### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

uly 25, 2001
STATE OF TENNESSEE v. JOSEPH E. S KELTON
Extraordinary Appeal from the Criminal Court for Knox County

No. 68410 Ray L. Jenkins, Judge

No. E2000-02255-CCA-R10-CO November 7, 2001 Following Defendant’s conviction for aggravated assault, this Court granted his application for extraordinary

appeal pursuant

to Tenn. R. App. P. 10 t o dete r mine whether a second trial on the matter of gui lt for att

empted first degree murder, an offense charged in De fendant’s first trial but upon which the jury could not reach a unanimous verdict, would v iolate pr inciples of double jeo pard y. After a review of the facts and r

elevant law, we d

ismiss the count of th

e presentm

en t chargingattempted first degreemurder and remand this case for sentencing on his conviction for aggravated

assault. Tenn. R. App. P. 10 App eal by Permiss

ion; Judgment of the

Trial Court Rever

sed; Remanded for Sentencing for Conviction of Aggravated Assault.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and R OBERT W. W EDEMEYER , JJ., joined.

Mark E. Stephens, Distri

ct Public Defende

r; David Gall, Assi

stant Public Defen

der; and Paula R. Voss, Assistant Public Defender, for the appellant, Joseph E. Skelton.

Paul G. Summers, Attorne y General

and Reporter; Pat

ricia C. Kussm

ann, Assi stant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant

District Attorney General, for the appellee, State of Tennesse e.
OPINION

In a presentment, the Knox County grand jury charged the defendant, Joseph E. Skelton, with attempted first degree murder and aggrava

ted assault in sepa

rate counts. The

matter went to

trial on November

8, 1999. At the conclusion of proof, the jury unanimously found Defendant

guilty of aggravated

assault, based on his plea of guilt for this

offense, but was unable to reach a unanimous verdict on the attemp

ted first degree murder charge or the lesser-included offe nses of attempted seconddegree mur der and attempted voluntary manslaughter. Upon hearing this report, the trial court summarily dis

missed the jury

without further in

quiry. Afte

r the jury had retired from the-2-

courtroom,the State announc ed its intention to

retry Defendant on the attempted first degree murder charge, and the trial court set the date for the second trial for March 7, 2000.

On Fe bruary 15, 2000, Defendant filed a motion to dismiss the charge of attempted firs t degree murder on the ground that a second trial would violate state and fe deral cons titutional safeguards against double jeopardy. The trial court denied Defendant’s moti

on to dismiss, as well as his later motion for

interlocutory appeal pursuant to Tenn. R. App. P. 9. On October 13, 2000, this Court granted Defendant’s application for extraordinary

appeal pursuant to Tenn. R. App. P. 10, which is the matter presently before this Court. Factual Backgrou

nd

On December 23, 1996, the defendant, Joseph E. Skelton, assaulted Joseph Sexton with a hammer and fractured h

is skull. Sexton was in the business of selling mobile homes, one of which Defendant had r

ecently pur

chased. The assa

ult was the result of an altercation which had erupted
over Defendant’s dissatisfaction with his purchase. Because Defendant believed that Sexton did not honor his agreement conc erning the sale , he went to Sexton’s p

lace of business t

o discuss his grievances.

When the discussion became heated, Sexton decided to telephone the police department to request assistancein removing Defendant from his premises. Sexton began walking toward the office of a water treatment company located nearby . He frequently borrowed that company ’s telephone since he did not have one at his business. Defendant followed him. Sexton and Defendant
were still arguing loudly as Sexton entered the water treatment office. Defendant entered the office behind Sexton and hit him on the head with a hammer while he was using the telephone.

The persons present

during the assault immediately pulled Defendant away from Sexton and ordered Defendant to get off the premises. Sexton’s head was bleeding profusely, but he remained standing. William Eaton, the owner of the water treatment business, spoke with Defendant br

iefly and watched him leave. Defendant walked to the mobile home lot, threw the hammer onto the steps
o f one of the homes, and then drove away in a vehicle. The police stopped D efendant short l y thereafter.

Eaton testified that

Defendant hit the victim once and did not attempt to injure anyone else. When Eaton asked Def

endant to leave,

Defendant looke

d “panicky

” and did not arg

ue with him. Instead, Defendant told Eaton that they should call the police, and Eaton replied that this had been don e. S hor tly t here aft er, D efen dan t wa nde red b ack t o hi s car and dro ve aw ay.
At trial, Defendant testified that he had numerous problems with the trailer Sexton had sold him and that Sexton had not fulfilled his obligations to Defendant concerning the sale. As a result, Defendant

and his family were without a plac e to live and did not have the money to find other accommodations.

