Criminal Practice – Double Jeopardy – Mistrial

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Jeopardy attached to both murder and voluntary manslaughter so the State cannot retry Petitioner for either offense.

We reversed the trial court.

Petitioner was indicted for murder and was tried one month later. The trial court instructed the jury on murder and, over Petitioner’s objection, the lesser-included offense of voluntary manslaughter. After deliberating, the jury advised it had reached a unanimous verdict. The trial court correctly read the verdict form as “not guilty” for murder and “guilty” for manslaughter. Defense counsel requested polling the jury. The first 10 jurors polled answered “yes” to the two polling questions: “is this your verdict,” with the follow-up “is it still your verdict?” The eleventh juror polled (hereinafter, Juror 16) answered “no” to the follow-up question of whether it was still her verdict. The trial court immediately sent the jurors back to the jury room—without ordering the jurors to continue deliberations —and asked the attorneys if they wanted him to give an Allen charge.

The trial judge did not instruct the jury to continue deliberations; instead, the trial court summoned only Juror 16 to the courtroom and said to her, “so you indicated that it was your verdict and then that it was not your verdict. Only one question is that is me allowing you a little bit more time to deliberate that it’d be futile.” Juror 16 answered, “Yes, sir. It was always not guilty, and I just wanted to get it over with because they were all in there screaming and yelling at me and I just—I’ll never change my—like, it’s not guilty. I’m sorry.” When the remainder of the jury was seated, and again without seeking input from the parties, the trial court declared a mistrial.

The State argued the murder verdict was not final because it was not “accepted” by the trial court. We disagreed. The court sua sponte declared a mistrial, not at Petitioner’s request, which prevented the jury from deliberating further. The “not guilty” verdict on murder was signed by the foreperson and read into the record without contest. The State declined polling, indicating the State accepted the finality of that verdict at that point. Petitioner’s request for polling was clearly limited to the verdict on voluntary manslaughter. He had no reason to request polling on murder, because the jury found him not guilty of that charge. Importantly, the jury did not continue deliberations after it returned the murder verdict. Had the trial court recognized that the jury had not reached a unanimous verdict and ordered the jury to continue deliberations, the jury would have been free to revisit its initially stated not guilty verdict on murder. Under the unique circumstances, set in motion by the trial court’s erroneous questioning of Juror 16, the murder verdict is final. Even if the murder verdict was not final, double jeopardy bars a retrial of the murder charge because the trial court improvidently granted a mistrial. A retrial of the lesser-included voluntary manslaughter charge is likewise barred.

Reversed.

The State v. John Joseph Erb (Lawyers’ Weekly No. 011-047-25, 8 pp.) (George C. James, J.) Appealed from Charleston County Circuit Court (Bentley J. Price, J.) Senior Assistant Public Defender Benjamin Andrew Mack, Circuit Public Defender Cameron Jane Blazer, and Assistant Public Defender Timothy Patrick Corbett, Jr., all of Charleston, all for Petitioner. Attorney General Alan McCrory Wilson, Chief Deputy Attorney General W. Jeffrey Young, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, Assistant Attorney General R. Brandon Larrabee, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent. South Carolina Supreme Court