                              SECOND DIVISION
                               ANDREWS, P. J.,
                         MILLER, P. J., and BRANCH, J.

                    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


                                                                     March 11, 2016




In the Court of Appeals of Georgia
 A15A2235. HONESTER v. THE STATE.

      BRANCH, Judge.

      Wayne L. Honester appeals from the denial of his plea in bar, arguing that the

trial court erred when it terminated his first trial on a felony obstruction charge before

the jury reached a verdict. Honester contends that instead of declaring a mistrial, the

trial court should have provided the jury with an appropriate Allen charge1 and

instructed it to continue deliberating. Honester also asserts that because the trial court

declared the mistrial over his objection and in the absence of any manifest necessity

      1
        When the jury in a criminal trial indicates it is deadlocked, the parties may
request an Allen charge, encouraging the jurors to reexamine their opinions in
continued deliberations as they attempt to reach a unanimous verdict. See Allen v.
United States, 164 U. S. 492 (17 SCt 154, 41 LEd 528) (1896). Such a charge should
also caution the jury that no juror should abandon an honest conviction simply for the
sake of reaching a consensus. See Sears v. State, 270 Ga. 834, 838 (1) (514 SE2d
426) (1999).
for doing so, he was entitled to a plea in bar as a matter of law. For reasons explained

more fully below, we agree with Honester. We therefore reverse the trial court’s order

and remand this case with direction.

      On an appeal from the grant or denial of a double jeopardy plea in bar, we

generally review “the trial court’s oral and written rulings as a whole” to determine

whether any factual findings contained therein support the trial court’s ruling as to

whether the defendant was entitled to a plea in bar. Cotman v. State, 328 Ga. App.

822-823 (762 SE2d 824) (2014). See also Garrett v. State, 306 Ga. App. 429 (702

SE2d 470) (2010). But in those cases where the relevant facts are undisputed and “no

question regarding the credibility of witnesses is presented, we review de novo the

trial court’s application of the law to undisputed facts.” Cotman, 328 Ga. App. at 823,

quoting Garrett, 306 Ga. App. at 429.

      The facts relevant to this appeal are undisputed and many of them are set forth

in our opinion in Honester v. State, 329 Ga. App. 406 (765 SE2d 376) (2014)

(“Honester I”) (physical precedent only)2, as follows:

      2
         Honester I is physical precedent only because one of the judges on the three-
judge panel concurred in the judgment only. See Court of Appeals Rule 33 (a). While
the decision may not have precedential value for other cases, it remains binding in
Honester’s case. See Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011)
(“[i]t is well established that any issue that was raised and resolved in an earlier
appeal is the law of the case and is binding on this Court, and that the law of the case
doctrine is not confined to civil cases, but applies also to rulings made by appellate
courts in criminal cases”) (punctuation and footnotes omitted).

                                           2
Honester was indicted on a single charge of felony obstruction of a law
enforcement officer by fighting with the officer during a lawful arrest.
. . . Honester was tried before a jury on March 11, 2011. After
deliberating for about three hours, the jury sent a note to the judge,
stating, “We cannot agree on the verdict. What are your instructions?”
Both the state and the defense requested that the trial court give the jury
an Allen charge for further deliberations. . . . The judge said that before
giving such a charge he wanted to ask the jury two questions: 1) the
numerical division of votes as to guilt or innocence, and 2) whether it
was likely that further deliberations would result in a unanimous verdict.
Honester objected to the court asking the jurors how they were voting
as to guilt or innocence, but the court overruled the objection and sent
the jury a note containing both questions. The jury responded that the
vote was eleven to one in favor of acquittal and answered “no” to the
second question.
      Upon learning of the nature and numerical breakdown of the jury
vote, the state withdrew its request for an Allen charge. Honester
renewed his request for the charge and also suggested that the jurors be
asked if anyone was refusing to deliberate. The court stated that it would
ask that question before deciding whether to give an Allen charge. The
court submitted the question to the jury, and the jury responded that no
one was refusing to deliberate. Honester again requested that the court
give the Allen charge.
      The trial judge, however, expressed concern that such a charge
would place “undue pressure on a juror.” After further argument from
the defense, the trial judge observed that the case “has had a lot of
difficult evidence.” The judge then refused to give an Allen charge and,

