                               SECOND DIVISION
                                 MILLER, P. J.,
                            RICKMAN and REESE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  September 27, 2019




In the Court of Appeals of Georgia
 A19A1009. PARKER v. THE STATE.

      RICKMAN, Judge.

      Following a mistrial granted over his objection during his trial for armed

robbery and illegal firearm possession, Deandre Jamara Parker filed a plea in bar to

prohibit a retrial, which the trial court denied. On appeal, Parker contends the trial

court abused its discretion in granting the mistrial because the court failed to ask the

jury if anyone was refusing to deliberate, as Parker requested, in an attempt to avoid

granting a mistrial; the court therefore erred, he contends, by denying his plea in bar.

For the reasons that follow, we affirm.

      The record shows that over the course of a three-day trial, the State presented

seven witnesses and the defense presented two. The parties rested on a Friday

morning, and the jury began deliberating at about 3:30 p.m. After approximately two
hours, the jury asked to watch the lineup identification video, which the court

allowed; at 5:42 p.m., the jury resumed deliberation. Shortly before 6:30 p.m., the jury

sent a note indicating that it was deadlocked.1 With the parties’ consent, the court

ordered the jury to continue deliberating. The jury immediately wrote another note,

this time saying that the jury was split “11 to 1” in favor of not guilty2 and that the

person voting guilty was “not changing his mind.” The court instructed the jury,

“Again, I need you to continue to deliberate.” The jury resumed deliberations but sent

another note at about 7:15 p.m., which stated:

       There is at least one person on each side of the verdict who have said
       they will not change their minds. No additional review of the evidence
       or additional discussion will change their vote. We are confident that
       returning on Monday will not change that status.




       1
       Although the first two jury notes are not in the record, the parties agree to their
content, and the trial court quoted the remaining notes during the deliberations. See
generally Court of Appeals Rule 25 (b) (1) (“Except as controverted, appellant’s
statement of facts may be accepted by this Court as true.”).
       2
        Although, here, the jury volunteered the division regarding guilt or innocence,
we note that “[t]rial courts should not . . . inquire as to the nature of a jury’s numerical
division. And we encourage them to inform jurors not to reveal that information.”
(Citations and punctuation omitted.) Sears v. State, 270 Ga. 834, 839 (1), n. 1 (514
SE2d 426) (1999).

                                             2
With the agreement of the parties, the court ordered the jury to return Monday

morning to continue deliberations.

      The jury resumed deliberations at 9:00 a.m. on Monday but sent another note

at about 10:45 a.m., which stated, “There are jurors on each side who are unwilling

to change their vote, and have stated will not change their vote.” Parker requested an

Allen3 charge, but the State argued that, based on the language of the notes, members

of the jury appeared to have shifted their positions from Friday; the State argued that

an Allen charge, therefore, would be premature. The court agreed and ordered the jury

to continue deliberating. An hour after a lunch break, the jury sent another note,

which stated, “After more deliberation, we are still at an impasse with jurors on both

sides who have made up their minds and have stated they will not be changing their

minds.” This time, the State requested an Allen charge.

      In response, Parker moved that the court “inquire regarding deliberations to

ensure that everybody is deliberating. . . during the process.” The court and the State

agreed that it appeared the jury was deliberating because the Monday notes referred

to multiple jurors being on each side, showing that “[t]here’s obviously been some

change [since Friday] based on their deliberations.” The court added that it did not

      3
          See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896).

                                           3
see anything in the notes that led it to believe that “someone has decided they’re not

even going to deliberate.” Accordingly, the court refused to question the jury as

Parker requested and instead gave the jury the Allen charge at about 2:40 p.m.4

      Nevertheless, one hour later, the next note stated:

      It will not be possible for us to reach a consensus. We have tried in good
      faith to bring all the jurors to a common understanding, but we have
      reached a place where the lines of communication have broken down
      and no progress is being made.


The State concluded that the jurors were at an impasse and requested a mistrial.

