309 Ga. 432 FINAL COPY
S20A0505. MEDINA v. THE STATE.
PETERSON, Justice.
Jury verdicts are serious things. In this murder case, the jury
reached a verdict as to malice murder but was deadlocked on the
remaining counts. The parties and the trial court agreed to a
mistrial on all counts. Before the trial court actually declared the
mistrial, however, it instructed the jury to disclose its verdict. When
the jury reported its not guilty verdict on the malice murder count
and the judge read it in open court, all of the requirements for
formally returning a verdict on that count were fulfilled and the
verdict became effective. The trial court then purported to declare a
mistrial on all counts, including malice murder. But the mistrial was
not effective as to the malice murder count. Double jeopardy thus
precludes retrial on that count, although retrial is permissible on
the felony murder, aggravated assault, and firearm possession counts. We affirm in part and reverse in part the trial court’s denial
of the defendant’s plea in bar.
Terrance Medina was indicted for malice murder (Count 1),
felony murder (Count 2), aggravated assault (Count 3), and
possession of a firearm during the commission of a felony (Count 4)
in connection with the July 20, 2015, shooting death of James
Thornton. The record from Medina’s January 2019 trial shows that
it was undisputed that Medina shot Thornton after finding Thornton
at his family’s home. Medina argued that he shot Thornton in self-
defense and in defense of habitation. During the third day of jury
deliberations, the jury sent the following note to the trial court,
which it read in open court:
Your honor, having exhaustively examined all of the evidence of this case in meticulous detail numerous times, we find ourselves in a total impasse with a vote of 8 to 4. On Count 1, malice murder, we have a unanimous decision. As to Counts 2 [through] 4, we are 8 to 4. It is not possible to reach a unanimous decision on Counts 2 through 4.
As soon as the trial court finished reading the note, the
prosecutor moved for a mistrial and defense counsel concurred. Both the prosecutor and defense counsel asked that they be allowed to
speak with the jurors after they were excused.
The trial court then called the jury into the courtroom, read the
note aloud again, and stated:
I am going to declare a mistrial. Whatever your verdict is, we do not know this, I will ask you to come back with a copy of the jury form signed, indicating what your verdict is on Count 1.
The trial court then excused the jury.
Before the jury returned, the prosecutor stated, “We have one
issue before we take the verdict, whether we are taking the mistrial
on all four counts or only the deciding count. I think counsel is in
agreement it should be a mistrial to all four counts.” The trial court
asked the prosecutor and defense counsel whether the verdict on
Count 1 would become the law of the case and whether the other
three counts would be mistried, adding, “I don’t see how it can be a
mistrial when the jury has arrived at a verdict on Count 1.” Both the
prosecutor and defense counsel responded that they were “without
case law on that.” Defense counsel then asked for a “complete mistrial . . . leav[ing] it up to the court’s discretion in regards to
Count 1 of malice murder.” Defense counsel reiterated that he was
“requesting . . . all four counts” be mistried. When the prosecutor
asked for clarification, the trial court responded, without objection,
that defense counsel “is saying he wants a mistrial on all counts.”
The prosecutor agreed to a mistrial on all four counts.
Nevertheless, the trial court brought the jury back into the
courtroom and asked the foreperson to “give the verdict form to the
bailiff, and I will announce it in open court.” The trial court then
announced:
The verdict form reads, as to Count 1, malice murder, we find the defendant not guilty. There is no resolution as to Count 2, 3, and 4. So I do hereby declare a mistrial on all four counts because the facts in this case are governed — the allegations are governed by all of the facts presented to the jury, so the case will have to be mistried and will have to be retried.
The trial court later set the case to be retried, and Medina filed
a plea in bar on double jeopardy grounds. Medina argued that once
the jury returned a verdict on the malice murder count, the trial
court could no longer grant a mistrial on that count; therefore, the jury’s verdict of not guilty barred a retrial on malice murder. Medina
also argued that the remaining counts were barred by collateral
estoppel because the jury necessarily determined by its verdict that
he acted in self-defense.