                                    3
       over the express objection of the defense, sua sponte declared a mistrial.
       The court reasoned: “I don’t think it appropriate to give the Allen charge
       and then put the jury back into a posture of further deliberations and
       pressuring when it’s clear from two of the communications that they
       cannot reach a verdict so I’ll declare a mistrial in the case.”
              Five days later, Honester was tried again before a different jury
       which returned a guilty verdict. But upon being polled in open court,
       one of the jurors indicated that the verdict had not been freely and
       voluntarily made by him. The judge then instructed the jury to return to
       the jury room and continue deliberating. A short time later, the jury
       returned with another guilty verdict. Before imposing sentence, the trial
       court asked Honester if he wanted to say anything on his own behalf.
       Honester responded, “Your Honor, ... I don’t see how one week it’s
       eleven my way and then next week all twelve say I’m guilty. I don’t
       understand that Your Honor ... I feel I would have been entitled to a fair
       trial last week. You [should] have [done] the same thing you did today
       send them right back in the room.” Thereafter, the trial court imposed
       the maximum sentence of five years.


Honester I, 329 Ga. App. at 406-408.

       Following his conviction, Honester moved for a new trial, asserting that his

lawyer’s failure to file a plea in bar after Honester’s first trial constituted ineffective

assistance. Id. at 408. The trial court denied that motion, Id. at 408 (1), but this Court

reversed, finding both that Honester’s trial counsel had performed deficiently in



                                            4
failing to file a plea in bar and that Honester had suffered prejudice as a result of that

deficient performance. Id. at 413 (1). On remand, Honester filed a plea in bar, and the

trial court held a brief hearing on that motion, at which it heard arguments of counsel

as to whether the mistrial was prompted by manifest necessity and whether Honester

was entitled to a plea in bar as a matter of law. Following that hearing, the trial court

denied Honester’s motion in a summary order which states simply that “[a]fter a full

hearing on the matter, consideration of the evidence[3], and argument[s] [of the

parties], Defendant’s plea in bar is hereby denied.” Honester now appeals from that

order.4


      3
        Despite this recitation by the trial court, the transcript of the hearing on
Honester’s plea in bar shows that it was not an evidentiary hearing. Instead, during
that 19-minute proceeding, the trial court heard argument from both the State and
Honester as to whether, based on the undisputed facts related to the mistrial, Honester
was entitled to a plea in bar as a matter of law.
      4
        Following the plea in bar hearing, the trial court held a hearing on Honester’s
motion for reconsideration of his bond. The trial court thereafter entered an order
setting Honester’s bond “on his own recognizance” and noting that the State was
“dead docketing” the case. Although the dead docketing of the case means the State
has no immediate plans to retry Honester, the State would nevertheless have the right
to try Honester a second time in the absence of a plea in bar. See Beam v. State, 265
Ga. 853, 855, n. 3 (463 SE2d 347) (1995) (“[d]ead-docketing has been characterized
as a procedural device by which the prosecution is postponed indefinitely but may be
reinstated any time at the pleasure of the court. Placing a case upon the dead docket
certainly constitutes neither a dismissal nor a termination of the prosecution . . . . A
case is still pending which can be called for trial at the judge’s pleasure . . .”)
(citations and punctuation omitted). Approximately three weeks after setting
Honester’s recognizance bond, the trial court entered its order denying his plea in bar.

                                            5
       At the time an accused’s jury is impaneled and sworn, jeopardy attaches and

the accused is entitled, under the double jeopardy provisions of both the State and

Federal Constitutions, to have his trial proceed either to conviction or acquittal before

that particular tribunal. Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994).

See also Jones v. State, 232 Ga. 324, 326 (206 SE2d 481) (1974). Thus, the

declaration of a mistrial over the defendant’s objection will bar a retrial unless the

record shows that the mistrial resulted from “manifest necessity.” Harvey v. State, 296

Ga. 823, 830 (2) (a) (770 SE2d 840) (2015). See also United States v. Perez, 22 U.

