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State v. Mathis

Court of Appeals of North Carolina

April 3, 2018


          Heard in the Court of Appeals 23 August 2017.

          Appeal by Defendant from judgment entered 14 April 2016 by Judge Lindsay R. Davis in Wilkes County Superior Court No. 13-CRS-51252.

          Attorney General Joshua H. Stein, by Assistant Attorney General Terence D. Friedman, for the State.

          Paul F. Herzog for defendant-appellant.

          MURPHY, JUDGE.

         When a non-capital defendant's trial counsel fails to object, or consents, to a sua sponte mistrial declared for "manifest necessity, " the trial judge's decision to declare the mistrial is unpreserved and not subject to appellate review. However, where related ineffective assistance of counsel claims are raised alleging that but for counsel's failure to object to the mistrial, a defendant would not have been subjected to double jeopardy, we review these claims under the framework announced by the U.S. Supreme Court in Strickland v. Washington. 466 U.S. 668, 80 L.Ed.2d 674 (1984). Here, Albert Mathis ("Defendant") fails to show that he was prejudiced by his attorney's failure to object to the mistrial. One juror was going to be absent the following day, and the trial court judge had "absolutely no faith" in the alternate juror. Under these circumstances, the trial court did not abuse its discretion as the judge could have reasonably concluded that the trial could not proceed in conformity with the law. As a result, Defendant's second trial did not violate his constitutional right to be free from double jeopardy, and he can show no prejudice by his counsel's acquiescence in the first mistrial.


         On 16 April 2013, Defendant and Jerry Jennings ("Jerry") got into a physical altercation near a fishing hole in Wilkes County. Jerry was rendered unconscious due to the numerous blows Defendant inflicted upon him. After Jerry was subdued, Defendant "got the heck out of [D]odge, " leaving Jerry lying unconscious in a field with no one else around. Defendant was indicted for felony assault with a deadly weapon (steel-toed boots) inflicting serious injury in violation of N.C. G.S. § 14-32(a).

         Defendant's First Trial: 11-12 February 2015 ("2015 Trial")

         The first trial began on 11 February 2015 in Wilkes County Superior Court. On 12 February 2015, after the State's case-in-chief, the State moved to amend the indictment to allege that Defendant had struck Jerry with his limbs, rather than his steel-toed boots. This motion was denied. After denying the State's motion, and while still outside the presence of the jury, Judge David L. Hall expressed to the parties his concerns about the ability to move forward with the trial. A juror's wife was having a heart procedure and would be unavailable, and Judge Hall had "no confidence" and "absolutely no faith" in the alternate juror. After voicing his concerns, Judge Hall asked the parties if they wished to be heard. Defense Counsel indicated that he supported the mistrial for strategic reasons related to Defendant's testimony and the ability to get an instruction on self-defense.

The Court: What I have concluded is that the motion to amend should be denied . . . Which brings me to my greatest concern now, which is it is presently 2:30 on Thursday, as I indicated to counsel on Monday, I have a very important appointment with a specialist tomorrow morning involving a hole in my retina, in my left eye and a floater in my right eye. Further, we have one juror, Juror Number 9 no, Juror Number 8, his wife is having a heart catheterization and a pacemaker procedure tomorrow and I have an alternate juror Mr. Maston, whom I have no confidence in because I believe if I inquire I believe his answer is going to be he has not been able to hear much of what has transpired and I cannot hold over, so, I'm concerned about that. Let me hear from the parties.
Defense Counsel: Your Honor, we appreciate the Court's ruling and we are prepared to go forward, but in light of the time constraints Mr. Mathis, it would be my intent once the State, I guess has rested, it would be my intent to put him on the stand, but quite frankly, I don't personally believe that with instructions, closing arguments, and whatnot and the charge conference, I just quite frankly don't believe that this jury will have any meaningful amount of time to deliberate, if, in fact, it gets to them by 5 o'clock. So, my client is in agreement and I have talked to him because I have explained and I will state for the record my main concern right now is, if I put him on the stand, time expires and we come back for another trial at a later date, I have just provided Mr. Bauer and the State with another 15 to 20 minutes of direct cross-examination that could, in fact, be utilized against him at a later trial. I do not wish to do that, but I do not want the send this case to the jury without Mr. Mathis testifying.
The Court: He would not get an instruction on ...

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