Effective assistance of counsel. Richmond Superior Court. Before Judge Brown.
Tyler R. Conklin, James C. Bonner, for appellant.
Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.
MCFADDEN, Judge. Andrews, P. J., concurs; Ray, J., concurs in the judgment only.
After a jury trial, Wayne Honester was convicted of obstruction of a law enforcement officer. Honester appeals, asserting that his trial counsel was ineffective in failing to file a plea in bar of former jeopardy after a prior
jury trial on the same charge ended in a mistrial over Honester's objection. Because counsel's performance was deficient in failing to file a plea in bar and there is reasonable probability that, but for such deficiency, the outcome below would have been different, we reverse.
Honester was indicted on a single charge of felony obstruction of a law enforcement officer by fighting with the officer during a lawful arrest. The facts underlying the indictment were that police officers, who had responded to a report of gunshots, were speaking with Honester and others in the area. After one of the officers had asked Honester three times to remove his hands from his pockets, Honester complied and put a plastic bag in his mouth. The officer grabbed Honester's neck to try to get him to spit out the bag, but Honester pulled away as the officer tried to hold on to his arm and neck. The [329 Ga.App. 407] other officer tried to assist, and they fell to the ground. Using a baton to threaten Honester, the officers subdued and handcuffed him.
Honester was tried before a jury on March 11, 2011. After deliberating for about three hours, the jury sent a note to the judge, stating, " We cannot agree on the verdi[c]t. What are your instructions?" Both the state and the defense requested that the trial court give the jury an Allen charge for further deliberations. See Allen v. United States, 164 U.S. 492 (17 S.Ct. 154, 41 L.Ed. 528) (1896). The judge said that before giving such a charge he wanted to ask the jury two questions: (1) the numerical division of votes as to guilt or innocence, and (2) whether it was likely that further deliberations would result in a unanimous verdict. Honester objected to the court asking the jurors how they were voting as to guilt or innocence, but the court overruled the objection and sent the jury a note containing both questions. The jury responded that the vote was eleven to one in favor of acquittal and answered " no" to the second question.
Upon learning of the nature and numerical breakdown of the jury vote, the state withdrew its request for an Allen charge. Honester renewed his request for the charge and also suggested that the jurors be asked if anyone was refusing to deliberate. The court stated that it would ask that question before deciding whether to give an Allen charge. The court submitted the question to the jury, and the jury responded that no one was refusing to deliberate. Honester again requested that the court give the Allen charge.
The trial judge, however, expressed concern that such a charge would place " undue pressure on a juror." After further argument from the defense, the trial judge observed that the case " has had a lot of difficult evidence." The judge then refused to give an Allen charge and, over the express objection of the defense, sua sponte declared a mistrial. The court reasoned: " I don't think it appropriate to give the Allen charge and then put the jury back into a posture of further deliberations and pressuring when it's clear from two of the communications that they cannot reach a verdict so I'll declare a mistrial in the case."
Five days later, Honester was tried again before a different jury which returned a guilty verdict. But upon being polled in open court, one of the jurors indicated that the verdict had not been freely and voluntarily made by him. The judge then instructed the jury to return to the jury room and continue deliberating. A short time later, the jury returned with another guilty verdict. Before imposing sentence, the trial court asked Honester if he wanted to say anything on his own behalf. Honester responded, " Your Honor, ... I don't see how one week it's eleven my way and then next week all twelve say I'm guilty. I don't understand that Your Honor ... I feel I would have been entitled to a [329 Ga.App. 408] ...