S. (9 Wheat.) 579, 580 (6 LEd 165) (1824). “The United States Supreme Court has

clarified that the [term] ‘manifest necessity’. . . cannot be interpreted literally, and that

a mistrial is appropriate when there is a ‘high degree’ of necessity.” Harvey, 296 Ga.

at 830-831 (2) (a), quoting Renico v. Lett, 559 U. S. 766, 774 (II) (130 SCt 1855, 176

LE2d 678) (2010). And the “urgent circumstances” that give rise to the manifest

necessity to declare a mistrial include cases “where ‘an impartial verdict cannot be

reached, or where a verdict of conviction could be reached but would have to be

reversed on appeal due to an obvious procedural error in the trial.’” Smith, 263 Ga.

at 783 (1), quoting Illinois v. Somerville, 410 U. S. 458, 464 (II) (93 SCt 1066, 35

LE2d 425) (1973). See also Glass v. State, 250 Ga. 736, 738 (2) (300 SE2d 812)

                                             6
(1983) (“[w]here the jury is hopelessly deadlocked, this constitutes manifest necessity

for declaring a mistrial”) (citations omitted).

       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.

See Harvey, 296 Ga. at 832 (2) (a); Romine v. State, 256 Ga. 521, 525 (1) (b) (350

SE2d 446) (1986). That discretion, however, “is not unbridled,” Haynes v. State, 245

Ga. 817, 819 (268 SE2d 325) (1980), and it must be exercised carefully, particularly

where the trial court is declaring a mistrial either sua sponte or at the request of the

State and over the objection of the defendant. State v. Johnson, 267 Ga. 305, 305 (477

SE2d 579) (1996) (“‘the power of the trial judge to interrupt the proceedings on his

own or the prosecutor’s motion by declaring a mistrial is subject to stringent

limitations’”) (citation omitted), quoting Jones, 232 Ga. at 326-327. The careful

exercise of its discretion, in turn, requires the trial court to take certain steps before

concluding that the jury is hopelessly deadlocked and that a mistrial is necessary.

       Given “the severe consequences of ordering a mistrial without the accused’s

consent,” Smith, 263 Ga. at 783 (1) (citation and punctuation omitted), it is “highly

important” that the trial court undertake “a consideration of alternative remedies”

before declaring a mistrial based on a jury’s alleged inability to reach a verdict.

                                             7
Haynes, 245 Ga. at 819. Specifically, a trial court must “‘give careful, deliberate, and

studious consideration to whether the circumstances demand a mistrial, with a keen

eye toward other, less drastic, alternatives, calling for a recess if necessary and

feasible to guard against hasty mistakes.’” Harvey, 296 Ga. at 832 (2) (a)

(punctuation omitted), quoting Smith, 262 Ga. at 783 (1). Accordingly, a trial court

may not allow itself to be bound by a jury’s pronouncement that it is hopelessly

deadlocked. See Sears, 270 Ga. at 838 (1) (“[a]lthough the jury twice stated that it

was at an eleven to one ‘deadlock,’ the trial court was not bound by those

pronouncements”) citing Todd v. State, 243 Ga. 539, 542 (3) (255 SE2d 5) (1979)

(“[t]he trial judge is not bound to accept the jury’s feeling that it is hopelessly

deadlocked”). “On the contrary, the trial court, in the exercise of a sound discretion,

[is] required to make its own determination as to whether further deliberations [are]

in order.” Sears, 270 Ga. at 838 (1) (citation omitted). See also Harvey, 296 Ga. at

832 (2) (a) (“the record must show that the trial court actually exercised its

discretion”) (citations omitted); Romine, 256 Ga. at 524 (1) (b).

      The exercise of such discretion, in turn, requires the trial court to take

additional steps to determine whether there is little or no possibility of the jury

reaching a verdict. Such steps may include polling the jurors individually or

                                           8
questioning them as a group to determine how close they are to an agreement and/or

whether one or more jurors is refusing to deliberate. See Sanders v. State, 290 Ga.

445, 449-450 (6) (721 SE2d 834) (2012) (no error in giving Allen charge where jury

was deadlocked after eight hours but all jurors were still participating in

deliberations); Humphreys v. State, 287 Ga. 63, 80 (9 (a) (694 SE2d 316) (2010) (no

abuse of discretion in denying motions for mistrial where all jurors still deliberating

after several hours); Wood v. State, 234 Ga. 758, 759 (1) (218 SE2d 47) (1975)

(affirming denial of plea in bar where mistrial declared following 11 hours of

deliberations; after polling jurors individually, the trial court determined that further

deliberations would be “fruitless”). See also Thornton v. State, 145 Ga. App. 793, 794

(245 SE2d 22) (1978).5 The trial court should also consider the length of time the jury

deliberated before declaring itself deadlocked and whether the time spent in jury


      5
         In Thornton, we set forth a number of factors for a trial court to consider
when determining whether a declaration of a mistrial is necessary. Those factors
include the results of a jury poll “as to whether additional time for deliberation would
be helpful”; “the length of the trial and the complexity of the issues in the case”; and
a “[c]onsideration of the length of time the jury deliberated before declaring itself
deadlocked.” 145 Ga. App. at 795. Additionally, in those cases where the jury has
already engaged in lengthy deliberations, the trial court should also consider “whether
the jury is so exhausted that the minority might be induced to vote for a verdict which
they otherwise would not support.” Id.


