Lead Opinion
delivered the opinion of the Court.
Thе Double Jeopardy Clause protects against being tried twice for the same offense. The Clause does not, however, bar a second trial if the first ended in a mistrial. Before the jury concluded deliberations in this case, it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The jury did so but still could not reach a verdict, and the court declared a mistrial. All agree that the defendant may be retried on charges of manslaughter and negligent homicide. The question is whether he may also be retried on charges of capital and first-degree murder.
One-year-old Matthew McFadden, Jr., suffered a severe hеad injury on November 28, 2007, while home with his mother’s boyfriend, Alex Blueford. Despite treatment at a hospital, McFadden died a few days later.
The State of Arkansas charged Blueford with capital murder, but waived the death penalty. The State’s theory at trial was that Blueford had injured McFadden intentionally, causing the boy’s death “[u]nder circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. § 5-10-101(a)(9)(A) (Supp. 2011). The defense, in contrast, portrayed the death as the result of Blueford accidentally knocking McFadden onto the ground.
The trial court instructed the jury that the charge of capital murder included three lesser offenses: first-degree murder, manslaughter, and negligent homicide. In addition to describing these offenses, the court addressed the order in which the jury was to сonsider them: “If you have a reasonable doubt of the defendant’s guilt on the charge of capital murder, you will consider the charge of murder in the first degree.... If you have a reasonable doubt of the defendant’s guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter. ... If you have a reasonable doubt of the defendant’s guilt on the charge of manslaughter, you will then consider the charge of negligent homicide.” . App. 51-52.
The prosecution commented on these instructions in its closing argument. It told the jury, for example, that “before you can consider a lesser included of capital murder, you must first, all 12, vote that this man is not guilty of capital murder.” Id., at 55. The prosecution explained that this was “not a situation where you just lay everything out herе and say, well, we have four choices. Which one does it fit the most?” Id., at 59. Rather, the prosecution emphasized, “unless all 12 of you agree that this man’s actions were not
After the parties concluded their arguments, the court presented the jury with a set of five verdict forms, each representing a possible verdict. There were four separate forms allowing the jury to convict on each of the charged offenses: capital murder, first-degree murder, manslaughter, and negligent homicide. A fifth form allowed the jury to return a verdict of acquittal, if the jury found Blueford not guilty of any offense. There was no form allowing the jury to acquit on some offenses but not others. As stated in the court’s instructions, the jury сould either “find the defendant guilty of one of these offenses” or “acquit him outright.” Id., at 51. Any verdict — whether to convict on one or to acquit on all — had to be unanimous.
A few hours after beginning its deliberations, the jury sent the court a note asking “what happens if we cannot agree on a charge at all.” Id., at 62. The court called the jury back into the courtroom and issued a so-called “Allen instruction,” emphasizing the importance of reaching a verdict. See Allen v. United States,
“THE COURT: All right. If you have your numbers together, and I don’t want names, but if you have your numbers I would like to know what your count was on capital murder.
“JUROR NUMBER ONE: That was unanimous against that. No.
“THE COURT: Okay, on murder in the first degree?
“JUROR NUMBER ONE: That was unanimous, against that.
*604 “THE COURT: Okay. Manslaughter?
“JUROR NUMBER ONE: Nine for, three against.
“THE COURT: Okay. And negligent homicide?
“JUROR NUMBER ONE: We did not vote on that, sir.
“THE COURT: Did not vote on that.
“JUROR NUMBER ONE: No, sir. We couldn’t get past the manslaughter. Were we supposed to go past that? I thought we were supposed to go one at a time.” Id., at 64-65.
Following this exchange, the court gave another Allen instruction and sent the jurors back to the jury room. After deliberations resumed, Blueford’s counsel asked the court to submit new verdict forms to the jurors, to be completed “for those counts that they have reached a verdict on.” Id., at 67. The prosecution objected on the grounds that the jury was “still deliberating” and that a verdict of acquittal had to be “all or nothing.” Id., at 68. The court denied Blueford’s request. To allow for a partial verdict, the court explained, would be “like changing horses in the middle of the stream,” given that the jury had already received instructions and verdict forms. Ibid. The court informed counsel that it would declare a mistrial “if the jury doesn’t make a decision.” Id., at 69.
When the jury returned a half hour later, the foreperson stated that they had not reached a verdict. The court declared a mistrial and discharged the jury.
The State subsequently sought to retry Blueford. He moved to dismiss the capital and first-degree murder charges on double jeopardy grounds, citing the foreperson’s report that the jurors had voted unanimously against guilt on those offenses. The trial court denied the motion, and the Supreme Court of Arkansas affirmed on interlocutory appeal. According to the State Supreme Court, the foreperson’s report had no effect on the State’s ability to retry Blueford, because the foreperson “was not making a formal announce
Blueford sought review in this Court, and we granted cer-tiorari.
