Full opinion text
Affirmed by published opinion. Judge WILKINS wrote the majority opinion in which Chief Judge ERVIN and Judges HALL, MURNAGHAN, HAMILTON, WILLIAMS, MICHAEL, and MOTZ joined; Judge WILKINSON wrote a dissenting opinion in which Judges RUSSELL, WIDENER, NIEMEYER, and LUTTIG joined; Judge NIEMEYER wrote a dissenting opinion in which Judge WIDENER joined; and Judge LUTTIG wrote a dissenting opinion in which Judges RUSSELL, WIDENER, WILKINSON, and NIEMEYER joined. OPINION WILKINS, Circuit Judge: Petitioners Darrell Wayland Gilliam, Jr., Pamela Owings, and James Matthew Swain brought this action pursuant to 28 U.S.C.A. § 2254 (West 1994). They maintain that because a state trial judge granted a mistrial over their objection and in the absence of manifest necessity during their first trial, subjecting them to a second criminal prosecution would violate their rights under the Double Jeopardy Clause of the United States Constitution. The principal issue presented is whether the state trial judge exercised sound discretion in granting the prosecution’s motion for a mistrial because the jury viewed certain photographs prior to their formal admission into evidence. These photographs had been authenticated properly, were relevant, were material, and were otherwise unobjectionable. Further, the witness who had authenticated the photographs was available to retake the witness stand to permit their formal introduction. The district court granted the writ of habeas corpus. The State appeals, claiming that the second prosecution would not violate Petitioners’ double jeopardy rights, and that in any event the district court should have abstained from granting habeas corpus relief under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). For the reasons set forth more fully below, the judgment of the district court is affirmed. 1. FACTS Although the facts underlying this appeal have been fully set forth in the decision of the district court, we include them here in some detail in order to facilitate a better understanding of our decision. A. Background The incidents giving rise to the criminal charges against Petitioners began on the afternoon of January 5,1993, when Hope Icard physically attacked Christie Gilliam, Petitioner Gilliam’s sister. A short time later that afternoon, this altercation led to a confrontation between family members of the two women at the residence of Icard’s sister and brother-in-law, the Silvers. Petitioners arrived outside the Silvers’ mobile home in Petitioner Gilliam’s truck. Although the subsequent events are subject to some dispute, it is uncontested that gunshots were ultimately exchanged. From inside the mobile home, Ernest Silvers and his stepson discharged firearms. Petitioner Gilliam, who was outside the mobile home, was injured by this gunfire in the lower leg. Petitioner Swain was charged with murdering Ernest Silvers by shooting him in the chest with a rifle as Silvers stood in the front doorway of the mobile home. Petitioners Gilliam and Owings, who were unarmed, were charged with aiding and abetting Swain. In addition, Petitioners were charged with lynching in connection with Silvers’ death; Petitioner Swain was charged with assault with the intent to kill; and Petitioner Gilliam was charged with indecent exposure. This latter charge against Gilliam alleged that he had exposed himself to the occupants of the Silvers’ mobile home while taunting them prior to the exchange of gunfire. B. Initial State Trial Proceedings Petitioners’ trial began in state court in late 1994. On the third day of trial, the prosecution presented the testimony of Officer Counts, a former special agent with the South Carolina Law Enforcement Division (SLED). Officer Counts had been present at the scene soon after the altercation and could testify about the investigation and identify photographs of the scene. On cross-examination, defense counsel asked Officer Counts whether he had found blood outside the Silvers’ mobile home. Officer Counts stated that he would like to look at the photographs of the scene to refresh his memory. The photographs to which Officer Counts referred were ones that had been taken either by Officer Counts or in his presence by another SLED agent; copies of these photographs had been provided to the defense prior to trial. Defense counsel showed a group of seven photographs (Set 1) to one of the prosecuting attorneys and then handed them to Officer Counts. The prosecuting attorney — believing that the photographs were being offered into evidence— said, “Without objection.” The trial judge then inquired whether defense counsel was offering the photographs into evidence at that time, and defense counsel responded that he was using them only to refresh the officer’s recollection. The prosecuting attorney noted that he had spoken prematurely. After Officer