Opinion
No. 21475.
Decided December 14, 1964. Rehearing denied January 11, 1965.
Original proceeding in prohibition directed to district court and the judge thereof. Rule to show cause issued.
Rule Discharged.
1. CRIMINAL LAW — Jeopardy — Court Without Jury — Point of Time. It is well settled that jeopardy attaches in the prosecution of a criminal case which is tried to the court without a jury at the point where presentation of proof begins.
2. Jeopardy — Point of Time — Court Without Jury. In a case submitted to the court without a jury, jeopardy begins after accused has been indicted, arraigned, and has pleaded, and the court has begun to hear the evidence.
3. Jeopardy — Point of Time — Court Without Jury — Facts. Where trial had commenced, and district attorney and counsel for accused had made their respective opening statements as to facts which they expected to prove, and first witness for the people had been sworn and answered all question put to him until he collapsed, held, defendant was then in jeopardy.
4. TRIAL — Mistrial — Legal Justification. The granting of a mistrial would not be legally justified because of some whimsical notion or frivolous impulse, but there must be a reasonable objective sought and a substantial purpose attained; yet, while the cause must be substantial and real, it need not be vital.
5. Mistrial — Judicial Discretion — Legal Justification. When it appears to the trial judge that an irregularity prevails which may retard or influence to some degree, the administration of honest, fair, even-handed justice to a party to the proceeding, and in the exercise of his sincere judgment he declares a mistrial, it must be said that he has fairly exercised his judicial discretion and that his action is legally justified.
6. Mistrial — Abuse of Discretion — Reasonable Objective Sought — Substantial Purpose Attained — Substantial and Real. Where during trial to court of defendant for assault with intent to kill, chief prosecution witness, after giving certain testimony, collapsed and died in the courtroom causing defendant and other persons in the courtroom to become hysterical and leading up to the situation where the court granted a mistrial, held, in granting the mistrial there was no abuse of discretion, as under all the circumstances there was a "reasonable objective sought" and a "substantial purpose attained" and the cause for the order was in fact "substantial and real."
Original Proceeding.
WALTER F. SCHERER, for respondents.
THIS is an original proceeding in prohibition in which this court issued a rule, directed to respondent district court and the judge thereof, to show cause why the relief sought should not be granted.
The admitted facts giving rise to this proceeding are as follows:
The petitioner, Romie Lee McCoy, was named defendant in an information filed in the respondent court in which it was alleged that she committed an assault upon one Ellison Dave McCoy with intent to murder him. She entered a plea of not guilty and filed her written waiver of trial by jury. Pursuant to a prior setting, the case came on for trial on June 2, 1964. The district attorney and counsel for the defendant made their opening statements, and Ellison Dave McCoy was called as a witness; was duly sworn; and was examined by the district attorney. After giving certain testimony, the witness collapsed and died in the courtroom. A recess was taken after which the court re-convened. The following proceedings then took place:
"THE COURT: In this matter, case number 52245, I believe the record should show very abruptly this matter was halted or terminated as of this morning at or about ten a.m., when the complaining witness, one Ellison Dave McCoy, was stricken with some disability — apparently a heart attack — while testifying, and died shortly thereafter in this courtroom, which of course, has terminated the proceeding insofar as this particular case is concerned at this time.
"Does either side have any requests to make of this Court at this time?
"MR. TITCOMBE: If your Honor please, at this time I would move for a mis-trial because of events this Court has related, and the fact that the defendant in this action, who was married to the complaining witness who died in this courtroom, was shaken and upset and left the courtroom, and other witnesses were so visibly shaken and upset, I believe it would be impossible to proceed at this time, and respectfully request a mistrial.
"MR. GINSBERG: We object to a mis-trial. this defendant has been living under the pressure of this case for a long time now. Her life has been most unbearable. The State's witness died — their principal witness. That doesn't alter the facts in this case. If we submitted this matter to a jury certainly there would have been jeopardy, and there is jeopardy in this matter now.
* * *
"THE COURT: Did you have anything further, Mr. District Attorney?
"MR. TITCOMBE: Nothing, your Honor.
"THE COURT: I believe this Court can agree with certain things stated by counsel on both sides and also to enumerate the statements made by Mr. Ginsberg of the situation in which this defendant finds herself. But in view of the facts and circumstances that arose this morning, through fault of no one, this Court doesn't wish, certainly, to prolong the agony of any defendant, but despite that fact, I am going to grant the motion for a mistrial at this time, and suggest to counsel for the defense that the question of jeopardy and those matters can be taken up at a later time, and ask the District Attorney to do what he can to expedite the matter, and preferably it be done as expeditiously as possible.
"The motion for mis-trial will be granted and your exceptions will be noted, Mr. Ginsberg."
