In State v. Erb, decided last week, the SC Supreme Court held that double jeopardy prevents the state from retrying John Joseph Erb for murder or manslaughter when the jurors at his trial acquitted him of murder and found him guilty of manslaughter, but the trial court improperly declared a mistrial.
When the court polled the jurors at Erb’s request, one stated that she did not agree that he was guilty of manslaughter. When the court questioned the juror alone, she indicated other jurors were yelling at her and she had been coerced into voting guilty on manslaughter.
Without instructing the jurors to continue deliberation, the court declared a mistrial “sua sponte,” although neither defense nor prosecution asked for a mistrial. When the trial court then ruled that the State could retry him on the original murder charges, he appealed, and the SC Supreme Court held that he could not be retried under these facts.
What is Double Jeopardy?
Double jeopardy is a constitutional right that protects us against multiple prosecutions or punishments for the same offense, and it is found in both the US and SC Constitutions.
Article I, Section 12 of the SC Constitution says that “No person shall be subject for the same offense to be twice put in jeopardy of life or liberty…”
Similarly, the Fifth Amendment to the US Constitution says, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
State and federal case law has defined double jeopardy as barring prosecution in three types of situations:
- Protection from prosecution for the same offense after acquittal (Erb’s murder charge),
- Protection from prosecution for the same offense after conviction, and
- Protection from prosecution for the same offense after an “improvidently granted mistrial” (which applies to Erb’s murder charge and the lesser included offense of manslaughter).
State v. Erb – Murder Charges Dismissed After Double Jeopardy Ruling
The “not guilty” verdict on Erb’s murder charge was read into the record without objection, and the State did not request that the jurors be polled on the murder acquittal:
In this case, the “not guilty” verdict on murder was signed by the foreperson
and read into the record without contest. The State declined polling, indicating the
State accepted the finality of that verdict at that point.
At no point did the judge instruct the jurors to continue deliberating. The juror who indicated she changed her vote was questioned only as to the manslaughter verdict, and the murder verdict of acquittal was final.
What should the judge have done?
The Supreme Court says that, when the juror said she disagreed with the manslaughter verdict, the trial 1) should not have questioned the juror alone, and 2) should have instructed the jurors that they should continue deliberating because they had not reached a unanimous verdict, which is what both the prosecution and defense asked the court to do.
If the jurors continued to deliberate, they might have returned with a hung jury, or they might have agreed on a total or partial acquittal or guilty verdict. Instead, the trial court questioned the lone juror before declaring a mistrial and never told the jurors to continue deliberating.
The Supreme Court held that the trial court should not have granted a mistrial at this point. Because the defense did not ask for the mistrial, and the mistrial was “improvidently granted,” the state cannot retry Erb on either the murder (which the court ruled was barred by double jeopardy anyway because the murder acquittal was a final verdict) or the lesser included offense of manslaughter.
We hold that even if the murder verdict was not final, double jeopardy bars a
retrial of the murder charge because the trial court improvidently granted a mistrial.
A retrial of the lesser-included voluntary manslaughter charge is likewise barred.
When is a Mistrial “Improvidently Granted?”
One “take-away” from this case for criminal defense trial attorneys is to always consider carefully whether you should make a motion for mistrial, object to a motion for mistrial, or carefully make a record that you were forced into making a motion for mistrial, to protect your client’s rights on appeal or retrial if the state attempts to try them twice for the same offenses.
For example, if there are no legal grounds for a mistrial, and the court “sua sponte” declares a mistrial or grants the state’s motion for a mistrial, this should bar any retrial by the state. If the defense agrees to the mistrial, however, or asks for the mistrial, double jeopardy may not apply.
One exception to this rule is when the prosecution provokes or goads the defense into asking for a mistrial (see, State v. Parker):
“Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S. Ct. 2083, 2089 (1982).[1] Hence, a properly granted mistrial poses no double jeopardy bar to a subsequent prosecution. “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. at 676, 102 S. Ct. at 2089; see also State v. Mathis, 359 S.C. 450, 460, 597 S.E.2d 872, 877 (Ct. App. 2004) (noting that a defendant who has moved for and been granted a mistrial may invoke the Double Jeopardy Clause to prevent a second prosecution when the prosecutor’s conduct giving rise to the mistrial was intended to provoke him into moving for the mistrial). Hence, the determination of whether double jeopardy attaches depends upon whether the prosecutorial conduct was undertaken with the intent to subvert the Double Jeopardy Clause. State v. Coleman, 365 S.C. 258, 263, 616 S.E.2d 444, 447 (Ct. App. 2005) (citation omitted). “The trial court’s finding concerning the prosecutor’s intent is a factual one and will not be disturbed on appeal unless clearly erroneous.” Id. (citation omitted).
If the State causes a mistrial, they cannot then have a “second bite at the apple” and retry the defendant for the same offenses.
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
