Any number of circumstances can cause a Court to declare a mistrial: a hopelessly deadlocked jury, a reference to inadmissible evidence, the death of a juror or the trial judge, a juror tweeting from the box, or an emotional outburst by a witness or party, to name a few. Of course, you never try the same case twice. On retrial, then, the lawyers may very well refine the script for their presentation of the evidence and their legal arguments. This is especially true when the judge presiding over the retrial reaches a different critical decision about a legal issue than the judge at mistrial.
Litigants considering an appeal after a mistrial and retrial must train their sights on the right issues from the right proceeding. This can be a tricky proposition. State v. Macon, a decision from the North Carolina Court of Appeals concerning a defendant’s appeal of her driving while impaired conviction, is a useful guide for appellants who find themselves in this unique situation.
During the first trial in Macon, the judge declared a mistrial after the jury could not reach a verdict on defendants DWI charge. On retrial, the trial judge instructed the jury that it could consider the defendant’s refusal to take a breath test as evidence of her guilt. During defendant’s first trial, however, a different trial judge had ruled that the instruction was not supported by the evidence.
On appeal, defendant argued that that the retrial judge was barred from giving the refusal instruction because “rulings made as a matter of law in the first trial are binding on the judge in a second trial” and because “no appeal lies from one Superior Court judge to another.” The Court rejected both of these arguments. Citing State v. Harris, the Court explained that when a defendant’s trial results in a hung jury and the declaration of a mistrial, the new trial is a trial de novo unaffected by the rulings in the original trial. In other words, when a trial court declares a mistrial, “in legal contemplation there has been no trial.” Id.
The quick lesson, then, for “mistrial-retrial” appellants is to address the Court’s rulings from the retrial proceeding and to repackage the winning substantive arguments for the appellate court that a retrial judge may not have accepted. As Macon illustrates, arguments about the retrial judge’s authority or discretion to deviate from decisions made by the mistrial judge will not carry the day.
– Eric Snider