Case No.: MM00-01366A-SB
JOHNNIE LEE MCDADE,
Petitioner/Defendant,
vs.
STATE OF FLORIDA,
Respondent/Plaintiff.
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OPINION OF THE COURT
This matter came before the court on a petition for writ of prohibition. Petitioner, Johnnie Lee McDade, alleges he is entitled to an order restraining The Honorable Olin W. Shinholser, County Judge, from engaging in any further criminal proceedings arising out of circumstances from a certain episode that allegedly occurred October 29, 2000. This court has jurisdiction. Fla. R. App. P. 9.030(b)(3).
I.
The trial judge empaneled a six person jury on February 12, 2001. No alternate jurors were picked. Petitioner neither requested nor explicitly consented to a panel of six jurors, nor stated any objection to the panel of six jurors. On the morning of February 13, 2001, the court advised the parties that one of the jurors had bronchitis and was physically unable to attend the trial, leaving only a five member jury. At that point, the court informed the parties that there were a number of options; (1) determine when the absent juror would be available; (2) proceed with five jurors; or (3) declare a mistrial. The court asked the Deputy Clerk to obtain more specific and updated information as to the juror=s condition and whether she would be available later if moved to another date. Thereafter, the court heard argument from the state and defense counsel. The state agreed to proceed with five jurors. After recess, the defense objected to going forward with five jurors. The following then took place:
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THE COURT: AActually, it=s the Defendant=s right to have a trial by six. And that=s what he wants. So, I=ll declare a mistrial and set it back on the pretrial docket on the 26th at 10:00."
DEFENSE COUNSEL: Your Honor, just to make the record absolutely clear,
we=re objecting giving up his right to six jurors but in no way is that to be construed to his acceptance of the mistrial or his consent to the mistrial.
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THE COURT: and this mistrial is declared. It=s no fault of the State. And under the rules the Court has up to 90 days to retry it.
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Neither defense counsel nor the state=s attorney objected to the court=s declaration of the mistrial. The petitioner filed a motion to dismiss on double jeopardy grounds which was denied after hearing. The petitioner now seeks a writ of prohibition.
II.
Petitioner argues that the court declared a mistrial in the absence of manifest necessity. Specifically, the petitioner argues that the fact that the jury consisted of six individuals and no alternate was a function of the court=s attempt to conserve jurors as a result of the size of its trial docket and the lack of available jurors. Therefore, petitioner argues, the non-selection of an alternate juror was a gamble by the trial court, and as such, should not prejudice the Petitioner.
III.
In a criminal proceeding, legal jeopardy attaches when a jury has been empaneled and sworn. Allen v. State, 41 So. 593 (Fla. 1906) ; State ex. rel. Williams v. Grayson, 90 So.2d 710 (Fla. 1956). Because a defendant has a right to trial by a particular tribunal, the power to discharge an empaneled jury before verdict should only be exercised in the case of manifest necessity. Allen, 41 So. at 593. The defendant=s failure to object or protest against an illegal discharge of the jury prior to verdict does not constitute a consent to the discharge or a waiver of double jeopardy protections. Id; C.A.K. v. State, 661 So.2D 365 (Fla. 2d DCA 1995). If a jury is discharged prior to reaching a verdict absent manifest necessity and without the defendant=s consent or request, further prosecution will be barred by the double jeopardy clauses of the Florida and Federal Constitutions. U.S. v. Perez, 22 U.S. 579 (U.S. 1824); State ex. rel. Williams v. Grayson, 90 So.2d 710 (Fla. 1956). Rodriguez v. State, 719 So. 2d 1215 (Fla. 2d DCA 1998).
The Double Jeopardy Clause of the U.S. and Florida Constitutions impose a heavy burden upon the State to exhaust less drastic alternatives before declaring a mistrial and all doubts of whether a mistrial was appropriate must be resolved in favor of the defendant. Thomason v. State, 620 So.2d 1234, 1237 (Fla. 1993). Although there are certain situations in which the legitimate absence of a juror due to illness or injury constitutes Amanifest necessity@ sufficient to declare a mistrial, State ex. rel. Williams v. Grayson, 90 So.2d 710 (Fla. 1956), the absence of a juror alone does not create manifest necessity. Rodriquez v. State, 743 So.2d 538 (Fla. 2d DCA 1999). The double jeopardy provision requires a trial judge to consider and reject all possible alternatives before declaring a mistrial . Thomason at1239.
IV.
A review of the record in this case indicates that upon learning of the juror=s absence, the court informed the parties that there were three possible options. The first was to determine whether the ill juror could come back later in the week and if so, whether any of the jurors were excused on other days. If that were the case, and the panel could not be brought together later in the week, then the second option was for the petitioner to agree to proceed with five jurors. Finally, if the petitioner did not agree to waive his right to a trial by six jurors, the court informed the parties that the third option was to declare a mistrial. The court took a recess and the judge said that he would speak with the jury manager and Aget more specific and updated information@on the condition of the juror and whether she would be available at a later date if the trial were moved to another day. The judge further mentioned that he would speak with the jury manager and Alook at the questionnaires and see if it=s even able to move the trial later in the week.@ After the recess the court noted that the juror was not present. There was no further discussion regarding possible options and there is no evidence on the record as to the result of the court=s inquiries. The petitioner chose not to waive his right to a trial by six jurors and the court declared a mistrial stating Athere is no choice under the law.@
The record in the instant case cannot support a finding of manifest necessity because it cannot be said that the trial court fully explored less onerous alternatives to a mistrial as required by Thomason. Although it appears that the judge requested the clerk to provide updated medical information on the condition of the juror to further investigate the possible length of the juror=s absence, as well as stated his intentions to speak with the jury manager regarding the jurors= schedules to determine whether or not the trial could be moved or continued; there is no evidence in the record that either option was investigated or fully explored such that the court could conclusively determine that manifest necessity justified a mistrial. See generally Cohens v. Elwell, 600 So.2d 1224 (Fla. 1st DCA 1992)(no manifest necessity existed for a mistrial when an essential witness became ill and the jurors indicated a potential inconvenience in serving at a later date; court required to actively explore other options prior to discharging a jury) ; Perkins v. Graziano, 608 So.2d 532 (Fla. 5th DCA 1992)(no manifest necessity when trial judge sua sponte declared a mistrial because of one juror=s absence without exploring the alternative of continuance); Ostane v. Hickey, 385 So.2d 110 (Fla. 3d DCA 1980)(legally insufficient reason to declare mistrial and discharge jury when no consideration was given to the alternative of a recess); Bryant v. Stickely, 215 So.2d 786 (Fla. 2d DCA 1968)(no manifest necessity where prosecutor was sent to hospital when trial judge took no testimony to determine how long prosecutor would be absent). By failing to consider and reject all possible alternatives to a mistrial, including a continuance, the trial judge did not meet the requirement of manifest necessity and a retrial is barred by double jeopardy. Art. I. '9, Fla. Const; Thomason v. State, 620 So.2d 1234, 1237 (Fla. 1993); Rodriguez v. State, 719 So. 2d 1215 (Fla. 2d DCA 1998); C.A.K. v. State, 661 So.2d 365 (Fla. 2d DCA 1995).
Accordingly, it is ORDERED that the petition for writ of prohibition is GRANTED.
ORDERED July, 2001.
Charles B. Curry, Chief Judge