Michael L. Perez and Benjamin B. Hodges were indicted on one count each of aggravated sodomy and two counts each of aggravated sexual battery. During jury deliberations in their joint trial on these charges, the trial court sua sponte declared a mistrial because of juror misconduct. Perez and Hodges appeal from the trial court’s denial of their plea in bar claiming retrial is barred on double jeopardy grounds. Because we find no abuse of discretion in the trial court’s conclusion that there was a manifest necessity for the declaration of a mistrial, we affirm the denial of the plea in bar. After the evidence was closed and jury deliberations had begun, an alternate juror informed the trial court that she witnessed an incident of juror misconduct. The alternate said that, during a break in the deliberations, she and four of the regular jurors went to lunch together at a restaurant and saw the family of one of the defendants enter the restaurant. When the family entered, the alternate heard one of the other jurors say in the presence of all the jurors, “Now here’s our chance to make five thousand dollars.” The alternate further reported that, shortly thereafter, one of the male family members walked past their table to go to the restroom, and the male juror who made the improper remark jumped up suddenly and followed the family member into the restroom. The alternate reported that she and the other three jurors at the table waited for a few minutes for the male juror to emerge from the restroom, and that, while they waited, she and one of the jurors remarked in the presence of the others that “he should not be in there with that man.” When the male juror did not emerge within a few minutes, the alternate and the other three jurors left the restaurant together.
Based on this report, the trial court individually questioned all the jurors in the presence of defense counsel and the prosecutor. None of the jurors recalled any improper conduct by another juror, and although the four jurors who were with the alternate at the restaurant recalled seeing the family of one of the defendants, none of them recalled anything unusual at the restaurant. When the trial court specifically asked the male juror at issue if he had made the alleged comment at the restaurant, he initially denied it and said he only remarked they could get the defendant’s family to pay for lunch. But after further questioning, he admitted making a comment in the presence of the other jurors about “our chance to make five thousand dollars,” but said he was only joking. He also admitted he was in the restroom with a member of the defendant’s family, but he denied saying anything to the member. After all the jurors were questioned, one of the jurors who was at the restaurant with the alternate asked to return and speak with the trial court. The juror told the court in the presence of defense counsel and the prosecutor she now remembered that, when the defendant’s family entered the restaurant, the male juror at issue made a comment to the effect, “Now’s our chance to make a buck,” but that she took it as a joke.
