MILLER, Justice:
A mistrial was granted during the trial of the petitioner, James Keller, after the prosecutor claimed the petitioner's attorney asked improper questions of a State’s witness on cross-examination. Mr. Keller now seeks a writ of prohibition to prevent his retrial upon two grounds: (1) that he was deprived of his right to a speedy trial in violation of W.Va.Code, 62-3-1, and (2) that his retrial is barred by former jeopardy because there was no “manifest necessity” to terminate his initial trial. We hold that the petitioner waived his statutory right to a speedy trial by failing to make a timely motion asserting his right to a trial within one term. However, we also hold that the record does not support a finding of manifest necessity and accordingly award the writ.
I.
James Keller was indicted for the crime of extortion during the September term of the Cabell County grand jury.
An attorney was promptly appointed to represent him and his trial was scheduled for November 14, 1985. Over the ensuing twelve months, the trial was continued on eight occasions. On November 14, 1985, a continuance was granted because, as the record discloses, “[sjomebody needed the case reset,” though the moving party is not identified. On December 19, 1985, the court granted a motion for continuance on behalf of the State, but no specific grounds were cited. During the months of February and March, 1986, the court twice rescheduled the trial date on its own motion.
On July 23, 1986, a jury was impaneled, but not sworn. On the next day, before any witnesses had been produced, the State advised the court that Betty Lou Anderson, the alleged victim, could not be located. To enable the State to locate its key witness, the court adjourned until July 28, 1986, at which time it was informed that the State’s attempts to do so had been unsuccessful. On motion of the State, the trial was then reset for August 25, 1986.
Two additional continuances were granted in September due to the unavailability of the judge and the illness of Mr. Keller’s attorney.
Finally, on November 17, 1986, Mr. Keller’s trial began. The State called Ms. Anderson as its first witness. On cross-examination, Mr. Keller’s attorney sought to impeach the witness’s credibility by asking: “I’m told you entered a plea of guilty to welfare fraud in Lawrence County, Ohio.” Prior to an answer by the witness, the prosecutor objected and at a bench conference, it was revealed the witness had
not been formally charged with any offense though she had received welfare money for which she was not qualified and had voluntarily agreed to repay it to the appropriate authority.
Based on this information, the State moved for a mistrial on the ground that the question had presupposed some criminal wrongdoing, which, in fact, could not be shown, and that the question was improper. The court denied the motion and expressly held that no manifest necessity existed. He then recommended simply that the witness answer “no” to the question as it had been propounded to her.
Later during cross-examination of the same witness, Mr. Keller’s attorney attempted to renew a line of questioning he had developed earlier regarding her refusal to discuss the case with him prior to trial. The following exchange then occurred:
“Q I want to get back to the business— I don’t know how to characterize it — not wanting to talk or refusing to talk to me after being in the courthouse down in Judge O’Hanlon’s office. Do you remember?
“A Yes, the reason I didn’t want to talk to you was it was a very tragic time for me and I don’t want to recall the time. “Q Is that why you were here in Judge O’Hanlon’s office?
“A It was tragic time, the time I spent dealing with him on Saturday and Sunday; and that’s what you wanted to talk about.
“Q This was just a few months ago when your son-in-law was sentenced by Judge O’Hanlon. You and your daughter were there for the sentencing.”
Once again, the prosecutor objected and at a bench conference moved for a mistrial, objecting to the relevance of the question and its prejudicial effect. The court granted the State's motion.
II..
We address initially the argument by the petitioner that he was deprived of his right to a speedy trial under W.Va.Code, 62-3-1, commonly known as the one-term rule.
As we explained in
State ex rel. Workman v. Fury,
168 W.Va. 218, 283 S.E.2d 851 (1981), the one-term rule does not embody a right of constitutional dimension, but “provides a personal right to the defendant to be tried more expeditiously than the Constitution requires.” 168 W.Va. at 221, 283 S.E.2d at 853.
