                                   Cite as 2013 Ark. App. 754

                 ARKANSAS COURT OF APPEALS
                                         DIVISION II
                                        No. CR-13-515


LEWIS WAYNE TURNER                                Opinion Delivered   DECEMBER 18, 2013
                                  APPELLANT
                                                  APPEAL FROM THE STONE
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CR-2011-87]

STATE OF ARKANSAS                                 HONORABLE JOHN DAN KEMP,
                                   APPELLEE       JUDGE

                                                  AFFIRMED



                              DAVID M. GLOVER, Judge


       Charges against appellant Lewis Turner and his son, Rickey, were filed when

marijuana was found growing on Lewis’s farm. The cases against each of them for the

offenses of manufacturing a controlled substance and possession of drug paraphernalia were

consolidated and tried to a single jury on September 12–14, 2012, which after deliberation

subsequently reported an impasse. Lewis moved for a mistrial, which was granted by the trial

court. When the case was reset for trial, Lewis moved to dismiss, contending that a retrial was

barred by the prohibition against double jeopardy and that the trial court had erred in

declaring the earlier mistrial.    The trial court denied the motion to dismiss, and this

interlocutory appeal followed. We affirm.
                                 Cite as 2013 Ark. App. 754

                                          Background

       Jury deliberations began at 3:40 p.m. At 6:53 p.m., the jury was brought back into the

courtroom after reporting an impasse. The foreman confirmed that he felt the jury had

reached an impasse and reported the breakdown of the vote to be nine and three. The trial

court gave the “dynamite” instruction, and the jury retired again at 7:08 p.m.

       After a little more than an hour, the jury indicated they needed another break, and a

ten-minute recess was taken. At 8:28 p.m., the jury was again brought into the courtroom,

and the trial court asked if they were making any progress. The foreman reported, “We’re

still the same as we were.” The trial court asked if any additional deliberation time would

assist them in arriving at a verdict, and the foreman asked for thirty more minutes. At 8:29

p.m., the jury again retired to deliberate further.

       At 9:01 p.m., the jury returned to the courtroom and reported that they had still not

reached a verdict. The foreman stated that they had made some progress, that they were at

eleven and one, but that he did not believe further deliberation would allow them to reach

a verdict. The trial court asked if they recessed over the weekend and came back Monday

morning would that assist them in reaching a verdict, or did he think they had gotten as far

as they could go. The foreman said, “It’s pretty much of an impasse.”

       The trial court instructed the attorneys to approach the bench and asked if they had

any comment. Defense counsel for Lewis Turner said he had the impression that the jury had

been deadlocked for a long time and that they would not reach a verdict; that he thought

forcing the issue would create a problem; and that he thought he had to move for a mistrial.


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Defense counsel for Rickey Turner stated that he agreed. The State pushed for more

deliberation in light of the fact that the jury had made some movement. The trial court stated

that it was going to reserve ruling on the defense motion for a mistrial and ask the jury to

deliberate for another thirty minutes to see if they could make additional progress. The court

stated that it would consider the motion again if the jury could not make progress in that

time.

        The court then told the jury to deliberate for another thirty minutes and see where

they were. The jury returned to deliberate at 9:07 p.m. At 9:39 p.m., the jury returned to

the courtroom, and the foreman reported that they had “made no progress what-so-ever.”

The trial court again called counsel to the bench and granted the motion for mistrial that had

been earlier reserved for a ruling; the court and all counsel began immediately to try to work

on a new trial date.

        In open court, the trial judge explained to the jury that it was declaring a mistrial,

discharging the jury, and setting a new trial date for December 5–7. As the jury was exiting

the courtroom, the trial court asked the foreman, “now that you’re discharged, . . . what was

the breakdown for eleven for what and one for what?” The foreman responded, “Eleven for

guilty for Rickey Turner and one not guilty. And we didn’t make it to the other one.” The

trial court then asked if there was “[a]nything further today?” Counsel for the State and

counsel for Rickey Turner responded that there was not.




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                                       Interlocutory Appeal

        A double-jeopardy claim may be raised by interlocutory appeal because if a defendant

is illegally tried a second time, the right would have been forfeited. Williams v. State, 371

Ark. 550, 268 S.W.3d 868 (2007).

                                        Standard of Review

        Our standard of review regarding a circuit court’s denial of a motion to dismiss on

double-jeopardy grounds is de novo. Williams, supra. The decision to order a mistrial and retry

a criminal defendant lies within the sound discretion of the trial judge, and will be upheld

absent an abuse of discretion. Phillips v. State, 338 Ark. 209, 992 S.W.2d 86 (1999).

