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Appeals court considers Houston double-jeopardy argument

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By The Staff

By DAMON LAWRENCE

dlawrence@roanecounty.com

Judge James “Buddy” Scott erred in how he handled the jury in Rocky Houston’s murder trial. On that, defense attorney Randy Rogers and state’s attorney John Bledsoe agree.

The lawyers disagree on what that means for Houston.

Rogers and Bledsoe argued their positions before a three-judge panel of the Tennessee Court of Criminal Appeals on Tuesday in Knoxville.

“What the judge did should never be done in a criminal trial in this state,” Bledsoe said.

However, Scott’s mishandling of the case should not prevent a retrial, Bledsoe argued.

Rogers said it should. He raised the issue of double jeopardy, which is prohibited by the U.S. Constitution.

“It’s certainly a well-established, long-held constitutional right not to be tried twice or subjected to punishment or the difficulties and stressors of being tried twice when the court could have received a verdict from the jury that invested the two to three weeks that we had in this case,” Rogers said.

The appeals court will render a decision at a later date.

“It may take them a long time, but I say it’s so obvious they might could do it quickly, but I don’t know,” Rogers said.

Houston was charged with two counts of first-degree premeditated murder and one count of first-degree felony murder for the deaths of Roane County Sheriff’s Deputy Bill Jones and his ride-along passenger Mike Brown. The verdict forms included the three charged offenses and 21 lesser included offenses.

The trial ended in confusion on Dec. 19, 2008, when Scott dismissed the jury after they returned not-guilty verdicts on eight of the 24 offenses.

“Is the defendant entitled to an opportunity to request further deliberations at that point?” appeals judge James Curwood Witt Jr. asked Bledsoe.

“I believe he could have,” Bledsoe responded.

Rogers argued that Scott dismissed the jury prematurely. Had he not done so and required them to deliberate further after they returned with the eight not-guilty verdicts, Rogers said the jury may have found Houston not guilty on all the offenses.

“There’s many cases that require the court to say, ‘Wait a minute, you don’t think you can reach a verdict, but we see a progress, we see an idea that you can. Go deliberate some more.’ That wasn’t done in this case.”

Scott issued a 10-page ruling in January explaining why he took some of the actions he did on the last day of the trial.

He wrote that all the parties acquiesced to his dismissal of the jurors and termination of the proceedings.   

“The judge, in his order, seems to indicate that you had an opportunity if you were going to object to a mistrial at that point to say something,” appeals judge Norma McGee Ogle said to Rogers.

“I did not receive an opportunity to do anything else because he had discharged the jury,” Rogers responded. “At that point in time, not only had he discharged them back to the jury room, he said, ‘Take them away, let them go, take them out of the courthouse.’”

Rogers said another reason double jeopardy should apply is because Scott never declared a mistrial.

Bledsoe agreed, but said Scott’s failure to do so should not prevent Houston from being tried again.

“Double jeopardy would not bar a retrial if the defendant acquiesced to the cessation of this trial,” Bledsoe said.

In his ruling, Scott indicates Rogers was the one who erred by not requesting the trial to continue after the jury returned with the eight not-guilty verdicts.

“It was at that moment that defense counsel should have either asked the court to direct the jury to engage in further deliberations to clear up its verdict,” Scott wrote, “or asked the court to inquire of the jurors whether their verdict meant that they were hopelessly deadlocked as to certain offenses. He did neither.”

Houston was found not guilty for the first-degree premeditated murder of Brown. Scott ruled that was the only verdict that counted.

The not-guilty verdicts returned on the seven lesser offenses were null and void, Scott ruled, because the jury failed to follow proper instructions.

Not only does Rogers disagree with Scott on that point, but the state does as well. Bledsoe said Houston is entitled to all eight not-guilty verdicts.  

Bledsoe asked the appeals court to overturn Scott’s ruling that the verdicts on the lesser offenses were null and void.

Bledsoe said the only reason the verdicts were returned in the first place was because Scott wrongly allowed the jury to skip around on the verdict form.  

Scott stepped down from the case in February without explanation. He was replaced by David Hayes.

Houston remains in custody while the appeals court ponders what to do about his case.