See also Pitsenbarger v. Nuzum,
172 W.Va. 27, 303 S.E.2d 255 (1983).
We recognized in Syllabus Point 7 of
Good v. Handlan,
176 W.Va. 145, 342 S.E.2d 111 (1986), that the one-term rule is not limited to the term of the indictment:
“W.Va.Code, 62-3-1, is not limited to the term of court at which an indictment is returned, but is applicable to any term of court in which an accused asserts his right to a prompt trial. Where such right is asserted, the accused must be tried during that term unless good cause can be shown for a continuance.”
We have held, however, that the protection afforded by this rule is not self-operating and that “the burden is properly upon the defendant to make a record if he is to assert this right or assign error to its denial.” State ex
rel. Workman v. Fury,
168 W.Va. at 221, 283 S.E.2d at 853. Our decision in
Good v. Handlan,
176 W.Va. at 151, 342 S.E.2d at 116, makes it clear that a defendant must assert his speedy trial right under the one-term rule by a timely written motion: “[A] defendant can assert his right to a prompt trial under W.Va. Code, 62-3-1, after the term in which the
indictment is returned provided that he makes a timely motion for the same.” (Footnote omitted). Where such a motion is not timely made, a defendant’s speedy trial rights are governed by the limitations imposed by Article III, Section 14 of the West Virginia Constitution and our three-term rule, W.Va.Code 62-3-21.
Upon a review of the record before us, including the transcripts of hearings upon the various motions for continuance, we find no indication that the petitioner positively asserted his rights under the one-term rule. We, therefore, hold he has no basis upon which to assert a violation of W.Va.Code, 62-3-1.
III.
Mr. Keller asserts in the alternative that the trial court lacked a manifest necessity to discontinue his trial and that his retrial for the same offense is prohibited by former jeopardy.
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MILLER, Justice:
A mistrial was granted during the trial of the petitioner, James Keller, after the prosecutor claimed the petitioner's attorney asked improper questions of a State’s witness on cross-examination. Mr. Keller now seeks a writ of prohibition to prevent his retrial upon two grounds: (1) that he was deprived of his right to a speedy trial in violation of W.Va.Code, 62-3-1, and (2) that his retrial is barred by former jeopardy because there was no “manifest necessity” to terminate his initial trial. We hold that the petitioner waived his statutory right to a speedy trial by failing to make a timely motion asserting his right to a trial within one term. However, we also hold that the record does not support a finding of manifest necessity and accordingly award the writ.
I.
James Keller was indicted for the crime of extortion during the September term of the Cabell County grand jury.
An attorney was promptly appointed to represent him and his trial was scheduled for November 14, 1985. Over the ensuing twelve months, the trial was continued on eight occasions. On November 14, 1985, a continuance was granted because, as the record discloses, “[sjomebody needed the case reset,” though the moving party is not identified. On December 19, 1985, the court granted a motion for continuance on behalf of the State, but no specific grounds were cited. During the months of February and March, 1986, the court twice rescheduled the trial date on its own motion.
On July 23, 1986, a jury was impaneled, but not sworn. On the next day, before any witnesses had been produced, the State advised the court that Betty Lou Anderson, the alleged victim, could not be located. To enable the State to locate its key witness, the court adjourned until July 28, 1986, at which time it was informed that the State’s attempts to do so had been unsuccessful. On motion of the State, the trial was then reset for August 25, 1986.
Two additional continuances were granted in September due to the unavailability of the judge and the illness of Mr. Keller’s attorney.
Finally, on November 17, 1986, Mr. Keller’s trial began. The State called Ms. Anderson as its first witness. On cross-examination, Mr. Keller’s attorney sought to impeach the witness’s credibility by asking: “I’m told you entered a plea of guilty to welfare fraud in Lawrence County, Ohio.” Prior to an answer by the witness, the prosecutor objected and at a bench conference, it was revealed the witness had
not been formally charged with any offense though she had received welfare money for which she was not qualified and had voluntarily agreed to repay it to the appropriate authority.
Based on this information, the State moved for a mistrial on the ground that the question had presupposed some criminal wrongdoing, which, in fact, could not be shown, and that the question was improper. The court denied the motion and expressly held that no manifest necessity existed. He then recommended simply that the witness answer “no” to the question as it had been propounded to her.
