               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-128

                                  Filed: 3 April 2018

Wilkes County, No. 13-CRS-51252

STATE OF NORTH CAROLINA

              v.

ALBERT URIAH MATHIS


        Appeal by Defendant from judgment entered 14 April 2016 by Judge Lindsay

R. Davis in Wilkes County Superior Court. Heard in the Court of Appeals 23 August

2017.


        Attorney General Joshua H. Stein, by Assistant Attorney General Terence D.
        Friedman, for the State.

        Paul F. Herzog for defendant-appellant.


        MURPHY, Judge.


        When a non-capital defendant’s trial counsel fails to object, or consents, to a

sua sponte mistrial declared for “manifest necessity,” the trial judge’s decision to

declare the mistrial is unpreserved and not subject to appellate review. However,

where related ineffective assistance of counsel claims are raised alleging that but for

counsel’s failure to object to the mistrial, a defendant would not have been subjected

to double jeopardy, we review these claims under the framework announced by the

U.S. Supreme Court in Strickland v. Washington. 466 U.S. 668, 80 L.Ed.2d 674
                                      STATE V. MATHIS

                                      Opinion of the Court



(1984). Here, Albert Mathis (“Defendant”) fails to show that he was prejudiced by his

attorney’s failure to object to the mistrial. One juror was going to be absent the

following day, and the trial court judge had “absolutely no faith” in the alternate

juror. Under these circumstances, the trial court did not abuse its discretion as the

judge could have reasonably concluded that the trial could not proceed in conformity

with the law. As a result, Defendant’s second trial did not violate his constitutional

right to be free from double jeopardy, and he can show no prejudice by his counsel’s

acquiescence in the first mistrial.

                                      BACKGROUND

      On 16 April 2013, Defendant and Jerry Jennings (“Jerry”) got into a physical

altercation near a fishing hole in Wilkes County. Jerry was rendered unconscious

due to the numerous blows Defendant inflicted upon him. After Jerry was subdued,

Defendant “got the heck out of [D]odge,” leaving Jerry lying unconscious in a field

with no one else around. Defendant was indicted for felony assault with a deadly

weapon (steel-toed boots) inflicting serious injury in violation of N.C.G.S. § 14-32(a).

             Defendant’s First Trial: 11-12 February 2015 (“2015 Trial”)

      The first trial began on 11 February 2015 in Wilkes County Superior Court.

On 12 February 2015, after the State’s case-in-chief, the State moved to amend the

indictment to allege that Defendant had struck Jerry with his limbs, rather than his

steel-toed boots. This motion was denied. After denying the State’s motion, and while



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still outside the presence of the jury, Judge David L. Hall expressed to the parties his

concerns about the ability to move forward with the trial. A juror’s wife was having

a heart procedure and would be unavailable, and Judge Hall had “no confidence” and

“absolutely no faith” in the alternate juror. After voicing his concerns, Judge Hall

asked the parties if they wished to be heard. Defense Counsel indicated that he

supported the mistrial for strategic reasons related to Defendant’s testimony and the

ability to get an instruction on self-defense.

             The Court: What I have concluded is that the motion to
             amend should be denied . . . Which brings me to my
             greatest concern now, which is it is presently 2:30 on
             Thursday, as I indicated to counsel on Monday, I have a
             very important appointment with a specialist tomorrow
             morning involving a hole in my retina, in my left eye and a
             floater in my right eye. Further, we have one juror, Juror
             Number 9 no, Juror Number 8, his wife is having a heart
             catheterization and a pacemaker procedure tomorrow and
             I have an alternate juror Mr. Maston, whom I have no
             confidence in because I believe if I inquire I believe his
             answer is going to be he has not been able to hear much of
             what has transpired and I cannot hold over, so, I’m
             concerned about that. Let me hear from the parties.

