Curtis A. Brandon, Jr., etc. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
CURTIS A. BRANDON, JR., S/K/A
CURTIS ALLEN BRANDON, JR.
v. 	Record No. 2600-94-1 	OPINION
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA 	MARCH 12, 1996
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
Theresa B. Berry (Samford & Berry, on brief),
for appellant.
Brian Wainger, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Leah A. Darron, Assistant Attorney General,
on brief), for appellee.
Curtis Allen Brandon, Jr. (appellant) appeals from a
judgment of the Circuit Court of the City of Virginia Beach
(trial court) that approved jury verdicts convicting him for
robbery, use of a firearm in the commission of robbery, and for
grand larceny. 	The determinative question on appeal is whether
the trial court erred in denying appellant's pretrial motion to
dismiss the indictments on the ground that further prosecution
was barred by the double jeopardy provisions of the Federal and
State Constitutions. 	Appellant's motion was based upon the trial
court's order that sustained the Commonwealth's motion for a
mistrial granted over appellant's objection in a prior trial at
which jeopardy had attached. 	Appellant asserts that no manifest
necessity or public interest is shown by the record to support

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his being deprived of his constitutional right to have his trial
completed by the particular tribunal before which jeopardy
previously had attached.
The facts are not in dispute. 	On December 15, 1993,
appellant was arrested and subsequently indicted on the charges
for which he stands convicted. 	On July 27, 1994, a jury was
sworn, pleas of not guilty were entered, and four witnesses were
presented by the Commonwealth. 	The fourth witness (Williamson),
a juvenile, on direct examination testified that on November 2,
1993, he and appellant went to the home of fourteen-year-old Paul
Martin and that while there appellant stole a .44 caliber magnum
handgun. 	Williamson testified further that appellant telephoned
him that evening and asked him if he wanted to rob a pizza
delivery man with the gun that appellant had stolen. 	Williamson
declined. 	Appellant used the handgun stolen from the Martin home
in the robbery of a pizza delivery man the following evening.
Williamson, who was sixteen years old at the time, had
previously been charged with statutory rape. 	The juvenile and
domestic relations district court deferred a finding in that case
and held that if Williamson was of good behavior and completed
community service, the charge would be reduced to misdemeanor
assault.
On cross-examination, appellant's counsel asked Williamson
if he was on probation. 	Williamson stated that he was not.
Appellant then asked Williamson if he was "subject to a deferred

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finding." 	Williamson answered, "No. 	I'm off probation."
Appellant again asked Williamson if he was subject to a deferred
finding. 	Williamson responded, "What does that mean?"
Appellant's counsel asked, "Would the court like me to explain?"
and then asked Williamson, "How did the court dispose of that
rape charge you had?" 	Until that question was asked, the trial
court had permitted all the other questions to be answered. 	The
Commonwealth objected, and the jury was excused from the
courtroom.
The trial court stated that only questions relating to a
witness's criminal convictions are admissible. 	Appellant's
counsel argued that the questions about the deferred finding were
asked to show Williamson's bias in favor of the Commonwealth.
The Commonwealth responded that the cross-examination was
improper and requested a mistrial, asserting that Williamson was
a crucial witness and that his credibility had been damaged
beyond repair. 	The trial court observed that Williamson was "a
very material witness."1 Without considering any alternative,
the trial court found that "based on [the] question [How did the
court dispose of that rape charge you had?] I'm going to have to
declare a mistrial."2
Trial on the indictments was rescheduled for December 13,
1
The transcript of the December 13, 1994 trial at which
appellant was convicted discloses that Williamson did not testify.
2The trial court made no initial finding of "manifest
necessity" or "public interest."

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1994. 	Prior to trial, appellant's motion to dismiss the
indictments based upon double jeopardy was denied, and the trial
proceeded before a jury, which convicted him. 	From those
convictions appellant appeals.
Appellant argues that the questions propounded to the
witness on cross-examination were designed to show bias because
Williamson may have believed that he was required to cooperate
with the Commonwealth in order to receive a favorable disposition
with respect to his deferred finding. 	Appellant contends that
the trial court thus erroneously declared a mistrial. 	We agree.
When an accused testifies on his own behalf, his prior
convictions while a juvenile may not be shown if its purpose is
only to show that he is unworthy of belief. 	See Kiracofe v.
Commonwealth, 198 Va. 833, 845, 97 S.E.2d 21, 22 (1957).
However, we have been cited no authority, and have found none,
that would bar cross-examination that tends to show a juvenile's
testimony may be biased because of perceived favorable treatment
in the disposition of his criminal case in exchange for his
testimony against the accused. 	To the contrary, prohibiting such
cross-examination is constitutional error. 	See Davis v. Alaska,
415 U.S. 308, 319 (1974) ("[T]he right of confrontation is
paramount to the State's policy of protecting a juvenile
offender"). 	A juvenile's testimony against the accused can be
just as prejudicial as an adult's testimony, and just as biased.
If Williamson did not believe that he had to testify favorably

