{ "id": 8526445, "name": "STATE OF NORTH CAROLINA v. ANDREW LYNN JONES", "name_abbreviation": "State v. Jones", "decision_date": "1984-04-03", "docket_number": "No. 8310SC912", "first_page": "377", "last_page": "388", "citations": [ { "type": "official", "cite": "67 N.C. App. 377" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "276 S.E. 2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": -1 }, { "cite": "302 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568010 ], "year": 1981, "opinion_index": -1, "case_paths": [ "/nc/302/0591-01" ] }, { "cite": "2 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "year": 1795, "opinion_index": 0 }, { "cite": "80 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694672 ], "year": 1879, "opinion_index": 0, "case_paths": [ "/nc/80/0377-01" ] }, { "cite": "180 S.E. 2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560801 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0506-01" ] }, { "cite": "187 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "240 S.E. 2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "243 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "386 U.S. 58", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168959 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0058-01" ] }, { "cite": "451 U.S. 725", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6192088 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/us/451/0725-01" ] }, { "cite": "293 S.E. 2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568322 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0302-01" ] }, { "cite": "183 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569906 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0484-01" ] }, { "cite": "243 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574115 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0577-01" ] }, { "cite": "304 S.E. 2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705185, 4708995, 4708841, 4705295, 4706902 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0679-05", "/nc/308/0679-02", "/nc/308/0679-01", "/nc/308/0679-04", "/nc/308/0679-03" ] }, { "cite": "299 S.E. 2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "239" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521037 ], "year": 1983, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0369-01" ] }, { "cite": "189 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575699 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0592-01" ] }, { "cite": "121 S.E. 2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570108 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0432-01" ] }, { "cite": "224 S.E. 2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572654 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0668-01" ] }, { "cite": "124 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573643 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0494-01" ] }, { "cite": "80 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1954, "pin_cites": [ { "page": "248" }, { "page": "248" } ], "opinion_index": 0 }, { "cite": "239 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627279 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0446-01" ] }, { "cite": "6 L.Ed. 165", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 1421261 ], "weight": 2, "year": 1824, "opinion_index": 0, "case_paths": [ "/us/22/0579-01" ] }, { "cite": "277 S.E. 2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "\"cherished right\"" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 613", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2644403 ], "year": 1981, "pin_cites": [ { "parenthetical": "\"cherished right\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0613-01" ] }, { "cite": "434 U.S. 497", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185127 ], "weight": 13, "year": 1978, "pin_cites": [ { "page": "503-5" }, { "page": "727-28" }, { "page": "829-30" }, { "page": "506" }, { "page": "728" }, { "page": "830-31" }, { "page": "517" }, { "page": "735" }, { "page": "836" } ], "opinion_index": 0, "case_paths": [ "/us/434/0497-01" ] }, { "cite": "93 L.Ed. 974", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "opinion_index": 0 }, { "cite": "336 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3939222 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/us/336/0684-01" ] }, { "cite": "313 S.E. 2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "Johnson, J., dissenting" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526492 ], "year": 1984, "pin_cites": [ { "parenthetical": "Johnson, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0413-01" ] } ], "analysis": { "cardinality": 1161, "char_count": 26088, "ocr_confidence": 0.806, "pagerank": { "raw": 2.4627261311965055e-07, "percentile": 0.8057027649102322 }, "sha256": "93f0f1bc8bee6d557da2923782157ce2a260bc90b0bc5e5c78bc6e646f745985", "simhash": "1:c3ac4a2b470d0682", "word_count": 4297 }, "last_updated": "2023-07-14T17:10:21.361774+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge WEBB concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANDREW LYNN JONES" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe substantive facts outlined above are not seriously disputed. Rather, defendant raises errors of procedure resulting in violation of the constitutional guarantee against double jeopardy.