Defendant

testified that he visited Sexton’s place of business on December 23, 1999, hoping to come to s

ome type of a

greement. He pleaded with Sexton for assistance, but Sexton refused to help him and would not refundhis money. Se xton told Defendant that he was “screwed” and there was “nothing he could do about it.”-3-

Upon hearing this statement from Sexton, Defendant lost his temper. He grabbed Sexton and a hammer

sitting nearby. Sexton pushed Defendant back and walked away. Defendant c laimed that he “kinda blacke

d out” at that point. He recalled following Sexton, but many of the subsequent events were unclear. For instance, Defendant did not recall walking into the water treatment office
or swinging the hammer at Sexton’s head. Defendant rec alled leaving th

e scene to take his children to be with his wife an

d stopping at a

pay telephone to dial 911. At that time, a police car drove by and Defendant flagged him do wn. Th e police officer stopped. After Defendant explained to the officer what ha

d happened, the o

fficer arrest

ed him.

Defendant further t estified that he never intended to harm Sexton; he merely wanted the things Sexton had promised him. Defendant conceded that he “lost it” when Se xton refused his requests, and he

expressed grea

t remorse for his c

onduct.

Dr. Blaine Enderson, a surgeon at the University

of Tennessee Medical Center trauma center, testified that Sexton suffere d a “depressed s

kull fracturewith underlying brain injury” as a result of the blow from the hammer. Some hemorrhaging was also present. Dr . Enderson testifi

ed that this type of injury may be

classified as “life-threatening” and that permanent brain damage was possible.

At the conclusion of proof, the trial court informed the jury that Defendant had

ple d “gu ilt y” to the charge of aggravated assault and “not guilty” to the charge of attempted first deg ree murder. After the trial court

instructed the jury

on these offenses, as well as the lesser-included offenses of attempted second degree murder an d attempted volunta ry manslaug

hter, the jury

began its deliberation. Later that same day, the jury reported that it found Defen dant guilty of aggravated assault, “since he confe

ssed,” but failed

to reach a unani

mous verdict o

n attempt ed first degree murder or the lesser-included offenses to that charg e. Spe cifically, the record reveals that the following colloquy occurred:

Court: All right. Who is the foreman? Mrs. Morri

s? Forelady : Yes. Court: All right. Have y ou reached a ve

rdict? Forelady : No. We-- Court: Pardon? Forelady : No , we haven’t . We cannot come to a conclusion. We have not reached a ver

dict. Court: Oh, all right. We, don’t tell me which way-- Forelady : Oka y. Court: --but tell me the numerical division. Fore lad y: Oka y. On the first is 11 to 1 ; second, it was 10 to 2; voluntar

y, it was 10 to 2; and a ggr avated assault, of course, it was 12 to 0, since he confessed-- Court: Oh, you find him guilty of the agg

-- Fore lad y: Yes.-4-

Court: Oka y. All right. All right. Well, this--this happen

s. We appreciate your service and your he

lp and you’re free to go. Thank y ou. (The jury was exc

used by the Co

urt and retired f

rom open court, after which the further followin

g proceeding

s were had:)

Court: We can do that count on December the 15th, if you’ll waive the 45- day --- State: Your Honor, we’d ask the Court not to accept an aggrava

ted assault
on a hung jury on the other counts, because I don’t believe under the state of the law that both

of them can be ac

cepted, and we in

tend to retry Mr. Skelton. Court: All right. All right. Give me a trial date.
Thereafter, a date was set for a second trial. On February 15, 2000, Defendant filed a motion to dismiss the count of

the presentment charging attempted first degree murder. He also moved for
a judgment of acquittal on the grounds that a second trial would violate principles of double jeopardy and the results of the f

irst trial d id no t provide proper grounds for declaring a mistrial. The trial court denied Defendant’s motions. Defendant then filed a motion for interlocutory appeal

pursuant to Tenn. R. App. P. 9. This motion was also denied.

