Commonwealth v. Cutchin

By Judge Edward L. Hogshire In this criminal action, the Defendant Harry Alphonso Cutchin was convicted by a jury of robbery on February 16, 2000. Following the penalty phase of the trial, the jury indicated after deliberation that it could not reach a unanimous verdict as to the sentence. The Defendant has moved for a mistrial. After reviewing the briefs submitted by the parties and listening to oral arguments, the Court concludes that the Defendant’s motion should be granted. The Court is not aware of any case law directly on point but finds that Virginia Supreme Court Rule 3A: 17.1(h) is dispositive. It reads in part: (h) Mistrial Upon a Non-Unanimous Jury at the Penalty Phase. — Should the jury fail to reach unanimous agreement as to punishment on any charge for which it returned a verdict of guilty, a mistrial shall be declared as to that count and that charge shall be retried as to guilt or innocence as to the offense for which a verdict of guilty was returned. Rule 3A:17.1(h). The language of the rule is entirely consistent with Virginia Code § 19.2-295.1, which has been interpreted by at least one court to require that a new [396] trial be declared when the jury fails to agree at the punishment phase. Tyler v. Commonwealth, 21 Va. App. 702, 709, n. 3 (1996). Accordingly, the Defendant’s motion for a new trial is granted.