\nThe underlying error which defendant asserts, and upon which all his other assignments of error are predicated, is that the trial court improperly declared a mistrial at his first trial. The proceedings leading up to the declaration of mistrial were as follows:\nThe trial began 18 April 1983 in Wake County Superior Court before the Honorable Samuel E. Britt and a duly empan-elled jury. After presentation of evidence by both sides, the court gave its charge to the jury. (No errors are alleged, nor are any apparent, in these or any other instructions given.) The jury retired at 2:40 p.m. on 20 April. At approximately 3:40 p.m., the jury returned and asked the court to redefine murder in the first degree, murder in the second degree, and voluntary manslaughter. The court repeated the instructions as requested and repeated its mandate. At the request of the foreman, the court also gave a definition of malice. At 5:03 p.m., the court called the jury in, ordered the verdict sheet sealed, and declared a recess. At 9:30 a.m. the next morning, the court reconvened with all jurors present. Before they resumed deliberation, the foreman indicated that several members had asked the day before for a redefinition of malice and under what conditions it could be eliminated from consideration, and \u201cany other pertinent information you think might help us.\u201d The court carefully and correctly defined malice as it applies to the varying degrees of homicide. The jury retired at 9:45 a.m.\nAt 12:50 p.m., the jury returned again and the following ensued:\nCOURT: All right, all parties to the trial are now back in the courtroom in the case of State of North Carolina verses [sic] Andrew Lynn Jones. Will the foreman please rise. The baliff indicated you wanted me to call you in shortly before the lunch hour for the purpose of a question, is that correct?\nFOREMAN: Yes, it is, Your Honor.\nCOURT: What\u2019s the question?\nFOREMAN: Your Honor, the question arises from a question of law that the Prosecutor read concerning a case. I believe it said and stated that mere words alone cannot raise a heat of passion, something of that affect [sic]. Our question is: Can words alone provoke heat of passion? And the second question: What all can provoke heat of passion?\nCOURT: Thank you, you may be seated. It is true, members of the jury, that a true statement of the law is that mere words alone can provoke a passion, a state of passion, and I will instruct you that is a correct statement of law. Now your next question as to what possibly could provoke passion is beyond my ability to answer. I have no knowledge of all the endless list of things that might occur in this world that might provoke passion and could not express it in terms of the law.\nFOREMAN: Your Honor, for clarification, it was our understanding that the Prosecutor, the case that he read said mere words alone cannot provoke a heat of passion.\nCOURT: Is that what you stated to this jury? I was out of the room during the argument. Is that what you stated to the jury?\nMr. Knudsen [Assistant District Attorney]: I read a case from the State of North Carolina that stated mere words alone would not constitute adequate provocation, which I have reason to believe that\u2019s the case. I read from the Supreme Court of North Carolina.\nCOURT: We have reached an impasse. I withdraw Juror Number One and declare a mistrial. Thank you very much, members of the jury, for your services.\nThe court thereafter entered an order which read in its entirety as follows: \u201cThe judgment of this court is that the jury has reached an impasse and further deliberation would not resolve this matter. The Court therefore withdraws juror #1 and declares a mistrial.\u201d To this order defendant properly and timely objected.\nA second trial took place before the Honorable Anthony M. Brannon and a jury on 20 June 1983; defendant moved to dismiss on the ground of former jeopardy and the court denied the motion. Defendant immediately gave notice of appeal, but the trial went forward nonetheless. It resulted in a mistrial on the motion of defendant. At a third trial before the Honorable Robert L. Farmer and a jury, defendant unsuccessfully renewed his motion to dismiss. That trial resulted in a verdict of guilty of second degree murder on 27 July 1983. The judgment entered on this verdict is the jurisdictional basis of this appeal; the earlier appeal was dismissed as interlocutory. State v. Jones, 67 N.C. App. 413, 313 S.E. 2d 264 (1984) (Johnson, J., dissenting). Defendant\u2019s only real contention here is that his motions to dismiss for former jeopardy were improperly denied because the first mistrial was erroneously ordered.\nA defendant\u2019s right to have his trial completed before a particular tribunal is a \u201cvalued right,\u201d guaranteed by the constitutional prohibition of double jeopardy. Wade v. Hunter, 336 U.S. 684, 93 L.Ed. 974, 69 S.Ct. 834 (1949). As stated by the United States Supreme Court in Arizona v. Washington, 434 U.S. 497, 503-5, 54 L.Ed. 2d 717, 727-28, 98 S.Ct. 824, 829-30 (1978):\nThe reasons why this \u201cvalued right\u201d merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial. (Footnotes omitted.)