A newly seated circuit court judge will issue a written ruling early next week responding to a double jeopardy defense motion to dismiss felony indictments against a Locust Grove man facing a potential retrial in a shooting case.
Alonte Pernell, 24, is charged with malicious wounding and use of a firearm in the commission of a felony in a bizarre incident on June 14, 2017, in which the defendant is accused of running out of his residence in the Somerset Ridge housing development and shooting a woman he claimed not to know. Pernell has pleaded not guilty.
An April trial ended in a hung jury, which defense attorney Catherine Lee argued in court Friday should have never happened. When the court declared a mistrial, she says it violated her client’s Fifth Amendment right to not be prosecuted twice for the same crime, known as double jeopardy.
“This young man is facing 20 years to life,” Lee argued. “Was there another option? Instead of telling the jury, no, go back and try again, the judge declared a mistrial. How do they know the jury was deadlocked if we never even did a poll?”
The jury heard evidence in the case for three days and deliberated for nearly three hours before informing Judge Humes Franklin Jr. in a note that it could not reach a verdict “due to a lack of evidence.”
The judge ordered the jury to continue to deliberate, but it returned minutes later with another note asking if Pernell could be convicted of a lesser crime, brandishing a firearm, for which he had not been charged.
At that point, Orange County Deputy Commonwealth’s Attorney Ray Fitzgerald asserted that the jury “had gone off the rails” and called for the mistrial, which the judge granted, over the objection of the defense.
Pernell has pleaded not guilty and claimed self-defense in the alleged shooting incident he said started with him waking up in his bed and getting stabbed in the head by an unknown assailant. The woman that prosecutors claim Pernell chased down the road and shot at, striking her once in the leg, did not testify at the trial in April. The defendant stated in court that he thought he was shooting at shadows.
In court Friday, Lee argued at length that her client’s right to a fair and complete trial trumped any assertion by the prosecution that the jury had lost its way in the case. Judicial law dictates that a less drastic alternative should have been considered, like the judge instructing the jury to do its job, Lee said.
At the motions hearing, Judge Dale Durrer, a former prosecutor sworn in in July to the 16th Judicial Circuit, said a mistrial may be appropriate when a jury ceases to operate as a jury in not following the court’s instructions.
Replied Lee, “It seems to me they forgot the instructions and needed to be reminded by the judge.”
Case law requires a “manifest necessity” to warrant a second trial, she argued.
Durrer noted that a trial judge is afforded “wide discretion” in declaring a mistrial. Lee agreed, but said, “We must resolve any doubt in favor of the liberty of the citizen.”
Durrer questioned if he was the right judge to overturn Franklin’s decision for the mistrial, saying the circuit court of appeals might be a better place for that question.
Lee said she felt it was Durrer’s call, stressing that the jury didn’t deliberate nearly long enough and that the court “jumped the gun a little too soon” in ending the proceedings.
Fitzgerald, in brief remarks Friday, said that though the defense is entitled to a fair trial, so too is the prosecution.
“The commonwealth is entitled to a unanimous verdict,” he said. “We can’t get there.”
Fitzgerald said the jury was looking for an alternative charge for Pernell, comparing deliberations to “a game show.” He said the short time between the jury’s first and second questions signaled to the court that “the jury had stopped listening to the judge.”
Fitzgerald said the court does not need the defense’s consent to declare a mistrial.
Durrer said because the defense objected to the mistrial there had to be a showing of “manifest necessity” to request a new trial. Lee argued the prosecution did not meet that standard.
“This is his life we’re talking about,” she said of her client, “and after two days and more than two hours they can’t convict him.”
After two hours of arguments at Friday’s motions hearing, mostly by the defense, Durrer said he would take the matter under advisement. He said he had pulled some 30 cases related to double jeopardy and would take the weekend to deliberate before issuing his decision.
A retrial date in the case has been set for Dec. 14. Pernell appeared in court Friday and remains free on bond.