Counts reviewed the photographs in Set 1, and defense counsel established that Officer Counts was familiar with the photographs because he was there when they were taken or actually had taken them, defense counsel inquired: Q. Looking at those photographs were you able to refresh your recollection as to whether or not any blood was found on the scene? A. Yes, sir. There was a red substance. I am not a serologist, but there was a red substance that appeared to be blood found at the scene. Q. And when blood is found on the scene, how [is it] typically marked in terms of when you find blood outside a trailer and it indicates blood, is it marked as part of your investigation? Do you mark the ground in some way to indicate that you found something? A. Yes, sir. We would circle the area, surround it with crime scene tape, we would [put] a cone out or anything to keep somebody from walking' and disturbing that. Q. Based on those photographs that you had used to refresh your recollection, do you see such a photograph that would indicate that sighting of blood that was marked? A Yes, sir. I could. Q. And if you could, hand us that. If you could, flip through and find the photograph or photographs that would indicate that. A. Basically all of these [are] the same area where the blood was found. Just overall views of it. Q. I hand you what has been marked as Defendant’s exhibits 16, 8, 13, 12 and 14 [Photo Set 2], Would it be your testimony that those [photographs] mark the finding of blood but just from, different angles? A Yes, sir. I can’t tell you that that substance is in fact blood. I am not a serologist, but I can tell you that these were photographs that myself or Agent Gainey of SLED took, and the substance resembles blood, and these five photographs depict the same area adjacent to the trailer where we found [the] substance that resembled blood. J.A. 61-62 (emphasis added). At this point in the examination, defense counsel asked Officer Counts to approach a diagram of the scene prepared by the prosecution and, using the photographs, to mark on an overlay the location where what appeared to be blood was found. Officer Counts then marked the three places where red spots were observed, testifying, “This is basically where the blood was found, in this vicinity here to the left of the trailer, almost to the roadway.” J.A. 63. In response to defense counsel’s follow-up questions concerning the distance from the area where blood was found to the mobile home and the roadway, Officer Counts referred to the notes made by the serologist on the scene and testified that “there were three areas of blood in this location,” that the distance between “these portions of blood here” was seven feet, and that the corner of the mobile home was 70 feet from the road with the blood depicted in the photographs being “right off the roadway in this area.” J.A. 64. - During the remaining cross-examination of Officer Counts, two of the three groups of SLED photographs of the scene (Sets 2 and 3) were introduced into evidence by the defense without objection. The photographs referred to as Set 2 included Exhibits 8, 12, 13, 14, and 16. The photographs referred to as Set 1 — Exhibits 9, 10, 11, 15, 17, 18, and 19 — were not offered into evidence. A description of these photographs and a comparison of the photographs included in Set 1 vis-a-vis those in Set 2 is instructive. The photographs in Set 2, with the exception of Exhibit 16, are identical in every material aspect and show the area outside the Silvers’ mobile home. Each of these photographs was taken from near Highway 32, the public roadway in front of the Silvers’ mobile home, from the left-hand side of the mobile home and looking down the driveway toward it. The mobile home and the adjacent yard and driveway are shown in the background of these photographs, and all of them show the same three pieces of yellow tape in the foreground — the closest two pieces are circular in shape, one to the left and one to the right, and one strand of yellow tape is behind the two circular pieces and a few feet closer to the mobile home. The remaining photograph in Set 2, Exhibit 16, shows the same location, but reveals only the circular piece of tape to the right and one-half of the circular piece to the left. As noted above, these five photographs were admitted into evidence without objection from the prosecution and with no specific testimony by Officer Counts concerning the location depicted or the relevance of the scene they depicted. Of the seven photographs in Set 1, four of them, Exhibits 10, 17, 18, and 19, are closeups of the three pieces of yellow tape: Exhibit 10 shows a close-up of the circular piece of tape on the left of the photographs in Set 2; Exhibit 17 is a close-up of the two circular pieces of tape shown in the photographs in Set 2; Exhibit 18 is a close-up