Hanson Jenkins, Jr. v. State of Mississippi ( 1997 )

IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 97-KA-01117-COA
HANSON JENKINS, JR. A/K/A "BOB" APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/05/1997
TRIAL JUDGE: HON. C. E. MORGAN III
COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: BILLY JOE GILMORE
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS JR.
DISTRICT ATTORNEY: DOUGLAS EVANS
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: SALE AND POSSESSION OF MARIJUANA; 17 YEARS
DISPOSITION: AFFIRMED - 5/18/99
MOTION FOR REHEARING FILED: 6/1/99; denied 08/10/99
CERTIORARI FILED: 08/24/99; granted 11/24/99
MANDATE ISSUED:
EN BANC.
McMILLIN, C.J., FOR THE COURT:
¶1. Hanson Jenkins, Jr. appeals his conviction under both counts of a two count indictment charging him
with sale of less than one ounce of marijuana and possession of more than one ounce of marijuana with
intent to distribute. Jenkins raises six issues in this appeal. Finding them to be without merit for reasons we
will proceed to discuss, we affirm the convictions.
I.
Facts
¶2. According to evidence presented by the State, a cooperating individual working with the Kosciusko
Police Department arranged by telephone conference with Jenkins to purchase a quantity of marijuana, the
transaction to be consummated at Jenkins's residence in rural Attala County. Police officers, relying in part
on Jenkins's apparent willingness to sell marijuana as evidenced by the phone conversation, went before a
justice court judge and obtained a search warrant for Jenkins's residence.
¶3. Later that same day, the officers and the cooperating individual traveled to Jenkins's residence where
the cooperating individual was successful in purchasing a small quantity of marijuana from Jenkins. After that
purchase was made, a number of police officers returned to the residence, placed Jenkins under arrest, and
proceeded to execute the search warrant by undertaking a search of the premises. During the course of the
search, a member of Jenkins's family informed the searchers that there was a supply of marijuana concealed
in an automobile outside the residence. The officers searched that vehicle and, indeed, discovered a
quantity of marijuana.
¶4. The sale to the cooperating individual led to the first count of Jenkins's indictment and the marijuana
discovered in the automobile formed the basis for the second count.
II.
First Issue: Suppression of Evidence Seized Under the Search Warrant
¶5. Jenkins claims that the trial court committed reversible error when it refused to suppress the marijuana
discovered in the automobile. Jenkins attacks the admission of the evidence on two fronts. First, he charges
that the warrant was invalid because it was obtained through false representations to the magistrate issuing
the warrant. Secondly, Jenkins contends that the search was unauthorized because the vehicle belonged not
to him but to his wife, so that the officers had no authority to search the vehicle.
A.
Validity of the Warrant
¶6. Jenkins alleges that the police officer who obtained the search warrant misrepresented two key facts in
his supporting affidavit. The officer reported to the magistrate that he heard the telephone conversation
between Jenkins and the cooperating individual. Jenkins contends that such a conversation did not take
place because, at the time it was alleged to have occurred, he was in his vehicle on the way to his
employment. Secondly, Jenkins claims the officer misled the magistrate when he claimed to have personal
knowledge that prior marijuana transactions had occurred at Jenkins's residence.
¶7. At the suppression hearing, the officer testified about his role in the telephone call to Jenkins made by
the cooperating individual. As to the second question, the officer admitted that his knowledge of previous
transactions had come from his participation in undercover operations and, though he had assisted in these
buys, he had not observed any transaction first-hand.
¶8. Certainly, a search warrant obtained as the result of false assertions of material facts cannot meet
constitutional muster. Petti v. State, 666 So. 2d 754, 758 (Miss. 1995). However, in this case, there was
a disputed issue of fact as to whether the alleged telephone conversation between Jenkins and the
cooperating individual ever took place. The officer testified that the conversation took place and that he was
present at the location where the cooperating individual placed the call, that he heard the cooperating
individual's portion of the conversation, and that the cooperating individual immediately related to him the
responses he had obtained from Jenkins. Jenkins, on the other hand, denied the conversation ever
occurred. We are thus faced with three possibilities: (a) the officer fabricated the entire story, (b) the
cooperating individual misled the officer as to whether he was actually speaking to Jenkins or as to what
Jenkins's responses were, or (c) the telephone conversation actually took place as related to the magistrate.
