Double jeopardy. Richmond Superior Court. Before Judge Jolly.
Case remanded for further proceedings.
The Hawk Firm, Jacque D. Hawk, for appellant.
Ashley Wright, District Attorney, Joshua B. Smith, Natalie S. Paine, Assistant District Attorneys, for appellee.
DILLARD, Judge. Ray, J., concurs. Ellington, P. J., and McMillian, J., concur in judgment only. Barnes, P. J., Phipps, P. J., and McFadden, J., dissent.
Following a trial by jury, Devin Washington was convicted of possessing a firearm during the commission of a felony and acquitted of malice murder. The trial court also declared a mistrial as to a charge against him for felony murder. On appeal, Washington argues, inter alia, that the trial court erred by declaring a mistrial as to the charge of felony murder and, accordingly, that double jeopardy bars a second prosecution such that the trial court should have granted his plea in bar. For the reasons set forth infra, we remand the case for further proceedings consistent with this opinion.
Viewed in the light most favorable to the verdict, the record reflects that in the early morning hours on the day in question, Devin Washington and the victim, Preshawn Williams, arrived at an Augusta nightclub in a Jeep driven by Williams. At the same time, Marcus Washington (no relation to Devin) arrived at the club in a Monte Carlo driven by an acquaintance and accompanied by Williams's cousin. When Marcus prepared to enter the club, he was suddenly attacked from behind by Devin, and the two continued to scuffle in the parking lot until the club's owner demanded that they leave the premises.
Marcus returned to the Monte Carlo and Devin returned to the Jeep, which was parked beside the Monte Carlo. Marcus demanded that the driver unlock the Monte Carlo so that he could get inside the vehicle, but she hesitated to do so and passed the keys to Williams's cousin. The cousin eventually unlocked the Monte Carlo and Marcus immediately retrieved a firearm from beneath the front-passenger seat. At that point, a gun battle erupted between Marcus and Devin (who, according to witnesses and Marcus, had been threatening to shoot if Marcus got into the Monte Carlo). At some point, Williams, who had reentered the Jeep, was shot in the leg and head by two of Marcus's bullets, and he subsequently died as a result of the head injury.
Thereafter, Marcus and Devin were jointly indicted on charges of malice murder, felony murder, and possession of a firearm during the commission of a felony. At the conclusion of the trial, the jury found both defendants not guilty of malice murder but guilty of possessing [333 Ga.App. 237] firearms during the commission of a felony. As to felony murder, the jury
acquitted Marcus, but the trial court declared a mistrial as to Devin. Devin then filed a motion for new trial and a plea in bar as to felony murder. The trial court denied both, and Devin now appeals.
1. First, Devin contends that the trial court erred by declaring a mistrial as to felony murder when the verdict form reflects an acquittal on that charge, making a subsequent prosecution barred by double jeopardy. Thus, Devin contends that the trial court erred by denying his plea in bar. But because the state of the record is such that we cannot, at this time, conduct meaningful appellate review of these claims, we must remand to the trial court for additional findings of fact.
We begin by recognizing that the constitutional prohibition against double jeopardy was designed to " protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense."  Indeed, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution serves to " limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws."  Thus, after a jury is impaneled and sworn, " jeopardy attaches, and the defendant normally has a right to have [his] trial completed by that particular tribunal."  Accordingly, if a mistrial is declared without a defendant's consent or over his objection, " the defendant may be retried only if there was a 'manifest necessity' for the mistrial."  The [333 Ga.App. 238] entry of a mistrial, then, is examined under the " manifest necessity" standard established by the Supreme Court of the United States in United States v. Perez, which the Supreme Court of Georgia has described as follows:
The test to be applied by the trial court hearing a double jeopardy plea is that retrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the end of public justice be defeated; the existence of " manifest necessity" is to be determined by weighing the defendant's right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.