\nThis right has also been recognized in North Carolina. See State v. Williams, 51 N.C. App. 613, 277 S.E. 2d 546 (1981) (\u201ccherished right\u201d).\nConsequently, a standard and long-established feature of American jurisprudence has been that the jury may only be discharged with the defendant\u2019s consent where \u201cthere is a manifest necessity for the act.\u201d United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824); see also Arizona v. Washington, supra. North Carolina courts have long adhered to this rule, requiring either \u201cphysical necessity\u201d or \u201cthe necessity of doing justice\u201d to discharge the jury. State v. Crocker, 239 N.C. 446, 80 S.E. 2d 243 (1954); see also State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838 (1962). As pointed out in Arizona v. Washington, supra at 506, 54 L.Ed. 2d at 728, 98 S.Ct. at 830-31, such words \u201cdo not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge.\u201d Therefore, the trial court must exercise its discretion in applying the standard of necessity. Id.; United States v. Perez, supra; State v. Birckhead, supra.\nThis discretion is a limited one, however, and must be exercised with care, in view of the important rights at stake. True necessity must exist. Although the United States Constitution does not require that a state trial court make an explicit finding of \u201cmanifest necessity\u201d or \u201carticulate on the record all the factors which informed the deliberate exercise of his discretion,\u201d Arizona v. Washington, supra at 517, 54 L.Ed. 2d at 735, 98 S.Ct. at 836, it does require that the record adequately disclose the necessity on which the order rests. Id. North Carolina, however, requires more. Before 1977, trial courts, in capital cases such as this, had to fully find the facts supporting mistrial orders and place them in the record so that their actions could be reviewed on appeal. State v. McKenna, 289 N.C. 668, 224 S.E. 2d 537 (1976); State v. Boykin, 255 N.C. 432, 121 S.E. 2d 863 (1961). Findings were not required in non-capital cases, and the trial court\u2019s decision was reviewable only in cases of gross abuse of discretion. State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972).\nIn 1977, the General Assembly enacted Article 62 of Chapter 15A of the General Statutes, \u201cMistrial.\u201d It codified existing law and spelled out the limited number of situations in which the court may declare a mistrial. More importantly for this case, the act included G.S. 15A-1064, which provides: \u201cBefore granting a mistrial, the judge must make findings of fact with respect to the grounds for the mistrial and insert the findings in the record of the case.\u201d This section is mandatory. As stated in State v. Johnson, 60 N.C. App. 369, 372, 299 S.E. 2d 237, 239, disc. rev. denied, 308 N.C. 679, 304 S.E. 2d 759 (1983):\nOur statute specifically requires, and we strongly urge adherence thereto, that findings be made and entered into the record before a declaration of mistrial. Even the most exigent of circumstances do not justify circumvention of this rule. (Emphasis original.)\nThe purpose of G.S. 15A-1064 is clearly to ensure that mistrial is declared only where there exists real necessity for such an order. The right of the accused to completion of the proceedings before the same tribunal is thereby protected from sudden and arbitrary judicial action. Judicial action, before being taken, must have support in the record. The pre-1977 cases support this interpretation: required findings ensure that the court\u2019s power is \u201cexercised with caution and only after a careful consideration of all available evidence and only after making the requisite findings of fact on the basis of evidence before the court at the time judicial inquiry is made.\u201d State v. Crocker, supra at 452, 80 S.E. 2d at 248.\nIn State v. Boykin, supra, the trial judge suffered a heart attack at the courthouse. After three days of keeping the jury on call for his hoped-for return, the judge declared a mistrial from his hospital bed, finding inter alia that he had suffered a heart attack, that upon medical examination it had been determined he could not return, and that the defendant consented to mistrial. The Supreme Court affirmed, finding that although the findings were \u201cterse and succinct\u201d that they justified the order.\nIn State v. Crocker, supra, the trial court ordered a mistrial upon discovery of an incident at the hotel where the jury spent the night, in which certain jurors became intoxicated and at least one required some thirty minutes to be quieted down. The Supreme Court held that the order was not justified, since no evidence was heard nor findings made as to the crucial question, ie., the jurors\u2019 fitness to serve when present in court. The trial court\u2019s findings here clearly do not suffice when compared with the standard implicit in Boykin and Crocker, supra.