                                           9
deliberations is commensurate with the length of the trial and the complexity of the

issues the jury has been asked to decide. See Sears, 270 Ga. at 837-839 (1) (trial court

did not err in requiring jury to continue its deliberations after it twice-reported that

it was deadlocked; the case was a capital murder trial and the jury first reported it was

deadlocked after only six hours of deliberation and again announced it was

deadlocked after “just another three hours” of deliberation); Romine, 256 Ga. at 526

(1) (c) (“[c]onsidering the length and complexity of the trial, the length of time the

jury deliberated before declaring itself deadlocked, and the amount of progress made

in the interim, we find no abuse of discretion in the court’s refusal to declare a

mistrial”). See also Thornton, 145 Ga. App. at 795.

      Here, in response to the trial court’s inquiry, the jury had stated that no juror

was refusing to deliberate and that the jury was close to a unanimous decision.

Additionally, the jury had deliberated for only about three hours before declaring that

it could not reach a verdict. The trial court, however, noted that the case “‘had a lot

of difficult evidence.’” Honester I, 329 Ga. App. at 407. Given the trial court’s own

description of the evidence, the relatively short length of time the jury had been

deliberating before declaring itself deadlocked showed that further deliberations were



                                           10
called for. Thus, the information known to the trial court at the time the jury

pronounced itself deadlocked supported the giving of an Allen-type charge

      The trial court, however, declined to give an Allen charge, despite Honester’s

three separate requests that it do so. The stated reason for this refusal was the trial

court’s concern that such a charge would place undue pressure on the lone juror

voting to convict. This reasoning, however, was flawed in at least two respects. First,

the trial court’s rationale for refusing the Allen charge erroneously assumed that such

a charge will be considered coercive whenever there is a significant numerical

division on the jury. The Georgia Supreme Court, however, has previously held that

the giving of the pattern Allen charge under similar circumstances is not coercive. See

Gibson v. State, 272 Ga. 801, 803-804 (3) (537 SE2d 72) (2000) (trial court did not

err in giving Allen charge even after learning jury was divided 11-1); Jones v. State,

273 Ga. 231, 234-235 (5) (539 SE2d 154) (2000) (no error in giving an Allen charge

after jury reported it was split 11-1 in favor of a sentence of death); Sears, 270 Ga.

at 835 (1) (court properly instructed jury to continue its deliberations where jury

reported being deadlocked 11-1 after six hours of deliberations). See also Gamble v.

State, 291 Ga. 581, 584 (5) (731 SE2d 758) (2012) (pattern jury charge requiring an

allegedly deadlocked jury to deliberate further is not “impermissibly coercive”);

                                          11
Sanders, 290 Ga. at 449-450 (6) (same). And even in the absence of the pattern

charge, the judge could have given any charge

      urging the jury to reach a consensus [so long as the charge] did not put
      pressure on the jurors ‘one way or the other,’ Romine, 256 Ga. at 525
      [(1) (b)]; [ ] did not exhort ‘the minority to reexamine its views in
      deference to the majority, or to suggest that the majority’s position is
      correct[,]’ United States v. Norton, 867 F2d 1354, 1366 (11th Cir. 1989)
      [;] . . . [or] urge the jurors ‘to abandon an honest conviction for reasons
      other than those based upon the trial or the arguments of other jurors.’
      Harris v. State, 262 Ga. 526, 528 (435 SE2d 669) (1993).


Sears, 270 Ga. at 838 (1).

