 497 (1978), the strict scrutiny standard is applicable on review. Cohen v. Elwell, 600 So. 2d 1224, 1226 (Fla. 1^st DCA 1992).

During voir dire, Smith admitted that she had spoken with another juror of her visits to the Public Defender’s Office. The court inquired of the second juror who denied having had a conversation with Smith. Instead, the second juror testified that Smith made general comments to other jurors just before she came into the courtroom for questioning. The second juror noted that there were several conversations going on at the time and that she could not be sure who overheard the statements. The second juror also stated that Smith spoke of meeting her mother as she exited the elevator the day before. After some discussion on the record, both sides agreed to proceed with five jurors in the event the the second juror was dismissed.

Defense counsel initially asked that all jurors be questioned. The trial judge then discussed with trial counsel the possibility of interviewing all the jurors both individually and as a group. Although he had instructed them not to say ‘public defender’ in their questions, the trial judge ultimately decided against interviewing each juror. He reasoned that it was impossible to determine whether a juror had overheard Smith’s comments regarding the Public Defender’s Office without disclosing the prejudicial information. Petitioner argues that the trial judge failed to find manifest necessity for declaring mistrial over defense counsel’s objection. This court cannot agree.

In the circumstance in which a trial judge declares a mistrial over the objection of the defendant, the double jeopardy clause does not guarantee that the defendant cannot be retried. Thomason v. State, 620 So. 2d 1234, 1237 (Fla. 1993); Bryan v. U.S., 338 U.S. 552 (1952). "From the standpoint of the defendant, it is at least doubtful that appellate courts would be as zealous as they are now in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution." U.S. v. Tateo, 377 U.S. 463, 466 (1964). For the foregoing reasons, the defendant’s rights must be weighed against the public’s interest in trial by an impartial jury. Rodriguez, 719 So. 2d at 1216. If a trial judge discovers that a juror or jurors are biased against the defendant, that judge is compelled to declare a mistrial. Wade v. Hunter, 336 U.S. 684, 689 (1949). When balanced against the public’s interest in fair and unbiased trial proceedings, double jeopardy must yield. Id.; Thomason v. State, 620 So. 2d at 1237, (citing Arizona v. Washington).

The double jeopardy clause does not preclude retrial in the circumstance in which a second trial arises out of the same judicial proceeding as the first. Bryan, 338 U.S. 552. The Court in Bryan, reasoned that the defendant is subjected to "one continuing jeopardy" if the first trial does not result in punishment or acquittal. Id. In U.S. v.Hayes, the court stated that the principal of double jeopardy is designed to safeguard against multiple punishment for a single offense, and prosecutorial overreaching. 676 F. 3d 1359, 1363 (11^th Cir. Ala. 1982). Similarly, the court reasoned that retrial following reversal does not violate the double jeopardy clause if the first trial does not result in punishment. Id., (noting a clear exception for retrial following acquittal). To allow a defendant to escape prosecution when he has never been brought to justice in the first trial perpetuates injustice. Id.

The record establishes that the trial judge followed up defense counsel’s complaint by interviewing Smith and a second juror. After interviewing the second juror, the trial judge concluded that testimony established that the jury panel had been exposed to information which was prejudicial to the defendant. The trial judge then considered the possible prejudicial impact of questioning each juror and concluded that neither the court nor counsel could effectively question the jurors without further tainting them. The trial judge weighed Appellant’s right to be free from double jeopardy against the public’s right to an unbiased trial. He further concluded that the risk of going to trial with a biased jury trumped defendant’s argument against retrial. This court finds that the decision is consistent with the opinions cited above.

Accordingly, it is ORDERED that the motion to strike the response is GRANTED. It is further ORDERED that the petition for writ of prohibition is DENIED.

ORDERED 2 April 2000.

Charles B. Curry

Chief Judge