\nIn State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978), the jury transmitted a note to the judge that it could not come to an agreement. The court then interrogated the jury foreman and elicited his opinion that the jury was hopelessly deadlocked. Upon inquiry, the other jurors indicated agreement with the foreman. In State v. Battle, 279 N.C. 484, 183 S.E. 2d 641 (1971), the jury told the court they were \u201csix and six\u201d upon which the court instructed them to resume deliberation. Upon their return, they stated they were still similarly divided and each juror indicated a personal opinion that they could never agree. The court then ordered a mistrial. In both Alston and Battle the Supreme Court held that the court properly exercised its discretion. In State v. Booker, 306 N.C. 302, 293 S.E. 2d 78 (1982), the Supreme Court again upheld a declaration of mistrial where the jury had sent a note to the judge indicating it was deadlocked. No such positive indication appears anywhere in this record. Nor did the court undertake any sort of inquiry as in Alston and Battle. The trial judge admitted that he made no inquiry as to whether the jury was deadlocked. Therefore, not only did no positive indication of deadlock enter the record, but the court also could not exercise its discretion whether or not to order the jury to continue deliberations. State v. Battle, supra. The trial court\u2019s failure to make both an inquiry and factual findings thus constituted a serious deviation from proper practice and precluded defendant\u2019s timely assertion of his rights. We, therefore, hold that the court erred in ordering a mistrial.\nOur holding that the order of mistrial was error does not mean that a mistrial could not have been declared in this case. It does mean that where a defendant insists on his right to have his trial completed before one jury, that right may only be denied after the demonstrated exercise of careful judicial inquiry and deliberation. In addition, that right is sufficiently important and once lost is irretrievable, so that absent compelling reasons, there is no excuse for the trial court\u2019s failure to make the mandated findings of fact before entering the order. Therefore, an order so entered, as here,is erroneous.\nIll\nNevertheless, argues the State, the real purpose of G.S. 15A-1064, which is to enable the reviewing courts to determine that manifest necessity for mistrial existed and that the judge exercised sound discretion, has been satisfied by the creation of an adequate record. The State relies on the federal constitutional requirement as set forth in Arizona v. Washington, supra, that explicit findings are not necessary where an adequate record is made, to argue that G.S. 15A-1064 should require nothing more.\nIt is elementary that all state laws in conflict with the United States Constitution and the laws of the United States are without effect. U.S. Const. Art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 68 L.Ed. 2d 576, 101 S.Ct. 2114 (1981). However, the states may of their own accord impose higher standards of procedural protection on their law enforcement system. Cooper v. California, 386 U.S. 58, 17 L.Ed. 2d 730, 87 S.Ct. 788 (1967). The Constitution of North Carolina expressly grants the General Assembly the power to enact rules of criminal procedure such as G.S. 15A-1064. N.C. Const. Art. IV, \u00a7 13(2).\nIn construing the statutes of North Carolina, the intent of the legislature controls. State v. Fulcher, 294 N.C. 503, 243 S.E. 2d 338 (1978); In re Hardy, 294 N.C. 90, 240 S.E. 2d 367 (1978). A construction which will defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language. In re Hardy, supra. Furthermore, none of the statutory provisions of an act are to be deemed useless if they can reasonably be considered as adding something to the act. State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972).\nApplying the foregoing principles we must reject the State\u2019s contention. G.S. 15A-1064 clearly requires findings of fact. Had the General Assembly wished to allow the matter to remain entirely in the discretion of the trial courts, it would have done so. Instead, in a departure from earlier law, the legislature made such findings mandatory for all orders of mistrial. The State\u2019s contention, if adopted, would make such findings necessary only where the record did not otherwise make clear the basis for the order. Such a rule, while satisfying the United States Constitution, would effectively render G.S. 15A-1064 meaningless; its provisions subject to virtually unlimited discretion of the trial courts to evaluate the state of the record and decide whether findings are required. The General Assembly\u2019s action is expanding existing law and its clear mandatory language indicate a contrary intent. Furthermore, this Court should not be subjected to needless litigation of the sufficiency of the record to warrant findings. The provisions of G.S. 15A-1064 are simple and clear; their uniform application will protect valued rights of defendants and greatly facilitate the process of appellate review.