I am in trial in a capital murder case (non-death) in which the defendant beat his 4-year-old stepson to death. It looks very likely that the jury is going to hang up. They have already been dynamited and we have not heard from them since (about six or seven hours ago). The judge is talking about putting us to trial again on Monday. I want to include a second count of murder (intend SBI, commit an act clearly dangerous to human life) to make sure that I do not get another hung jury. We have a grand jury meeting today and I would like to reindict the case as a two-count indictment for capital murder and murder. However, I am concerned about the effect of reindicting on the same charge (the capital) that the jury is deliberating on. Would a reindictment supersede the existing indictment, the one that the jury is presently considering? If we reindict and they subsequently come back with a guilty verdict, is that a problem? I have a case that says that the murder charge I want to add is a lesser included of the capital, but I have no guarantee that the judge will give it to me. The defense's strategy in this case was to go to the jury only on Capital with no lessers in an attempt to hang up the jury. Has anyone faced this issue? The bottom line issue is what effect reindicting will have on the indictment that the jury is now deliberating on. Any help would be appreciated.

What about amending the indictment and agreeing to a continuance if the defense feels they are 'surprised'? I'm unsure, but it's my first thought.

Once the jury is impaneled, Jeopardy attaches. Let us know how it comes out.

The jury returned shortly after 1 p.m. (and about 17 hours of deliberations) with a guilty verdict. The defendant has been sentenced to life. Thanks for everybody's help.

what was the hang up?

Good job Shane. I've been exactly where you were with those two attorneys but I did not fare so well. Congratulations

Under an exception to the mootness doctrine, I am going to venture an answer.

I presume your indictment was under 19.03(a)(8). While I would agree that an offense under 19.02(b)(1) would be a lesser included offense, since your proof would always show the victim was under 6 years of age, you might well not get an instruction under 19.02(b)(1) since there would be no proof that the defendant was guilty only of murder. Thus, under your indictment, you would likely have to waive or abandon the 19.03(a)(8) allegation to give the jury the lesser option. Really interesting question whether you could do that after the charge has already been submitted. I think not. Thus, I think you correctly determined an entire new indictment was going to be necessary to get a charge on murder and particularly an instruction under 19.02(b)(2) or (b)(3).

I do not believe the new indictment would present any problems other than the 27.11 10-day rule, in your situation. The defendant is not in jeopardy on the new indictment and a mistrial can still be declared on the first one. Thereafter you are free to dismiss either indictment and proceed to trial on either (or even another). In fact, you could go to trial on the second indictment with the first one still pending. Louis, 51 S.W.3d at 596.

Shane,

Justice prevails again! Good job!

Greg

Thanks for everyone's kind words. It was a pretty agonizing three days of deliberations. The judge should be credited for sending the jury back to deliberate after two notes indicating they were deadlocked. We have not talked to the jury yet (they left while the defendant was being sentenced), but I think we just had one or two people who were reluctant to convict. My best guess is that there were questions of intent (we proceeded only on "knowingly") and who, between the two caregivers present when the child was injured, was responsible. There was no smoking gun, only the repeated protestations by the defendant to police that he didn't do anything. His downfall was the medical testimony and his own statements putting the mother downstairs on the phone and himself upstairs with the little boy when he was injured. Most important, we believe, were "sneaky tapes" between the defendant and the mother and recorded jail conversations between the defendant and the mother in which the defendant, even in the face of her accusations, never blamed her. At trial, the defense was that she did it. The defendant was ultimately convicted by his own words. A very satisfying verdict. Thanks again for all of the help!