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Mississippi Supreme Court: Cannot Declare Mistrial on All Counts After Jury’s Acquittal on Some Counts

by Anthony Accurso

The Supreme Court of Mississippi held that a district court erred when it ordered a mistrial on all three counts of an indictment after the jury had returned an acquittal on two of the counts.

Johnathan Nickson was tried in mid-2018 on two counts of first-degree murder for killing Nedra Johnson and Bradley Adams and one count of being a felon in possession of a firearm.

During the trial, the court instructed the jury that it could find Nickson guilty or not guilty on each count of first-degree murder, but if the jury found him not guilty, it must then consider whether he was guilty of second-degree murder.

The jury was sent out for deliberations and sent a note back that it was deadlocked. The court recalled the foreperson and instructed the jury to “return the verdict on whatever counts you’ve decided on and then come back.” The jury returned and advised that it had unanimously agreed to acquit Nickson for first-degree murder on counts one and two, but it remained deadlocked as to second-degree murder on those counts and the possession count.

The court impressed upon the jury the necessity of returning a verdict and ordered them back to deliberations. The jury again notified the court that it was “hopelessly deadlocked.”

The court then ordered a mistrial as to all three counts, over the objection of Nickson’s counsel. Nickson appealed to the Mississippi Supreme Court on the grounds that he should not face trial on the first or second-degree murder because he was acquitted at trial.

Under Mississippi Rules of Criminal Procedure 24.4(b), “if the jury cannot agree on all counts as to any defendant, the jury shall return a verdict on those counts on which it has agreed.” Since the jury completed the verdict in writing and on the proper form as to its acquittal for first-degree murder for counts one and two, the Court found Nickson was properly acquitted on these counts.

The Fifth Amendment to the U.S. Constitution and Article 3, § 22 of the Mississippi Constitution prevent retrials after an acquittal, though the Mississippi Constitution includes the following proviso, “but there must be an actual acquittal or conviction on the merits to bar another prosecution.” Because the Court found that Nickson had been acquitted for first-degree murder on counts one and two, he could not again face those charges at retrial.

The State argued that this case was similar to Blueford v. Arkansas, 566 U.S. 599 (2012), which involved a deadlocked jury as to lesser-included offenses to capital murder that resulted in a mistrial. The Court found Blueford distinguishable because the jury in that case was not afforded the opportunity to acquit on each level of the murder charge, and moreover, the jury in Blueford never formally acquitted Blueford in writing. It merely orally reported that it had voted to do so verbally.

Nickson then argued that second-degree murder is a lesser offense but not a lesser-included offense. The Court pointed to its decisions in Montgomery v. State, 253 So. 3d 305 (Miss. 2018), and Potts v. State, 233 So. 3d 782 (Miss. 2017), to inform Nickson it had previously ruled otherwise.

Because it is a lesser-included offense, was properly included as a charged-offense and jury instruction, and the jury failed to return a written verdict for the second-degree murder, the Court determined that Nickson may again be tried for second-degree murder.

Accordingly, the Court partially reversed the order of the district court such that Nickson could be retried for second-degree murder on counts one and two and being a felon in possession of a firearm. He could not be tried again for first-degree murder. See: Nickson v. State, 293 So.3d 231 (Miss. 2020). 

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Related legal case

Nickson v. State



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