The trial court denied Medina’s plea in bar, finding that it had
declared a mistrial before the jury returned its verdict, and that
Medina’s consent to a retrial precluded him from using the grant of
a mistrial as the basis for a plea of double jeopardy. In
characterizing the record, the trial court said that its statement to
the jury (preceding the return of the verdict) that the court was
“going to declare a mistrial” actually constituted the mistrial
declaration. The court went on to explain that the parties sought
clarification as to whether the trial court was granting a mistrial on
all four counts or just the counts on which the jury was deadlocked,
saying that they desired for the court to declare a mistrial on all
counts, and the court clarified that its mistrial declaration applied
to all counts. This appeal followed.
1. The trial court’s declaration of a mistrial as to the malice murder count was a nullity because the jury’s verdict had already been returned, and the jury’s verdict precludes a retrial on the malice murder count.
Whether or not the trial court intended it to be, the jury’s
verdict was validly returned. A valid verdict on a count precludes a
mistrial from being granted on that count. And the valid verdict here
of not guilty as to the malice murder count precludes retrial on that
count.
The United States and Georgia Constitutions both prohibit the
government from placing a defendant “in jeopardy” more than once
for the same offense. See U.S. Const. Amend. V (“No person shall
. . . be subject for the same offence to be twice put in jeopardy of life
or limb[.]”); Ga. Const. Art. I, Sec. I, Par. XVIII (“No person shall be
put in jeopardy of life or liberty more than once for the same offense
except when a new trial has been granted after conviction or in case
of mistrial.”). The double jeopardy clauses of both constitutions
afford a defendant protection from three government abuses: “a
second prosecution for the same offense after acquittal, a second
prosecution for the same offense after conviction, and multiple punishments for the same offense.” Jenkins v. State, 294 Ga. 506,
508 (1) (755 SE2d 138) (2014) (quoting Williams v. State, 288 Ga. 7,
8 (2) (700 SE2d 564) (2010)); see also Ohio v. Johnson, 467 U.S. 493,
498 (104 SCt 2536, 81 LE2d 425) (1984).
Ordinarily, when a defendant moves for or consents to a
mistrial, jeopardy continues and a retrial is allowed. See Evans v.
Michigan, 568 U.S. 313, 326 (133 SCt 1069, 185 LE2d 124) (2013)
(“It is true that when a defendant persuades the court to declare a
mistrial, jeopardy continues and retrial is generally allowed.”); State
v. Johnson, 267 Ga. 305, 305 (477 SE2d 579) (1996) (“[I]f a defendant
consents to a mistrial, he may not thereafter utilize the mistrial as
the basis of a plea of double jeopardy.”). But that assumes that the
declaration of a mistrial is valid. In State v. Sumlin, 281 Ga. 183
(637 SE2d 36) (2006), we held that “[o]nce the jury returns its
verdict, the trial has ended and the time for granting a mistrial has
passed,” so a purported mistrial granted “after the jury had returned
its verdict resulted in a void order.” Id. at 184 (1). In other words, a
purported mistrial declared on a count for which the jury has already returned a valid verdict is a legal nullity. Thus, no mistrial,
consented to or otherwise, actually occurred as to Count 1. And
Medina’s claim that he may not be retried for malice murder stems
not solely from his argument that the trial court should not have
declared a mistrial, but is rooted in the publishing of the jury’s
verdict in open court.1
The jury’s verdict was valid. It was unanimous, in writing,
signed by the foreperson, and delivered in open court, where it was
read by the judge directly. See Cantrell v. State, 266 Ga. 700, 703
n.4 (469 SE2d 660) (1996) (“Verdicts acquire their legality from
return and publication.” (citation and punctuation omitted));
Washington v. State, 333 Ga. App. 236, 245 (1) (775 SE2d 719) (2015)
(explaining that “in Georgia, verdicts acquire their legality from
return and publication,” which occurs “when [the verdict] is agreed
1 The dissent emphasizes that, as we note above, a defendant who consents to a mistrial may not use the mistrial as a basis for a plea of double jeopardy. But, as explained above, that principle does not apply to the question of whether the jury’s verdict of acquittal bars the State from retrying Medina for malice murder, and the cases cited by the dissent do not address when a purported mistrial is ineffective. And Medina did not ask for the jury’s verdict to be returned, and thus there can be no argument that the consent principle that the dissent focuses on as to the mistrial could extend to the verdict. upon by the jury, written out, signed by the jury foreperson, and
delivered to the clerk, by the direction and in the presence of the
judge”). The State does not argue, much less show, that the jury’s
verdict was invalid.
