State ex rel. McLeland v. Whitley

In re McLeland, Donald R.; — Plaintiffs); applying for writ of review; supervisory and/or remedial writs; Parish of Caddo, 1st Judicial District Court, Div. “H”, No. 122,-687; to the Court of Appeal, Second Circuit, No. 23795-KH. Writ granted; case remanded to the district court. The district court is ordered to appoint counsel for relator for purposes of conducting an evidentiary hearing at which it will determine for what reasons and at what point in the proceedings in relator’s first trial the court declared a mistrial. If the district 452 court finds that the judge at relator’s first trial erred in ordering a mistrial under the criteria set out in La.C.Cr.P. art. 775, it must determine whether jeopardy had attached at the time the mistrial was declared. If the court finds that a juror or jurors had been sworn pursuant to La.C.Cr.P. art. 788 at the time the mistrial was declared, it must then consider whether relator’s conviction should be reversed because his second trial placed him in jeopardy twice for the same offense, in violation of the Fifth Amendment to the United States Constitution and art. 1 sec. 15 of the Louisiana Constitution of 1974. Cf. Crist v. Bretz, 437 U.S. 28, 29, 98 S.Ct. 2156, 2157, 57 L.Ed.2d 24 (1978); State v. Sermon, 404 So.2d 261 (La.1981). MARCUS, J., concurs. DENNIS, J., not on panel.