Third District Court of Appeal
State of Florida
Opinion filed June 2, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-1939
Lower Tribunal No. F19-1892
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The State of Florida,
Appellant,
vs.
Michael Jones,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Tanya
Brinkley, Judge.
Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney
General, for appellant.
Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special
Assistant Public Defender, and Mary Rojas and Daniela Tenjido, Certified
Legal Interns, for appellee.
Before FERNANDEZ, HENDON and GORDO, JJ.
GORDO, J.
The State of Florida appeals the trial court’s dismissal of its information
charging Michael Jones with armed burglary of a dwelling with assault or
battery and aggravated battery with a deadly weapon. We have jurisdiction.
See Fla. R. App. P. 9.140(c)(1)(A); State v. Mackey,
271 So. 3d 128, 129
(Fla. 3d DCA 2019). Following the court’s sua sponte discharge of the jury
without the consent of the defendant and without manifest necessity, the
court dismissed the State’s information against Jones based on double
jeopardy. The State argues Jones implicitly consented to the mistrial and
thereby waived double jeopardy. We reject that contention and affirm the
order on appeal but write to address the circumstances compelling the
discharge of the information in this case.
FACTUAL AND PROCEDURAL BACKGROUND
The State filed an information charging Jones with armed burglary of a
dwelling with assault or battery and aggravated battery with a deadly
weapon. Jones pleaded not guilty and demanded a jury trial. A jury was
selected, impaneled and sworn. The following day, immediately before trial
began, the State advised the court that it had filed late discovery and earlier
that morning had provided the defense with tape recordings of several 911
calls made by the defendant’s daughter. The State posited the evidence
would be used solely for impeachment if the defense opened the door to its
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introduction. The defense objected and the court began to conduct a
Richardson1 hearing.
The State asserted it had obtained the discovery three weeks prior but
the prosecutor herself did not see the recordings until the morning of trial
when she was preparing her case. The State claimed there were two 911
calls by the defense witness, and they were very short. Defense counsel
argued he was unable to apprise the court of the defense position without
having heard the tapes. The court reserved ruling and called a recess for
defense counsel to have an opportunity to listen to the calls, return, and have
both sides present argument as to the Richardson violation.
Following a recess, defense counsel advised the court that he had not
listened to the tapes and instead requested a State-charged continuance.
Without hearing further argument or making any further inquiry, the court
stated:
The Court is finding in light of the Richardson
violation, the Court is making a finding that it’s
inadvertent but it is significant and accordingly
prejudicial to the defense. So, it is going to be a
State-charged continuance. How much time do you
need? How are we running, Loren, on this case?
1
Richardson v. State,
246 So. 2d 771 (Fla. 1971).
3
The parties then discussed the fact that the natural speedy trial window
would soon expire. Perhaps tellingly, defense counsel represented to the
court that he would not be filing a notice of speedy trial expiration because
“[t]hat’s not the way [he] want[ed] this case resolved.”
Without any further discussion with the attorneys on the record, the
court called the jurors back into the courtroom and discharged them advising
the jurors that they did not have to return to court for this case. The judge
asked the State and defense whether they had anything to say “in closing to
[their] jurors.” The State merely thanked them for their service. The defense
said, “Thank you for your service. I thought I was going to spend some time
with you. My loss. Thank you.”
The parties and the court agreed to set the case for trial in September
2019. At no point in time did anyone—the court, the defense or the State—
mention double jeopardy or the declaration of a mistrial.
Then, in August 2019, defense counsel moved to dismiss the
information against Jones based on double jeopardy grounds arguing that
there was no manifest necessity for a mistrial, there were other alternatives
to declaring a mistrial including recessing for a day or two, and that the
defendant only requested a continuance and never requested or consented
to the mistrial. The State opposed the motion arguing that although the
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defendant did not request a mistrial his actions indicated implicit consent.
The trial court granted Jones’s motion finding that jeopardy attached when
the jury was sworn and Jones could not be retried for the same offense.