Later during cross-examination of the same witness, Mr. Keller’s attorney attempted to renew a line of questioning he had developed earlier regarding her refusal to discuss the case with him prior to trial. The following exchange then occurred:
“Q I want to get back to the business— I don’t know how to characterize it — not wanting to talk or refusing to talk to me after being in the courthouse down in Judge O’Hanlon’s office. Do you remember?
“A Yes, the reason I didn’t want to talk to you was it was a very tragic time for me and I don’t want to recall the time. “Q Is that why you were here in Judge O’Hanlon’s office?
“A It was tragic time, the time I spent dealing with him on Saturday and Sunday; and that’s what you wanted to talk about.
“Q This was just a few months ago when your son-in-law was sentenced by Judge O’Hanlon. You and your daughter were there for the sentencing.”
Once again, the prosecutor objected and at a bench conference moved for a mistrial, objecting to the relevance of the question and its prejudicial effect. The court granted the State's motion.
II..
We address initially the argument by the petitioner that he was deprived of his right to a speedy trial under W.Va.Code, 62-3-1, commonly known as the one-term rule.
As we explained in
State ex rel. Workman v. Fury,
168 W.Va. 218, 283 S.E.2d 851 (1981), the one-term rule does not embody a right of constitutional dimension, but “provides a personal right to the defendant to be tried more expeditiously than the Constitution requires.” 168 W.Va. at 221, 283 S.E.2d at 853.
See also Pitsenbarger v. Nuzum,
172 W.Va. 27, 303 S.E.2d 255 (1983).
We recognized in Syllabus Point 7 of
Good v. Handlan,
176 W.Va. 145, 342 S.E.2d 111 (1986), that the one-term rule is not limited to the term of the indictment:
“W.Va.Code, 62-3-1, is not limited to the term of court at which an indictment is returned, but is applicable to any term of court in which an accused asserts his right to a prompt trial. Where such right is asserted, the accused must be tried during that term unless good cause can be shown for a continuance.”
We have held, however, that the protection afforded by this rule is not self-operating and that “the burden is properly upon the defendant to make a record if he is to assert this right or assign error to its denial.” State ex
rel. Workman v. Fury,
168 W.Va. at 221, 283 S.E.2d at 853. Our decision in
Good v. Handlan,
176 W.Va. at 151, 342 S.E.2d at 116, makes it clear that a defendant must assert his speedy trial right under the one-term rule by a timely written motion: “[A] defendant can assert his right to a prompt trial under W.Va. Code, 62-3-1, after the term in which the
indictment is returned provided that he makes a timely motion for the same.” (Footnote omitted). Where such a motion is not timely made, a defendant’s speedy trial rights are governed by the limitations imposed by Article III, Section 14 of the West Virginia Constitution and our three-term rule, W.Va.Code 62-3-21.
Upon a review of the record before us, including the transcripts of hearings upon the various motions for continuance, we find no indication that the petitioner positively asserted his rights under the one-term rule. We, therefore, hold he has no basis upon which to assert a violation of W.Va.Code, 62-3-1.
III.
Mr. Keller asserts in the alternative that the trial court lacked a manifest necessity to discontinue his trial and that his retrial for the same offense is prohibited by former jeopardy. The Double Jeopardy Clause provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. This provision was made applicable to the states through the Fourteenth Amendment in
Benton v. Maryland,
395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The West Virginia Constitution contains a similar provision which guarantees that “[n]o person shall ... be twice put in jeopardy of life or liberty for the same offence.” W.Va. Const, art. Ill, § 5.
In Syllabus Point 1 of
Conner v. Griffith,
160 W.Va. 680, 238 S.E.2d 529 (1977), we adopted from
North Carolina v. Pearce,
395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the three general protections afforded by the Double Jeopardy Clause:
“The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.”
Despite the fact that this language read literally does not cover the area where there has been a discharge of the jury before it has arrived at a verdict, it is clear that double jeopardy can also be implicated in this situation, which is often termed “midtrial terminations.”