                                   Mistrial and Double Jeopardy

        Lewis contends that the trial court erred in deciding that the jury was deadlocked

regarding his case because the jury never deliberated his guilt or innocence at all, i.e., that the

trial court declared a mistrial based upon its erroneous determination that the jury was divided

in opinion on Lewis’s guilt, when in fact it was only Rickey’s guilt or innocence that the

jurors had considered. He argues that even though his counsel asked for a mistrial, it was the

trial court’s burden to determine if the jury was divided on his guilt or innocence. He relies

in part upon article 2, section 8 of the Arkansas Constitution, which provides in pertinent

part:

        [N]o person, for the same offense, shall be twice put in jeopardy of life or liberty; but
        if, in any criminal prosecution, the jury be divided in opinion, the court before which the
        trial shall be had, may, in its discretion, discharge the jury, and commit or bail the
        accused for trial, at the same or the next term of said court[.]

(Emphasis added.) He argues that this provision of the Arkansas Constitution “expressly

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provides for a specific procedure and responsibility of the trial court in dismissing an

empaneled jury which is ‘divided in opinion,’ [and] any other procedure which does not

comport with that constitutional mandate should be invalidated.” He concludes that “[a]bsent

a finding that the jury is divided in opinion, the Court lacks jurisdiction to declare a mistrial,”

and that any “motion on the part of the defendants was no more than a request that the court

fulfill its obligations under the Constitution.”

       With respect to his argument under the federal Constitution, he acknowledges that

ordinarily a defense request for a mistrial waives any double-jeopardy claims, but he contends

that the trial court’s failure to fully inquire about the jury’s considerations deprived counsel

of needed information—amounting to “judicial error”— and that the grant of a mistrial under

this case did not satisfy the “manifest necessity” standard of the federal Constitution because

“the jury had not even considered guilt or innocence when it was dismissed.”

       Neither Lewis nor the State present us with Arkansas authority precisely addressing the

argument presented here, which asserts that the Arkansas Constitution imposed a duty on the

trial court to inquire further into the jury’s report of an impasse to make certain that the

impasse pertained to Lewis as well as Rickey. We have found none either. However, we are

not persuaded that the constitutional language relied upon by Lewis imposes such an

affirmative duty on the trial court when ruling on an express defense request for a mistrial.

In addition, we have concluded that our cases providing an overall analysis of a double-

jeopardy claim where a defense request for a mistrial is involved sufficiently address this

admittedly unique situation.


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       For example, in Phillips v. State, our supreme court explained:

               We have long held that a defendant’s consent to the termination of the trial can
       be either express or implied. If the defendant’s consent is evident, demonstration of an
       overruling necessity is not required in order to avoid the affirmative defense of double jeopardy.
       . . . The court [in Woods v. State] also noted the statute and quoted the Commentary
       to that section which provides:

       Express consent occurs when the defendant moves to terminate the trial or agrees to termination
       on motion of the court or the state. The Model Penal Code declined to take a stand on
       whether mere failure to object to termination constitutes implied consent. Fortunately,
       the Arkansas Supreme Court has addressed the issue, developing what the Commission
       felt was a workable definition of implied consent. Consent is implied if the defendant
       fails to object to termination and the termination is for the benefit of the defendant.
       If the termination is for the benefit of the state, mere failure to object does not
       constitute consent.

338 Ark. at 212, 992 S.W.2d at 88-89 (emphasis added) (citations omitted). Arkansas Code

Annotated section 5-1-112(3) (Repl. 2006) provides:

              A former prosecution is an affirmative defense to a subsequent prosecution for
       the same offense under any of the following circumstances:

                                                 ....

                (3) The former prosecution was terminated without the express or implied
       consent of the defendant after the jury was sworn or, if trial was before the court, after
       the first witness was sworn, unless the termination was justified by overruling necessity.

(Emphasis added.)

       Here, Lewis expressly requested the trial court to grant a mistrial. Under our case law,

that request obviates the need to demonstrate an overruling necessity in order to avoid a claim

of double jeopardy, and we are not convinced by Lewis’s argument that the language of article

2, section 8 of the Arkansas Constitution imposes an affirmative duty on the trial court under

the circumstances presented here.

       The federal constitutional protections against double jeopardy are of no help to Lewis

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either. In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court of the United States

explained that a “hung jury remains the prototypical example” of manifest necessity for a

mistrial. “But in the case of a mistrial declared at the behest of the defendant, quite different

principles come into play. Here the defendant himself has elected to terminate the proceedings

against him, and the ‘manifest necessity’ standard has no place in the application of the Double

Jeopardy Clause.” Id. at 672–73. The narrow exceptions to the rule as discussed in Kennedy,

supra, do not apply here.

       In short, we hold that the trial court did not abuse its discretion in declaring a mistrial.

Lewis has not provided us with any persuasive legal authority that the trial court had the

obligation to make more definite inquiries of the jury before granting Lewis’s motion for

mistrial, and we do not find his Arkansas constitutional argument persuasive in light of the case

law that explains clearly that if a defendant requests a mistrial, as was done here, the principles

for granting it change dramatically. Similarly, we do not find his federal constitutional argument

persuasive.

       Affirmed.

       WALMSLEY and VAUGHT, JJ., agree.

       Murphy, Thompson, Arnold, Skinner & Castleberry, by: Tom Thompson and Casey
Castleberry; and Jeremy B. Lowrey, for appellant.

       Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.




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