104.7Double Jeopardy

Prior Mistrial

The protection against double jeopardy embraces a defendant’s “valued right” to have his trial completed before a particular tribunal. Arizona v. Washington, 434 U.S. 497, 503 (1978); State v. Schalow, 251 N.C. App. 334, 344 (2016). But retrial is not necessarily barred when a prior trial ended before verdict. A mistrial declared at the defendant’s request or for manifest necessity will not bar retrial. In any event, whether to grant a mistrial lies within the trial court’s discretion. Renico v. Lett, 559 U.S. 766, 774 (2010); State v. Bonney, 329 N.C. 61, 73 (1991).

Mistrial Upon Defendant’s Request

A motion by the defendant for a mistrial is ordinarily assumed to remove any barrier to retrial, even if the motion is necessitated by prosecutorial or judicial error. United States v. Dinitz, 424 U.S. 600, 607 (1976); State v. White, 322 N.C. 506, 510 (1988); State v. Major, 84 N.C. App. 421, 424 (1987); cf. G.S. 15A-1061 (motion for mistrial). Most federal courts hold that a defendant’s failure to object constitutes tacit consent even absent a specific request for a mistrial. 6 LAFAVE, CRIMINAL PROCEDURE § 25.2(a). In noncapital cases, this is likewise the rule in North Carolina. State v. Odom, 316 N.C. 306, 310 (1986); State v. Resendiz-Merlos, 268 N.C. App. 109, 116 (2019). The rule is different in capital cases. State v. Lachat, 317 N.C. 73, 85 (1986).

Goading

A mistrial upon the defendant’s request will, however, bar retrial when the request was the result of misconduct by the prosecutor intended to goad the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 679 (1982); State v. White, 322 N.C. 506, 511 (1988). Several cases have rejected the argument that the prosecutor was intending to provoke a mistrial:

• The prosecutor’s improper question of the defendant (“Isn’t it true that on the assault on a female conviction you were originally tried on second degree rape?”) was not intended to provoke the defendant into moving for a mistrial where the State’s evidence against the defendant was substantial. State v. White, 322 N.C. 506, 512 (1988).

• The State’s failure to make pretrial disclosure to the defendant that the murder weapon had been tested for fingerprints was not flagrant prosecutorial misconduct intended to provoke the defendant into moving for a mistrial. State v. Walker, 332 N.C. 520, 539 (1992).

• The prosecutor’s improper question of a new defense witness referring obliquely to the defendant’s prior trial was not intended to provoke the defendant into moving for a mistrial. State v. Major, 84 N.C. App. 421, 427 (1987).

Mistrial Upon Manifest Necessity

When a trial court declares a mistrial sua sponte or over the defendant’s objection, retrial is not barred so long as the mistrial was declared based on manifest necessity. Arizona v. Washington, 434 U.S. 497, 505-06 (1978); State v. Odom, 316 N.C. 306, 310 (1986).

Hung Jury

“It is axiomatic that a jury’s failure to reach a verdict due to a deadlock is a ‘manifest necessity’ justifying the declaration of a mistrial.” State v. Simpson, 303 N.C. 439, 447 (1981). Indeed, a mistrial premised on the trial judge’s belief that the jury is unable to reach a verdict is considered the “classic basis for a proper mistrial.” Arizona v. Washington, 434 U.S. 497, 509 (1978); accord State v. Odom, 316 N.C. 306, 310 (1986). Several North Carolina Statutes specifically recognize a trial court’s authority to declare a mistrial in these circumstances. See G.S. 15A-1063(2) (judge may declare a mistrial if it appears there is no reasonable probability of the jury’s agreement upon a verdict); G.S. 15A-1235(d) (no reasonable possibility of agreement).

Other Circumstances

Absent jury deadlock, the propriety of declaring a mistrial depends on the circumstances, not on mechanical application of any abstract formula. Illinois v. Somerville, 410 U.S. 458, 462 (1973); State v. Shuler, 293 N.C. 34, 44 (1977). “Each double jeopardy claim must be considered in light of the particular facts of the case; there is no specific limit to the number of times a defendant may be retried” after a proper mistrial. State v. Simpson, 303 N.C. 439, 447 (1981) (citing Gori v. United States, 367 U.S. 364 (1961)). Still, the court’s power to declare a mistrial must be exercised with caution and only after careful consideration of all evidence. State v. Crocker, 239 N.C. 446, 452 (1954); State v. Resendiz-Merlos, 268 N.C. App. 109, 118 (2019).

In North Carolina, the necessity justifying an order of mistrial may be one of two kinds: physical necessity and the necessity of doing justice. State v. Shuler, 293 N.C. 34, 44 (1977); State v. Birckhead, 256 N.C. 494, 505-06 (1962).

Physical Necessity

Examples of physical necessity include:

• When a judge becomes incapacitated by illness during the trial. State v. Boykin, 255 N.C. 432, 442 (1961); State v. Johnson, 60 N.C. App. 369, 373 (1983); cf. G.S. 15A-1224 (judge may declare mistrial if judge is unable to continue presiding at trial due to sickness, etc.).