¶9. A magistrate called upon to issue a search warrant has a duty to determine whether probable cause
exists to believe that evidence of criminal conduct can be discovered at the place sought to be made subject
to the search. Davis v. State, 660 So. 2d 1228, 1238 (Miss. 1995). He is not required to limit his decision
to facts that would only be admissible under the rules of evidence. To the contrary, the magistrate can, and
often does, rely on hearsay reports of criminal activity and such reliance is not objectionable so long as
there is some indication that these hearsay reports are reliable. Id.; Lee v. State, 435 So. 2d 674, 676
(Miss. 1983). The facts offered by the investigating officer were, if true, sufficient to establish probable
cause to believe that marijuana could be found at Jenkins's home place. It was not necessary for the officer
to have actually heard Jenkins speaking on the other line in order for the facts surrounding that telephone
conversation to weigh in on the question of probable cause for a search warrant to issue.
¶10. The same considerations apply as to the officer's report of personal knowledge of prior transactions.
The officer did not falsely represent that he had actually observed such transactions, but only claimed to
have personal knowledge that such transactions had occurred. We are of the opinion that an officer
intimately involved in an undercover drug operation, working closely with other reliable persons, may rely
upon knowledge gained indirectly from those other persons to reasonably form a belief that he has personal
knowledge of the essential facts of the operation. Knowledge gained in such a manner, though the officer
might be incompetent under the hearsay rule to relate some part of that knowledge in a subsequent trial,
would nevertheless appear sufficiently trustworthy to establish probable cause for a search warrant to issue
in the absence of something affirmatively demonstrating its unreliability.
¶11. On its face, the affidavit in support of the warrant request appears to establish a reasonable basis for
the warrant to issue. The underlying question of whether the officer made false and misleading statements in
order to obtain the warrant is a separate matter that could only be resolved by the circuit court at a
suppression hearing since the proceeding relating to the issuance of the warrant is not an adversarial hearing
where the veracity of the officer's representations can be tested.
¶12. At the suppression hearing, the State presented the testimony of the officer who obtained the warrant.
He related those facts set out above. He explained the circumstances surrounding his assertion of first hand
knowledge of prior transactions, and there is nothing in that explanation that would suggest any duplicity or
misleading on his part when originally seeking the warrant. No evidence was presented to support the
proposition that the cooperating individual's alleged telephone conversation with Jenkins was a fabrication
except Jenkins's own self-serving testimony and that of a family member that, on the date and time in
question, he was in transit to work. The trial court chose not to believe that the investigating officer
participated in a scheme to obtain a search warrant under false colors. There is nothing so convincing in
Jenkins's evidence that compels an unequivocal finding that the purported telephone conversation between
him and the cooperating individual in which he agreed to sell him marijuana did not take place. That being
the case, we are unable to find reversible error in the trial court's refusal to suppress any evidence gained as
a result of this search warrant.
B.
The Search of the Car was Unauthorized
¶13. Jenkins claims that the search warrant, which authorized a search only of "a white wood frame house
together with all approaches and appurtenances thereto," could not possibly have extended to a search of a
motor vehicle located on the property that was actually owned by his wife. The trial court, in refusing to
suppress the marijuana found in the car on this argument, held that Jenkins did not have standing to assert a
constitutional violation based on a warrantless search of property belonging to another. We conclude that
the trial court ruled correctly. While Mrs. Jenkins might have some constitutional objection to the
admissibility of contraband discovered pursuant to a warrantless search of her car were she on trial, the law
is quite clear that Jenkins cannot vicariously assert her constitutional rights in such matters. Ware v. State,
410 So. 2d 1330, 1331 (Miss. 1982).
¶14. The State advances an alternate argument based on evidence that the vehicle was inoperable and
appeared to be used as a storage facility, so that it might be considered an appurtenance to Jenkins's
property covered by the warrant. We decline to consider this alternate argument. It is unnecessary to our
decision and Jenkins did not raise the question of how far searchers could properly expand their area of a
search on a warrant that, on its face, extends only to "a white wood frame house together with all
approaches and appurtenances thereto." We leave such matters to another day when the question may
vitally affect the outcome.
III.
The Second Issue: Defective Indictment
¶15. Jenkins moved for dismissal of the first count of the indictment at the end of the State's case based on
the claim that the evidence was at substantial variance from the allegations of the indictment. Specifically, he
pointed out that the indictment charged that he sold drugs "at a residence in the City of Sallis, Mississippi,"
when, in fact, his residence was in rural Attala County approximately eight miles from Sallis. The trial court
denied the motion. No attempt was ever made by the trial court or the prosecution to amend the indictment.
