BEFORE ROY NOBLE LEE, ROBERTSON AND SULLIVAN
SULLIVAN, JUSTICE, FOR THE COURT:
CHARLES WATTS was convicted in the Circuit Court of the Second Judicial District of Harrison County, of the murder of Thomas McDonnell and sentenced as an habitual offender to life imprisonment by the Honorable James E. Thomas, Circuit Court Judge.
DID THE SECOND TRIAL VIOLATE APPELLANT'S CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY?
Watts was indicted in February, 1983, for the November 22, 1982, murder of Thomas McDonnell. His first trial was had on October 3, 4, and 5 of 1983, and it ended in a mistrial. On the third day of the first trial, a Wednesday, during the case for the prosecution, Watts moved for a mistrial, alleging that on the previous day articles had appeared in two local newspapers that mentioned that Watts was being tried as an habitual offender and that the victim was allegedly shot for failing to pay Watts for guns. Watts alleged that this information was given to the press by Bruce Dunnagan of the Biloxi Police Department. The trial judge in the first trial noted that, if true, that was a violation of Rule 4.01 (1), Uniform Criminal Rules of Circuit Court Practice, dealing with pretrial publicity.
After reading the articles, the trial judge stated that it was not necessarily clear that Dunnagan had revealed the information. Officer Dunnagan testified and admitted that he had talked by phone to a reporter on Monday or Tuesday morning of the same week. The reporter had called about the Watts case. Dunnagan testified that all he told her was what was already known: the victim's and the defendant's names, where the shooting took place and that it was a shotgun shooting. Dunnagan testified that when the reporter requested information about the status of Watts as an habitual offender he referred her to the district attorney's office. He did, however, explain the habitual offender statute to her. Dunnagan admitted that he told the reporter that Watts "allegedly shot the victim for failing to pay for guns." The trial court overruled the motion at that time.
At the conclusion of the prosecutor's case, Watts made a motion for a directed verdict, which was overruled. Watts then requested to be allowed to re-argue the motion for mistrial. His motion for mistrial based on the breach of Rule 4.01 was overruled, but the trial court then polled the jury on the question of their having read the article.
Five of the jurors admitted reading the newspaper the night before. Watts moved to strike four of those jurors who at the least admitted that they glanced at the headline of the article involved. Counting the two alternates, this only left ten jurors. Watts again requested that a mistrial be granted and the trial court granted the mistrial.
On October 5, 1983, the trial court entered an order granting the mistrial because four jurors had not followed the court's instruction to avoid media coverage of the trial, and as such raised a question as to the purity of the jury verdict because the newspaper articles asserted that the appellant had prior convictions. The trial judge had also stated from the bench that the proof showed that the police officer had violated 4.01 (1) concerning not disclosing a person's prior record to the media.
Prior to the second trial, which started on December 12, 1983, Watts filed a motion to dismiss, alleging that it was Officer Dunnagan who had disseminated the information to the newspaper as it pertained to his prior criminal record and that such was in violation of Rule 4.01 (1). He contended that the violation necessitated the mistrial and, because of that, to retry Watts would constitute double jeopardy.
At the hearing on this motion, a different trial judge presided. Argument was had, and the trial judge himself called the reporter responsible for the story to the stand.
The reporter was familiar with the habitual offender statute and her testimony was that she first learned of the fact that Watts was being tried as an habitual offender when she asked the district attorney's office and they checked their files and found that he was an habitual offender. She had also seen the indictment in the circuit clerk's office. Her recollection was that in her conversation with Dunnagan she asked him if Watts was an habitual offender and he referred her to the district attorney's office. At this time she already knew about the habitual offender statute, even if Dunnagan did explain
At the conclusion of the hearing, the trial judge stated that the first judge had granted the mistrial because of the jurors' failing to follow his instructions to avoid media coverage of the trial. The trial judge found that neither the state nor its representatives committed any deliberate misconduct or tried to get before the jury any facts.
The double jeopardy prohibition does not mean that every time a trial aborts or does not end with a final judgment the defendant must be set free. Schawarzauer v. Miss., 339 So.2d 980, 982 (Miss. 1976).
However, if a mistrial is granted upon the court's own motion, or upon the state's motion, a second trial is barred because of double jeopardy unless there was a manifest necessityfor the mistrial, taking into consideration all the circumstances. Jones v. State, 398 So.2d 1312 (Miss. 1981). Some examples of manifest necessity are: failure of a jury to agree on a verdict, Jones at 1315; biased jurors, Id.; an otherwise tainted jury, Id. at 1318; improper separation of jury, Schwarzauer, supra; when jurors otherwise "demonstrate their unwillingness to abide by the instructions of the court" , Schwarzauer, 339 at 982.