II
The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const., Arndt. 5. The Clause “guarantees that the State shall not be permitted to make repeated attempts to convict the accused, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” United States v. Martin Linen Supply Co.,
Blueford contends that the foreperson’s report means that he cannot be tried again on charges of capital and first-degree murder. According to Blueford, the Double Jeopardy Clause prohibits a second trial on those charges, for two reasons.
A
Blueford’s primary submission is that he cannot be retried for capital and first-degree murder because the jury actually acquitted him of those offenses. See Green v. United States,
We disagree. The foreperson’s report was not a final resolution of anything. When the foreperson told the court how the jury had voted on each оffense, the jury’s deliberations had not yet concluded. The jurors in fact went back to the jury room to deliberate further, even after the foreperson had delivered her report. When they emerged a half hour later, the foreperson stated only that they were unable to reach a verdict. She gave no indication whether it was still the case that all 12 jurors believed Blueford was not guilty of capital or first-degree murder, that 9 of them believed he was guilty of manslaughter, or that a vote had not been taken on negligent homicide. The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses.
Blueford maintains, however, that any possibility that the jurors revisited the murder offеnses was foreclosed by the instructions given to the jury. Those instructions, he contends, not only required the jury to consider the offenses in order, from greater to lesser, but also prevented it from transitioning from one offense to the next without unanimously — and definitively — resolving the greater offense in his favor. “A jury is presumed to follow its instructions.” Weeks v. Angelone,
A simple example illustrates the point. A jury enters the jury room, having just been given these instructions. The foreperson decides that it would make sense to determine the extent of the jurors’ agreement before discussions begin. Accordingly, she conducts a vote on capital murder, and everyone votes against guilt. She does the same for first-degree murder, and again, everyone votes against guilt. She then calls for a vote on manslaughter, and there is disagreement. Only then do the jurors engage in a discussion about the circumstances of the crime. While considering the arguments of the other jurors on how the death was caused, one of the jurors starts rethinking his own stance on a greater offense. After reflecting on the evidence, he comes to believe that the defendant did knowingly cause the death — satisfying the definition of first-degree murder. At
It was therefore possible for Blueford’s jury to revisit the offenses of capital and first-degree murder, notwithstanding its earlier votes. And because of that possibility, the foreperson’s report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses, quite apart from any requirement that a formal verdict be returned or judgment entered.
That same lack of finality undermines Blueford’s reliance on Green v. United States,
Blueford’s argument assumes, however, that the votes reported by the foreperson did not change, even though the jury deliberated farther after that report. That assumption is unjustified, because the reported votes were, for the reasons noted, not final. Blueford thus overlooks the real distinction between the cases: In Green and Price, the verdict of the jury was a final decision; here, the report of the foreperson was not.
Blueford maintains that even if the jury did not acquit him of capital and first-degree murder, a second trial on those offenses wоuld nonetheless violate the Double Jeopardy Clause, because the trial court’s declaration of a mistrial was improper. Blueford acknowledges that a trial can be discontinued without barring a subsequent one for the same offense when “particular circumstances manifest a necessity” to declare a mistrial. Wade v. Hunter,
We reject that suggestion. We have never required a trial court, before declaring a mistrial because of a hung jury, to consider any particular means of breaking the impasse— let alone to consider giving the jury new options for a verdict. See Renico v. Lett,
* ⅝ *
The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either. When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a consequence, the Double Jeopardy Clause does not stand in the way of a second trial on the same offenses.
The judgment of the Supreme Court of Arkansas is
Affirmed.
Notes
In reaching a contrary conclusion, post, at 615 (opinion of Sotomayor, J.), the dissent construes the jury instructions to “require a jury to complete its deliberations on a greater offense before it may consider a lesser,” post, at 612 (emphasis added). But no such requirement can be found in the text of the instructions themselves. And the dissent’s attempt to glean such a requirement from the Arkansas Supreme Court’s decision in Hughes v. State,
Finding our reliance on Renico “perplexing,” the dissent reads that decision to have “little to say about a trial judge’s responsibilities, or this Court’s, on direct review.” Post, at 620-621, n. 4. But Renico’s discussion of the applicable legal principles- concerns just that, and the dissent in any event does not dispute that we have never required a trial court to consider any particular means of breaking a jury impasse.
Dissenting Opinion
with whom Justice Ginsburg and Justice Kagan join, dissenting.