On June 29, 1964, defendant moved the district court for dismissal of the information on the ground that she had been placed in jeopardy in connection with said alleged offense and could not again be placed on trial. The respondent court heard the motion, overruled it, and ordered that the case be tried on October 26, 1964. On September 30, 1964, the petition in prohibition was filed in this court and attached thereto was a certified copy of the full record as made in the district court.
The ultimate question for determination by this court is whether the scheduled trial of Romie Lee McCoy, under the foregoing circumstances, would deny her the protection guaranteed by Article II, section 18, of the Colorado Constitution which provides in pertinent part: "* * * nor shall any person be twice put in jeopardy for the same offense. * * *"
It is well settled that jeopardy attaches in the prosecution of a criminal case which is tried to the court without a jury "at the point where presentation of proof begins. State v. Blackwell, 65 Nev. 405, 198 P.2d 280, cert. denied, 366 U.S. 939.
In Markiewicz v. Black, 138 Colo. 128, 330 P.2d 539, this court approved the rule governing "the point of time when, or the state of the prosecution at which, jeopardy attached." That rule is stated in 22 C.J.S. 375, and includes in pertinent part the following statement:
"* * * In a case submitted to the court without a jury, jeopardy begins after accused has been indicted, arraigned, and has pleaded, and the court has begun to hear the evidence, * * *."
We know of no decision from any jurisdiction which is out of agreement with this rule. Those cases which support it are so numerous and well accepted as to require no further documentation.
In the instant case the trial had commenced; the district attorney and counsel for the accused had made their respective opening statements as to the facts which they expected to prove; and the first witness for the people had been sworn and answered all questions put to him, until he collapsed. Clearly, the defendant was in jeopardy.
[4, 5] The remaining question then is — whether there was legal justification to declare a mistrial which in turn prevents the defendant from sustaining her plea of former jeopardy. In Brown v. People, 132 Colo. 561, 291 P.2d 680, a mistrial was ordered in the trial court. In habeas corpus proceedings before this court, the question for determination was stated as follows: "Was the order of mistrial legally justified?" This court answered the question in the affirmative. The opinion contains the following pertinent language:
"* * * Consider for a moment the term 'legal justification.' What is it? To be legally justified there must be a reasonable objective sought and a substantial purpose attained. The granting of a mistrial would not be legally justified because of some whimsical notion or frivolous impulse, such as, for instance, that some member of the jury died [sic] his hair or wore an artificial limb. While the cause for the order must be substantial and real, it need not be vital. It need only be such as could affect, or might in some way or manner be considered as interfering with, retarding, or influencing, to even a slight degree, the administration of honest, fair, even-handed justice to either, both, or any, of the parties to the proceeding. When it appears to the chancellor that such an irregularity prevails and when in the exercise of his sincere judgment he declares a mistrial, it must be said that he has fairly exercised his judicial discretion and that his action is properly and legally justified. In short, when any irregularity worthy of notice and capable of correction appears, a declaration of mistrial is legally justified. Such situations manifest themselves in many and devious ways impossible to enumerate. 53 American Jurisprudence, section 971, page 682."
In this connection we direct attention to the statement of the respondent judge at the time the motion to dismiss was denied:
"THE COURT: Let the record show in the above-entitled matter that counsel for the defendant has submitted to this Court a very exhaustive and learned Brief urging the rights of the defendant at this time to dismiss the Information on the grounds of double jeopardy. I believe the record does show at the time the unfortunate situation occurred and the chief prosecution witness died on the witness stand here, that there was a great deal of confusion, resulting in near hysteria on the part of the defendant, and this court was also shaken by what happened here.
"At the time the Court did grant a motion for mistrial, and counsel for the defendant has very ably argued that that, in substance, was error on the part of the Court and that the motion for a dismissal on the grounds of double jeopardy should now be entered.
"In view of the fact that there was great hysteria by the defendant and other people in this courtroom, and all the events leading up to the situation where the Court granted a mis-trial, the Court does not feel that it was in error. The defendant was so shaken that it was necessary for her to leave the building, and the Court was informed, proceeded to her home to regain her composure. The Court does not feel that jeopardy set in, and in view of the above and foregoing, the motion, Mr. Ginsberg, is denied and your exceptions will be noted."
Within the ambit of the language of this court above quoted from Brown v. People, supra, we hold that in granting the mistrial there was no abuse of discretion; that under all the circumstances there was a "reasonable objective sought" and "a substantial purpose attained," and that the cause for the order was in fact "substantial and real."
There being no abuse of discretion on the part of the respondents operating to the prejudice of the petitioner, the rule is discharged.
MR. JUSTICE FRANTZ dissents.