The State acknowledges the rule announced in Sumlin, but
argues that the trial court declared a mistrial before it read the
jury’s verdict as to Count 1. The State’s argument is based on the
trial court’s statement to that effect in denying Medina’s plea in bar,
but that conclusion does not survive a review of the record. “In
reviewing a trial court’s ruling on a motion for plea in bar, where the
evidence is uncontroverted and no question is presented regarding
the credibility of witnesses, we review de novo the trial court’s
application of the law to the undisputed facts.” Pierce v. State, 294
Ga. 842, 843 (1) (755 SE2d 732) (2014). And although we defer to a
trial court’s resolution of disputed issues of fact when reviewing its
ruling on a plea in bar, that deference ceases when the trial court
makes findings that are clearly erroneous. See Harper v. State, 292
Ga. 557, 563 (3) (738 SE2d 584) (2013). Whether the trial court’s characterization of the timing of its declaration of a mistrial is a
factual finding to which we must defer, or a legal conclusion that we
review de novo, the trial court’s characterization cannot stand under
either standard of review.
The record clearly shows that the trial court did not grant a
mistrial until after the jury returned its verdict on Count 1.
Although the court announced that it was “going to declare a
mistrial” (of unspecified scope) before it asked the jury to return with
its verdict, it did not do so at that time. After sending the jury out to
complete the verdict form, but before the jury returned with a
verdict, the court asked counsel whether, “if [the jurors] come back
with a verdict on one count,” that verdict would become “the law of
the case as to that count,” and then added that the court did not “see
how it can be a mistrial when the jury has arrived at a verdict on
Count 1.” And despite this concern, the court did not actually declare
a mistrial until after the verdict was returned and published, saying
at that time, “So I do hereby declare a mistrial on all four counts.”
(Emphases added.) The record thus shows that the trial court declared a mistrial
after the jury returned and published its verdict, rendering
ineffectual any attempt to declare a mistrial as to the malice murder
count. The jury’s return of a verdict of not guilty as to that count
therefore bars the State from retrying Medina for malice murder.
See Green v. United States, 355 U.S. 184, 188 (78 SCt 221, 2 LE2d
199) (1957) (“[I]t has long been settled under the Fifth Amendment
[to the United States Constitution] that a verdict of acquittal is final,
ending a defendant’s jeopardy, and even when not followed by any
judgment, is a bar to a subsequent prosecution for the same offence.”
(citation and punctuation omitted)); see also Williams, 288 Ga. at 8
(2) (explaining that a “verdict of acquittal is an absolute bar to a
subsequent prosecution for the same offense,” citing Green). As a
result, the trial court erred in denying Medina’s plea in bar based on
double jeopardy as to the malice murder count.
2. Medina can be retried on the remaining counts.
Medina argues that the not guilty verdict on the malice murder
count collaterally estops the State from retrying him on the other counts, because the jury necessarily found he was justified in
defending himself. We disagree.
The United States Supreme Court has held that the Fifth
Amendment’s bar against double jeopardy encompasses the doctrine
of collateral estoppel, which precludes the relitigation of an issue of
ultimate fact that was determined by a valid and final judgment.
Giddens v. State, 299 Ga. 109, 112-113 (2) (a) (786 SE2d 659) (2016)
(citing Ashe v. Swenson, 397 U.S. 436, 443-445 (90 SCt 1189, 25
LE2d 469) (1970)).2 This bar applies to “any issue that was
necessarily decided by a jury’s acquittal in a prior trial.” Yeager v.