Jenkins now claims this failure to amend the indictment under authority contained in Section 99-17-13 of the
Mississippi Code requires reversal of his conviction. We disagree. Section 99-17-13 permits an
amendment to an indictment by the trial court to correct a variance between the charge in the indictment and
the proof "in the name of any . . . city . . . mentioned in such indictment" if the court considers the variance
"not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense
on the merits . . . ." Miss. Code Ann. § 99-17-13 (Rev. 1994).
¶16. The exact location of the crime can be critical when questions of venue arise, but matters of venue are
determined by the lines dividing the State into counties and the judicial districts within certain counties and
do not depend on municipal corporate boundaries. Whether the crime in this instance occurred inside the
municipal boundaries of Sallis is not an essential element of the crime, nor a necessary element to establish
venue. The only critical issue in that regard was that the alleged crime occurred in Attala County. Jenkins
demonstrates no prejudice in the preparation of his defense based on this apparently unnecessary and
obviously incorrect insertion in the indictment. For instance, he does not demonstrate that he reasonably
believed the indictment referred to some residence other than his own in another part of the county and that
he had based his defense on that assumption. On these facts, we consider the geographic imprecision with
which the State attempted to locate Jenkins's residence in the indictment to be a matter "not material to the
merits of the case," and, therefore, an error that could not have prejudiced Jenkins in his defense. On such a
finding, it would have been perfectly permissible for the trial court, after denying Jenkins's motion to dismiss,
to order an amendment to the indictment to remove any reference to the place of commission of the crime
as being within the boundaries of the City of Sallis. That the trial court failed to take this largely perfunctory
step does nothing to magnify an essentially insignificant error in the manner in which Jenkins was charged,
tried and convicted. We hold, therefore, that the trial court did not err in refusing to dismiss the first count of
the indictment and we further hold that the trial court's failure to subsequently amend the indictment under
authority of Section 99-17-13 to correct this error worked no prejudice to Jenkins and was, therefore,
harmless.
IV.
The Third Issue: A Double Jeopardy Claim
¶17. The convictions now before us were the result of Jenkins's second trial on this indictment. The first trial
ended in a mistrial declared by the trial court, on its own motion, when it was discovered that one juror
selected to sit in trial of the case had, through circumstances not fully understood, failed to take his seat in
the jury box. Instead, another member of the venire not selected as a juror had taken that seat. This
problem was not discovered until the trial had commenced. Upon initial discovery of the problem, defense
counsel moved for a mistrial but the trial court denied the motion, concluding that a qualified alternate juror
could be substituted for the missing juror without any prejudice to the defendant. However, later during the
proceeding, the prodigal juror was located and the trial court inquired further into the circumstances. At that
point, it began to appear that the trial court, in calling out the names of those selected to sit on the jury, had
failed to call this juror's name. The trial court was apparently of the opinion that the court's failure to call the
juror presented a different circumstance than the case where the juror's name was actually called but the
juror failed to properly respond. Based on these developments, and without seeking the view of either the
State or the defense, the trial court declared a mistrial on its own motion.
¶18. Jenkins claimed at the trial level that this decision, taken on the court's own motion, barred his
subsequent retrial under constitutional principles of double jeopardy. The trial court declined to halt the
second trial based on this argument, and Jenkins now raises that decision as reversible error.
¶19. Not every instance where a mistrial is granted gives rise to a double jeopardy bar against a subsequent
retrial. If, for example, the trial court had granted defense counsel's mistrial motion when the problem with
the jury was first discovered, there is little doubt that a retrial would be permissible. Nicholson ex rel.
Gollot v. State, 672 So. 2d 744, 750 (Miss. 1996). Even where the trial court declares a mistrial over the
defendant's objection, a subsequent retrial may be permissible if granting a mistrial was a "manifest
necessity" in view of the facts then existing. Oregon v. Kennedy, 456 U.S. 667, 672 (1982).
¶20. The issue we face in this case is whether there was a manifest necessity to declare a mistrial because
of problems with one juror when there was an alternate juror, fully qualified to sit on the case, available to
serve in the stead of the problem juror. Seating an alternate juror is a customary means of dealing with such
problems, whether an original juror becomes unavailable due to illness or whether it is subsequently
discovered that there is some legal impediment to the juror sitting on the case. Russell v. State, 220 So. 2d
334, 337 (Miss. 1969). It is a practice sanctioned by statute. Miss. Code Ann. § 13-5-67 (Supp. 1998).