LEGAL ANALYSIS
I. Discovery Violation – Richardson Hearing
A trial court’s failure to conduct an adequate Richardson inquiry is
error. See State v. Schopp,
653 So. 2d 1016, 1021 (Fla. 1995) (holding
harmless error analysis should be applied where a trial court fails to conduct
an adequate Richardson inquiry); Brown v. State,
165 So. 3d 726, 729 (Fla.
4th DCA 2015). A proper Richardson inquiry requires the lower court to
address “whether the [discovery] violation was inadvertent or willful, trivial or
substantial, and whether it caused prejudice or harm to the opposing party.”
Comer v. State,
730 So. 2d 769, 774 (Fla. 1st DCA 1999) (citations omitted);
see Andres v. State,
254 So. 3d 283, 293 (Fla. 2018). “In assessing
procedural prejudice, the trial court must determine, first, whether the
discovery violation precluded the aggrieved party from adequately preparing
for trial, and second, what is the proper sanction to invoke for the discovery
violation.” Comer,
730 So. 2d at 774.
“One cannot determine whether the state’s transgression of the
discovery rules has prejudiced the defendant (or has been harmless) without
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giving the defendant the opportunity to speak to the question.” Scipio v.
State,
928 So. 2d 1138, 1146 (Fla. 2006) (quoting Schopp,
653 So. 2d at
1019). Here, the court’s failure to conduct a proper Richardson inquiry
denied the State and defense an opportunity to be heard or present
argument regarding procedural prejudice. Based on the State’s proffer and
the court’s conjecture, the court found the late disclosure was inadvertent,
but substantial. Then, without the court or defense counsel having reviewed
the evidence, the court determined the defendant was prejudiced in his trial
preparation and that a discharge of the jury was warranted.
II. Double Jeopardy
The Double Jeopardy Clause of the United States and Florida
constitutions guarantees the protection of an accused against being twice
put in jeopardy for the same offense. See Amend. V, U.S. Const.; Art. I, § 9,
Fla. Const. “[T]he constitutional protection also embraces the defendant’s
‘valued right to have his trial completed by a particular tribunal.’” Arizona v.
Washington,
434 U.S. 497, 503 (1978).
The reasons why this “valued right” merits
constitutional protection are worthy of repetition.
Even if the first trial is not completed, a second
prosecution may be grossly unfair. It increases the
financial and emotional burden on the accused,
prolongs the period in which he is stigmatized by an
unresolved accusation of wrongdoing, and may even
enhance the risk that an innocent defendant may be
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convicted. The danger of such unfairness to the
defendant exists whenever a trial is aborted before it
is completed. Consequently, as a general rule, the
prosecutor is entitled to one, and only one,
opportunity to require an accused to stand trial.
Id. at 503–05.
“Jeopardy attaches in a criminal proceeding when the jury is impaneled
and sworn.” Thomason v. State,
620 So. 2d 1234, 1236 (Fla. 1993). “Once
a jury is [i]mpaneled, the accused in a case has a right to be tried by that
particular tribunal. This right, however, is not absolute.” Merchant v. State,
201 So. 3d 146, 151 (Fla. 3d DCA 2016) (citing Thomason,
620 So. 2d at
1237).
Unlike the situation in which the trial has ended in an
acquittal or conviction, retrial is not automatically
barred when a criminal proceeding is terminated
without finally resolving the merits of the charges
against the accused. Because of the variety of
circumstances that may make it necessary to
discharge a jury before a trial is concluded, and
because those circumstances do not invariably
create unfairness to the accused, his valued right to
have the trial concluded by a particular tribunal is
sometimes subordinate to the public interest in
affording the prosecutor one full and fair opportunity
to present his evidence to an impartial jury.
Arizona,
434 U.S. at 505. “For example, when the defendant requests
declaration of a mistrial, double jeopardy usually is not a bar to
reprosecution.” Thomason,
620 So. 2d at 1237 (citing Oregon v. Kennedy,
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456 U.S. 667, 672 (1982)). Absent the defendant’s motion for a mistrial or
express consent, the court may only appropriately declare a mistrial on its
own or a prosecution motion “if, after an assiduous inquiry into the possibility
of another course of action, there is a ‘manifest necessity’ to do so.”