On September 18, 2000, Defendant filed an application to this Court for extraordinary appeal pursuant to Tenn. R. App. P. 10. Our review of the record revealed the following: Defendant

was charged with attempted first degree murder and aggravated assault based on one underlying offense; the trial court accepted the jury’s verdict of guilt on the aggravated assault charge prior to dismissing the jury; the trial cou rt never declared a mistrial; and, since Defendant stands convicted for aggravated

assault, a retria

l on the attempted f

ir st degree murder charge would result in a second prosecution for the same offense. In an order dated October 13, 2000,

we granted De

fendant’s Rule 10 application, conc

luding that an imme

diate review by

this court was “nece

ssary to ensure that the defendant’s constitutional protections against double jeopardy are saf eguarded.”

The State subsequently responded with a motion to dismiss Defendant’s Rule 10 appeal on the ground that it was improvidently granted. The State pointed out that we g ranted De fendant’s application based on findings which were inconsistent with the trial court’s minutes dated November 8, 2000, which contain the following comments regarding the verdict in Defendant’s ca se: Upon their oaths the jurors say: that they can ne ver agree upon a verdict as to the

1st Countand by conse

nt a “MISTRI

AL” is entered; further, the jury

says that they find the defendant guilty of

Aggravated Assault, as charged in the 2nd Count. However, upon the motion of the Attorney General, the Courtdoes not accept the jury’s verdict and this case is reset for trial on March 7, 2000.-5-

The State argued th

at, according

to the above minute entry, the trial court did not accept the jury’s verdi c t and, by consent, it had also declared a “mistrial” which permitted the State to retry Defendant. This Court agreed that Defendant’s application to appeal was granted on the premise that the trial court had accepted the jury’s verdict as to aggravated assault and dismissed the jury without declaring a “mistrial.” Because the trial court minutes called this premise into question b y contradicting the verbatim transcript, we concluded that the Rule 10 appeal should further embrace the issues of

(1) whether the

transcript or the

minute entry

controls in

circumstances such as these, and (2) the scope and effect thereof. On February 28, 2001, Defendant and the State were ordered to supplement their briefs accordingly.

Therefore , the inst ant appeal prese nts the following i

ssues: (1) whethe

r the verbatim transcript of the trial court proceedings or the minute entry filed by the court controls in the eve nt there is a conflict between the two documents; and (2) whether a jury verdict of guilty concerning the offense of aggravated assault precludes a second trial on the attempted first degree murder count basedon double jeopardy principles under the circumstances presented here. After a review of the record and applicable la

w, we find (1) tha

t the transcript c

ontr ol s in cases where

a conflict exists betweenthe verbatim tran script and the tria

l court’s minutes and (2) that a second prosecution of Defendant

for attempted fir

st degree murde

r is prohibited by

principle s of dou ble jeopa rdy. We thereforedismiss with prejudice the count charging attempted first degree murder and remand this matter to the trial

court for senten

cing on his convic

tion of aggra

vated assault. Analysis I. Discrepancies in the Record

We first address

the issue whether the transcript or the minute entry controls the questions presented in this appeal. Def

endant contends t

hat a verbatim transcript controls when a discrepancy arises between the fac

ts as presented by

the transcript of

the trial c ourt’s proc eedings and thos e providedby the minute entry filed by the trial court. The State agrees with Defendan t that the verbatim transcript controls, citing our decisions in State v. Moore , 814 S.W.2d 381 (Tenn. Crim. App. 1991), and State v. Zy la , 628 S.W.2d 39 (Tenn. Crim. App. 1981), to support its contention.

The transcript

controls the questions presented on appeal. As noted by the State, this Court has previously h

eld that, “when th

ere is a confl ict between the court minutes and the transcript of the proceeding, the transcript controls.” Moore , 814 S.W.2d at 383 (citing State v. Zy la , 628 S.W.2d 39, 42 (Tenn. Crim. App. 1 981); see Farmer v. State , 574 S.W.2d 49, 50 (Tenn. Crim. App. 1978). II. Double Jeopardy
Defendant

contends that subjecting him to a second trial for attempted first degree murder, after the jury found him gu

ilty of aggravated a

ssault , would constitute a second prosecution for the
sameoffense, thereby violating state and federal constitutional safeguardsagai nst dou ble jeo pard y. The Stateconcedes that aggravated assault and attempted first de

gree murder a

re the “same” of

fense-6-

for purposes of double

jeopardy a

nalysis and t

hat, because Defendant was convicted of aggravated assault , a retrial on the indictment for attempted first degree murder is prohibited.