\nThe State\u2019s reliance on Arizona v. Washington, supra, overlooks one of the key features of that case. Although the trial judge there did not make explicit findings, he did allow substantial time for deliberation and allowed counsel for both sides full opportunity for argument on the record, after indicating the pertinent legal problems. Such an effort is entirely lacking here; the two cases are clearly distinguishable in this vital respect.\nTo repeat, it is only a secondary purpose of G.S. 15A-1064 to ensure that a full record is made. Its primary purpose is to protect the valued constitutional rights of criminal defendants. It would seriously weaken this protection if trial judges could ex post facto develop explanations for mistrial rulings. Findings must be made before the declaration to ensure full deliberation; the creation of a record subsequently is no substitute, except perhaps in a few isolated cases. See State v. Johnson, supra (judge, former heart attack victim, felt another attack coming on; failure to make findings in advance curable error).\nIV\nAssuming arguendo that cure was available, the record developed does not lend support to the State\u2019s contention. The trial judge testified at the habeas corpus hearing that the jurors\u2019 faces and demeanor led him to believe that the jury was divided and confused. The requests for repetition of various parts of the charge and certain remarks by the foreman also constituted basis for this belief. Ordinarily appellate courts give great credence to findings of the trial court. Here, however, the judge\u2019s explanation for his action consists solely of subjective impressions first revealed twenty days after the trial, without contemporaneous inquiry having been made to substantiate them or opportunity given for the parties to be heard. Although the record supports an inference that the jury was experiencing difficulty understanding the law arising upon the evidence, the record also substantiates the conclusion that the jury was carefully and conscientiously deciding a capital case; that their questions on malice indicated consideration of at least second degree murder; that the jury\u2019s subsequent question on provocation indicated that they had eliminated first degree murder and were considering either second degree murder, manslaughter, or acquittal; and that the judge, provoked by the actions of the prosecutor, suddenly declared a mistrial after answering the jury\u2019s last question.\nThe impressions of the trial judge clearly do not rise to the level of compelling circumstances or clear deadlock required by North Carolina law. State v. Birckhead, supra; State v. Alston, supra. The absence of more definitive findings only underscores again the importance of complying with G.S. 15A-1064. The constitutional rights at stake are sufficiently important that they should not be left to speculation.\nThe State also contends that the order entered following the habeas corpus hearing is conclusive here. The only relevant parts of that order are (1) that there was ample evidence in the record from which the trial judge could have found the jury was hopelessly confused as to the law, (2) that the jury had deliberated more than five hours, almost as long as the evidence had taken, and (3) that their questions indicated they had not eliminated any possible verdict. These are not specifically labelled findings of fact, nor do they appear to be anything more than conclusions of law, relative to the issues presented here. In the record of both the trial and the hearing, the only real \u201cfacts\u201d justifying mistrial are the trial judge\u2019s subjective impressions from the jury\u2019s faces, and his subjective interpretation of several remarks by the foreman. Assuming arguendo that the order entered following the habeas corpus hearing is conclusive, it does not contain these crucial facts.\nV\nWe have decided that the order of mistrial was erroneous, and that the error was not subsequently cured. The appropriate remedy must now be fashioned.\nIt is abundantly clear that jeopardy had attached at defendant\u2019s first trial. State v. Neas, 278 N.C. 506, 180 S.E. 2d 12 (1971). The jury had apparently eliminated the first degree murder charge when the mistrial was declared. The improper order of mistrial was thus clearly prejudicial; not only did defendant lose his right to have his trial completed before the first jury without proper inquiry, but he also had to undergo the stress of another full trial on the first degree murder charge. Therefore, defendant was unconstitutionally subjected to double jeopardy for the same offense.\nAlthough the cases are few, it is long and firmly established that where a mistrial is improperly entered over defendant\u2019s objection, a plea of former jeopardy or a motion to dismiss must be granted and the defendant discharged. State v. Birckhead, supra; State v. Crocker, supra; State v. McGimsey, 80 N.C. 377 (1879); State v. Garrigues, 2 N.C. 241 (1795). The holding in State v. Crocker, supra is especially relevant here, as it was \u201cpredicated solely upon the insufficiency of the facts as found to support the order of mistrial.