The Double Jeopardy Clause “unequivocally prohibits a second trial following an acquittal.” Arizona v. Washington,
Today's decision misapplies these longstanding principles. The Court holds that petitioner Alex Blueford was not acquitted of capital or first-degree murder, even though the forewoman of the Arkansas jury empaneled to try him announced in open court that the jury was “unanimous against” convicting Blueford of those crimes. App. 64-65. Nor, the Court concludes, did the Double Jeopardy Clause oblige the trial judge to take any action to give effect to the jury’s unambiguous decision before declaring a mistrial as to those offenses. The Court thus grants the State what the Constitution withholds: “the proverbial ‘second bite at the apple.'” Burks v. United States,
I respectfully dissent.
I
A
The bar on retrials following acquittals is “the most fundamental rule in the history of double jeopardy jurisprudence.” Martin Linen,
In ascertaining whether an acquittal has occurred, “form is not to be exalted over substance.” Sanabria v. United States,
A straightforward application of that principle suffices to decide this case. Arkansas is a classic “acquittal-first” or “hard-transition” jurisdiction. See generally People v. Richardson,
Here, the trial judge instructed Blueford’s jury to consider the offenses in order, from the charged offense of capital murder to the lesser included offenses of first-degree murder, manslaughter, and negligent homicide. The judge told the
In this context, the forewoman’s announcement in open court that the jury was “unanimous against” conviction on capital and first-degree murder, id., at 64-65, was an acquittal for double jeopardy purposes.
Green and Price v. Georgia,
Blueford’s position is even stronger because his jury was not silent on the murder counts, but announced that it was “unanimous against” conviction. And the trial judge specifically instructed the jury to consider manslaughter only after acquitting Blueford of the murder counts. Courts in several acquittal-first jurisdictions have held that a jury’s deadlock on a lesser included offense justifies the assumption that the jury acquitted on any greater offenses. See State v. Tate,
B
The majority holds that the forewoman’s announcement was not an acquittal because it “was not a final resolution of anything.” Ante, at 606. In the majority’s view, the jury might have revisited its decisions on the murder counts during the 31 minutes of deliberations that followed the forewoman’s announcement. We cannot know whether the jury did so, the majority reasons, because the jury was discharged without confirming that it remained “unanimous against” convicting Blueford of capital and first-degree murder. Ante, at 606-608.
Putting to one side the lack of record evidence to support this speculation — by far the more plausible inference is that the jurors spent those 31 minutes attempting to resolve their deadlock on manslaughter — I do not agree that the jury was free tо reconsider its decisions when its deliberations resumed. “A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final.” Bullington v. Missouri, 451 U. S. 430,445 (1981). The jury heard instructions and argument that it was required unanimously to acquit on capital and first-degree murder before it could reach man
The majority’s example of a jury that takes a preliminary vote on greater offenses, advances to the consideration of a lesser, and then returns to a greater, is inapposite. See ante, at 607-608. In the majority’s example, the jury has not announced its vote in open court. Moreоver, the instructions in this case did not contemplate that the jury’s deliberations could take the course that the majority imagines. Arkansas’ model instruction requires acquittal as a prerequisite to consideration of a lesser offense, and the Double Jeopardy Clause entitles an acquittal to finality. Indeed, the purpose of an acquittal-first instruction is to ensure careful and conclusive deliberation on a greater offense. See United States v. Tsanas,
The fact that the jury was not given the express option of acquitting on individual offenses is irrelevant. See ante, at 603, 609-610. Arkansas law ascribes no significance to the presence of such options on a verdict form. See Rowland v. State,
Finally, the majority’s distinction of Green and Price is unavailing. The majority observes that Green and Price, unlike this case, involved final decisions. Ante, at 608. As I have explained, I view the forewoman’s announcements of acquittal in this eаse as similarly final. In any event, Green clarified that the defendant’s “claim of former jeopardy” was “not based on his previous conviction for second degree murder but instead on the original jury’s refusal to convict him of first degree murder.”
In short, the Double Jeopardy Clause demands an inquiry into the substance of the jury’s actions. Blueford’s jury had
II
A
Even if the majority were correct that the jury might have reconsidered an acquitted count — a doubtful assumption for the reasons just explained — that would nоt defeat Blueford’s double jeopardy claim. It “has been long established as an integral part of double jeopardy jurisprudence” that “a defendant could be put in jeopardy even in a prosecution that did not culminate in a conviction or an acquittal.” Crist v. Bretz,
In Perez, this Court explained that “manifest necessity” is a high bar: “[T]he power ought to be used with the greatest caution, under urgent circumstances, and fоr very plain and obvious causes.”