The double jeopardy

clause of the Fif

th Amendment to the U nited States Constituti on provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb . . . .”. Article 1, sec. 10 of the Tennes see C onstitution contains a similar provision. As our supreme court has noted many times, the three fundamental principles underlying double jeopardy provide protections against (1) a second prosecution after an acquittal; (2) a

second prosecution after conviction; and (3 ) multiple punishments for the same offense. State v. Denton , 938 S.W.2d 373, 378 (Tenn. 1996).

While we agree that a second prosecution for attempted first de

gree murder w

ould violate constitutional prohibitions aga inst double

jeopardy, the rationale for our conclusion varies from that used by the State

and Defendant,

because both ar

guments rely

on Defendant’s a

ggravated a

ssault conviction. This reliance is misplaced. Defendant’s conviction for aggravated assault has nothing to do with proper resolution of the case sub judice . Instead, this case requires us to addres s, i n essence, the first fundamental principle underl ying double

jeopardy; s

pecifically

, whether it would be proper to subject Defendant to a second prosecution after an acquittal.
Thus, th e proper issue is whether it is permissible to subject Defendant to a second prosecution of attempted first degree murder after termination of the trial in this case. Granted, the jury didnot find Defendant “not guilty.” However, the te rmination of trial p

roceedings, w

ithout a finding that a manifest neces sity ex isted to do so, and wi thout the defenda

nt’s request or c

onsent, was improper, and we find it operates as an “acquittal”

for purposes of d

ouble jeopardy

analysis in this case for the reasons stated herein. See Jones v. State , 403 S.W.2d 750, 754 (Tenn. 1966) (“the rule can be state

d in Tennessee that once a jury has been sworn to try

the issues, a juror

, or jurors,
or the whole panel, cannot be discharged and a mistrial declared

without discharg

ing the defenda

nt, except in cases of manif

est necessity

”); Mahala v. State , 18 Tenn. 532 (Tenn. 18 3 7) (where dis charge of jury was an improper exercise of the power of the cou rt, the judgment must be reversed and defendant discharged) ; State v. Waterhouse , 8 Tenn. 278 (Tenn. 1827) (where discretion of the judge in discharging the jury was improperly exercised, discharge of the jury was tantamount to an acquittal).

A brief review of

the relevant fa

cts is appropriate: after some deliberation at the conclusion of trial, the jury returned to the courtroom and the trial judge asked the jury foreperson whether the jury had re

ached a verdic

t and the foreper

son responded, “n

o.” The trial judg

e then inquired as

to the numerical division of the vote. The foreperson reported the division and that the jury had found Defendant

guilty of aggravated assault, “since he confessed.” At this point, the trial judge dismissed the jury. After the jury had re tired from open court, the trial judge appeared to question the parties regarding an appropriate d

ate for sentenc

ing on the agg

ravated assault

conviction. The Sta

te responded

by requesting that the trial court not accept the ve rdict becau se it intended to retry Defendant,

and the trial judge set a second trial date. Since we have concluded that

the facts given in the verbatim tran

script control, we

note th at th e premise upon which we granted Defendant’s-7-

application to appeal is

not in dispute; to wit, that the trial court had accepted the jury’s verdict of guilt as to the charg

e of aggrava

ted assault and dis

missed the jury

without declaring

a mistrial as to the count charging attempted first degree murder.

The trial court’s first error occurred when the trial judge directed the foreperson

to “tell me the numerical division

,” and the forep

erson responded

, “Okay. On

the first is

11 to 1; second, it

was 10 to 2 ; vol untary, it was 10 to 2; and aggravated assault, of cour se, it was 12 to 0, since he confessed.” This was an imprope r request on the pa

rt of the trial cou

rt. Where a jury

is unable to reach a verdi ct, our sup reme court h as held that the trial j udge must follow the procedure s et forth in Kersey v. St

ate , 52 5 S. W.2 d 13 9 (T enn . 19 75) . Sp eci fic all y, when a jury repor

ts its inability

to come to a unanimous decision, Kersey directs the trial judge to “admonish the jury, at the very outset, not to disclose their division or whether they

have entertained a prevailing view.” Id. at 141 (emphasis added). Kersey is quite explicit on this point. In fact, “[t]he onlypermissiv e inquiry [a trial judge may make] is as to progress and the jury may be asked whether it believes it might reach
a verd ict after further deliberations.” Id. (emphasis added). Thereafter, a trial judge may give supp lement al instructions in accordance with specific guidelines provided in Kersey if the court fee

ls that further deliberations might be productive. See id. We emphasize that until the jury reac hes a
v erdict , “no one--not even the trial judge--has any rig ht, reason or power to question the specifics of its deliberative efforts. . . . [S]uch inquiry is error.” Id. (citing Brasfield v. United States , 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926)).