             Defense Counsel: Your Honor, we appreciate the Court’s
             ruling and we are prepared to go forward, but in light of
             the time constraints Mr. Mathis, it would be my intent once
             the State, I guess has rested, it would be my intent to put
             him on the stand, but quite frankly, I don’t personally
             believe that with instructions, closing arguments, and
             whatnot and the charge conference, I just quite frankly
             don’t believe that this jury will have any meaningful
             amount of time to deliberate, if, in fact, it gets to them by 5
             o’clock. So, my client is in agreement and I have talked to
             him because I have explained and I will state for the record


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                my main concern right now is, if I put him on the stand,
                time expires and we come back for another trial at a later
                date, I have just provided Mr. Bauer and the State with
                another 15 to 20 minutes of direct cross-examination that
                could, in fact, be utilized against him at a later trial. I do
                not wish to do that, but I do not want the send this case to
                the jury without Mr. Mathis testifying.

                The Court: He would not get an instruction on self-defense.

                Defense Counsel: Exactly.

The trial court then declared a mistrial based on “manifest necessity” and “to preserve

the ends of justice,” and neither the State nor Defendant’s counsel objected.

                The Court: We are now in a posture where moving forward
                seems unpractical, not practical and not feasible. And the
                Court has obligations which it may not avoid. I may not
                hold over and I do not see a reasonable prospect of
                continuing the case beyond today. I find that the interest
                of justice requires the matter be mis-tried. I find that the
                prospect of completing this trial is grim. That Juror
                Number 8, has a significant -- his wife has a significant
                medical procedure tomorrow. The Court has absolutely no
                faith in the alternate juror. Is the State joining in a motion
                for mistrial?

                The State: We are, Your Honor.                 We would renew our
                motion unsworn.1

        1 On 11 February 2015 (the first day of Defendant’s trial), during the cross-examination of
Jerry, Defendant’s counsel asked Jerry about “a previous matter where [he] was placed under oath
and testifying about this particular incident.” On 12 February 2015, before the trial resumed, the
State moved for a mistrial because of the potential that the jury might infer, based on defense counsel’s
question to Jerry, that Defendant had already been involved in “another trial” related to this incident,
and the potential for this inference might prejudice Defendant, providing him with a potential error
on appeal. The trial court ultimately denied the State’s mistrial motion and suggested that a curative
instruction, along with asking Defendant to waive any potential error on defense counsel’s part due to
his mentioning of another trial, would “protect the state’s right to a fair trial.” The trial judge provided
the following curative instruction: “[a]nother housekeeping detail, yesterday some mention was made



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                                        Opinion of the Court




               The Court: I think that I have been scrupulously fair to
               both parties this entire time, trying to protect both the
               State’s right to a fair trial and Mr. Mathis’ rights to a fair
               trial. And it seems to me that neither party may enjoy a
               fair trial at this point. With the consent of the Defense and
               the State, I’m declaring a mistrial based on manifest
               necessity and to preserve the ends of justice. I find that
               jeopardy is not attached for purposes of retrying the matter
               and that the matter may be put on at the mutual
               convenience of the parties.

                ....

               The Court: I will order a transcript of the proceedings, costs
               shall be borne by the State of North Carolina because of
               manifest necessity and the interest of justice and
               unavoidable time constraints. I will also say that the
               parties have raised legal issues which have required and
               they have been genuine and made in good faith, but legal
               issues that have required a great deal of research, which
               has simply made it not practical to conclude this trial. So
               the Court strikes the jury as impaneled. The Court declares
               a mistrial as of manifest necessity and that further
               proceedings in this trial would result in manifest in justice.
               And the matter may be re-calendared at the mutual
               convenience of these parties or by further order of this
               Court. All right. If you will bring -- does either party wish
               to be heard?

               The State: No, sir.

               Defense Counsel: No, sir.

               The Court: If you’ll bring the jury in, please. I will explain



about an objection that occurred at another trial. Okay. Please put that out of your mind. Give it no
consideration. This is the first time this case has been tried so that had something to do with an
entirely unrelated matter and it has nothing to do with your determination in this case. Just put it
out of your mind. It has no consequence to your determination.”