of the strand of tape behind the two circles of yellow tape in the photographs in Set 2; and Exhibit 19 is a photograph of the circle of tape on the right in the photographs in Set 2. These photographs show red spots within or near the areas marked with the yellow tape more clearly than the photographs in Set 2. Exhibit 15 is virtually identical to those in Set 2, taken from the same camera angle and depicting all three pieces of yellow tape. The two remaining photographs in Set 1, Exhibits 9 and 11, reveal the same three pieces of tape, but were taken from approximately the opposite location from those in Set 2; in other words, they are taken from near the mobile home facing up the driveway and toward Highway 32. These latter two photographs depict more clearly the same tire tracks shown in the photographs in Set 2. Following Officer Counts’ testimony, the state trial judge recessed for lunch with instructions that all of the photographs and other evidence that had been published remain in the courtroom.- During the lunch break, the court reporter discovered that the photographs in Set 1 — which had not been admitted into evidence — had been placed on the jury rail in a stack along with the photographs in Sets 2 and 3 — which had been properly introduced into evidence. Concerned that the jury may have viewed evidence that had not been properly admitted, the trial judge conducted a bench conference during which he brought this to the attention of counsel and then provided the parties with an opportunity to evaluate the situation. When the trial proceedings resumed, the prosecution moved for a mistrial, blaming defense counsel for the error and stressing that the defense had “placed something that is easily accessible, has been accessible by the jury, which is not in evidence ... and that is improper.” J.A. 87. The defense strenuously objected. It disagreed with the prosecuting attorney’s suggestion that defense counsel had been responsible for placing the unadmitted photographs in Set 1 where the jury could view them. Defense counsel argued that a mistrial was completely unnecessary and offered to “recall [Officer Counts] and move [the photographs] into evidence,” explaining that Officer Counts had already identified the photographs and had testified about them. J.A. 88-89. Further, defense counsel emphasized that even if the jury actually saw the photographs, there was no prejudice to the prosecution because all of the Set 1 photographs depicted the same scene as other photographs that had already been admitted into evidence. The state trial judge called the foreman of the jury into the courtroom and asked him whether the jury had looked at all of the photographs that had been in the stack on the jury rail before lunch. Although the foreman was not given an opportunity to examine each photograph individually, he responded that as far as he knew all the photographs had been viewed by the jury. The defense requested that the trial judge ask additional questions to ascertain whether the jury had in fact seen the unadmitted photographs, noting that it was entirely possible that the photographs had been placed in the stack on the railing during the lunch break since defense counsel recalled that the photographs had been left in the witness box when the court recessed. The state trial judge, however, refused to do so and declared a mistrial over defense counsel’s objection. The state trial judge stated that he had no choice but to grant a mistrial because the photographs had not been admitted, were not identified, had not been testified to, and had been circulated to the jury. He further indicated that he had no way of knowing whether the photographs would later be offered and admitted into evidence. Defense counsel requested that the state trial judge ask the court reporter to read back Officer Counts’ testimony because he, in fact, had identified the photographs and testified using them. Again, however, the state trial judge summarily declined to do so, noting that if he was incorrect the record would bear that out. At no point did the state trial judge indicate that double jeopardy concerns were implicated by the grant of a mistrial. And, neither the prosecution nor the state trial judge indicated that the photographs were in any way prejudicial to the prosecution or the defense. C. Post-trial State Proceedings In March 1995, prior to the second trial, Petitioners filed a motion before the state trial judge requesting dismissal of the charges against them on double jeopardy grounds, arguing that manifest necessity had not existed to justify the grant of the mistrial over their objections. The state trial judge denied the request. Although the state trial judge did not make a finding that the jury’s having seen the photographs was prejudicial and did not offer any possible explanation