Opinion
No. 74-251 (Supreme Ct. No. 26257)
Decided October 8, 1974. Rehearing denied November 12, 1974.
After beginning of jury trial in county court relative to charges of violation of city ordinances, mistrial was entered, and district court subsequently entered judgment prohibiting, on double jeopardy grounds, a retrial of defendant. City appealed the judgment of prohibition.
Reversed
1. CRIMINAL LAW — Former Jeopardy — Waiver — Request for Mistrial — No Objections — No Withdrawal — Before Jury Discharged. A plea of former jeopardy is expressly waived by defendant's request for a mistrial, or impliedly waived where there is an opportunity to object before the jury is discharged, and is also waived after a previous request for a mistrial where no objections are forthcoming or withdrawal of that request is made.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Judge.
Theodore M. Smith, for plaintiff-appellee.
Max P. Zall, City Attorney, Wright J. Morgan, Assistant City Attorney, for defendant-appellant.
This case was transferred from the Supreme Court pursuant to statute.
On May 29, 1973, defendant (appellee herein), Cynthia Worrell, pleaded not guilty to charges of violating the relevant city ordinances prohibiting interference with a police officer, and giving false information to a police officer. On July 23, a jury trial was begun. On the first day of trial, after testimony had commenced, a mistrial was requested and, after some discussion in chambers between counsel and the trial judge, a mistrial was declared. A new trial was scheduled for September 4, 1973.
On August 30, 1973, appellee filed a petition in district court pursuant to C.R.C.P. 106(a)(4) seeking an absolute prohibition against further proceedings against her in the county court. The city denied all of the material allegations of appellee's complaints. Additionally, the city claimed that the appellee had asked for a mistrial and, therefore, was estopped to claim harm by a retrial. The city supported its position with a partial transcript of the proceedings held in the chambers of the county judge.
The district court in granting prohibition concluded as a matter of law that appellee must prevail because of the prohibition against double jeopardy. The transcribed proceedings demonstrate that appellee impliedly waived her right to plead former jeopardy, and, therefore, we reverse the judgment of the district court.
Appellee in her complaint alleged that the trial judge declared a mistrial on its own motion because (a) appellee's counsel was not competent to try the case, and (b) appellee was not prepared for trial because her counsel did not have all defense witnesses present and prepared for trial. She makes the same contention here. In her brief, appellee states that on three occasions she had moved for a mistrial but that the judge had denied these motions.
It is true that there was a continuing colloquy in chambers involving the trial judge, defense counsel, and prosecution counsel regarding the judge's doubts whether grounds for a mistrial appeared, but the court did state that it would grant a mistrial if the parties consented. The prosecution requested a mistrial, and appellee's counsel voiced no objection when he was asked if he wanted one. The judge stated defense counsel was inadequately prepared to try the case; that defense counsel demonstrated an inadequate knowledge of criminal law and evidence; and that, therefore, a mistrial should be granted.
The court reconvened in the courtroom and announced to the jury that " at the request of both parties in this case, I have declared a mistrial . . . ." (emphasis added) Defense counsel did not at that time make any objection, and after the conclusion of the court's statement discharging the jury, defense counsel specifically requested that the court's order for subpoenas be continued.
[1] A plea of former jeopardy is expressly waived by a defendant's request for a mistrial, or impliedly waived where there is an opportunity to object before the jury is discharged. Mahany v. People, 31 Colo. 365, 73 P. 26. It is also waived after a previous request for a mistrial where no objection is forthcoming or withdrawal of the request is made. See Maes v. District Court, 180 Colo. 169, 503 P.2d 621. cf. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774.
A fair reading of the entire exchange between court and counsel immediately preceding the declaration of mistrial makes clear to us that the appellee was, in effect, if not requesting a mistrial, at least acquiescing in one being granted. Further, immediately following the declaration of a mistrial, defense counsel requested the court to continue subpoenas to what would become the next trial date.
Our decision does no violence to the rule enunciated in Espinoza v. District Court, 180 Colo. 391, 506 P.2d 131. In that case, double jeopardy was successfully asserted after the trial court sua sponte declared a mistrial for what it considered to be "improper conduct of defense counsel in that he carried the examination of one of the witnesses beyond the limit which the court had set." The Supreme Court ruled that minor misconduct of this nature was not legal justification for a mistrial under the doctrine of "manifest necessity." In Espinoza, no motion for a mistrial had ever been made by defense counsel, and indeed, the prosecuting attorney had requested the court to allow the case to go to the jury. In Maes, supra, the court, although holding that petitioner in that case was placed in jeopardy as a result of the judge's action in declaring a mistrial, did state that "Had the court acted upon the initial position taken by the defense counsel [consenting to the mistrial] and discharged the jury, a different result would have obtained." The ruling that petitioner was entitled to claim former jeopardy was based upon the fact that petitioner's counsel had restated his position and objected to the premature termination of the trial before the jury had been discharged.
The judgment of the district court is reversed and the cause is remanded to the district court with directions to remand the case to the county court for further proceedings not inconsistent herewith.
JUDGE PIERCE and JUDGE STERNBERG concur.