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on behalf of the Commonwealth, he should have been permitted to
say so. 	If he did so believe, the fact finder was entitled to
weigh that fact against others presented at trial.
In Hewitt v. Commonwealth, 226 Va. 621, 311 S.E.2d 112
(1984), Justice Russell said:
We have consistently held that the right of
an accused to cross-examine prosecution
witnesses to show bias or motivation, when
not abused, is absolute. 	It rests upon the
constitutional right to confront one's
accusers. 	Whittaker v. Commonwealth, 217 Va.
966, 968, 234 S.E.2d 79, 81 (1977); Davis v.
Commonwealth, 215 Va. 816, 822, 213 S.E.2d
785, 789 (1975); Woody v. Commonwealth, 214
Va. 296, 299, 199 S.E.2d 529, 531-32 (1973);
Moore v. Commonwealth, 202 Va. 667, 669, 119
S.E.2d 324, 327 (1961). 	In Whittaker we
said: Just as a defendant is entitled
to show that testimony of a
prosecution witness was motivated
by an expectation of leniency in a
future trial, a defendant is
entitled to prove facts that would
support an inference that such
testimony was motivated by a
bargain for leniency granted in a
previous trial.
Id. at 623, 311 S.E.2d at 114.
Jeopardy attached when, on July 27, 1994, the jury was
selected and sworn, appellant was arraigned, and the Commonwealth
proceeded to present evidence. 	Crist v. Bretz, 437 U.S. 28, 38
(1978). 	The Fifth Amendment to the Constitution of the United
States provides that no person shall be "twice put in jeopardy of
life or limb" for the same offense. 	See Mack v. Commonwealth,
177 Va. 921, 925, 15 S.E.2d 62, 63 (1941). 	Double jeopardy

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protection is implicated even though the trial may have
terminated without a verdict. 	See Adkins v. Bordenkircher, 517
F. Supp. 390 (1981), aff'd, 674 F.2d 279 (4th Cir. 1982).
Because jeopardy attaches before the judgment
becomes final, the constitutional protection
also embraces the defendant's "valued right
to have his trial completed by a particular
tribunal." 	The reasons why this "valued
right" 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.
Arizona v. Washington, 434 U.S. 497, 503-05 (1978).
It has long been said that the underlying reason for this
constitutional protection
is that the State with all its resources and
power should not be allowed to make repeated
attempts to convict an individual for an
alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and
compelling him to live in a continuing state
of anxiety and insecurity, as well as
enhancing the possibility that even though
innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88 (1957).
The "particular tribunal" principle is implicated whenever a
mistrial is declared over the defendant's objection and without
regard to the presence or absence of governmental overreaching.

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See Gilliam v. Foster, ___ F.3d ___ (4th Cir. 1996). 	If the
"right to go to a particular tribunal is valued, it is because,
independent of the threat of bad-faith conduct by judge or
prosecutor, the defendant has a significant interest in the
decision whether or not to take the case from the jury . . . ."
United States v. Jorn, 400 U.S. 470, 485 (1971). 	"Reprosecution
after a mistrial has unnecessarily been declared by the trial
court obviously subjects the defendant to the same personal
strain and insecurity regardless of the motivation underlying the
trial judge's action." 	Id. at 483.
The Court in Washington recalled the time in English history
when judges served the Stuart monarchs by exercising a power to
discharge a jury whenever it appeared that the Crown's evidence
would be insufficient to convict, and noted that the prohibition
against double jeopardy as it evolved in this country was
designed to condemn this "abhorrent" practice.3 However, in
applying the double jeopardy provision to cases where a mistrial
was granted on the motion of the prosecution, our courts have
long recognized that in certain cases that procedure could be
justified. 	In United States v. Perez, 22 U.S. (9 Wheat) 579
(1824), the United States Supreme Court adopted what has become
known as the "manifest necessity" rule to "protect the public
interest." 	When a "manifest necessity" is shown for a mistrial,
3Subsequently, in England, a rule developed permitting a trial
judge to declare a mistrial where "evident necessity" demanded.
See Winson v. The Queen A.R.Q.B. 289, 305 (1866).

