ORVIS v. THE STATE.
30816
Supreme Court of Georgia
June 8, 1976
237 Ga. 6
HILL, Justice.
Rоnald Orvis was tried and convicted of armed robbery in Clayton Superior Court. His appeal raises issues of speedy trial and double jeopardy.
The Clayton Superior Court has four terms a year, commencing on the first Mondays in February, May, August and November. Defendant was arrested in January 1975 and indicted in February for the armed robbery of a convenience store. In the February term of court, the defendant filed a demand for trial. He was brought to trial in July during the May term. A mistrial was declared July 25, 1975, after the jury was unable to reach a verdict. He was tried again the next week and a second mistrial was declared on July 30 for the same reason. Finally, on September 8, 1975, during the August term of court, he was found guilty in a third trial.
1. The defendant urges that he was denied a speedy trial in that he demanded trial during the February term, but that he was not tried during thаt term nor the next term (May) in violation of
The penalty for armed robbery prescribed by the Criminal Code of 1968 is death, imprisonment for life, or imprisonment for not less than one nor more than twenty years.
Because a mistrial based on the jury‘s inability to reach a verdict does not satisfy the speedy trial requirements of our Code (Geiger v. State, 25 Ga. 667 (1858), Rider v. State, 103 Ga. App. 184 (118 SE2d 749) (1961)), at least where the defendant could have been retried before the expiration of the term (Little v. State, 54 Ga. 24 (1875)), it becomes necessаry to determine whether the offense of armed robbery for which the death penalty is not sought is a “capital offense” or an “offense not affecting life” within the meaning of the cited Code sections.
In Letbedder v. State, 129 Ga. App. 196 (199 SE2d 270) (1973), the Court of Appeals had before it a similar inquiry. At that time the death penalty could not be imposed in Georgia by virtue of the decision in Furman v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346) (1972). The Court of Appeals held that armed robbery nevertheless was a capital offense and was controlled by
Applying Letbedder, supra, wе find that the trial court did not err in overruling the defendant‘s motion to dismiss the indictment made at the August term of court based upon alleged denial of speedy trial. We find no denial of the Sixth Amendment right to speedy trial. Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101); Hall v. Hopper, 234 Ga. 625 (216 SE2d 839) (1975); Treadwell v. State, 233 Ga. 468 (211 SE2d 760) (1975).
2. The defendant argues that his plea of former jeopardy should have been sustained because he was tried three times for the same offense. The first two trials were declared mistrials because the juries in those trials were unable to agree. He contends that the trial court abused its discretion in declaring the mistrials and that even if there was no abuse, the state by having to resort to a third trial has failed to prove the defendant‘s guilt beyond a
The first retrial after a mistrial caused by the inability of the jury to agree does not constitute double jeopardy where there is manifest necessity for dеclaring the mistrial. United States v. Perez, 22 U. S. (9 Wheat) 579 (1824); Logan v. United States, 144 U. S. 263 (12 SC 617, 36 LE 429) (1892); Dreyer v. Illinois, 187 U. S. 71 (23 SC 28, 47 LE 79) (1902); Keerl v. Montana, 213 U. S. 135 (29 SC 469, 53 LE 734) (1909); Gori v. United States, 367 U. S. 364 (91 SC 1523, 6 LE2d 901) (1961); Jones v. State, 232 Ga. 324 (206 SE2d 481) (1974); Cameron v. Caldwell, 232 Ga. 611 (208 SE2d 441) (1974); Wood v. State, 234 Ga. 758 (1) (218 SE2d 47) (1975); Jessen v. State, 234 Ga. 791 (1) (218 SE2d 52) (1975);
As was stated by the court in United States v. Castellanos, 349 FSupp. 720, 723 (E.D.N.Y. 1972), revd. 478 F2d 749 (2d Cir. 1973): “The possibility of a retrial after the discharge of the jury for failure to agree serves to discourage the putting of excessive pressure on juries to agree, and reduces the risk that a verdict will not be a genuine jury decision freely arrived at.” We would add that the possibility of a retrial after the discharge of the jury for failure to agree also serves to prevent a single juror from unreasonably holding out for acquittal, causing a mistrial, and thereby invoking the bar of double jeopardy single-handedly.
In the case bеfore us, at the first trial the court charged the jury on the morning of the second day of trial. The trial judge checked with them before sending them to lunch to see if they were about to reach a verdict. Upon learning that they were not near agreement, the court sent them to lunch. Sometime later the judge called them in to inquire whether they were making progress. The foreman replied, slow progress. The jury continued to deliberate until late in the afternoon when they returned to hear the testimony of one of the witnesses. They returned to the jury room. Later they announced to the court that they were hopelessly deadlocked. The court asked if any member felt they could reach a verdict. After getting no response, he declared a mistrial.
The second trial was held July 28th, 29th and 30th. The jury began deliberations immediately after lunch on
We find manifest necessity in each instance for declaring a mistrial.
However, the question presented here is whether a third trial, after two mistrials caused by jury disagreement, constitutes double jeopardy. See United States v. Berniker, 439 F2d 686 (9th CCA 1971).
In Preston v. Blackledge, 332 FSupp. 681 (E. D. N. C. 1971), the court held that a fifth trial, when juries in the four previous trials were unable to reach verdicts, constituted double jeopardy. In doing so, the court distinguished United States v. Persico, 425 F2d 1375 (2d Cir. 1970).
In Persico, supra, the co-defendant Hugh McIntosh was tried five times. The first trial ended in jury disagreement; the second trial resulted in convictions which were reversed on appeal; the third trial aborted as to Persico when he was shot during the triаl but continued as to McIntosh and the jury disagreed; the fourth trial resulted in convictions which were reversed on appeal; the fifth trial resulted in convictions which were affirmed on appeal. As can be seen, McIntosh was convicted following two trials which ended in jury disаgreement. The claim that the indictment should have been dismissed because of repeated retrials was rejected. See 425 F2d p. 1385.