of how the jury’s viewing the unobjectionable photographs actually might have improperly biased or influenced the jury for or against either the prosecution or the defense, the state trial judge did refer to the incident at one point as a “prejudicial occurrence,” J.A. 38, and opine that he was “concerned about the origin of the prejudice,” J.A. 39. He explained only that the mistrial had been necessary because he could not have foreseen whether the photographs would have been offered into evidence and, if so, whether they would have been admitted. The state trial judge did not address the fact that the prosecuting attorney had offered no objection to the admission of the photographs when he believed that they were being offered into evidence or that the defense had offered to recall Officer Counts and formally move their introduction. Petitioners appealed this ruling to the South Carolina Supreme Court. That court, however, dismissed the appeal as interlocutory under South Carolina law. D. Federal Habeas Proceedings — District Court Petitioners then filed this action in district court pursuant to 28 U.S.C.A. § 2254 (West 1994), claiming that the upcoming second trial violated their right not to be twice put in jeopardy for the same offense because no manifest necessity existed to support the grant of the mistrial in the first trial. The State responded that the mistrial was necessary to “alleviate prejudice” caused by the jury’s consideration of unadmitted evidence; however, the State did not identify or in any way suggest what possible prejudice may have resulted. On June 29,1995, Petitioners sought either a temporary injunction of the scheduled state criminal trial or expedited consideration of their habeas petition. On July 7, 1995, a United States Magistrate Judge issued a report and recommendation concluding that a temporary stay of the scheduled state court proceedings was appropriate because: Petitioners would suffer irreparable harm if the temporary relief was not granted; the balance of harms tipped decidedly in favor of Petitioners; Petitioners had demonstrated serious and substantial questions that were fair ground for litigation on the merits of their double jeopardy claim; and the public interest favored the grant of temporary injunctive relief. On July 10, 1995, the district court conducted an expedited, non-evidentiary hearing of the motion for a temporary restraining order and adopted the majority of these recommended findings of the magistrate judge. The district court, however, determined that Petitioners had shown no likelihood of succeeding on their double jeopardy claim and therefore were not entitled to injunctive relief. The court reasoned that because questions of provocation and self-defense were being raised, the location of the parties when the gunshots were fired — i.e., whether on a public roadway or the Silvers’ property — was relevant and that several of the photographs in Set 1, being close-ups of the ground showing what appeared to be blood, could be used to more clearly document their locations. This conclusion was based only on purely speculative statements of the State’s attorney, not on any evidence in the record. Significantly, although the district court concluded that the photographs could be used to demonstrate more clearly where the shooting had occurred, it did not find that the photographs were unduly prejudicial, as opposed to simply relevant. E. Federal Habeas Proceedings — Circuit Court — Stay Request After the district court denied their request for a temporary stay of the scheduled state criminal proceedings or expedited consideration of their habeas petition, Petitioners submitted to a panel of this court a request for emergency relief from the order of the district court. See Fed. R.App. P. 8. The panel heard oral arguments on Saturday, July 15, 1995. Questions during argument demonstrated that the panel was particularly concerned with whether the State had identified any prejudice to the prosecution or Petitioners resulting from the jury’s having viewed the photographs in Set 1 without their formal admission into evidence. As the following colloquy reveals, the State’s attorney conceded that the photographs in Set 1 were relevant, were not unduly prejudicial, and were, in fact, admissible: THE COURT: All right. Is there any question in your mind, Mr. Zelenka, as an experienced attorney that, had the Defense said, “Your Honor, we move [the Set 1 photographs] into evidence,” and the State had said, “No objection,” that they would have been marked as an exhibit? STATE’S ATTORNEY: At the time of that trial I do not see any reason why they would not have been introduced as an exhibit. That’s right. THE COURT: Today — today, Mr. Zelenka, can you give this Court any reason why these photographs shown as [Set 1] are not relevant evidence and