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the defendant's valued right to have his trial completed by a
particular tribunal must be subordinated to the public's interest
in fair trials designed to end in just judgments. 	Illinois v.
Somerville, 410 U.S. 458, 470 (1973); see Code § 8.01-361;
Washington v. Commonwealth, 216 Va. 185, 194, 217 S.E.2d 815, 823
(1975); Mack, 177 Va. at 928, 15 S.E.2d at 65.
There is no specific standard by which to determine what
facts and circumstances constitute a "manifest necessity."
Turnbull v. Commonwealth, 216 Va. 328, 335, 218 S.E.2d 541, 546
(1975). 	Generally, that determination is left to the sound
discretion of the trial court, which is in a better position than
an appellate court to determine whether improper testimony would
prejudice the jury to the extent that a mistrial should be
ordered. 	Mack, 177 Va. at 932, 15 S.E.2d at 66. 	In Mack, the
Court approved the following statement from Commonwealth v.
Cronin, 257 Mass. 535, 154 N.E. 176 (1926):
"It is manifest that we have no means of
determining, as did the trial judge, the
effect which the statement of counsel might
reasonably have had upon the minds of the
jurors. 	If the judge, acting impartially, as
we must assume he did, believed that the
statement of counsel was likely to result in
an unjust verdict, we cannot say that his
action was without justification. 	Of course,
he could not exercise the power vested in him
to act arbitrarily or without good cause to
believe that the action he took was necessary
to prevent great injustice either to the
Commonwealth or to the defendant. 	The power
of the court is always to be used alike for
the protection of the public and for the
security of the defendant in his right to an
impartial trial."

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Mack, 177 Va. at 931, 15 S.E.2d at 66.
To justify the declaration of a mistrial, the objectionable
evidence must be so prejudicial that it probably would remain in
the minds of the jury and influence its verdict even if it were
told to disregard it. 	See Beavers v. Commonwealth, 245 Va. 268,
280, 427 S.E.2d 411, 420, cert. denied, 114 S. Ct. 171 (1993);
Asbury v. Commonwealth, 211 Va. 101, 104, 175 S.E.2d 239, 241-42
(1970). [I]n view of the importance of the right,
and the fact that it is frustrated by any
mistrial, the prosecutor must shoulder the
burden of justifying the mistrial if he is to
avoid the double jeopardy bar. 	His burden is
a heavy one. 	The prosecutor must demonstrate
"manifest necessity" for any mistrial
declared over the objection of the defendant.
The words "manifest necessity" appropriately
characterize the magnitude of the
prosecutor's burden. . . . Indeed, it is
manifest that the key word "necessity" cannot
be interpreted literally; instead, contrary
to the teaching of Webster, we assume that
there are degrees of necessity and we require
a "high degree" before concluding that a
mistrial is appropriate.
Washington, 434 U.S. at 505-06.
Any doubt as to the validity of the trial court's
declaration of a mistrial should be resolved in favor of the
accused. 	United States v. Chase, 372 F.2d 453, 466 (4th Cir.),
cert. denied, 387 U.S. 907 (1967). 	In our judgment, the
Commonwealth failed to meet its burden to show that a "manifest
necessity" existed for the declaration of a mistrial in this
case. 	The Commonwealth's argument that Williamson's testimony

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was crucial to its case lends no support to a finding of
"manifest necessity"; it only serves to highlight the error in
denying appellant the opportunity to cross-examine him for bias.
Moreover, the Commonwealth's argument is belied by the fact that
it did not call upon Williamson to testify in the trial
subsequent to the mistrial.
Unless unscrupulous defense counsel is to be allowed an
unfair advantage, the trial court must have the power to declare
a mistrial in appropriate cases. 	There is no evidence in the
case before us that defense counsel was guilty of any misconduct.
On the contrary, appellant had the right to pursue the question
of possible witness bias as it may have related to the deferred
finding. 	The trial court improperly denied defense counsel the
right to explore by cross-examination whether Williamson's
testimony was biased.
As has been shown, appellant had a constitutional right to
cross-examine Williamson concerning his bias and a further
constitutional right to be judged by the particular tribunal
before which jeopardy had attached. 	At the time the mistrial
order was declared, there was no final order from which he could
have appealed. 	The only remedy available to him was to test by a
double jeopardy plea whether the Commonwealth could prove that a
manifest necessity existed sufficient to support its motion and
the trial court's order for a mistrial.
For the reasons stated, we hold that the record does not

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support the Commonwealth's claim of manifest necessity, that the
declaration of a mistrial violated appellant's constitutional
right to be judged by the particular tribunal before which
jeopardy had attached, and that his further prosecution is barred
by the Fifth Amendment to the Constitution of the United States.
Because the wrongful declaration of a mistrial on the motion of
the Commonwealth is equivalent to an acquittal, the conviction is
reversed and the charges against appellant are dismissed.
Reversed and dismissed.