CRIMINAL LAW – Mistrial, double jeopardy: Commonwealth v. Borders (COA 2/13/2009)

Commonwealth v. Borders
2007-CA-002435
02/13/2009
2009 WL 350684
DR filed 2/24/2009
Opinion by Judge Caperton; Judge Thompson and Senior Judge Graves concurred.

The Court reversed and remanded an order of the circuit court granting a motion to dismiss the charges against appellant on double jeopardy grounds.

The Court held that appellant had ample opportunity to either object to the trial court’s decision to grant a mistrial in the first trial or to offer an acceptable alternative course of action. Therefore, he impliedly consented to the mistrial and his retrial was not barred on double jeopardy grounds. Further, appellant gave implied consent to the mistrial when he engaged in discussion with the trial court, both in and out of chambers, regarding potential witnesses for the next trial.

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