In United States v. Castellanos, supra, the district court held that where two previous trials resulted in deadlocked juries, a third trial was barred on the basis of double jeopardy. Thе Court of Appeals for the Second Circuit reversed (478 F2d 749), pointing to defendant McIntosh in the Persico case, supra, and questioning Preston v. Blackledge, supra.
In Hyde v. State, 196 Ga. 475 (26 SE2d 744) (1943), this court reached the same result. There the jury found the defendant guilty after two prior trials had ended in mistrials because of hung juries. This court held that the trial judge did not abuse his discretion in declaring the mistrials and that the plea of former jeopardy was properly overruled.
The court below did not err in overruling the plea of former jeopardy.
3. The defendant moved for a directed verdict on the ground that the prosecutor had failed to prove with specificity the аllegations of the indictment as to the amount of money taken.
The indictment charged the defendant with taking $84 in United States currency. The victim testified that “between $80 and $100” was taken. As to fatal variance generally, see Dobbs v. State, 235 Ga. 800 (3) (221 SE2d 576) (1976). As to variance between the amount of monеy alleged in the indictment and the amount shown by the evidence, see Bell v. State, 227 Ga. 800 (1) (183 SE2d 357) (1971); Colton v. State, 231 Ga. 502 (202 SE2d 444) (1973). We find no error here.
Judgment affirmed. All the Justices concur, except Ingram, J., who concurs in the judgment only and Gunter, J., who dissents.
SUBMITTED FEBRUARY 16, 1976 — DECIDED JUNE 8, 1976.
Glaze, Glaze & McNally, Kirby A. Glaze, for appellant.
William H. Ison, District Attorney, J. W. Bradley, Assistant District Attorney, Arthur K. Bolton, Attorney General, Kirby G. Atkinson, Staff Assistant Attorney General, for appellee.
GUNTER, Justice, dissenting.
Appellant was convicted at his third trial for having committed the crime of armed robbery. His first two trials resulted in mistrials, declared over his objection, for the failure of the two juries that tried the two cases to reach a verdict of guilty or not guilty. The record shows that the first jury stood 11 to 1 for conviction, and the second jury stood 7 to 5 for acquittal. The third jury convicted, and the trial judge imposed a sentence of eight years. This appeal is from the conviction and sentence.
The appellant has raised two constitutional issues that, in my view, are meritorious and require reversal. The first issue relates to the time of the conduct of his third
The Time of Trial Issue
If a proper demand for trial in a non-capital criminal case is filed at the first term of court, the accused must be tried at that term or the second term of court, and if he is not tried by the state at either of those two terms, “he shall be absolutely discharged and acquitted of the offense charged in the indictment.”
If a proper demand for trial is filed in a capital case, the state must try the defendant at the first, second, or third term of court, and if not so tried, “then he shall be absolutely discharged and acquitted of the offense charged in the indictment.”
In this case the appellant‘s first two trials took place during the latter days of the second term of court. His third trial took place during the third term of court, and it therefore becomes very material as to whether he was charged with a capital or non-capital crime.
The penalty for armed robbery in Georgia is death, imрrisonment for life, or imprisonment for not less than one nor more than twenty years.
Assuming that Georgia‘s death penalty statutes are constitutional, which I do not, the appellant contends that the state not only waived the death penalty in all three trials, but even went further and conceded in open court at all three trials that “this case does not fit in the death penalty category under the new death penalty statute.” Having made this concession at the first trial, whether it be deemed waiver or statement of fact and law, thе state could not, under double jeopardy principles, successfully call for and impose the death penalty in any subsequent trial of the accused after the first trial. Green v. United States, 355 U. S. 184 (1957); Price v. Georgia, 398 U. S. 323 (1969). Therefore, the state, after waiving the death penalty or conceding that it was not applicable in the first trial, knew that the death penalty could not be imposed in
The appellant‘s motion to dismiss the indictment at the beginning of the third term should have been granted; and the denial of the motion, the motion being based upon a statute that accorded all accused persons a procedural right, was an arbitrary denial of procedural due process of law.
The Double Jeopardy Issue
My position on double jeopardy following mistrials in hung-jury criminal cases, where the defendant does not consent to the mistrial, has been made quite clear. See my dissenting opinions in Cameron v. Caldwell, 232 Ga. 611 (208 SE2d 441) (1974), and Wood v. State, 234 Ga. 758 (218 SE2d 47) (1975).
I continue of the view that “to hold that a hung jury in a criminal trial is the equivalent of ‘manifest necessity’ for the declaration of a mistrial that would permit the retrial оf an accused is to make the double jeopardy provision in the Fifth Amendment and the due process provision in the Fourteenth Amendment, in combination, meaningless.” Wood v. State, supra, p. 765.
The appellant was tried for the same offense by two separate juries in July of 1975. Both juries were unable to reach a verdict, the first by a vote of 11 to 1 for conviction and the second by a vote of 7 to 5 for acquittal. The third trial for the same offense was conducted in September of 1975, and the third jury convicted.
Two witnesses testified for the state at the third trial, the victim of the robbery and a detective who testified as to his investigation and arrest of the appellant. The appellant testified in his own behalf, contended that he did not commit the robbery, that he was not at the scene of
This cаse is, to me, a blatant violation of the constitutional principles of double jeopardy and due process of law.
I think the second and third trials of the appellant were unconstitutionally conducted, I think the appellant is now serving a sentence that was unconstitutionally imposed, and I would reverse the conviction achieved by the state at the third trial.
I respectfully dissent.