E.g., Oregon v. Kennedy,
456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982);
Arizona v. Washington,
434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978);
Porter v. Ferguson,
174 W.Va. 253, 324 S.E.2d 397 (1984);
State ex rel. Betts v. Scott,
165 W.Va. 73, 267 S.E.2d 173 (1980). The general rule is that termination of a criminal trial arising from a manifest necessity will'not result in double jeopardy barring a retrial. Justice Story is credited with the classic statement of this rule in
United States v. Perez,
22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824):
“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever,
in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act,
or the ends of public justice would otherwise be defeated.... [T]he power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.... ” (Emphasis added).
The term “manifest necessity” covers a broad spectrum of situations which in some instances bear little relationship to the literal meaning of this phrase. This is particularly true in cases where the conduct of one party at trial has created sufficient jury prejudice toward the other that it is unfair to continue with the trial and a mistrial is warranted.
Even on the subject of mistrials, the rules fashioned by the United States Supreme Court are not without their subtlety and may perhaps be characterized by a lack of an evenhanded approach. Where a prosecutor claims that the defense has by its actions prejudiced the jury, he is entitled to obtain a mistrial, without double jeopardy barring a retrial, if it can be shown: (1) that the conduct complained of was improper and prejudicial to the prosecution, and (2) that the record demonstrates the trial court did not act precipitously and gave consideration to alternative measures that might alleviate the prejudice and avoid the necessity of terminating the trial.
Arizona v. Washington, supra.
The State argues that our recent case of
Porter v. Ferguson, supra,
should control the outcome here, but its facts were more egregious. There, the court had made an
in limine
ruling that defense counsel could not inquire about a prior arrest of the chief-prosecution witness. Despite this ruling, defense counsel made such inquiry to which the prosecutor immediately objected. At a conference in chambers, the judge admonished defense counsel and advised him that he should comply with the ruling or face possible contempt charges.
Subsequently, and in the face of these warnings, defense counsel again embarked on the same line of questioning. After a further bench conference, the court concluded that defense counsel’s conduct was sufficiently prejudicial that a mistrial was warranted. The court also gave consideration to whether other alternatives such as cautioning the jury or giving an instruction at the close of trial would cure the prejudice and decided they would not.
The present case does not involve willful violations of a prior court ruling by defense counsel where it may be expected that the prior ruling was designed to forestall introduction of prejudicial evidence. The first inquiry relating to the witness’s alleged plea to welfare fraud was handled in an admirable fashion by the trial court. After listening to the State’s objection, the judge concluded that the incident did not give rise to sufficient prejudice to declare a manifest necessity because no substantial prejudice to the State’s case had been demonstrated.
The second episode, however, was disposed of in a much more summary fashion even though its prejudicial effect was more tenuous since the question only suggested that the witness’s son-in-law had received a sentence. Furthermore, the judge did not consider any alternatives that might have corrected this error by way of instructing the jury to disregard the question.
The right to obtain a mistrial based on manifest necessity arising out of improper questioning by the parties should not be easily obtainable. We echo the sentiments expressed in
Oregon v. Kennedy,
supra,
and recognize that some degree of latitude must be accorded to attorneys for both sides in the clash of the adversary criminal process. Other courts have come to much the same conclusion and have applied the double jeopardy bar where the defense attorney’s remarks were either not sufficiently prejudicial or, if they were, the court acted precipitously by not considering alternatives that would have cured the prejudice.
E.g., Spaziano v. State,
429 So.2d 1344 (Fla.App.1983) (misstatement of evidence in opening remarks);
State v. Simpson,
371 So.2d 733 (La.1979) (improper cross-examination regarding prior convictions);
Snee v. County Court of Cayuga County,
31 A.D.2d 303, 297 N.Y.S.2d 414 (1969) (cross-examination regarding pri- or conviction of another witness);
Commonwealth v. Pyburn Constr. Co.,
17 Mass.App. 927, 456 N.E.2d 480 (1983) (improper comments by defense counsel in closing arguments);
Commonwealth ex rel. Riddle v. Anderson,
227 Pa.Super. 68, 323 A.2d 115 (1974) (inquiry regarding chastity of key witness in bastardy hearing);
see also
Annot., 14 A.L.R.4th 1014 (1982).
For the foregoing reasons, we award the writ of prohibition precluding a retrial in this case.
Writ Awarded.