Parker objected and requested that the jury continue deliberating. The court found



      4
         Thus the jury was charged, among other things, to continue conscientiously
deliberating:
       It is nevertheless necessary for all of the jurors to examine the issues and
      the questions submitted to them with candor and fairness and with a
      proper regard for, and deference to, the opinion of each other. A proper
      regard for the judgment of others will greatly aid us in forming our own
      judgment. Each juror should listen to the arguments of other jurors with
      a disposition to be convinced by them. If the members of the jury differ
      in their view of the evidence, the difference of opinion should cause
      them all to scrutinize the evidence more closely and to reexamine the
      grounds of their opinion. Your duty is to decide the issues that have
      been submitted to you, if you can conscientiously do so.

                                          4
that the jury notes made clear that further deliberation would be futile, and it declared

a mistrial.

       Thereafter, Parker moved that the court grant a plea of former jeopardy and

dismiss the indictment on the ground that the mistrial was improper. The court denied

the plea. In its order, the court noted that although it did not poll the jurors to

determine whether additional deliberations would be helpful, it carefully considered

other factors required by law. The court held that based on the five jury notes, “it was

clear to the Court that the jury was exhausted.” The court concluded that a manifest

necessity existed for the declaration of a mistrial, and it denied Parker’s plea in bar.

Parker appeals.

       “Under the Double Jeopardy Clauses of the United States and Georgia

Constitutions, trial courts may declare a mistrial over the defendant’s objection,

without barring retrial, whenever, in their opinion, taking all the circumstances into

consideration, there is a manifest necessity for doing so.” (Citation and punctuation

omitted.) Laguerre v. State, 301 Ga. 122, 124 (799 SE2d 736) (2017). See also

OCGA § 16-1-8 (a) (2) (“A prosecution is barred if the accused was formerly

prosecuted for the same crime based upon the same material facts, if such former

prosecution . . . [w]as terminated improperly after the jury was impaneled and sworn.

                                           5
. . .”); 16-1-8 (e) (2) (C) (termination is not improper if the trial court finds it

necessary because “[t]he jury is unable to agree upon a verdict”). Our Supreme Court

has explained that “a mistrial is appropriate when there is a ‘high degree of

necessity.’” (Citation and punctuation omitted.) Harvey v. State, 296 Ga. 823, 831 (2)

(a) (770 SE2d 840) (2015).

      “The question of whether a jury is ‘hopelessly deadlocked,’ and thus the

existence of manifest necessity for a mistrial, is within the discretion of the trial

court.” Honester v. State, 336 Ga. App. 166, 170 (784 SE2d 30) (2016). That

discretion “is not unbridled,” Haynes v. State, 245 Ga. 817, 819 (268 SE2d 325)

(1980), and it must be exercised carefully, which “requires the trial court to take

certain steps before concluding that the jury is hopelessly deadlocked and that a

mistrial is necessary.” Honester, 336 Ga. App. at 170. For example, in deciding

whether to declare a mistrial or require further deliberation the trial court should:

inquire of the jury whether additional time for deliberation would be helpful; consider

whether the jury “is so exhausted that the minority might be induced to vote for a

verdict which they otherwise would not support”; and consider the length and

complexity of the trial and the length of the deliberations. Thornton v. State, 145 Ga.



                                          6
App. 793, 794 (245 SE2d 22) (1978); see also Hines v. State, 320 Ga. App. 854, 867

(6), n. 13 (740 SE2d 786) (2013) (these steps are not mandatory).

      In addition, “it is highly important that the trial court undertake a consideration

of alternative remedies[5] before declaring a mistrial based on a jury’s alleged

inability to reach a verdict.” (Citation and punctuation omitted.) Honester, 336 Ga.

App. at 170; see also Haynes, 245 Ga. at 819 (“a consideration of alternative remedies

is highly important”). Nevertheless, a court is not required to accept less drastic

remedies if reasonable judges could differ about their use:

      [A]lthough trial courts should give careful, deliberate, and studious
      consideration to whether the circumstances demand a mistrial, with a
      keen eye toward other, less drastic, alternatives, a court’s rejection of
      other alternatives is a proper exercise of the court’s discretion — and not
      an abuse — if reasonable judges could differ about the proper
      disposition.