United States, 557 U.S. 110, 119 (129 SCt 2360, 174 LE2d 78) (2009);
see also Giddens, 299 Ga. at 112-113 (2) (a). The doctrine of
collateral estoppel must be applied with “realism and rationality”
2 Some Justices, however, have pointed out that Ashe does not reflect the
original meaning of the Double Jeopardy Clause. See Bravo-Fernandez v. United States, ___ U.S. ___, ___ (137 SCt 352, 366, 196 LE2d 242) (2016) (Thomas, J., concurring) (“As originally understood, the Double Jeopardy Clause does not have an issue-preclusion prong.”); Yeager v. United States, 557 U.S. 110, 128 (129 SCt 2360, 174 LE2d 78) (2009) (Scalia, J., dissenting) (“In Ashe the Court departed from the original meaning of the Double Jeopardy Clause, holding that it precludes successive prosecutions on distinct crimes when facts essential to conviction of the second crime have necessarily been resolved in the defendant’s favor by a verdict of acquittal of the first crime.”). and not in a “hypertechnical and archaic” manner. Ashe, 397 U.S. at
444. To that end, the United States Supreme Court has instructed
that when a jury returns a general verdict of acquittal, the reviewing
court should
examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.
Yeager, 557 U.S. at 120 (citation and punctuation omitted).3
“Because a jury speaks only through its verdict,” a reviewing court
may not consider in the preclusion analysis those counts on which
3 When a jury returns a guilty verdict, it must necessarily have unanimously found each of the elements of the crime proven beyond a reasonable doubt. But the inverse is not necessarily true for not guilty verdicts, which do not require unanimity as to which element or elements the State failed to prove beyond a reasonable doubt, and as a practical matter may be based on factors other than the State’s failure to prove the elements of the offense in question. See Yeager, 557 U.S. at 132 (Scalia, J., dissenting) (“In the unusual situation in which a factual finding upon which an acquittal must have been based would also logically require an acquittal on the hung count, all that can be said for certain is that the conflicting dispositions are irrational — the result of mistake, compromise, or lenity.” (citation and punctuation omitted)). And given that a jury may return a not guilty verdict for any number of reasons not obvious from the record, at least one of us may question how “realistic” this kind of review actually is. But the United States Supreme Court has told us to perform this review with respect to federal constitutional claims, and so we obey. the jury did not return a verdict ⸺ “hung” counts ⸺ because the
failure to reach a verdict is a “nonevent” that does not represent the
jury’s affirmative finding of any fact. See id. at 120-122; see also
Roesser v. State, 294 Ga. 295, 299 (751 SE2d 297) (2013).
Medina bears the burden of establishing that the jury actually
decided the issue the relitigation of which he seeks to foreclose. See
Bravo-Fernandez v. United States, ___ U.S. ___, ___ (137 SCt 352,
359, 196 LE2d 242) (2016). He has failed to meet that burden.
As a preliminary matter, because Medina requested or
consented to a mistrial, he cannot now assign error to the trial
court’s mistrial ruling as to the remaining counts. “[A] party may
not complain on appeal of a ruling that he contributed to or
acquiesced in by his own action, trial strategy, or conduct.”
Hornbuckle v. State, 300 Ga. 750, 755 (5) (797 SE2d 113) (2017)
(citation and punctuation omitted). Instead, he argues that the
jury’s acquittal on the charge of malice murder necessarily was
based on a determination that he acted in self-defense and therefore
precludes a retrial on the remaining counts. There was no dispute that Medina shot the victim, and it is
clear from the record that Medina’s claim of self-defense was a
significant focus of the trial, along with his alternative claim of
defense of habitation. Despite the attention given to Medina’s
justification defenses, there was also significant attention paid to
the different types of criminal intent required for malice murder and
felony murder (and its predicate aggravated assault), and whether
the evidence proved such intent beyond a reasonable doubt.
Compare OCGA § 16-5-1 (a) (“A person commits the offense of
[malice] murder when he unlawfully and with malice aforethought,
either express or implied, causes the death of another human
being.”) with id. (c) (“A person commits the offense of [felony] murder
when, in the commission of a felony, he or she causes the death of
another human being irrespective of malice.”). During deliberations,
in addition to requesting a recharge on self-defense and defense of
habitation, the jury asked for a recharge on excessive force and
aggravated assault. This record does not show that the jury’s verdict on Count 1
must have been based on a finding that Medina acted in self-defense.