Merchant,
201 So. 3d at 154–55 (quoting Baez v. State,
699 So. 2d 305, 306
(Fla. 3d DCA 1997)). The “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.” United States v. Jorn,
400 U.S. 470, 485 (1971) (citing United
States v. Perez,
22 U.S. 579, 580 (1824)).
As noted by the United States Supreme Court in United States v.
Dinitz,
424 U.S. 600 (1976), and reaffirmed by the Florida Supreme Court:
The distinction between mistrials declared by the
court sua sponte and mistrials granted at the
defendant’s request or with his consent is wholly
consistent with the protections of the Double
Jeopardy Clause. Even when judicial or
prosecutorial error prejudices a defendant’s
prospects of securing an acquittal, he may
nonetheless desire “to go to the first jury and,
perhaps, end the dispute then and there with an
acquittal.”
Thomason,
620 So. 2d at 1237 (quoting Dinitz,
424 U.S. at 608). “[A]bsent
circumstances thwarting the State’s one full and fair opportunity to present
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its case, the right of a defendant to completion of his or her trial by a particular
tribunal should control.”
Id.
a. Trial Court’s Sua Sponte Declaration of Mistrial
To every criminal law practitioner and judge, the swearing in of a jury
should signal a critical point in the trial and automatically trigger the
recognition that this jury of the defendant’s peers will be adjudicating the
State’s charges against the accused barring manifest necessity or consent
by the defendant.
Without a defendant’s consent to a mistrial, manifest necessity can
only be demonstrated where “the trial court has considered and rejected all
possible alternatives.” Merchant,
201 So. 3d at 151–52 (quoting Torres v.
State,
808 So. 2d 234, 235 (Fla. 2d DCA 2001)); see also Thomason,
620
So. 2d at 1238 (observing that manifest necessity “requires trial judges, at
the very least, to evaluate and discuss available alternatives before declaring
a mistrial over the objection of the defendant”); Jorn,
400 U.S. at 487. The
trial court, therefore, has a duty-bound obligation to explore all possible
alternatives and hear the parties’ arguments before declaring a mistrial. A
declaration of mistrial is a last resort reserved for instances of “manifestly
urgent and absolute necessity.” Merchant,
201 So. 3d at 151 (quoting
Thomason,
620 So. 2d at 1239). “The trial court’s failure to make an inquiry,
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develop a proper record, and consider alternatives before declaring a mistrial
forecloses a conclusion that a mistrial was even warranted, let alone one
supported by manifest necessity.” Id. at 155. The court’s improper discharge
of the jury in this case—without the defendant’s consent, without any
argument or showing by the State of manifest necessity and without
considering alternatives—was an unwarranted declaration of a mistrial
based on “assumption, inference and speculation.” See id. at 154.
b. Failure to Object Does Not Imply Waiver
“[I]f the jury is discharged without the defendant’s consent, for a legally
insufficient reason, and without an absolute necessity, such a discharge is
equivalent to an acquittal and precludes a subsequent trial for the same
offense.” Spaziano v. State,
429 So. 2d 1344, 1345 (Fla. 2d DCA 1983).
The State, however, asks this Court to view the defendant’s failure to
object to the mistrial as an implicit waiver of the defendant’s constitutional
rights. We find “this position is without merit, as the law on this point is well-
established: a defendant’s mere failure to object to a declaration of mistrial
is not tantamount to consent.” Merchant,
201 So. 3d at 152; see also State
v. Grayson,
90 So. 2d 710, 713 (Fla. 1956) (noting that “silence of the
defendant on trial for a crime or his failure to object or protest against an
illegal discharge of the jury” does not constitute consent to the trial court’s
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declaration of a mistrial); Allen v. State,
41 So. 593, 593 (1906) (holding that
the defendant’s “silence or failure to object or protest against the discharge
of the jury did not constitute a consent or a waiver of his constitutional right”
of double jeopardy); Feria v. Spencer,
616 So. 2d 84, 84 (Fla. 3d DCA 1993)
(holding a “defendant’s silence when the trial court granted the mistrial
cannot be construed as consent”); Spaziano,
429 So. 2d at 1346 (“A
defendant’s silence or his failure to object or protest against an illegal
discharge of the jury before a verdict, does not constitute a consent, and is
not a waiver of the constitutional prohibition against a subsequent trial for the
same offense if the jury has been improperly discharged.”).
