State v. BishopState v. Bishop
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- Farris
Mr. Bishop appeals from a conviction on retrial of the crime of second-degree assault. In the original
At the first trial, defense counsel advised the court that a deputy prosecuting attorney committed an act which may have been an attempt to threaten or intimidate William Gregory, a proposed defеnse witness, by suggesting to Mr. Gregory the possibility of his prosecution for assault if he testified. After conducting its own examination of the matter, the trial court was satisfied that the witness had not been threatened or intimidated with prosecution and advised the defense counsel of certain guidelines to be observed in the questioning of the witness. After the state had completed its case and rested, and the defense had called six witnesses, Mr. Gregory was tеstifying when the events that prompted the declaring of a mistrial occurred. The defense counsel questioned Mr. Gregory as to whether he had been charged with assault and whether he had been “warned by the state” that hе might be charged if he testified at the trial. The state’s objection to this second question was sustained and the jury was instructed to disregard it. Immediately, defendant Bishop interjected with “disregard the truth?” The trial court called for a recess, indicated his thinking about declaring a mistrial, and afforded both parties opportunity to research the question and offer their view. Subsequently, after hearing from counsel, the court indicated to the state that it сould move for a mistrial. The state declined, whereupon the court declared a mistrial on its own motion over the objections of the defendant. Appellant thereafter filed a written motion for dismissal of the action. He argued that he had a right to be tried by the jury selected and sworn to try the case and that to do otherwise amounted to double jeopardy. The motion was denied and the cause was reassigned for trial оn the same day. A second jury was impaneled and appellant again made the motion for dismissal, both prior to the introduction of evidence and after the state had rested its case. He was subsequently found guilty as сharged.
The appeal raises the question of whether Mr. Bishop
The court in Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969), held that the Fifth Amendment’s double jeopardy provision applies to the states through the Fourteenth Amendment due process clause. In discussing the origins of this guarantee, the Benton opinion quotes from Green v. United States, 355 U.S. 184, 187, 2 L. Ed. 2d 199, 78 S. Ct. 221, 6 A.L.R.2d 1119 (1957):
<£[t]he underlying idea, one that is dеeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an allegеd offense, 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.”
Benton, 395 U.S. at 795.
The rationale of the court, first announced in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824), is pertinent in deciding the question before us:
[I]n all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for thе act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; . . .
Perez, 22 U.S. (9 Wheat.) at 580.
In
Gori v. United
States, 367 U.S. 364, 6 L. Ed. 2d 901, 81 S. Ct. 1523 (1961), the trial judge, acting according to his convictions in protecting the rights of the aсcused, declared
Mr. Bishop’s additional argument that the mistrial was improper because it was declared to “benefit” the state is not sound. The jury mаy be discharged and the defendant retried over his objection whenever, taking all of the circumstances into consideration, there is a manifest necessity to do so or the ends of public justice would otherwise be defeated. The Supreme Court in Gori discussed the application of the Perez principle: 1
Since 1824 it has been settled law in this Court that “The double-jeopardy provision of the Fifth Amendment . . . does not mean that every time a defendant is рut to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.” Wade v. Hunter, 336 U. S. 684, 688. United States v. Perez, 9 Wheat. 579; Thompson v. United States, 155 U. S. 271; Keerl v. Montana, 213 U. S. 135, 137-138; see Ex parte Lange, 18 Wall. 163, 173-174; Green v. United States, 355 U. S. 184, 188. .Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such .a decision, the еnds of substantial justice cannot beattained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U. S. 148; Logan v. United States, 144 U. S. 263; Dreyer v. Illinois, 187 U. S. 71, 85-86. It is also cleаr that “This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served . . . ,” Brock v. North Carolina, 344 U. S. 424, 427, and that we have consistently declined tо scrutinize with sharp surveillance the exercise of that discretion. See Lovato v. New Mexico, 242 U. S. 199; cf. Wade v. Hunter, supra.
(Footnote omitted.) Gori, 367 U.S. at 367.
Even when the motion to dismiss has been granted, see Downum v. United States, 372 U.S. 734, 10 L. Ed. 2d 100, 83 S. Ct. 1033 (1963); United States v. Jorn, 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971); and State v. Connors, 59 Wn.2d 879, 371 P.2d 541 (1962); the question is always the same: Is there the presence of extraordinary and striking circumstances which clearly indicate to a court in thе reasonable exercise of its discretion that the ends of substantial justice cannot be obtained without discontinuing the trial. Any type of mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent “would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” Jorn, 400 U.S. at 480.
[A] defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.
Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 69 S. Ct. 834 (1949). We find that the trial court, in the exercise оf its discretion, properly aborted the initial proceeding. In so holding, we are not retreating from the requirement of calm deliberation and studied use of discretion by the trial court in declaring a mistrial.
[Unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process. Yet we cannot evolve rulеs based on the source of the particular problem giving rise to a question whether a mistrial should or should not be declared, because, even in circumstances where the problem reflects error on the рart of one counsel or the other, the trial judge must still take care to assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.
. . . [I]n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society thrоugh the verdict of a tribunal he might believe to be favorably disposed to his fate.
Jorn, 400 U.S. at 485.
In the subsequent trial, Mr. Bishop requested the following instruction:
It is lawful for a private citizen to use deadly force in attempting to apprehend a fleeing felon (one who has committed a felony) in any situation where it would be lawful for a peace officer to do so.
Defendant’s proposed instruction 4. He argued that he fired at the car in which the prosecuting witness was driving because the man who had assaulted him was escaping from the assault in that car. His theory, based upon
Error is also assigned to the failure of the trial court to instruct the jury on the lesser included offense of Willfully discharging a firearm. The trial court properly rejected the proposed instruction. The crimes of which а person can be convicted, and those on which a jury is to be properly instructed, are strictly limited to those crimes charged by the information.
State v. Thompson,
68 Wn.2d 536, 413 P.2d 951 (1966);
State v. Galen,
5 Wn. App. 353, 487 P.2d 273 (1971). A person can be convicted of an offense not charged in the information only if that offense is necessarily included in the crime charged. See
Affirmed.
Horowitz, C.J., and Utter, J., concur.
Petition for rehearing denied January 10, 1972.
Review denied by Supreme Court March 21, 1972.
Notes
See also Note, Double Jeopardy: The Reprosecution Problem, 77 Harv. L. Rev. 1272 (1964).
“The use, attempt, or offer to use force upon or toward the person of another shall not be unlawful in the following cases:
“(2) Whenever nеcessarily used by a person‘arresting one who has committed a felony and delivering him to a public officer, competent to receive him into custody;”
“In all other cases the defendant may he found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information.”