After a jury had been impaneled to try Anthony McGee for driving under the influence, the trial court sua sponte granted a mistrial. McGee moved for discharge and acquittal, arguing that any subsequent trial was barred by double jeopardy. The trial court denied the motion, and this appeal followed. Because we agree that the trial court erred in declaring a mistrial before considering less drastic alternatives, we reverse. The relevant facts demonstrate that McGee was arrested and charged with two counts of driving under the influence. On Monday, February 12, 2007, a jury was impaneled and sworn for McGee’s trial, which was scheduled to begin on Wednesday, February 14, 2007. However, late in the day on Tuesday, the trial judge conducted a conference call with McGee’s lawyer and the prosecutor, informing them that no courtroom was available for the trial. According to McGee’s counsel, the judge then told both attorneys he “desired to declare a mistrial if the case could not be worked out to a plea.” He then asked if counsel “had anything to say about it,” and McGee’s attorney objected, announcing that he was ready to try the case.1 There is no evidence that any alternatives to mistrial were discussed.2 Nonetheless, the trial court declared a mistrial. McGee then moved for discharge and acquittal. The trial court conducted a hearing on the motion, at which time McGee proffered evidence that a mistrial was unnecessary because a courtroom became available Wednesday afternoon and two courtrooms were available on Thursday after 10:00 a.m. Notwithstanding this testimony, the trial court denied the motion, finding that the unavailability of a courtroom made conducting the trial impossible.
McGee appealed the trial court’s ruling, arguing that the trial court erred: 1 to the extent it found it was physically impossible to try him; 2 in ruling, over McGee’s objection, that manifest necessity required a mistrial be granted; 3 by ordering a mistrial without giving McGee an opportunity to be present at a critical stage in the proceedings; and 4 by declaring a mistrial without having any facts or evidence to support its sua sponte decision to declare a mistrial.