      Additionally, the stated reason for the trial court’s decision to declare a mistrial

sua sponte shows that the trial court considered only the possibility that such a charge

would unduly pressure the juror voting to convict. The court failed to consider

Honester’s right to have his trial completed before this particular tribunal. When

determining manifest necessity for declaring a mistrial, however, the trial court must

“weigh[] the rights of both parties in light of the totality of the surrounding

circumstances.” Tubbs v. State, 276 Ga. 751, 754 (3) (583 SE2d 853) (2003) (citation

omitted). See also Jones, 232 Ga. at 327 (“the existence of ‘manifest necessity’ is to

be determined by weighing the defendant’s right to have his trial completed before

                                           12
the particular tribunal against the interest of the public in having fair trials designed

to end in just judgments; and the decision must take into consideration all the

surrounding circumstances”) (citation omitted). Thus, the trial court abused its

discretion when it failed to give any weight to Honester’s rights before declaring a

mistrial.

      Finally, the trial court also abused its discretion when, before deciding whether

to give the requested Allen charge and over Honester’s objection, the trial court

specifically asked the numerical division of the jury as to guilt or innocence.6 The

trial court then compounded this error when it appeared to consider the nature of the

jury’s numerical division in deciding whether to require the jury to deliberate further

or to declare a mistrial. See Honester I, 329 Ga. App. at 407 (after determining, over

Honester’s objection, the nature of the jury’s numerical division, the trial court

declined to give an Allen charge, citing its concern that such a charge would place

undue pressure on the lone juror voting to convict). The law is clear that in an effort

to determine whether it should order further deliberations, the trial court “‘may . . .

inquire how the jury stands numerically.’” Gibson, 272 Ga. at 802 (2), quoting


      6
        In its brief, the State concedes that “it was improper for the trial court to
[inquire as to] the nature of the [jury] split in terms of guilt or innocence.”

                                           13
Muhammad v. State, 243 Ga. 404, 407 (4) (254 SE2d 356) (1979). But the law is

equally clear that a trial court may not inquire into “the ‘nature of a jury’s numerical

division,’” Gibson at 803 (2), and in fact should caution the jurors not to state

whether the vote favors acquittal or conviction.7 Sears, 270 Ga. at 839 (1), n.1. See

also Gibson, 272 Ga. at 802 (2) (noting that inquiring into the jury’s numerical

division, the trial court “specifically caution[ed the jury] not to state . . . whether the

vote favored acquittal or conviction”). Although a trial court may be vested with

broad discretion in certain areas – including the determination of manifest necessity

for a mistrial – that discretion does not allow the trial court to do that which the law

expressly forbids.

       As the foregoing demonstrates, the “flawed reasoning” employed by the trial

court in refusing the requested Allen charge “[did] not provide a valid basis for the

sua sponte declaration of a mistrial over the objection of the defense.” Honester I, 329

Ga. App. at 412 (1). Thus, the trial court abused its discretion in sua sponte declaring

       7
        Our Supreme Court has indicated that a trial court’s inquiry into the numerical
division of the jury as to the defendant’s guilt or innocence may constitute a legal
error of constitutional dimension – i.e., it is possible that such an inquiry could
jeopardize a defendant’s constitutional rights to due process and a fair trial. See
Gibson, 272 Ga. at 802-803 (2). Compare Jones, 273 Ga. at 234 (5) (no error occurred
where “[a]lthough the trial court learned of the nature of the split . . . the jury
volunteered this information without prompting by the judge”) (footnote omitted).

                                            14
a mistrial rather than instructing the jury to deliberate further. Haynes, 245 Ga. at 819

(“[i]n cases in which there is no manifest necessity for aborting a trial rather than

using other less drastic remedies to cure problems, in the absence of defendant’s

motion for a mistrial, the granting of a mistrial is an abuse of discretion”), citing

United States v. Jorn, 400 U. S. 470 (91 SCt 547, 27 LE2d 543) (1971). Honester,

therefore, was entitled to a plea in bar as a matter of law, and we reverse the order of

the trial court denying the same. See Otis v. State, ___ Ga. ___ (Case No. S15A1717,

decided February 8, 2016) (“[w]here a mistrial has been improperly declared over the

protest of the accused, the prisoner cannot be tried again”) (citation and punctuation

omitted); Smith, 263 Ga. at 785 (2) (b) (where no manifest necessity existed for

declaring a mistrial over defendant’s objection, defendant was entitled to plea in bar

as a matter of law). Upon remand, the trial court shall grant the plea in bar.

      Judgment reversed and case remanded with direction. Andrews, P. J., and

Miller, P. J., concur.




                                           15