Moreover, Jones specifically requested a State-charged continuance
of the trial. He did not request nor consent to the declaration of a mistrial.
We cannot, therefore, construe Jones’s silence or his failure to object to the
court’s sua sponte discharge of the jury as consent to a waiver double
jeopardy.
c. A Cautionary Tale
The State additionally argues that the defense attorney’s agreement to
reset the trial for a future date should be taken as an implicit waiver of double
jeopardy. Defense counsel announced he had no intention of filing a notice
of expiration of speedy trial, agreed to reset the trial for a future date and
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thanked the jury for their service, stating, “I thought I was going to spend
some time with you. My loss.” We do not find that having thanked the jury
for their service and agreeing to a future trial date is tantamount to consent
to a waiver of double jeopardy.
The State asks this Court to construe defense counsel’s representation
of his client’s interests as a waiver of double jeopardy protection. Defense
counsel’s duty, however, is to represent the interests of his client within the
bounds of the law—not to safeguard the State’s right of prosecution.
In the criminal justice system, the court, the State and the defense each
has a well-defined role. “[T]he judge is not a mere moderator, but is the
governor of the trial for the purpose of assuring its proper conduct and of
determining questions of law.” Geders v. United States,
425 U.S. 80, 86
(1976) (quoting Quercia v. United States,
289 U.S. 466, 469 (1933)). “If truth
and fairness are not to be sacrificed, the judge must exert substantial control
over the proceedings.” Id. at 87. The trial judge has broad discretion, within
the limits of the adversary system, to “cope with the complexities and
contingencies inherent in the adversary process.” Id. at 86. However, the
judge must remain a neutral arbiter of the matters presented by the parties.
Greenlaw v. United States,
554 U.S. 237, 243 (2008). The court’s function
as governor of the proceedings and neutral arbiter ensures that the parties
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receive a full and fair trial. Prosecutors serve as officers of the court. See
Gore v. State,
719 So. 2d 1197, 1202 (Fla. 1998). The prosecutor’s job is to
serve justice and conduct a fair and impartial trial. See id.; Stewart v.
State,
51 So. 2d 494, 495 (Fla. 1951). The defense’s role, in turn, is to
provide meaningful representation and to fully, fairly and zealously advocate
the defendant’s cause within the bounds of the law. Wilson v. Wainwright,
474 So. 2d 1162, 1165 (Fla. 1985); see Van Poyck v. State,
91 So. 3d 125,
130 (Fla. 2012).
Here, the State’s duty to serve justice and the public interest entailed
a duty to make a timely, appropriate objection to the illegal discharge of the
jury which would bar subsequent prosecution and thwart the State’s one full
and fair opportunity to present evidence to an impartial jury in the prosecution
of the accused. The State sat quietly as the court made Richardson findings
without even hearing argument and it sat quietly as the impaneled jury was
being discharged. We find the defendant’s silence in this case could not be
construed as consent to a mistrial. But the State’s silence in the face of the
trial court’s error was the functional equivalent of consent to the discharge of
the information in this case.
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CONCLUSION
Upon being apprised of a discovery violation, the trial court erred when
it did not conduct a proper Richardson inquiry and further erred when it failed
to explore alternatives to declaring a mistrial. However, there was no implicit
consent to waiver of double jeopardy by the defendant resulting from the trial
court’s sua sponte improper declaration of a mistrial. Because the trial
court’s declaration of a mistrial was made in the absence of manifest
necessity, its subsequent dismissal of the State’s information based on
double jeopardy was proper.
Affirmed.
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