properly admissible either by the State or by the Defense? STATE’S ATTORNEY: This evidence could have been admitted at the time of that particular trial. THE COURT: That’s not my question____ Is there any reason why these photographs in [Set 1] are not relevant evidence and properly admissible either offered by the State or by the Defense? STATE’S ATTORNEY: No, sir. THE COURT: All right, sir.... So, this is relevant evidence. There’s no reason it should not have been before the jury, other than the fact [that] the Defendant didn’t say, “We move into evidence”? STATE’S ATTORNEY: That’s correct. THE COURT: Was there any reason other than the technical reason [that the defense failed to move the photographs into evidence], that these photographs should not have properly been shown to the jury, as [Set 2 and Set 3] were during the course of the trial? STATE’S ATTORNEY: In my analysis of these photographs, these are not the type of photographs that the state court system would have excluded from evidence based upon a prejudicial factor. THE COURT: So you offer no reason why it would have been improper for these photographs to have been admitted into evidence and shown to the jury? STATE’S ATTORNEY: No reason at all once Mr. Counts authenticates the documentation. Transcript of July 15,1995 Arguments at 28-31 (emphasis added). The State also conceded that there was no rule of law or procedure that prevented Officer Counts from being recalled to the stand so that the defense could move the admission of the photographs. In further questioning from the panel, the State opined that the photographs in Set 1 showed more clearly what appeared to be blood in or near the areas marked with yellow tape. Following a conference at the conclusion of the hearing, the panel, by a vote of two to one, denied the requested relief. On Monday, July 17, 1995, Petitioners sought en banc review of the order denying temporary relief. And, on July 20, 1995, a majority of the active circuit judges voted in favor of granting temporary relief from the order of the district court. We remanded to the district court with instructions to rule on the merits of the habeas petition as expeditiously as possible. Gilliam v. Foster, 61 F.3d 1070 (4th Cir.1995) (en banc). F. State Criminal Proceedings — Second Trial While the poll of the en banc court was proceeding, Petitioners’ retrial began in state court on July 17. Prior to the second trial, the state judge who presided over the first trial and who is a named respondent in this litigation, sua sponte recused himself before the retrial began. During the course of the retrial, the photographs in Set 1 were offered into evidence by the defense. The prosecuting attorney objected to their admission on the ground that the photographs were cumulative and confusing. The presiding state trial judge overruled the objection and admitted the photographs into evidence. On Thursday, July 20, upon learning that this court had stayed the state criminal proceedings, the state trial judge suspended the trial pending further notice. G. Federal Habeas — District Court on Remand On July 21, immediately following our remand, the district court conducted a lengthy and thorough evidentiary hearing. Subsequently, it entered comprehensive findings of fact based upon the evidence and testimony presented and held that the retrial of Petitioners was, indeed, barred by the Double Jeopardy Clause. The district court rejected the State’s claim that manifest necessity for the mistrial existed because the jury’s viewing the Set 1 photographs was unduly prejudicial, finding as a factual matter that the photographs in Set 1 had been “authenticated by Officer Counts, were used by him to refresh his recollection as to whether there were blood stains on the ground, and were actually relied upon by him in fashioning a demonstrative exhibit showing the location of what appeared to him to be blood stains, tire tracks, and other evidentiary items.” The court also found that because Officer Counts had already testified concerning the relative locations of the objects depicted in the Set 1 photographs, the disputed photographs were of “no real significance to either party” viewed in the context of the trial. Further, the district court rejected the State’s argument that the photographs would likely cause juror confusion because the location of the areas marked with yellow tape depicted in the photographs had not been explained sufficiently by Officer Counts and because the “red spots” that were more visible in the Set 1 photographs might lead the jury to conclude that the photographs showed Gilliam’s blood. The court determined as a factual matter that during his testimony Officer Counts adequately identified the location of the three areas marked with yellow tape. In addition, the court concluded that the photographs did