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                                   Opinion of the Court



             to them and let them go.

              Defendant’s Second Trial: 13-14 April 2016 (“2016 Trial”)

      On 6 April 2016, the grand jury issued a superseding indictment against

Defendant for Felony Assault with a Deadly Weapon with Intent to Kill Inflicting

Serious Injury. The weapons named in this indictment were Defendant’s “hands,

feet, and arms.” Defendant’s second trial began on 13 April 2016 before Judge

Lindsey Davis in Wilkes County Superior Court. On 14 April 2016, a jury convicted

Defendant of assault inflicting serious injury, a misdemeanor. Judge Davis ordered

a suspended sentence of 150 days, and an active sentence of 30 days in Wilkes County

Jail to be followed by 18 months of supervised probation. Trial counsel for Defendant

did not make any motion to dismiss before, during, or after trial on double jeopardy

grounds. Defendant timely appealed.

                              I. DOUBLE JEOPARDY

      Defendant first argues that he was subjected to double jeopardy because the

trial court erred by declaring a mistrial at the end of his 2015 trial in the absence of

“manifest necessity.” We disagree.

      “Freedom from multiple prosecutions for the same offense is guaranteed by the

Fifth and Fourteenth Amendments to the United States Constitution and by Article

I, Section 19 of the Constitution of North Carolina.” State v. White, 85 N.C. App. 81,

86, 354 S.E.2d 324, 328 (1987) (internal citations omitted). Nevertheless, a second

trial after a mistrial is not always barred by the Double Jeopardy Clause, and “[i]t is

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well established that the plea of former jeopardy cannot prevail on account of an order

of mistrial when such order is entered upon motion or with the consent of the

defendant.” State v. Crocker, 239 N.C. 446, 449, 80 S.E.2d 243, 245-46 (1954); see also

State v. Dry, 152 N.C. 813, 817, 67 S.E. 1000, 1002 (1910) (“Where the prisoners

assent to a mistrial, they cannot afterwards be heard to object.”), overruled on other

grounds by State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989). Furthermore, “[t]he

constitutional right not to be placed in jeopardy twice for the same offense, like other

constitutional rights, may be waived by the defendant, and such waiver is usually

implied from his action or inaction when brought to trial in the subsequent

proceeding.” State v. Hopkins, 279 N.C. 473, 475-76, 183 S.E.2d 657, 659 (1971). To

avoid waiving this right, a defendant must properly raise the issue of double jeopardy

before the trial court. State v. McLaughlin, 321 N.C. 267, 272, 362 S.E.2d. 280, 283

(1987) (“[b]y failing to move in the trial court to arrest judgment on either conviction,

or otherwise to object to the convictions or sentences on double jeopardy grounds,

defendant has waived his right to raise this issue on appeal.”).

      Defendant argues that the Double Jeopardy Clause precluded his second trial

in 2016 because there was not a “manifest necessity” to justify the mistrial declared

in his 2015 trial. However, this issue has not been preserved for appeal because he

consented to the mistrial, and Defendant failed to raise the issue during his second

trial in 2016. State v. White, 134 N.C. App. 338, 342, 517 S.E.2d. 664, 667 (1999) (



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                                   Opinion of the Court



“[t]o avoid waiving this right, a defendant must properly raise the issue of double

jeopardy before the trial court.”) (citations omitted). Accordingly, we dismiss his

appeal as to this issue and do not reach the merits of his stand-alone double jeopardy

argument.

            II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

      Defendant advances two Sixth Amendment right to counsel claims. First, he

alleges that counsel during the first trial was ineffective because he consented to the

trial court’s mistrial order in the absence of a “manifest necessity.”         Second,

Defendant alleges that his counsel in the second trial was ineffective because he failed

to move for a dismissal of the charges on double jeopardy grounds. We disagree as to

the first claim which renders his second claim moot.