The trial court

also erred by failing

to adhere to established legal procedures concerning the declarationof a

mistrial. These procedures are important, for exceptions to the prohibition agai

nst double jeopardy p

ermit a retrial of a defendant where a “manifest nece

ssity” exists f

or the mistrial. Statev. Mounce , 859 S.W.2d 319 , 321-22 (T enn. 1993). Great caution must be exercised when declaring a mistrialbased on manifest necessity because, “where the ruling is mistaken or abused, the defendant may not be reprosecuted.” David Louis

Raybin, Tennessee Practice, § 16.114 (1984) (citing State v. Waterhouse , 8 Tenn. 278 (1827)

); see State v. Smith , 810 S.W.2d 155, 158 (Tenn. Crim. App. 1991) (where problems arising during trial were matters which could have been resolved at the original trial, nece ssity for a mi strial did not exist; de

fendant’s convic

tions subsequent to retrial were therefore reversed and the charg es dismissed).

One example of “manife

st necessity” lon g recognized a s a sufficie nt reason fo r declaring a mistrial isthe inability of a jury to reach a una nimous verdict. Mounce , 859 S.W.2d at 322 ; State
v. Witt , 572 S.W.2d 913, 915 (T enn. 1978); State v. Freeman , 669 S.W.2d 688 (Tenn. Crim. App. 1983). Since unanimity is required, when a jury re turns with a vote which is

split, the trial court has the pow er an d th e du ty to ret urn the jur y to th e jury room w ith instructions tha

t their verdict mus

t be unanimous. Gwinn v. State , 595 S.W.2d 832, 835 (T enn. Crim. App. 1979

). A permissible alternative is to question the jury as to whether it be

lieves a verdict

might be possible

after further deliberations. Mounce , 859 S.W.2d at 322; see Kersey , 525 S.W.2d at 141. For “[i]t is only when there is no feasible and

just alternative t

o halting the proc

eedings that a

manifest necess

ity is shown.” Mounce , 859 S.W.2d at 322 (citing State v. Knight , 616 S.W.2d 593, 596 (Tenn. 198 1)); see State-8-

v. Smith , 810 S.W.2d 155 (Tenn. Cri m. App. 1991) (where mistrial erroneously granted base d on issues which could have been resolved during the first trial, retrial should have been prohibited). Upon hearing that the jury’s vote was split on the issue of guilt for the charge of

attempted first degree murde

r, the trial court

i n th e case sub judice summarily dismissed the jury without making any inquiries as to whether a valid verdict might be obtained or if the jury was hop elessly deadlocked

. Under Mounce , where a trial judge declines to exercise the preferred alternati ve of instructing the jury fur

ther and/or requ

est that it continue to

deliberate for the purpose of returning
a consistent verdic

t, a finding of ma

nifest necessity

to summarily c

onclude the trial

is precluded. See Mounce , 859 S.W.2d at 322. Bec ause mani fest necessity was not proven in the case sub judice , decl aring a mistrial would not h ave been proper

. Even if a mistrial

was intended , it would not p rovide an exception to doub le jeopardy

because the re

cord fails to show t

hat manifest nec

essity existed and a “mistrial” was never actually declared. See Mounce , 859 S.W.2d at 321-22; Knight , 616 S.W.2d at 596; Waterhouse , 8 Tenn. 278; Smith , 810 S.W.2d at 157.

Last ly, we note

that a defendant should be mindful of his duty to object whenever the trial court declares a mi strial or the state indicates an intention to retry him without his consent. An ob jection in the r ecord may be crucial because a re trial is not barred by double jeopardy whe re a defendant conse

nts to the termination of

the trial, notwithstanding th e lack of a manif

est necessity fo r doing so. Mounce , 859 S.W. 2d at 322 (ci ting Knight , 616 S.W.2d at 596). In Tennessee, a defendant who stands silent at a tim e when he could have objected to the action taken by the trial court may often be

considered to

have acquiesced in that particular course of action. Id. at 322-23. This rule prohibits

a party from standing silent while the trial court commits an error in procedure, and then rely on

that error to his or

her own advanta

ge at a later ti

me. Id. It follows that “if an accused fails to ob ject to the jury's discharge upon a defective verdict, he is viewed as having waived the right not to be put on trial again.” Id. (citations omitted).

