Challenge to mistrial ruling not preserved for appeal

Where a judge had a mistrial declared on his behalf after he was physically unable to continue presiding over a criminal trial, defendant’s objection to the mistrial, based on the fact his witnesses were present and he was ready to proceed, was insufficient to argue on appeal that there was not a manifest necessity for the mistrial.

Overview

Minitee was on trial for robbery and firearm charges. Judge Marchant empaneled a jury and administered the oath. By the end of the day, the jury heard testimony from five commonwealth witnesses.

Over the weekend, Judge Marchant injured his back. The parties were notified that Judge Taylor would take the bench on the following Monday and declare a mistrial.

Judge Taylor convened court. Both Minitee and the commonwealth lodged objections to the mistrial “because their respective witnesses were present and they were prepared to proceed with trial. Minitee asserted no other basis for his objection.”

Judge Taylor explained that Judge Marchant was unable to continue, declared a mistrial and dismissed the jurors.

After a status hearing, the court denied Minitee’s motion for bond and continued the case. Minitee objected on double jeopardy and speedy trial grounds. Later he filed a motion to dismiss for the same reasons. The court set a new trial date.

At the hearing on Minitee’s motion, Judge Marchant noted that Minitee’s case was “complex,” and that “it would have been extremely hard for any other Judge to pick up and continue that case.” He also explained the severity of his back injury, which required emergency surgery and a multi-week recovery.

Judge Marchant denied the motion to dismiss. “Minitee thereafter filed a motion to dismiss on statutory and constitutional speedy trial grounds and a motion to recuse Judge Marchant, but the trial court denied both motions.”

A jury found Minitee guilty on all counts.

In the Court of Appeals

“[T]he Court of Appeals reversed Minitee’s convictions and dismissed the indictments, holding the trial court erred in denying the motion to dismiss on double jeopardy grounds. …

“As a preliminary matter, the court concluded Minitee had objected with sufficient specificity at trial to preserve his challenge to the propriety of the mistrial declaration.

“By asserting he was prepared to proceed with trial, ‘Minitee presented a less drastic alternative to the mistrial in his objection’ and therefore ‘the decision regarding whether to declare the sua sponte mistrial was squarely before the trial court.’ …

“The court further observed that, based on the objections by Minitee and the Commonwealth, the trial court ‘was on notice that the necessity of the mistrial was an issue.’ …

“As to the merits of Minitee’s argument, the Court of Appeals determined there was no evidence clearly indicating, at the time of the mistrial, the less drastic alternatives, if any, the trial court considered prior to declaring the mistrial. …

“Thus, the record did not support a finding that the mistrial was a manifest necessity, and the court was ‘left with no other alternative’ than to conclude the trial court abused its discretion in declaring a mistrial over Minitee’s objection ‘without detailing its consideration of less drastic alternatives for the record.’”

Analysis

“Minitee’s objection to the mistrial was insufficient to preserve for appeal his argument concerning the manifest necessity of the mistrial declaration. To preserve the issue of manifest necessity, the contemporaneous objection rule required Minitee to object not only to the mistrial, but to the precise point that a manifest necessity did not exist to declare the mistrial. …

“The sole basis for Minitee’s objection to the mistrial was that he was prepared to proceed with trial because his witnesses were present. Minitee never asserted there was no manifest necessity for ending his first trial.

“If Minitee had made a timely objection on such grounds, Judge Taylor would have had an opportunity to consult with Judge Marchant. Based upon Judge Marchant’s detailed statements during the April 3 hearing regarding his reasons for determining that a mistrial was necessary, she would have been able to find there was manifest necessity to declare a mistrial and discharge the jury under Code § 8.01-361.

“Because Minitee has waived his challenge to the manifest necessity of the mistrial, the Court of Appeals erred in ruling on the merits of this issue. Consequently, the trial court’s ruling on the motion to dismiss on double jeopardy grounds stands.

“Although Minitee urges this Court to address the merits of his challenges to the trial court’s denial of the motion to dismiss on speedy trial grounds and the motion to recuse, consideration of these claims in the first instance is appropriate in the Court of Appeals. …

“Accordingly, we reverse the judgment of the Court of Appeals and remand to the Court of Appeals for consideration of Minitee’s claims regarding the trial court’s denial of his motion to dismiss on statutory and constitutional speedy trial grounds and his motion to recuse.”

Commonwealth v. Minitee, Record No. 210031 (Unpublished Order) Dec. 16, 2021. Upon an appeal from a judgment rendered by the Court of Appeals of Virginia. VLW 021-6-080, 6 pp.