A jury’s genuine inability to reach a verdict constitutes manifest necessity. But in an acquittal-first jurisdiction, a jury that advances to the consideration of a lesser included offense has not demonstrated an inability to decide a defendant’s guilt or innocence on а greater — it has acquitted on the greater. Under Green, that is unquestionably true if the jury convicts on the lesser. See id., at 189. It would be anomalous if the Double Jeopardy Clause offered less protection to a defendant whose jury has deadlocked on the lesser and thus convicted of nothing at all. See Stone,
I would therefore hold that the Double Jeopardy Clause requires a trial judge, in an acquittal-first jurisdiction, to honor a defendant’s request for a partial verdict before declaring a mistrial on the ground of jury deadlock. Courts in acquittal-first jurisdictions have so held. See, e. g., Tate,
The majority оbserves that we “have never required a trial court, before declaring a mistrial because of a hung jury, to consider any particular means of breaking the impasse— let alone to consider giving the jury new options for a verdict.” Ante, at 609 (citing Renico v. Lett,
Even if the Double Jeopardy Clause did not compel that broader rule, the facts of this case confirm that there was no necessity, lеt alone manifest necessity, for a mistrial. There was no reason for the judge not to have asked the jury, prior to discharge, whether it remained “unanimous against” conviction on capital and first-degree murder. There would have been no intrusion on the jury’s deliberative process. The judge was not required to issue new instructions or verdict forms, allow new arguments, direct further deliberations, or take any other action that might haye threatened to coerce the jury. Merely repeating his earlier question would have sufficed. Because the judge failed to take even this modest step — or indeed, to explore any alternatives to a mistrial, or even to make an on-the-record finding of manifest necessity — I conclude that there was an abuse of discretion. Sеe, e. g., Jorn,
Indeed, the only reason I can divine for the judge’s failure to take this modest step is his misperception of Arkansas law with respect to the transitional instruction. After the colloquy with the forewoman, the judge commented at sidebar that the jurors “haven’t even taken a vote on [negligent homicide].... I don’t think they’ve completed their deliberation. ... I mean, under any reasonable circumstances, they would at least take a vote on negligent homicide.” App. 65-66. And after the jury retired for the last half hour of deliberations, the judge said, “I don’t think they have an under
If, as these comments suggest, the judge wrongly believed that the jury was not required to reach unanimity on a greatеr offense before considering a lesser, then he accorded insufficient finality and weight to the forewoman’s earlier announcement of acquittal on capital and first-degree murder. That mistake of law negates the deference due the judge’s decision to declare a mistrial. The judge explained that the jury was being discharged in part based on its “confusion” with respect to the instructions, when in fact, the confusion was the judge’s. Ibid.; see, e. g., Washington,
* * *
At its core, the Double Jeopardy Clause reflects the wisdom of the founding generation, familiar to “ ‘every person
I respectfully dissent.
The State has taken the same position. See Brief for Appellee in Boyd v. State, No. CR 06-973 (Ark.), p. 13 (“[U]nanimity is the essence of a jury verdict as it pertains to acquitting a defendant of the charged offense and the subsequent consideration of lesser-included offenses”).
The jury’s acquittals on the murder counts were unsurprising in light of the deficiencies in the State’s case. For example, Dr. Adam Craig — the medical examiner who autopsied the victim, Matthew McFadden, Jr., and whose testimony was essential to the State’s theory of the crime — was not board certified in anatomical pathology, having failed the certification examination five times. Dr. Craig took only 2 slides of Matthew’s brain, not the 10 to 20 called for by prevailing professional standards. He dismissed Blueford’s explanation for Matthew’s death — that Blueford accidentally knocked Matthew to the floor — on the basis of an outdated paper on child head injuries, acknowledging that he was only “vaguely aware” of a more recent, seminal paper that supported Blueford’s account. Record 390; see Goldsmith & Plunkett, A Biomechanical Analysis of the Causes of Traumatic Brain Injury in Infants and Children, 25 Am. J. Forensic Med. & Pathology 89 (2004). Blueford’s expert pathologist, Dr. Robert Bux, testified that Dr. Craig’s autopsy was inadequate to establish whether Matthew’s death was accidental or intentional. And Blueford’s expert pediatrician, Dr. John Galaznik, testified that the State’s theory — that Blueford slammed Matthew into a mattress on the floor — was “not a likely cause” оf the boy’s injuries when assessed in view of current medical literature. Record 766. Even the trial judge observed that the State’s proof was “circumstantial at best,” and that this was “probably ... a lesser included offense case.” Id., at 610.
This Court granted certiorari to decide “[w]hether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.” Pet. for Cert. i. The majority resolves the question presented by determining that the forewoman’s announcements were not final, such that Blueford’s jury did not necessarily deadlock on the lesser included offense of manslaughter. See ante, at 609, n. 2. In light of that determination, I do not read today’s opinion to еxpress any view with respect to the requirements of the Double Jeopardy Clause where a jury does deadlock on a-lesser included offense. Cf., e. g., State v. Tate,
The majority’s reliance on Renico, a habeas corpus case decided under the deferential standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), is perplexing. As Renico made clear, the question there was “not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so — the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was ‘an unreasonable application of . . . clearly established Federal law.’”