Rower v. State , 267 Ga. 46 ( 1996 )

472 S.E.2d 297 (1996) 267 Ga. 46

ROWER
v.
The STATE.

No. S96A1068.

Supreme Court of Georgia.

July 15, 1996.

Edwin Marger, Jasper, Elizabeth A. Schoeff, Marietta, David M. Simpson, Law Offices of Kennedy & Kennedy, Marietta, and Michael J. Puglise, Lawrenceville, for Rower.

Thomas J. Charron, Dist. Atty., Marietta, Debra H. Bernes, Nancy I. Jordan, Jack E. Mallard, Russell J. Parker, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., for the State.

CARLEY, Justice.

After a jury trial, Curtis Alfonzo Rower was found guilty of kidnapping with bodily injury, armed robbery, and two counts of kidnapping. However, the jury was unable to agree on a verdict as to that count of the indictment which alternatively charged Rower with the malice or felony murder of Mrs. Sara Tokars. Upon Rower's motion, the trial court declared a mistrial as to that count. Subsequently, the State announced that it intended to seek a retrial of Rower on the murder count. Contending that the felony murder charge was predicated upon his commission of the kidnapping with bodily injury and the armed robbery, Rower filed a plea of former jeopardy. The trial court denied Rower's plea and he filed this direct appeal. See Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982).

The Supreme Court of the United States consistently has affirmed "the proposition that a trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which [the defendant] was subjected." Richardson v. U.S., 468 U.S. 317, 326, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984) (first trial ended in acquittal on one count and mistrial on two other counts). Likewise, this court consistently has held that, under the double jeopardy provision in Georgia's constitution, "if a jury cannot agree upon a verdict in a criminal case, the trial judge may declare a mistrial, and the accused may then be tried a second time for the same offense." Cameron v. Caldwell, 232 Ga. 611, 612, 208 S.E.2d 441 (1974). Accordingly, where, as here, the State seeks to prosecute a defendant for two offenses in a single prosecution, "one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense." Bell v. State, 249 Ga. 644, 647(3), 292 S.E.2d 402 (1982). See also State v. LeMay, 186 Ga.App. 146(1), 367 S.E.2d 61 (1988).

The case law from around the country is completely in line with this principle that a retrial on a greater, inclusive offense, following a declaration of mistrial because of a hung jury, is not barred by double jeopardy principles notwithstanding the fact that a guilty verdict was accepted and a sentence imposed with respect to a lesser, included offense.

Mauk v. State, 91 Md.App. 456, 605 A.2d 157, 170-171 (1992). See, e.g., State v. Crago, 93 Ohio App.3d 621, 639 N.E.2d 801 (1994); People v. Gonzalez, 197 Mich.App. 385, 496 N.W.2d 312 (1992). Compare People v. Fields, 13 Cal.4th 289, 52 Cal. Rptr.2d 282, 914 P.2d 832 (1996) (decided wholly on state statutory, rather than federal constitutional, grounds). Under these circumstances, neither the bar against multiple convictions nor the bar against successive prosecutions is implicated. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976); Mauk v. State, supra.

Rower nevertheless urges that, because the State will rely upon the same evidence that was used to convict him of lesser included offenses in its effort to convict him of the felony murder, his double jeopardy motion is meritorious under Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Bell v. State, supra at 646(2), 292 S.E.2d 402. However, Rower's reliance upon Blockburger is misplaced. While Blockburger may be applicable to multiple conviction and successive prosecution issues, it is not applicable to the continuing jeopardy issue which is raised in this case. Mauk v. State, supra 605 A.2d at 160. A multiple conviction issue may ultimately present itself if Rower eventually is convicted of the felony murder of Mrs. Tokars, but resolution of any such issue must await the jury's verdict on retrial. Mauk v. State, supra at 163. See also Bell v. State, supra at 647(3), 292 S.E.2d 402. Moreover, Blockburger is not authority for the grant of Rower's motion for an additional reason. OCGA §§ 16-1-6, 16-1-7 and 16-1-8 afford more protection to the accused than the rule applied in Blockburger and those statutes clearly do not prevent retrial of Rower for felony murder. Keener v. State, supra at 9, 230 S.E.2d 846; State v. LeMay, supra at 147-148 (2, 3), 367 S.E.2d 61. Although Rower contends that OCGA § 16-1-8(a) provides less protection than the federal and state constitutions and is, therefore, unconstitutional, he failed to obtain a ruling from the trial court on this constitutional issue and, as we have already held, the retrial of Rower for felony murder will not violate constitutional double jeopardy protections.

Accordingly, the trial court did not err in denying Rower's plea of former jeopardy.

Judgment affirmed.

BENHAM, C.J., FLETCHER, P.J., HUNSTEIN, CARLEY, THOMPSON and HINES, JJ., and JON B. WOOD, Judge, concur.

SEARS, J., disqualified.