      Strickland announced a two prong test for ineffective assistance of counsel

claims. State v. Givens, ___ N.C. App. ___, ___, 783 S.E.2d 42, 49 (2016) (citing State

v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985)). Under Strickland, a defendant

must show that his counsel's performance (1) fell below an objective standard of

professional reasonableness and (2) that he was prejudiced by the error.            See

Strickland, at 687, 80 L. Ed. 2d at 693. Prejudice is established by showing that “the

error committed was so serious as to deprive the defendant of a fair trial.” Id. In

evaluating ineffective assistance of counsel claims, a court may bypass the

performance inquiry and proceed straight to the question of prejudice. Id. at 697, 80



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L. Ed. 2d at 699. We conclude that Defendant’s first claim fails under the prejudice

prong of Strickland as the trial court did not abuse its discretion in declaring a

mistrial due to a manifest necessity. Counsel’s failure to object was not of any

consequence.

      A second trial after a mistrial of a defendant is not barred by the Double

Jeopardy Clause “where a defendant's first trial ends with a mistrial which is

declared for a manifest necessity or to serve the ends of public justice.” State v. Shoff,

128 N.C. App. 432, 434, 496 S.E.2d 590, 591 (1998) (citing State v. Lachat, 317 N.C.

73, 82, 343 S.E.2d 872, 877 (1986); see also State v. Odom, 316 N.C. 306, 310, 341

S.E.2d 332, 334 (1986) (stating that an order of mistrial after jeopardy has attached

may only be entered over a defendant's objection where “manifest necessity” exists).

We review a trial court’s decision to declare a mistrial for abuse of discretion, and the

decision will not be disturbed unless it is “so arbitrary that it could not have been the

result of a reasoned decision.” See State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450,

465 (1985). “The exercise of this discretion is governed by [N.C.G.S.] § 15A-1063 and

15A-1064.” See Shoff, at 434, 496 S.E.2d at 591. N.C.G.S. § 15A-1063 provides:

             Upon motion of a party or upon his own motion, a judge
             may declare a mistrial if:

             (1) It is impossible for the trial to proceed in conformity
             with law[.]

N.C.G.S. § 15A-1063 (2017). N.C.G.S. § 15A-1064 requires a trial court to make

findings of fact before granting a mistrial and enter them into the record.

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             Before granting a mistrial, the judge must make finding of
             facts with respect to the grounds for the mistrial and insert
             the findings in the record of the case.

N.C.G.S. § 15A-1064 (2017).

      “Our courts have set forth two types of manifest necessity: physical necessity

and the necessity of doing justice.” State v. Schalow, ____ N.C. App. ____, ____, 795

S.E.2d 567, 576 (2016) (citing Crocker, at, 450, 80 S.E.2d at 246). “For example,

physical necessity occurs in situations where a juror suddenly takes ill in such a

manner that wholly disqualifies him from proceeding with the trial.” Schalow, at

____, 795 S.E.2d at 576. “Whereas the necessity of doing justice arises from the duty

of the [trial] court to guard the administration of justice from fraudulent practices

and includes the occurrence of some incident of a nature that would render impossible

a fair and impartial trial under the law.” Id. The manifest necessity present in the

case sub judice involves a combination of “physical necessity” and the “necessity of

doing justice.”

      After the State’s case-in-chief, the trial court expressed concerns related to

juror number 8 because he was going to be physically unavailable due to his wife’s

upcoming heart procedure. Also, the trial judge had “no confidence” and “absolutely

no faith” in the alternate juror because he believed that the alternate had not heard

much of the trial testimony up to that point. It is well settled that “[t]he trial judge

is empowered to decide all questions regarding the competency of jurors,” and the

question of juror competency includes issues related to physical or mental limitations

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that would “hamper his or her ability to perform a juror’s duties.” See State v. King,

311 N.C. 603, 615, 320 S.E.2d 1, 9 (1984). Ensuring juror competency and availability

is especially important because twelve jurors must unanimously agree to find a

defendant guilty. See N.C. Const. art. I, § 24 (“No person shall be convicted of any

crime but by the unanimous verdict of a jury in open court[.]”); State v. Bindyke, 288

N.C. 608, 623, 220 S.E.2d 521, 531 (1975) (“there can be no doubt that the jury

contemplated by our Constitution is a body of twelve persons[.]”). The twelve juror

requirement is strict, and in State v. Hudson, our Supreme Court held that that

notwithstanding defendant’s consent, the verdict was a nullity because it was reached

by a jury of eleven. See 280 N.C. 74, 79, 185 S.E.2d 189, 192 (1971).

