         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    April 25, 2006 Session

              STATE OF TENNESSEE v. CHARLOTTE STEPHENS

                      Appeal from the Criminal Court for Knox County
                         No. 75690    Mary Beth Leibowitz, Judge



                    No. E2005-01925-CCA-R9-CD - Filed October 13, 2006




JAMES CURWOOD WITT , JR., J., concurring.

                I agree that principles of double jeopardy would be offended upon the defendant’s
retrial for second degree murder because the record does not support the trial court’s finding of
manifest necessity and because the defendant, ostensibly at least, did not consent to the order of
mistrial. I write this concurring opinion because this latter issue – the defendant’s lack of consent
– gave me great pause.

               In State v. Mounce, 859 S.W.2d 319 (Tenn. 1993), our supreme court efficiently
elucidated the principles governing the issue of retrial following mistrial:

               [R]etrial may be permitted if the defendant consented to the
               termination of the proceeding at issue. “In such a case the accused
               has deliberately elected to forego his right to have guilt or innocence
               determined by the first trier of fact.”

                       Additionally, a retrial is permitted where there is a “manifest
               necessity” for the declaration of the mistrial, regardless of the
               defendant’s consent or objection. . . .When the mistrial is declared
               because of a manifest necessity, double jeopardy is not violated when
               the defendant is retried, even if he objected to the mistrial. The
               granting of a mistrial is within the sound discretion of the trial court,
               which will not be disturbed on appeal absent a finding of abuse of
               discretion.

Id. at 321-22 (citations omitted). Thus, retrial is not barred when either manifest necessity requires
the mistrial or the defendant consents to the mistrial order.
                In the present case, the majority opinion ably explains that the record does not support
a finding of manifest necessity. “It is only when there is no feasible and just alternative to halting
the proceedings that a manifest necessity is shown.” Mounce, 859 S.W.2d at 322. I am unpersuaded
that the problem caused by Officer Vineyard’s testimony could not have been redressed by an apt
jury instruction.

                The question of the defendant’s lack of consent to the mistrial order is not as easily
resolved as the defendant would like. When Officer Vineyard testified that he asked for a search
warrant, the defendant objected. Assuming that the officer’s testimony was inadmissible based upon
the trial court’s pretrial ruling, only two practical solutions were available: The trial court could
redress the defendant’s grievance by aptly instructing the jury to avoid any prejudicial reaction to the
testimony, or it could declare a mistrial. I acknowledge that the defendant declared that he did not
want a declaration of mistrial. On the other hand, he never asked for an instruction. (Indeed, the
state requested a curative instruction.) Rather, the defendant moved the court then and there to
dismiss the case. I am mindful that this motion came during, and not after, the state’s case-in-chief.

                Despite the defendant’s protests, the circumstances smack strongly of his intent to
provoke a mistrial without accountability. If I could feel confident that such was the defendant’s
bent in this case, I would hold that he consented to the mistrial. In other words, a defendant should
be accountable for an implied consent to a declaration of mistrial when his “responses appear
calculated to encourage the trial court to grant a mistrial, without making his consent express.” State
v. Carl Erskine White, 369 N.W.2d 301, 304, (Minn. App. 1985). The record does not support a
finding that the state goaded the defendant into supporting a mistrial, see Oregon v. Kennedy, 456
U.S. 667, 676, 102 S. Ct. 2083, 2089 (1983), and in that circumstance, and if the defendant had
impliedly consented to a declaration of a mistrial, I would have affirmed the trial court’s denial of
the defendant’s motion to dismiss.


                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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