Middleton v. State

I concur in the majority opinion, but write to explain that while we cannot determine whether Appellant will again be tried for first-degree murder, the possibility is not foreclosed by the constitutional prohibition against double jeopardy. If Appellant is tried for first-degree murder, he will have the right to demand a 12-person jury. Thus, contrary to the State’s argument, Appellant has demonstrated prejudice by counsel’s failure to obtain a mistrial after a juror was removed for misconduct.

*363As explained in the majority opinion, although Appellant was indicted for first-degree murder, the…