      5
        Alternative remedies can include, but are not limited to, polling or
questioning the jury about improper influence or whether the jurors are hopelessly
deadlocked, taking a break in the proceedings, sending the jury home for the evening,
admonishing the jurors to keep their deliberations civil and respectful, and
admonishing or removing a specific juror if it can be determined that the person is
responsible for creating a volatile environment. See generally Meadows, 303 Ga. 507,
514-515 (2) (c) (813 SE2d 350) (2018).

                                           7
(Citation and punctuation omitted.) Blake v. State, 304 Ga. 747, 749 (2) (822 SE2d

207) (2018).

      “Although the trial judge is not required to make explicit findings of manifest

necessity nor to articulate on the record all the factors which informed the deliberate

exercise of his discretion, the record must at least show that the trial court actually

exercised its discretion.” (Citation and punctuation omitted.) Blake, 304 Ga. at 749

(2). Finally, although the amount of scrutiny used to evaluate mistrial decisions varies

according to the reason for the mistrial,6 “great deference” is “accorded to decisions

to grant a mistrial based on the judge’s belief that the jury cannot reach a verdict.”

(Citation and punctuation omitted.) Meadows v. State, 303 Ga. 507, 512 (2) (813

SE2d 350) (2018).

      Parker argues that the jury’s notes strongly suggest that one or more jurors was

refusing to deliberate and that the trial court therefore erred by refusing to question

jurors on that point as Parker had requested. We conclude that under the

circumstances, reasonable judges could differ about whether that action was

necessary. The transcript shows that the court carefully considered the jury’s progress

      6
         See, e.g., Arizona v. Washington, 434 U. S. 497, 508 (11) (98 SCt 824, 54
LE2d 717) (1978) (“[T]he strictest scrutiny is appropriate when the basis for the
mistrial is the unavailability of critical prosecution evidence.”) (footnote omitted).

                                           8
as reflected in the five notes that it sent before Parker asked the court to question the

jury, which indicated that positions had changed slightly from Friday to Monday and

that, therefore, the jurors were continuing to deliberate. The court even noted that the

Monday afternoon message from the jury expressly stated that the jury had been

deliberating. The court therefore had a reasonable basis to conclude that the notes did

not indicate that any person was refusing to deliberate. In addition, the court clearly

exercised discretion, in part by carefully considering when to give the Allen charge,

finding it premature to do so Monday morning, and by repeatedly considering the

length of the case and how long the jury had been deliberating when making its

decision in what the record shows was not a complex case.7 After receiving the final

note, the court considered the apparent futility of going forward.

      It is true that “a trial court may not allow itself to be bound by a jury’s

pronouncement that it is hopelessly deadlocked,” and that possible investigatory steps

include “polling the jurors individually or questioning them as a group to determine


      7
         The victim testified that she was robbed at a bus stop by a man in a car who
had a black handgun. The victim described the robber to the police and later
identified Parker from a photo lineup and at trial as the robber. The victim also gave
officers a description of the car and a partial license tag number, which led officers
to stop Parker driving a car matching the description and partial tag number over nine
days later. A search revealed a loaded black pistol in the car, and Parker was arrested.

                                           9
how close they are to an agreement and/or whether one or more jurors is refusing to

deliberate.” Honester, 336 Ga. App. at 170. But such a step is not mandatory. See

generallty Hines, 320 Ga. App. at 867 (6), n. 13.

      In sum, applying the great-deference standard, we conclude that the trial court

did not abuse its discretion in granting the mistrial. See, e.g., Johnson v. State, 256

Ga. App. 730, 732 (2) (569 SE2d 625) (2002) (“Based on the relative brevity of the

trial and simplicity of the issues, the length of the deliberations, and the measures

taken by the trial court to evaluate the jury’s stated inability to agree on a verdict

(including the giving of the Allen charge), we hold the trial court did not abuse its

discretion in declaring a mistrial on the basis of manifest necessity.”) Compare

Carman v. State, 304 Ga. 21, 27 (2) (a) (815 SE2d 860) (2018) (mistrial cannot be

condoned if the trial court “acts for reasons completely unrelated to the trial problem

which purports to be the basis for the mistrial ruling” or otherwise “acts irrationally

or irresponsibly”) (citation and punctuation omitted).

      Judgment affirmed. Miller, P. J., and Reese, J., concur.




                                          10