In Statev. Mounce , 859 S.W.2d 319 (Tenn. 1993), our supreme court considered an issue similarto the case at bar--whether a defend ant’s fai lure to object when the trial court declared a mistrial should result in a de fault of his

constitutional right against double jeopardy--and held that “when a defendant chooses not to object to the m istrial and give the trial court an

opportunity t

o correct the error, consent may be inferred and, therefore, double jeopa rdy will not bar a subsequent prosecution.” Id. (emphasis added). Alt hough it was undisputed that the defendant in Mounce failed to object, the supreme cour t ultimately d

ismissed the defen

dant’s prosecuti

on. The supreme

court conclu ded that a def

endant must have a

realistic opportu

nity to objec

t, prior to a trial c

ourt’s sua sponte declaration of a

mistrial. Id. Since the appellate record in Mounce could not provide an
answer to this question, the court declinedto indulge in the assumption that the defendant had such an opportunity and failed to take advantage of it. Contrary to the circumstances in Mounce (where the record was unclear w hether the defendant ever had an opportunity

to object), the re

cord in the instant

case indicates that

Defendant had virtually nothing to object to. Upon receiving notice that the jury ’s votewas split, the trial j udge thankedthe j urors for t heir service, told them they were free to leave, a nd the jury then left the-9-

courtroom. Onc e a j ury i s di sch arge d an d ph ys ical ly separated from the courtroom, it may not be reconvened

for the taking of any action whatever involving the fate of the accused. State v. Green , 995 S.W.2d 59 1, 612 (Tenn . Crim. App . 1998) (cit ing Clark v. State , 170 Tenn. 494, 97 S.W.2d 644 (1936)). As pre vio usl y o bserved, the wor d “mistrial” is fou

nd nowhere in the t

ranscript. I

t is apparent that the trial court considered the trial terminated with a conviction for aggrava

ted assault. (Further, it can be readily inferred that Defendant felt the same; the State

did nothing to contradict this assumption until after the jury had been discharged.) We hold that Defendant’ s failure to object does not interfere wi

th his constitutional

rights against double

jeopardy under circumstances such
as these. Because the fa

cts in the record do not show that Defendant had an opportunity to object prior to the trial court’s sua sponte order terminating the proceedings, we cannot find that he waived his double jeopardy protections.
Here, we f

in d that (1) t he trial ju dge improper ly terminated Defendant’s trial proce edings withoutany attempt to obtain a valid verdict on the charge of attempted f irst degree murder or inquire into the likelihood o f obtaining same ; (2) the record is d evoid of any

in dication that a manifest necessity existed; (3) the State failed in its duty to demonstrat e that a mistrial would be justified, or

that any other circumstances provided proper grounds f or a second trial; (4) the transcript reveals that no “mistrial” was ever declared; and (5), under Mounce , Defendant can not be held responsible

for failing to object where, since no mistrial was declared and the jury was summarily dismissed without discussion, h e was without oppor

tunity to obje

ct. Based on th

ese finding s, we conclude that the trial court’s dismissal of the jury and termination of the trial act as an acquittal of Defendant

on the charges of

attempted first

degree murde

r for purposes of

double jeopardy

analysis. See Jones v. State , 403 S.W.2d 750, 754 (Tenn. 1966) (“once a jury has been sworn to try the

issues,
a juror, or jurors, or the whole panel, cannot be di sch arged and a mistrial declared without dischargingthe defendant, except in cases of manifest nece

ssity”); Mahala , 18 Tenn. 532 (improper
or illegal discharge of the jury gene rally operates as an

acquittal); Waterhouse , 8 Tenn. 278 (where discretion of the judge i n dischargi ng the jury was i mproperly exe rcised, di scharge of the jury was tantamount

to an acquittal). Accordingly, a second prosecution of Defendant

on this charge is barred by our state and federal constitutions. See State v. Denton , 938 S.W.2d 373, 378 (Tenn. 1996).
Conclusion

Under the circumstances presented in this case, subjecting Defendant to a second trial for attempted first degree murder would violate constitutional guarantees against double jeopardy and is, therefore, prohibited. The count charging attempted fi rst degree murde

r is dismissed, and th

is
case is remanded to the trial court for sentenci ng of De fendant on his conviction for aggravated assault.

____________________________________ THOMAS T. WOODALL, JUDGE