That being the case, it might appear that the decision to declare a mistrial at a time when a fully qualified
alternate was available would not be one born out of manifest necessity.
¶21. However, this Court finds that prior case law, both in the decisions of the United States Supreme
Court and the Mississippi Supreme Court, leads to the conclusion that the trial court has some measure of
discretion in dealing with problems with jurors and that the standard for determining whether a mistrial was
a manifest necessity may not be so absolute as the phrase would seem to imply.
¶22. That the concept of manifest necessity applies to a mistrial growing out of problems relating to jurors
cannot be disputed. In Thompson v. United States, 155 U.S. 271 (1894), the Supreme Court dealt with a
case where
[t]he record discloses that while the trial was proceeding, a jury having been sworn and a witness
examined, the fact that one of the jury was disqualified by having been a member of the grand jury
that found the indictment became known to the court. Thereupon the court, without the consent of the
defendant, and under exception, discharged the jury, and directed that another jury be called. The
defendant, by his counsel, pleaded that he had been once in jeopardy upon and for the same charge
and offense for which he now stood charged.
Id. at 273.
¶23. Despite this assertion, Thompson was tried once again and convicted. The Supreme Court went on to
say that
[t]he defendant now seeks, in one of his assignments of error, the benefit of the constitutional
provision that no person shall be subject for the same offense to be twice put in jeopardy of life and
limb.
Id. at 274.
¶24. The Court rejected that proposition, saying that
courts of justice are invested with the authority to discharge a jury from giving any verdict whenever,
in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act
. . . and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy,
within the meaning of the fifth amendment to the constitution of the United States.
Id.
¶25. In the later case of Arizona v. Washington, the Supreme Court said that the term "necessity" could
not be interpreted literally, but that there were "especially compelling reasons for allowing the trial judge to
exercise broad discretion in deciding whether or not "manifest necessity" justifies a discharge of the jury."
Arizona v. Washington, 434 U.S. 497, 509(1978). The Court went so far as to suggest that the discretion
given the trial court in such matters required a finding that the trial judge acted irrationally or irresponsibly in
declaring a mistrial before double jeopardy might arise. Id. at 514.
¶26. With those considerations in mind, we turn to any applicable pronouncements on the issue by the
Mississippi Supreme Court. In Schwarzauer v. State, the Supreme Court dealt with a case where, at the
first trial, the court declared a mistrial on its own motion after two sequestered jurors had become
separated from the remaining jurors and visited together. Schwarzauer v. State, 339 So. 2d 980, 981
(Miss. 1976). The defendant interposed a double jeopardy claim in an attempt to avoid a second trial,
arguing that there was authority to the effect that this temporary separation of the jurors did not necessarily
require a mistrial and that, therefore, there was no "manifest necessity" for that action. Id. The supreme
court acknowledged that a mistrial was not an absolute necessity by observing that "another judge similarly
situated might have followed a different course." Id. at 982. Nevertheless, the supreme court declined to
interpose a double jeopardy bar to void Schwarzauer's conviction at his second trial. The supreme court
first said that "there are no rigid rules that can be followed in every case where double jeopardy is argued,"
then went on to say that so long as the trial judge "appropriately acted within his sound judicial discretion in
furtherance of the ends of justice" in granting a mistrial, double jeopardy considerations would not prevent a
subsequent trial on the same charge. Id.
¶27. Thus, even though this Court might be convinced that the substitution of the alternate juror was a
reasonable means of dealing with the problem, that conclusion does not compel this Court to find that there
was no "manifest necessity" for a mistrial as that phrase has come to be understood. The decision of the
manifest necessity for declaring a mistrial because of juror problems is a matter vested in the sound
discretion of the trial court, and we can discover no abuse of that discretion in this instance. We, therefore,
conclude this issue to be without merit.
¶28. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY OF CONVICTION
OF COUNT ONE SALE OF LESS THAN ONE OUNCE OF MARIJUANA AND SENTENCE
OF THREE YEARS AND $3,000 FINE; COUNT TWO POSSESSION OF MORE THAN ONE
OUNCE OF MARIJUANA BUT LESS THAN ONE KILOGRAM WITH INTENT TO
DISTRIBUTE AND SENTENCE OF SEVENTEEN YEARS WITH TWELVE YEARS TO
SERVE AND FIVE YEARS SUSPENDED WITH PROBATION ALL IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO THE APPELLANT.
SOUTHWICK, P.J., BRIDGES, DIAZ, LEE, PAYNE, AND THOMAS, JJ., CONCUR.
IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.,
AND COLEMAN, J.
IRVING, J., DISSENTING:
¶29. I must respectfully dissent from the majority opinion on the double jeopardy issue. My distinguished
colleagues correctly characterize the issue as whether there was a manifest necessity to declare a mistrial. I
also agree with the majority's statement that seating an alternate juror is a customary means of dealing with
such problems as occurred here, whether an original juror becomes unavailable due to illness or whether it
is subsequently discovered that there is some legal impediment to the juror sitting on the case. However,
when the mistrial was declared in the case sub judice, the alternate juror had already been seated, and the
trial was in full progress. Therefore, I cannot embrace the majority's conclusion that the trial court did not
abuse its discretion in declaring the mistrial under the circumstances presented here.
¶30. When the problem involving the missing juror was initially discovered and an alternate was seated, the
defendant moved for a mistrial. His motion was rightly denied. How then can it be said to be proper for the
trial judge to declare a mistrial, on his own motion, on the same grounds and under the same circumstances
that the motion was denied to the defendant, after the missing juror was located? The missing juror was
located approximately twenty minutes after the trial had commenced with the alternate juror seated. It must
also be pointed out that the court below, in addition to declaring a mistrial on its on motion, apparently did
so without giving the defendant an opportunity to object or argue against the motion.(1) Perhaps, the court
thought it was not necessary because the defendant had asked earlier for a mistrial.
¶31. In United States v. Jorn, 400 U.S. 470, 557, 91 S. Ct. 547 (1970), the United States Supreme
Court said:
If [the defendant's] right to go to a particular tribunal is valued, it is because, independent of the threat
of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision
whether or not to take the case from the jury when circumstances occur which might be thought to
warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial
or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any
barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial
error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command
to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion
leads to the conclusion that the ends of public justice would not be served by a continuation of the
proceedings. See United States v. Perez, 9 Wheat., at 580.
The Jorn court went on to hold that the trial judge who, on his own motion, declared a mistrial to enable
government's witnesses to consult with their own attorneys abused his discretion in discharging the jury and
reprosecution of the defendant violated the double jeopardy provision of the Fifth Amendment.
¶32. In United States v. Starling, 571 F.2d 934, 938 (5th Cir. 1978), the Starling court said:
And although a district court is accorded broad discretion in determining that particular circumstances
arising at trial require it to abort the proceedings, "reviewing courts have an obligation to satisfy
themselves that ... the trial judge exercised 'sound discretion' in declaring a mistrial." (citations omitted)
. In particular we must insure that the district court kept in the forefront the defendant's valued right
"of being able, once and for all, to conclude his confrontation with society through the verdict of a
tribunal he believes to be favorably disposed to his fate." (citations omitted).
In Starling, one of the jurors spoke to the defendant after jury deliberations had begun. Later, this
information was brought to the attention of the court, and the court interrupted the jury's deliberations for
questioning concerning the episode. After questioning the jurors, the court abruptly declared a mistrial
without benefit of any argument from counsel as to the need or propriety of a mistrial. The Starling court
concluded that the trial court abused its discretion in declaring the mistrial, and noted:
The record reflects a total lack of awareness of the double-jeopardy consequences of the court's
action and of the manifest necessity standard. Moreover, it shows a crucial failure to consider the
appellant's protected interest in having the trial concluded in a single proceeding. Under these
circumstances, the very basis for appellate deference to the court's determination that a mistrial was
required is diminished beyond the point of significance. (citations omitted).
Id. at 941.
¶33. In Cherry v. Director, State Board of Corrections, 635 F.2d 414, 418 (5th Cir. 1981), the Fifth
Circuit Court of Appeals found that a mistrial which terminated the appellant's first trial did not raise a
constitutional bar to his reprosecution because the action of the trial judge was not abrupt, but was taken
only after inquiry and overnight deliberation, after at least some consultation with counsel during which
Cherry's counsel rejected one available alternative, and after Cherry's counsel was afforded but declined the
opportunity to make a motion.
