Kеnneth Hurston was indicted for murder and aggravated assault. His first trial ended in a mistrial in 1988 after the jury was unable to reach a verdict. Hurston was retried in 1990 and acquitted of murder and convicted of aggravated assault. He now appeals from the dеnial of his motion for new trial.
1. Appellant first contends that his plea in bar based on a claim of double jeopardy filed before the second trial should have been granted. Specifically, appellant maintains the mistrial should nоt have been entered in the absence of manifest necessity, and thus he was twice placed in jeopardy in violation of the federal and state constitutions.
Our review of the transcript of the first trial and the evidence adducеd at the hearing on the plea in bar reveals that after two-and-one-half days of testimony, the jurors in the first trial deliberated twelve hours over two days, keeping the bailiff informed of the changes in their vote tallies over time. After the jurors infоrmed the bailiff they were having difficulty reaching a verdict, the trial judge called them into the courtroom for consultation. The foreman reported that after extensive debate, “we are a divided jury.” The court then inquired whether any juror bеlieved that continued deliberation would be useful, and upon receiving no response in the affirmative the court, sua sponte, declared a mistrial.
Given the constitutional right of a defendant to have his trial proceed to verdiсt once a jury has been impaneled, “the power of the trial judge to interrupt the proceedings on his own . . . motion by
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declaring a mistrial is subject to stringent limitations. . . . [R] etrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the end of public justice be defeated; the existence of ‘manifest necessity’ is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances. [Cits ]”
Jones v. State,
After a careful review of the record, we cannot conclude that the grant of a mistrial in this case constituted an abuse of discretion. We do agree with appellant that the better practice is to consider carefully the factors listed in
Thornton v. State,
2. Appellant contends the trial court committed reversible error by communicating with the jury in the jury room outside the presencе of him or his counsel. The transcript discloses that after the jury had deliberated almost nine hours over two days, the prosecutor learned that one of the jurors was a convicted felon whose rights had not been restored and thus was inеligible to serve on the jury. See Op. Atty. Gen. 83-33, p. 70 (1983). After announcing her intentions to counsel, the trial judge entered the jury room to instruct them to cease their *572 deliberations until further notice. 1 After extensive discussion between counsel and the court, the juror was removed from thе panel and replaced by the alternate juror.
“The rule is well established in this state, that the defendant on trial must be present when the court takes any action materially affecting his case. [Cits.] This right is guaranteed to the accused by the fundamental law of this State, in order that he and his counsel may see to it that he has a fair and impartial trial and that nothing is done that would in any wise tend to his prejudice. Unquestionably the trial judge should not in any manner communicate with the jury about thе case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to рrejudice the accused . . . and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial, and the aсcused would be entitled to another trial. [Cits.]” (Punctuation omitted.)
Collins v. State,
The trial court’s action clearly went against the “better practice” of communicating only through the bailiff or in the presence of the accused and his counsel, fоr the matter at issue did “materially affect” appellant’s case. See id. The question thus presented in this appeal is whether the judge’s direction to the jury was impermissibly prejudicial to appellant. The communication clearly was not a charge or recharge, for it did not inform the jury of the law to be applied in the case. See
Stewart v. State,
3. Appellant enumerates as error the trial court’s refusal to allow him to question Iliya Hurston, the assault victim and the State’s key witness, cоncerning criminal charges pending against him. When the State presented Hurston’s testimony, appellant made an offer of proof that the witness was under indictment for automobile theft and had been arrested on two counts of theft by reсeiving for which presentment was pending. Since the witness had testified that he had made no deals with the State, the trial court refused appellant’s request, made pursuant to
Hines v. State,
A criminal defendant’s right of confrontation includes the right to cross-examine a key State witness concerning pending criminal charges agаinst the witness. Id. at 259. In addition to the general right to impeach the witness by proof of prior criminal convictions, the defendant is entitled to make “[a] more particular attack on the witness’ credibility ... by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness. . . . The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. . . . [E]xposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. It is especially important in a case where a witness . . . may have substantial reason to cooрerate with the government that a defendant be permitted to search for an agreement between the government and the witness. Whether or not such a deal existed is not crucial. What counts is whether the witness may be shading his testimony in an effort to please the prosecution. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state neverthelеss may cloud perception.” (Emphasis supplied; citations and punctuation omitted.) Id. at 260 (2).
While the trial court has discretion in determining the scope of cross-examination, the court’s refusal to permit any inquiry into Hurston’s pending criminal charges was an abuse of discretion and reversible error. Id.; see
Owens v. State,
4. Of appellant’s remaining enumerations, we will address the ones that may occur upon retrial.
(a) Regardless of whether the State’s direct evidence is again impeached upon retrial, because the State’s case rests in part on circumstantial evidence appellant would be entitled to a сharge on circumstantial evidence if he so requests.
Robinson v. State,
(b) Although appellant was indicted for committing aggravated assault with a deadly weapon, the court instructed the jury that aggravated assault also could be committed when a defendant “assaults another person with intent to murder, rape, or rob.” While the fact that the court instructed the jury on the specific charges set forth in the indictment probably avoided reversible error, see
Ross v. State,
Judgment reversed.
Notes
Contrary to the State’s position, appellant preserved his right to raise this issue on appeal by contemporaneously objecting to the trial court’s action. See
Seay v. State,