\u201d 239 N.C. at 453, 80 S.E. 2d at 248. The Supreme Court ruled:\nOur holding here is that the facts and circumstances set forth in the findings of fact are not of such compelling nature as to justify a further relaxation of a rule of such importance in safeguarding the life and liberty of a citizen against repeated prosecutions for the same offense.\nThe preservation of the salutary principle underlying the plea of former jeopardy in capital cases is of far greater importance than the service by this defendant of the prison term imposed . . . The uncertainty, anxiety and expense of two trials for the capital felony of murder in the first degree, within themselves, constitute an ordeal that is the equivalent of substantial punishment.\nId. The Court, therefore, ordered the defendant\u2019s discharge. A fortiori where the trial court makes no findings at all in the course of improperly ordering a mistrial over defendant\u2019s timely objection, and nothing prevents the court from doing so, the defendant cannot be tried again for the same offense. Therefore, defendant must be discharged and the charges against him dismissed.\nThe judgment appealed from is accordingly\nReversed.\nChief Judge VAUGHN and Judge WEBB concur.\nThis Court has recognized the possibility of harmless error in failure to comply with G.S. 15A-1064. State v. Johnson, supra. The holding in Johnson was based on its \u201cpeculiar\u201d facts, however; the trial judge, a former heart attack victim, felt the now familiar pains coming on and ordered a mistrial. Physical necessity permitted the order, G.S. 15A-1063, and clearly excused the failure to find facts. Nothing in this case suggests that the rule in Johnson should apply.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Thomas F. Moffitt, for the State.", "Dement, Askew & Gaskins, by Johnny S. Gaskins, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANDREW LYNN JONES\nNo. 8310SC912\n(Filed 3 April 1984)\nConstitutional Law \u00a7 34; Criminal Law \u00a7 128\u2014 declaration of mistrial \u2014 failure to find facts supporting \u2014 record not supporting declaration of mistrial \u2014 double jeopardy attaching\nIn a prosecution for the murder of defendant\u2019s wife\u2019s boyfriend, the trial court improperly entered a mistrial over defendant\u2019s objection, and defendant\u2019s plea of former jeopardy or motion to dismiss at his subsequent trial should have been granted and defendant should have been discharged. Before granting a mistrial, the trial judge failed to make findings of fact with respect to the grounds for the mistrial and assert the findings in the record as required by G.S. 15A-1064, and the record does not otherwise make clear the basis for the order. There was no positive indication of a deadlock of the jury and the court failed to make an inquiry and factual findings as to whether or not the jury was deadlocked. Further, the record substantiates a conclusion that the jury was carefully and conscientiously deciding a capital case; that their questions on malice indicated a consideration of at least second degree murder; that the jury\u2019s subsequent questions on provocation indicated that they had eliminated first degree murder and were considering either second degree murder, manslaughter, or acquittal; and that the judge, provoked by the actions of the prosecutor, suddenly declared a mistrial after answering the jury\u2019s last question. The improper order of mistrial was clearly prejudicial; not only did defendant lose his right to have his trial completed before the first jury without proper inquiry, but he also had to undergo the stress of another full trial on the first degree murder charge.\nAPPEAL by defendant from Farmer, Judge. Judgment entered 27 July 1983 in Superior Court, WAKE County. Heard in the Court of Appeals 6 February 1984.\nDefendant and his wife separated in early 1979 after six years of marriage. She moved out and shortly thereafter they signed a separation agreement. Defendant\u2019s wife became romantically involved with David Lee Height, a mutual friend. Defendant and his wife continued to see one another and apparently considered reconciliation. On 1 July 1979, however, defendant and his wife had a conversation in which she told him she would not return to him. In the early morning of 2 July 1979, defendant came to his wife\u2019s apartment. Height was there with her. After some discussion, defendant pulled out a .25 caliber pistol and shot Height once in the chest. Height died as a result of the shooting. Defendant turned himself in to the police four days later. Because his wife could not testify against him, the murder indictment against him was dismissed. Following the decision of the Supreme Court in State v. Freeman, 302 N.C. 591, 276 S.E. 2d 450 (1981), which changed the strict common law rule of spousal disqualification, defendant was reindicted for the murder of Height. From a conviction of second degree murder defendant appeals. Further facts are set out as necessary in the opinion.\nAttorney General Edmisten, by Assistant Attorney General Thomas F. Moffitt, for the State.\nDement, Askew & Gaskins, by Johnny S. Gaskins, for defendant appellant." }, "file_name": "0377-01", "first_page_order": 409, "last_page_order": 420 }