The jury might rationally have found Medina not guilty of malice
murder because he was justified in shooting the victim ⸺ a finding
that would also apply to the other charges. See Demery v. State, 287
Ga. 805, 809 (3) (700 SE2d 373) (2010) (“[I]f he is justified in killing
under OCGA § 16-3-21 [the self-defense statute], he is guilty of no
crime at all.” (citation and punctuation omitted)). But the jury also
could rationally have found Medina not guilty of malice murder
based on a conclusion that the evidence did not prove malice beyond
a reasonable doubt, while being undecided on the different issue of
whether the evidence proved the general intent to inflict injury
needed for aggravated assault (Count 2), which was the predicate
for the felony murder count (Count 3) and one of the predicates for
the charge of possession of a firearm during the commission of a
felony (Count 4).4 See Jones v. State, 300 Ga. 814, 816-819 (2) (797
4 Malice murder was the other felony underlying the possession of a firearm during the commission of a felony count. On retrial, malice murder SE2d 461) (2017) (holding that double jeopardy did not bar the
retrial of a defendant for felony murder and cruelty to children after
the first trial resulted in a mistrial on those counts and an acquittal
on malice murder, because the jury’s verdict determined only that
the defendant did not kill the victim with malice). Compare Roesser,
294 Ga. at 299-300 (concluding that jury’s verdict of not guilty on
malice murder, felony murder, and aggravated assault necessarily
determined that the defendant acted in self-defense, because a
conclusion that the State failed to prove that the defendant acted
with the required specific intent of malice “does not explain the basis
for the jury’s acquittal on the aggravated assault count and the
felony murder count premised on the aggravated assault count,
which do not require specific intent”). On the record before us,
Medina has failed to carry his burden of establishing that the jury
necessarily determined that he acted in self-defense. Consequently,
he may be retried on Counts 2, 3, and 4.
cannot provide the predicate for a conviction on this count because, applying the principles set forth above, the jury’s acquittal necessarily decided that Medina did not commit the offense of malice murder. Judgment affirmed in part and reversed in part. All the Justices concur, except Ellington, J., who concurs in part and dissents in part.
ELLINGTON, Justice, concurring in part and dissenting in part.
I agree with the majority that Medina may be retried on
Counts 2 through 4, but I respectfully disagree that the trial court
erred in denying Medina’s plea in bar based on double jeopardy as
to the malice murder count. I would hold that because Medina
requested and consented to a mistrial on all counts, he has waived
the right to assert a claim of double jeopardy as to all counts,
including the count of malice murder. See State v. Johnson, 267 Ga.
305, 305 (477 SE2d 579) (1996) (a defendant who consents to a
mistrial may not thereafter utilize the mistrial as the basis of a plea
of double jeopardy); Williams v. State, 258 Ga. 305, 311 (1) (369
SE2d 232) (1988) (“[I]t is generally the rule that by making a motion
for mistrial the defendant thereby waives any claim of double jeopardy.”); Brown v. State, 261 Ga. App. 115, 118 (582 SE2d 13)
(2003) (“[A] defendant who either causes or consents to a mistrial
can be retried without violating double jeopardy principles.”).
Medina cannot now complain that the declaration of a mistrial was
invalid. Medina asked for a mistrial on all four counts; the trial
court granted him one; and he interposed no objection to the reading
of the jury’s verdict before the formal declaration of a mistrial nor to
the declaration of the mistrial seconds later. “[A] party may not
complain on appeal of a ruling that he contributed to or acquiesced
in by his own action, trial strategy, or conduct.” Hornbuckle v. State,
300 Ga. 750, 755 (5) (797 SE2d 113) (2017) (citation and punctuation
omitted).
DECIDED JUNE 16, 2020 – RECONSIDERATION DENIED JULY 15, 2020. Murder. DeKalb Superior Court. Before Judge Seeliger. Dwight L. Thomas, for appellant. Sherry Boston, District Attorney, Lenny I. Krick, Alana J. Driscoll, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.