Silence can be golden. It can be a powerful courtroom weapon. (ASA John Kastrenakis sitting silently in court for several minutes during closing argument in the Joyce Cohen murder trial. (Now Judge) Kastrenakis was showing to the jury the impact of how long the defendant waited to call the police after her husband was killed-by hit men she had arranged. Go to West Palm and ask Judge K about it. He will be happy to tell you the story.)
Which brings us to Merchant v. State, where one Dwayne Merchant was on trial for first degree murder. As his fate was in the hands of the jury, the bailiff brought to the court's attention that the alternate was the brother of one of the jurors deliberating.
The court had a bit of a meltdown. It confronted the two jurors and chastised them for not mentioning they were related when the court inquired at the beginning of voire dire if any jurors knew anyone else.
But what the court didn't do was: 1) Actually inquire of the jurors if they were related;
2) Ask the jurors if they had spoken about the case;
3) Ask the defendant if he consented to the mistrial.
As the scene unfolded, the defense attorney wisely remained silent. The court declared a mistrial. The defense then moved to dismiss the case for double jeopardy. Judge Tinkler-Mendez denied the motion. Au contraire said our 3rd DCA and Judge Emas: the motion should have been granted. The conviction was reversed and the case remanded with instructions that Mr. Merchant be discharged.
A Rumpole "Well done. Well done indeed." goes out to appellate ace Andy Kawel for the resounding victory.
Thereafter, the case was reset for trial. Merchant filed a motion to dismiss
the indictment, contending that he did not consent to the mistrial, that there was no
manifest necessity for the trial court’s sua sponte declaration of a mistrial, and that
retrial was therefore barred by double jeopardy.
In opposition, the State contended that by not affirmatively objecting to the
mistrial, and in absence of demonstrable bad faith by the State, Merchant had
essentially consented to the mistrial. The State did not agree with the defense’s
characterization that the court declared a mistrial sua sponte
As noted by the United States Supreme Court in United States v. Dinitz, 424
U.S. 600 (1976), and reaffirmed by the Florida Supreme Court in Thomason,
The distinction between mistrials declared by the court
sua sponte and mistrials granted at the defendant's
request or with his consent is wholly consistent with the
protections of the Double Jeopardy Clause. Even when
judicial or prosecutorial error prejudices a defendant's
prospects of securing an acquittal, he may nonetheless
desire “to go to the first jury and, perhaps, end the
dispute then and there with an acquittal.”
Thomason, 620 So. 2d at 1237 (quoting Dinitz, 424 U.S. at 608.)
Doubt about the appropriateness of a mistrial is resolved in favor of the
defendant, and the State “must demonstrate ‘manifest necessity’ for the mistrial, a
requirement that has been part of this country’s jurisprudence since 1824.”
Thomason, 620 So. 2d at 1237 (internal citations omitted). Manifest necessity
requires that there be a “manifestly urgent and absolute necessity” for declaring a mistrial. Id. at 1239 (quoting State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956)).
Moreover, manifest necessity requires that the trial court evaluate and discuss
available alternatives prior to declaring a mistrial where the defendant does not
consent to such an action. “Manifest necessity for declaring a mistrial without the
defendant’s concurrence may be demonstrated only if the trial court has considered
and rejected all possible alternatives.” Torres v. State, 808 So. 2d 234, 235 (Fla. 2d
DCA 2001). See also Thomason, 620 So. 2d at 1238 (observing that manifest
necessity requires “trial judges, at the very least, to evaluate and discuss available
alternatives before declaring a mistrial over the objection of the defendant.”)
And now we get to the power of silence. In the face of Judge Tinkler-Mendez declaring a mistrial, the defense remained silent.
The State contended below, and on appeal, that Merchant should be deemed
to have “consented” to the mistrial because neither he nor his counsel voiced an
objection, thus waiving his right to later assert a double jeopardy bar to retrial.
However, this position is without merit, as the law on this point is well-established:
a defendant’s mere failure to object to a declaration of mistrial is not tantamount to
consent. See State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956) (noting that “silence
of the defendant on trial for a crime or his failure to object” does not constitute
consent to the trial court’s declaration of a mistrial);
Thus, absent the defendant’s consent to the declaration of a mistrial, retrial is
barred by double jeopardy unless the State meets its “heavy burden to show that
the mistrial was justified by manifest necessity.” Spaziano, 429 So. 2d at 1346.
The record in the instant case reveals no manifest necessity for declaring a mistrial
and further reveals that the trial court failed to evaluate, discuss or consider
available alternatives before declaring a mistrial and discharging the jury.
The trial court’s decision to declare a mistrial, without the consent of the
defendant, appears to have resulted from a series of assumptions and inferences,
rather than from competent record evidence. Even if we were to accept the
assumption that Kira and Kevin are brother and sister, this surely did not—without
more—necessitate a mistrial. There is nothing in the record to indicate that Kira
and Kevin heard the trial court’s request, made to the entire venire at the
commencement of the jury selection process, for jurors to notify the court if any
prospective jurors knew each other. Similarly, there is no evidence in the record
that Kira and Kevin discussed the testimony or evidence with each other, or
otherwise violated the trial court’s daily admonitions to the jury.
Thus, the only information the trial court had before it was a statement from
the bailiff that Kira and Kevin were siblings and that Kevin (having been
discharged as an alternate juror) was waiting outside the courtroom to drive Kira
home. This alone was hardly sufficient to warrant a mistrial. However, the court
did not question the bailiff in open court or permit the attorneys to do so. The
court did not bring Kevin Criado into the courtroom to question him or permit the
attorneys to do so. The court did not bring Kira Criado into the courtroom to
question her or permit the attorneys to do so. The court acknowledged the option
of conducting an inquiry, but failed to engage in one.
The court did not ask the defense for its suggestions or inquire
whether the defendant agreed to a mistrial. The court did not solicit or receive any
input from the State or defense regarding any possible alternatives to a mistrial.
Instead, the court simply declared a mistrial, concluding it had “no option.”
The court’s conclusions were based almost entirely on assumption, inference
and speculation. Nowhere are these conclusions confirmed on the record,
particularly the central assumptions that Kira and Kevin are siblings and that they discussed the evidence or testimony during the course of the trial. The trial court
erred in failing to conduct any inquiry and, by relying instead on assumption,
inference and speculation, abused its discretion in concluding that a mistrial was
justified by manifest necessity.
At some point enough should be enough. The trial court was chastised repeatedly throughout this opinion. But even in the conclusion, Judge Emas hammers it home:
The trial court’s failure to make an inquiry, develop a proper record, and
consider alternatives before declaring a mistrial forecloses a conclusion that a
mistrial was even warranted, let alone one supported by manifest necessity. Given
that the mistrial was declared without the defendant’s consent, and in the absence
of manifest necessity, double jeopardy precluded a retrial.7
We are therefore compelled to vacate the judgment and sentence on Count One of the Indictment,
and remand with instructions to enter an order discharging Defendant as to Count
All because the defense attorney kept his mouth shut when the court declared a mistrial. Well done.
It's Masters Weekend, which means we will be at our favourite watering hole watching the action at Augusta.
See you in court.
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