Even if the state does not move for a mistrial, the involvement of the state is relevant in determining whether a second trial is barred. See Carter v. State, 402 So.2d 817, 821-22 (Miss. 1981); Jones, supra.
In this case, Watts moved for the mistrial. In Carter v. State, supra, the Court, following Divans v. California, 434 U.S. 1303, 98 S. Ct. 1, 54 L.Ed.2d 14 (1977) (Rehnquist, Circuit Justice), held as follows:
In order to elevate an order granting a mistrial in a criminal case at the request of the defendant to one which could form the basis of a claim of double jeopardy, it must be shown not only that there was error, which is the common predicate to all such orders, but that such error was committed by the prosecution or by the court for the purpose of forcing the defendant to move for the mistrial. Justice Rehnquist, as Circuit Judge, Divans v. California, 434 U.S. 1303, 98 S. Ct. 1, 54 L.Ed.2d 14 (1977). ... .
Under the standard noted by Justice Rehnquist, in his denial of the application for stay in Divans v. California, supra, the mistrial in the present case, on motion of appellant, although not opposed by the State, does not appear to have been made or granted in bad faith or for an improper purpose by either the judge or the prosecutor, and therefore, appellant's plea of double jeopardy did not bar retrial of the defendant. Id. at 821 (citations omitted).
In Carter, the mistrial was granted to the defendant, with no objection from the state, because it was discovered that witnesses who had already testified were relating what had transpired to sequestered witnesses who had not testified. The defendant later attempted to withdraw the motion but the trial court denied this request.
The mistrial in this case was granted on the ground that the jurors failed to follow the trial judge's instruction to avoid media coverage of the trial. Though the police officer's action was found to be a contributing factor, it is not shown by this record, nor did the trial judge find, that the "[police officer's] . . . error was . . . calculated to force applicant to move for a mistrial." Divans v. California, 439 U.S. 1367, 99 S. Ct. 39, 58 L.Ed.2d 75 (1978). There was no showing of bad faith on the part of anybody connected with the state having to do with the release of information to the reporter.
This assignment of error is without merit.
DID THE COURT ERR IN ALLOWING INTO EVIDENCE STATEMENTS MADE BY THE VICTIM?
The evidence at trial was that McDonnel was shot in front of his trailer home by an assailant situated underneath the trailer. The appellant, who McDonnel and his wife knew as Charles McVey, had been to the trailer the day before when an argument ensued because of McDonnel's failure to produce the proceeds from guns the appellant had given him to sell. Just prior to the murder McDonnel's wife was coming home and saw the appellant walking on a road near the trailer. McDonnel made statements after
he was shot that Charles McVey had shot him. McDonnel's wife described his car to the police. The appellant was stopped in his car and arrested nearby. The gun used to shoot McDonnel was found near the trailer. A fingerprint found on the stock matched that on the appellant's left ring finger.
Prior to the first trial, Watts filed a motion in limine for an order instructing the district attorney to refrain absolutely from making any reference to statements made by the victim at the time of his death because the victim did not believe he was going to die, and he had hope of recovery. Watts further alleged that these statements were motivated by revenge and ill will based on prior association, that the jury would give undue importance to the statements and that the statements were not given under the requisite consciousness. Watts took the position that an ordinary objection would prejudice him and that an instruction by the court afterwards would not be sufficient to undo the prejudice.
At the hearing on the motion, Jessie Stevenson testified that he lived in his trailer behind the McDonnells. On the day of the killing, he heard three shots and looked out his trailer and could see McDonnell lying on the ground. He ran from the trailer toward the victim and he could see that the victim was bleeding badly. Stevenson returned to his trailer and got a belt to use as a tourniquet. Stevenson asked McDonnell, "Do you know who shot you?" McDonnell responded, "Charlie McVey" or "Charles McVey" . The victim also told Stevenson that the man had threatened him and his family the previous week.
Stevenson testified that McDonnell appeared to be going into shock. He also said that about three times before the paramedics got there the victim's eyes started to roll to the back of his head, and Stevenson had to shake him because he thought the victim was going then. The victim never became completely unconscious, although he appeared close to it several times. After the victim told ...