• When a juror becomes incapacitated by illness. State v. Pfeifer, 266 N.C. 790, 791 (1966); State v. Ledbetter, 4 N.C. App. 303, 308 (1969); cf. State v. Mathis, 258 N.C. App. 651, 659 (2018) (impending absence of one juror and judge’s lack of confidence in an alternate).

• When a defendant becomes incapacitated by illness. State v. Battle, 267 N.C. 513, 518 (1966) (illness of defense attorney).

• When a material witness becomes incapacitated by illness. See State v. Birckhead, 256 N.C. 494, 506 (1962) (stating general proposition but without specific example).

• When the courthouse becomes inaccessible due to adverse weather conditions. See State v. Shoff, 128 N.C. App. 432, 434 (1998) (three to six inches of snow and several jurors unable to get to courthouse); State v. Raynor, 45 N.C. App. 181, 186 (1980) (five inches of snow previously and two to three more inches of snow expected, one juror ill with the flu).

Necessity of Doing Justice

The necessity of doing justice arises from a judge’s duty to guard the administration of justice from fraudulent practices, particularly incidents that would render impossible a fair and impartial trial under the law. State v. Sanders, 347 N.C. 587, 599 (1998). Examples of a mistrial supported by the necessity of doing justice include:

• When during a capital sentencing proceeding jurors indicated they were not deliberating as instructed, one juror was threatened and berated by other jurors, and one juror admitted to discussing the case with outside parties, a mistrial was justified based on juror misconduct. State v. Sanders, 347 N.C. 587, 599 (1998).

• When, during a weekend recess of the defendant’s capital trial, one juror was observed traveling to a rendezvous with the defendant, there was evidence of jury tampering to justify a mistrial. State v. Cutshall, 278 N.C. 334, 346 (1971).

• When the judge observed an improper conversation between jurors and chief investigating officer and the charges against the defendant involved alleged assaults on police officers, mistrial was warranted to preserve the impartiality of the jury and credibility of the verdict. State v. Montalbano, 73 N.C. App. 259, 263 (1985).

• When one of the defendant’s attorneys was called to testify for the State and the testimony was prejudicial to the defendant, the attorney’s conduct prejudiced a fair consideration of the issues warranting a mistrial. State v. Malone, 65 N.C. App. 782, 786 (1984).

• When an investigation ordered by the presiding judge revealed that someone was paying jurors to vote for the defendant’s acquittal, there was evidence of jury tampering to justify a mistrial. State v. Cooley, 47 N.C. App. 376, 388 (1980); cf. G.S. 15A-1062 (authorizing mistrial for misconduct by the defendant resulting in prejudice to the State case).

Mistrial Absent Manifest Necessity

The strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence. Arizona v. Washington, 434 U.S. 497, 508 (1978); State v. Grays, 276 N.C. App. 21, 30 (2021). There was no manifest necessity for a mistrial in the following cases:

• When the prosecutor learned about additional evidence (the defendant’s bloody clothes) only after the first witness had testified at trial, the evidence had not been disclosed to the defendant prior to trial, and the prosecutor requested a mistrial to allow time for the State Bureau of Investigation to conduct a forensic examination of the evidence, a mistrial granted over the defendant’s objection was without manifest necessity. State v. Grays, 276 N.C. App. 21, 34 (2021).

• When State’s witnesses – the indecent liberties victim, her mother, and her sister – failed to appear at trial and could not be located, and the prosecutor requested a mistrial because the absence of necessary witnesses made it impossible for the trial to proceed in conformity with law, a mistrial declared over the defendant’s objection was without manifest necessity. State v. Resendiz-Merlos, 268 N.C. App. 109, 120 (2019).

• When the State’s key witness – the “mildly retarded” victim of second-degree sexual offense who was also the defendant’s step-daughter – was called to the stand and refused to respond to questioning, and the prosecutor moved for a mistrial based on unspecified “misconduct,” a mistrial declared over the defendant’s objection was without manifest necessity. State v. Chriscoe, 87 N.C. App. 404, 408 (1987).

• When an attempted murder indictment failed to allege malice, and the State requested a mistrial to obtain a valid indictment for attempted murder, the indictment was sufficient to allege attempted manslaughter, and a mistrial declared over the defendant’s objection was without manifest necessity. State v. Schalow, 251 N.C. App. 334, 351 (2016).

Findings of Fact

The Fifth Amendment does not require a judge to make explicit findings justifying a mistrial when the basis appears on the record. Arizona v. Washington, 434 U.S. 497, 517 (1978); State v. Odom, 316 N.C. 306, 310 (1986). By statute, however, before granting a mistrial, the judge must make findings of fact on the record with respect to the grounds for the mistrial. G.S. 15A-1064. The statutory requirement for making of findings of fact is mandatory, and the failure to make such findings would be error. State v. Odom, 316 N.C. 306, 311 (1986).