      In light of our strict twelve juror requirement, the impending absence of juror

number 8 due to his wife’s heart procedure, and the judge’s belief that the alternate

juror would be unable to perform his duties, the trial judge could have reasonably

concluded that the completion of the 2015 trial would not be fair and in conformity

with the law. See State v. Cooley, 47 N.C. App. 376, 383, 268 S.E.2d 87, 92 (1980)

(upholding mistrial order where trial court “could reasonably conclude that a fair and

impartial trial in accordance with law could not be had”); see also State v. Sanders,

347 N.C. 587, 496 S.E.2d 568 (1998) (holding that the record supported the trial

court's decision to grant a mistrial based on the trial court’s conclusion that at least

one juror was not following the instructions of the trial court as to his conduct and



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                                   Opinion of the Court



duty as a juror); State v. Pfeifer, 266 N.C. 790, 147 S.E.2d 190 (1966) (holding that

defendant was not subjected to double jeopardy when his first trial ended in a mistrial

due to the sudden illness of a juror); Crocker, at 452, 80 S.E.2d at 248 (holding that

where a juror “is so incapacitated by reason of intoxicants or otherwise as to be

incapable, physically or mentally, of functioning as a competent, qualified juror, the

trial judge may order a mistrial”); Shoff, at 434, 496 S.E.2d at 592 (concluding that

the trial court did not abuse its discretion by declaring a mistrial “due to adverse

weather conditions” that affected the jurors' ability to physically return for the second

day of trial); State v. Montalbano, 73 N.C. App. 259, 326 S.E.2d 634 (1985) (holding

that retrial was not barred on double jeopardy grounds following a mistrial granted

after the judge observed an investigator, who was assisting the district attorney,

engage in conversation with one or two jurors before trial); State v. Ledbetter, 4 N.C.

App. 303, 167 S.E.2d 68 (1969) (affirming a trial court’s declaration of mistrial where

the judge found that a juror had been taken to a hospital as the result of a sudden

illness).

       Here, by declaring a mistrial, instead of proceeding with an alternate juror

that he had no confidence in, Judge Hall intelligently exercised his discretion to

assure the “credibility of the jury verdict,” Montalbano, at 263, 326 S.E.2d at 637

(citing State v. Mettrick, 305 N.C. 383, 385, 289 S.E.2d 354, 356 (1982)), and we

cannot say this decision was “manifestly unsupported by reason.” Shoff, at 432, 496



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                                   Opinion of the Court



S.E.2d at 592 (citations omitted). Defendant’s first claim for ineffective assistance of

counsel fails because his second trial was not precluded by the Double Jeopardy

Clause, and he is therefore unable to demonstrate any prejudice resulting from

counsel’s acquiescence and failure to object to the 2015 mistrial. Based upon our

holding as to the first claim for ineffective assistance of counsel, Defendant’s second

claim is rendered moot.      Both of Defendant’s ineffective assistance of counsel

arguments are overruled.

                                   CONCLUSION

       By failing to raise the issue of double of jeopardy in his 2016 trial, Defendant

failed to preserve the issue of double jeopardy for appellate review. Furthermore,

Defendant was not deprived of effective assistance of counsel in his 2015 trial where

the trial court did not abuse its discretion in ordering a mistrial for manifest

necessity. Defendant’s second ineffective assistance of counsel claim, based on his

counsel’s failure to file a motion to dismiss on double jeopardy grounds in the 2016

trial, is moot.

       DISMISSED IN PART; NO ERROR IN PART.

       Judges CALABRIA and ZACHARY concur.




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