When there is no manifest necessity for " aborting a trial rather than using other less drastic remedies to cure problems, in the absence of defendant's motion for a mistrial, the granting of a mistrial is an abuse of discretion."  And on appeal, the standard of review of a grant or denial of a plea in bar is " whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion."  However, as will soon become clear, we currently lack the ability to review the trial court's decision to declare a mistrial and, likewise, its denial of Devin's plea in bar.
[333 Ga.App. 239] In pertinent part, the record reflects that both Marcus and Devin requested that the jury be instructed on voluntary manslaughter as a lesser-included offense of malice murder and felony murder, and the jurors were so charged. Then, after retiring to deliberate and requesting and receiving reinstruction as to the various offenses at issue, the jurors inquired as to whether they could " apply voluntary manslaughter instead of felony murder." In response, the court reinstructed the jurors that should they find a defendant not guilty of malice murder or felony murder, they would be authorized to determine whether he was guilty of the lesser-included offense of voluntary manslaughter.
A while later, the jurors sent out a second note indicating that they " [could] not reach a unanimous decision on Count 2 for both defendants." Because the trial court and the attorneys were unclear as to what this note meant (i.e., whether the jurors believed that they must reach the same verdict as to both defendants or whether they had reached a verdict as to one defendant but not the other), the court requested in writing that the jurors clarify their question. The jurors then asked, " [i]f we are unable to come to a unanimous decision on Count 2 for both defendants what are our options?" The court, still unclear as to the jury's exact issue, responded in writing as follows: " You have to make a decision as to each count 1 for (sic) each defendant independently. Have you reached a decision as to one defendant or are you undecided as to both?" The jurors responded that they were " not all in agreement on Count 2 for Devin Washington."
The trial court then struggled with this response by the jury, pondering
... [a]re they not in agreement as to the charge or as to the verdict? They are not in agreement. So are half [of] them going to voluntary [manslaughter] or other (sic) half going to felony murder or are they -- I mean I don't know how to get them to answer that. I guess what we should say -- but I mean we've got -- I mean are they -- if they are not in agreement as to the charge that's different than if they are not in agreement as to guilt or innocence.
Ultimately, the trial court decided to issue an Allen charge to the jury. The court also
decided to write back to the jurors, advising that they would " need to continue [their] deliberations."
[333 Ga.App. 240] Although the transcript gives no indication as to the timing, either concurrent with the aforementioned communication or after it, the trial court requested in writing that the jurors, " [w]ithout specifying which way [they] [were] leaning, ... provide a count (number) as to each defendant and each count and what the split is." This handwritten sheet submitted to the jury by the trial court referred to the various charges only by count number, not by the name of the charged offense; and in response, the jurors indicated that they were unanimous as to every count for the defendants except " Count 2" for Devin Washington, on which they were split eleven to one.
After receiving the Allen charge and again retiring to deliberate, the jurors sent another communication to inform the trial court that they had " exhausted all attempts to come to a unanimous decision on Count 2 for Devin Washington." At that point, the following colloquy took place on the record:
THE COURT: All right. Thank you we are back in session and everybody can be seated. I'll ask the foreperson while we're waiting on the verdict form. It is my understanding, based on the communication that you have made to the Court, that a unanimous verdict [h]as been reached on all counts with the exception of count 2 as to Devin Washington; is that correct?
FOREPERSON: That's correct.
THE COURT: And that -- to the -- who is the foreperson? And based on your communication you have written that y'all are hopelessly deadlocked to that count as to Devin Washington. Is that correct?
THE COURT: You do not believe that any further deliberations would result in resolution of that count?
FOREPERSON: We -- nobody's budging.
THE COURT: All right. And so what I would need you to do -- we are going to take the verdict on all other counts. As to the count on Devin Washington that will be handled separately as to count 2. But I need for you to sign the verdict, make sure that's the verdict that y'all have agreed to for the other counts.
FOREPERSON: Yes. Do you need to know what exactly --
[333 Ga.App. 241] THE COURT: I'm going to ask for the verdict in just a second, but it has to be filled in and signed and dated by you as foreperson. And if y'all need to go -- if y'all need to go ...