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Parker v. State

Court of Appeals of Georgia, Second Division

September 27, 2019


          MILLER, P. J., RICKMAN and REESE, JJ.

          Rickman, Judge.

         Following a mistrial granted over his objection during his trial for armed robbery and illegal firearm possession, Deandre Jamara Parker filed a plea in bar to prohibit a retrial, which the trial court denied. On appeal, Parker contends the trial court abused its discretion in granting the mistrial because the court failed to ask the jury if anyone was refusing to deliberate, as Parker requested, in an attempt to avoid granting a mistrial; the court therefore erred, he contends, by denying his plea in bar. For the reasons that follow, we affirm.

         The record shows that over the course of a three-day trial, the State presented seven witnesses and the defense presented two. The parties rested on a Friday morning, and the jury began deliberating at about 3:30 p.m. After approximately two hours, the jury asked to watch the lineup identification video, which the court allowed; at 5:42 p.m., the jury resumed deliberation. Shortly before 6:30 p.m., the jury sent a note indicating that it was deadlocked.[1] With the parties' consent, the court ordered the jury to continue deliberating. The jury immediately wrote another note, this time saying that the jury was split "11 to 1" in favor of not guilty[2] and that the person voting guilty was "not changing his mind." The court instructed the jury, "Again, I need you to continue to deliberate." The jury resumed deliberations but sent another note at about 7:15 p.m., which stated:

There is at least one person on each side of the verdict who have said they will not change their minds. No additional review of the evidence or additional discussion will change their vote. We are confident that returning on Monday will not change that status.

         With the agreement of the parties, the court ordered the jury to return Monday morning to continue deliberations.

         The jury resumed deliberations at 9:00 a.m. on Monday but sent another note at about 10:45 a.m., which stated, "There are jurors on each side who are unwilling to change their vote, and have stated will not change their vote." Parker requested an Allen[3] charge, but the State argued that, based on the language of the notes, members of the jury appeared to have shifted their positions from Friday; the State argued that an Allen charge, therefore, would be premature. The court agreed and ordered the jury to continue deliberating. An hour after a lunch break, the jury sent another note, which stated, "After more deliberation, we are still at an impasse with jurors on both sides who have made up their minds and have stated they will not be changing their minds." This time, the State requested an Allen charge.

         In response, Parker moved that the court "inquire regarding deliberations to ensure that everybody is deliberating. . . during the process." The court and the State agreed that it appeared the jury was deliberating because the Monday notes referred to multiple jurors being on each side, showing that "[t]here's obviously been some change [since Friday] based on their deliberations." The court added that it did not see anything in the notes that led it to believe that "someone has decided they're not even going to deliberate." Accordingly, the court refused to question the jury as Parker requested and instead gave the jury the Allen charge at about 2:40 p.m.[4]

         Nevertheless, one hour later, the next note stated:

It will not be possible for us to reach a consensus. We have tried in good faith to bring all the jurors to a common understanding, but we have reached a place where the lines of communication have broken down and no progress is being made.

         The State concluded that the jurors were at an impasse and requested a mistrial. Parker objected and requested that the jury continue deliberating. The court found that the jury notes made clear that further deliberation would be futile, and it declared a mistrial.

         Thereafter, Parker moved that the court grant a plea of former jeopardy and dismiss the indictment on the ground that the mistrial was improper. The court denied the plea. In its order, the court noted that although it did not poll the jurors to determine whether additional deliberations would be helpful, it carefully considered other factors required by law. The court held that based on the five jury notes, "it was clear to the Court that the jury was exhausted." The court concluded that a manifest necessity existed for the declaration of a mistrial, and it denied Parker's plea in bar. Parker appeals.

         "Under the Double Jeopardy Clauses of the United States and Georgia Constitutions, trial courts may declare a mistrial over the defendant's objection, without barring retrial, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for doing so." (Citation and punctuation omitted.) Laguerre v. State, 301 Ga. 122, 124 (799 S.E.2d 736) (2017). See also OCGA § 16-1-8 (a) (2) ("A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution . . . [w]as terminated improperly after the jury was impaneled and sworn. . . ."); 16-1-8 (e) (2) (C) (termination is not improper if the trial court finds it necessary because "[t]he jury is unable to agree upon a verdict"). Our Supreme Court has explained that "a mistrial is appropriate when there is a 'high degree of necessity.'" (Citation and punctuation omitted.) Harvey v. State, 296 Ga. 823, 831 (2) (a) (770 S.E.2d 840) (2015).

         "The question of whether a jury is 'hopelessly deadlocked, ' and thus the existence of manifest necessity for a mistrial, is within the discretion of the trial court." Honester v. State, 336 Ga.App. 166, 170 (784 S.E.2d 30) (2016). That discretion "is not unbridled, " Haynes v. State, 245 Ga. 817, 819 (268 S.E.2d 325) (1980), and it must be exercised carefully, which "requires the trial court to take certain steps before concluding that the jury is hopelessly deadlocked and that a mistrial is necessary." Honester, 336 Ga.App. at 170. For example, in deciding whether to declare a mistrial or require further deliberation the trial court should: inquire of the jury whether additional time for deliberation would be helpful; consider whether the jury "is so exhausted that the minority might be induced to vote for a verdict which they otherwise would not support"; and consider the length and complexity of the trial ...

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