¶34. In Grandberry v. Bonner, 653 F.2d 1010, 1014 (5th Cir. 1981), we find these words:
The Supreme Court's reluctance to specify general categories of conditions and circumstances
constituting "manifest necessity" reflects the deference which appellate courts are to give to a trial
judge's considered determination that manifest necessity for a mistrial exists in a particular case. The
decision to declare a mistrial is within the sound discretion of the trial court, Arizona v. Washington,
supra at 514, 98 S. Ct. at 834; Cherry v. Director, State Board of Corrections, 635 F.2d 414, 418
(5th Cir. 1981). Thus, the mere existence of alternatives does not mean that the granting of a mistrial
precludes retrial of the defendant where "reasonable judges could differ about the proper disposition,"
Cherry, supra at 419, and where the record, considered as a whole, indicates that the trial judge in
deciding to declare a mistrial, carefully considered the alternatives and did not act in an abrupt, erratic
or precipitate manner. United States v. Jorn, 400 U.S. 470, 487, 91 S. Ct. 547, 558, 27 L. Ed. 2d 543
(1971); Arizona v. Washington, supra, 434 U.S. at 514-515, 98 S. Ct. at 834, 835; Illinois v.
Somerville, supra, 410 U.S. at 469, 93 S. Ct. at 1072-1973.
¶35. In Grandberry, the trial judge declared a mistrial after the jury had retired for the night and one of the
jurors requested his high blood pressure medicine. The trial judge declared the mistrial after being told by
the juror that someone was available at the juror's home who could get the medicine for him. Rather than
send for the medicine, the trial judge abruptly declared a mistrial without consulting with defense counsel or
the prosecution. In concluding that a second prosecution of Grandberry was constitutionally barred , the
Grandberry court opined:
The case before us today clearly bears a strong resemblance to Jorn and Starling and looks very
little like Cherry. The trial judge in this case concluded the colloquy with Mr. Noah and then, without
addressing either counsel and without pausing long enough for an objection to be registered,
embarked on a rather extended statement in the course of which he declared a mistrial. This is
precisely type of abrupt and precipitate action which indicates, as we note in Starling, "a total lack of
awareness of the double-jeopardy consequences of the court's action and of the manifest necessity
standard ... and a crucial failure to consider the appellant's protected interest in having the trial
concluded in a single proceeding." Starling at 941. This not a case where a trial judge merely failed to
articulate explicitly his consideration of alternatives to a mistrial. See Cherry, supra, rather, this is a
case where the circumstances surrounding the decision to declare a mistrial, as chronicled in the
record, reveal that no careful thought could have been given to alternatives. Therefore, we reach
today the same conclusion the Supreme Court did in Jorn, and which we have previously reached in
Starling: the trial court in this case abused the discretion entrusted to it by declaring a mistrial under
these circumstances and in this manner.
Grandberry, 653 F.2d at 418.
¶36. As soon as the missing juror was located, the court determined that Jenkins was entitled to be tried by
the twelve jurors originally selected, and, on its own motion, declared a mistrial because that could not be
done at that time since testimony had been taken. It is a paradox to me that the trial court, believing that
Jenkins was entitled to be tried by the original twelve jurors selected, would declare a mistrial on that basis
when in fact the very action of declaring the mistrial insured that such would never occur. At least before the
declaration of mistrial, Jenkins would have had the benefit of being tried by at least eleven of the original
twelve jurors. However, once the mistrial was ordered, whatever right, interest or hope Jenkins had in being
tried by any of the original jurors vanished. Thus, any subsequent declaration of mistrial would have to stand
anew on the facts and circumstances then existing should a situation be presented for consideration of a
mistrial. The only thing that occurred after the alternate juror was seated was the appearance of the missing
original juror. Surely, the trial court could not then seat the missing juror who had suddenly appeared, for
by now the trial had been in progress for some twenty minutes. Like the Jorn, Starling and Grandberry
courts, I am constrained to conclude on these facts that the trial judge abused his discretion in declaring the
mistrial. It thus follows that the retrial of Jenkins is prohibited by the double-jeopardy provision of the Fifth
Amendment. Therefore, I would reverse and render.
KING, P.J., AND COLEMAN, J., JOIN THIS SEPARATE WRITTEN OPINION.
1. The only evidence we have in the record concerning this occurrence is Jenkins's written motion and
the order of the court denying the motion. Neither Jenkins's motion nor the court's order contains any
statement that Jenkins was given an opportunity to object before the mistrial was declared. Indeed,
the relevant portion of the court's order states: "After a short recess the juror could not be located and
the Court seated the alternate. The defendant then moved for a mistrial which motion was denied by
the Court. Some testimony was taken by the Court and the missing juror returned to Court. The
Court then determined that the defendant was entitled to be tried by the twelve jurors that were
originally selected and that that could not be done at that time since testimony had been taken. The
Court, on its own motion, then granted a mistrial on the same grounds as the defendant requested in
his motion."