not present an undue risk of juror confusion concerning whether the “red spots” were blood because Officer Counts, the State’s witness, and the investigating officer, had already testified that these areas were marked with yellow tape based on the investigators having discovered what appeared to be blood there, and the fact that a serologist had not tested the red spots would not have provided a basis for exclusion of the photographs, nor was it necessary to lay a proper foundation for introduction of the photographs. Additionally, the district court held that even assuming the photographs in Set 1 were somehow prejudicial, manifest necessity did not support the grant of the mistrial by the state trial judge because obvious and adequate alternatives to the mistrial were available. For example, allowing Officer Counts to be recalled to the witness stand would have resolved any possible problem. Finally, the district court concluded that the state trial judge acted improvidently and precipitately in granting the mistrial. The district court based this conclusion on the facts that the state trial judge had failed to evince any concern for the possible double jeopardy ramifications of his actions, had failed to permit the parties an opportunity to fully explain their positions, and had declined to permit further inquiry into whether the photographs had been authenticated during Officer Counts’ testimony. Accordingly, the district court granted the writ of habeas corpus. By separate order, however, it declined to enlarge the Petitioners pending appeal. From the order of the district court granting the writ of habeas corpus, the State appeals. A majority of the members of the en bane court voted to grant en banc hearing of the State’s appeal on an expedited basis. II. DOUBLE JEOPARDY The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that no one shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). Among the protections provided by this Clause is the assurance that a criminal defendant will not be subjected to “repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982). This protection encompasses a right to have a particular tribunal decide guilt or innocence once jeopardy has attached. Id. at 672-73, 102 S.Ct. at 2087-88. The reasons why this “valued right” merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978) (footnotes omitted). For these reasons, a prosecutor generally is permitted only one opportunity to compel a defendant to stand trial. Id. at 505, 98 S.Ct. at 830. Nevertheless, if a criminal proceeding is terminated by mistrial without a final resolution of guilt or innocence, a defendant may be retried in certain circumstances. Id. When a defendant seeks or consents to the grant of a mistrial, there is no bar to his later retrial. Kennedy, 456 U.S. at 672-73, 102 S.Ct. at 2087-88. But, when a defendant opposes the grant of a mistrial, he may not be retried unless there was a manifest necessity for the grant of the mistrial or the failure to grant the mistrial would have defeated the ends of justice. United States v. Dinitz, 424 U.S. 600, 606-07, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 837-38, 93 L.Ed. 974 (1949). This proposition of law was first recognized in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), where Mr. Justice Story wrote: We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office. Based on this explication in Perez the Supreme Court has consistently stressed the great deference to be accorded to the decision of the trial judge to grant a mistrial. See, e.g., Illinois v. Somerville, 410 U.S. 458, 461-66, 93 S.Ct. 1066, 1069-71, 35 L.Ed.2d 425 (1973). A reviewing court must “accord the highest degree of respect to the trial judge’s evaluation of the likelihood” that the circumstances giving rise to the mistrial would have affected the impartiality of the deliberations of the jury. Arizona v. Washington, 434 U.S. at 511, 98 S.Ct. at 833. Indeed, when some event creates the possibility that the jury may have been biased, the decision of the trial judge who has had the opportunity to observe the sequence of events in the context of the trial is entitled to special respect. Id. at 512-14, 98 S.Ct. at 833-35. The trial judge need not make an explicit finding of manifest necessity or articulate the factors that led to the exercise of his discretion, and his decision is not subject to attack on this basis when the record adequately discloses the basis for his ruling. Id. at 516-17, 98 S.Ct. at 835-36. The deference owed to the decision of the trial judge to grant a mistrial, although great, is not unlimited. Id. at 514, 98 S.Ct. at 834-35 (“Our conclusion that a trial judge’s decision to declare a mistrial based on his assessment of the prejudicial impact of improper argument is entitled to great deference does not, of course, end the inquiry.”). The Supreme Court has made absolutely clear that “[i]n order to ensure that [the defendant’s constitutionally protected interest in having a particular empaneled jury decide his guilt] is adequately protected, reviewing courts have an obligation to satisfy themselves that, in the words of Mr. Justice Story, the trial judge exercised ‘sound discretion’ in declaring a mistrial.” Id. at 514, 98 S.Ct. at 835. If the grant óf a mistrial by the trial judge amounts to an irrational or irresponsible act, he must be found to have abused his discretion in finding that manifest necessity for the mistrial existed, for a trial judge “‘must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.’ ” Id. (quoting United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 557-58, 27 L.Ed.2d 543 (1971) (Harlan, J.) (plurality opinion)). Although the Supreme Court has never explicitly articulated a test for a reviewing court to apply in analyzing whether the exercise of discretion by the trial judge in granting a mistrial was sound as opposed to irrational or irresponsible, we are able to distill some factors that are relevant to this inquiry by looking to the considerations that have framed that Court’s analysis of this issue. First, a reviewing court should look to whether a trial judge rationally could conclude that the grant of the mistrial was compelled by manifest necessity or whether the ends of public justice demanded that one be granted on the peculiar facts presented. See Arizona v. Washington, 434 U.S. at 514-16, 98 S.Ct. at 835 (noting that the trial judge had been presented with a situation in which the jury had been exposed to inadmissible and highly prejudicial material, creating manifest necessity to support the mistrial); Somerville, 410 U.S. at 468-71, 93 S.Ct. at 1072-74 (holding ends of public justice supported the grant of a mistrial in first proceeding when “defect was found to exist in the indictment that was, as a matter of Illinois law, not curable by amendment,” rendering any conviction obtained subject to being “upset at will” on appeal or in collateral proceedings); Downum v. United States, 372 U.S. 734, 735-38, 83 S.Ct. 1033, 1034-35, 10 L.Ed.2d 100 (1963) (examining facts to determine whether grant of mistrial supported by manifest necessity when based on absence of prosecution witness); Wade, 336 U.S. at 691-92, 69 S.Ct. at 838-39 (concluding that record was sufficient to show that rapidly advancing army brought about tactical situation responsible for the withdrawal of charges from first court-martial and thus was supported by manifest necessity). In addition, a reviewing court may find relevant whether the trial judge acted precipitately or whether the trial judge expressed concern regarding the possible double jeopardy consequences of an erroneous declaration of a mistrial, heard extensive argument on the appropriateness of such a measure, and gave appropriate consideration to alternatives less drastic than granting a mistrial. See Arizona v. Washington, 434 U.S. at 514-16, 98 S.Ct. at 834-35; see also Jorn, 400 U.S. at 486-87, 91 S.Ct. at 557-58 (plurality opinion) (concluding that based on circumstances surrounding sua sponte grant of mistrial, trial judge made no effort to exercise sound discretion). We turn to address the application of these factors. A. Did Manifest Necessity or the Ends of Public Justice Support the Grant of a Mistrial? Whether a grant of a mistrial is manifestly necessary is a question that turns on the facts presented to the trial court. Somerville, 410 U.S. at 464, 93 S.Ct. at 1070; Wade, 336 U.S. at 690-91, 69 S.Ct. at 837-38. It is not a mechanically applied standard, but rather is a determination that must be made in the context of the specific difficulty facing the trial judge. Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. at 831; see Somerville, 410 U.S. at 467, 93 S.Ct. at 1072 (rejecting application of rigid rules in which categories of errors support or fail to support manifest necessity for the grant of a mistrial). And, while manifest necessity for a mistrial does not require that a mistrial be “necessary” in the strictest sense of the word, it does require a high degree of necessity. Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. at 831. Perhaps the clearest example of a situation in which manifest necessity exists for a mistrial is when a jury is unable to reach a verdict. Id. at 509, 98 S.Ct. at 832. At the other extreme are situations in which a prosecuting attorney seeks a mistrial in order to have additional time to marshal evidence to strengthen the case against the defendant. Id. at 508, 98 S.Ct. at 831-32. Between these two extremes exists a spectrum of trial errors and other difficulties, some creating manifest necessity for a mistrial and others falling far short of justifying a mistrial. See id. at 510, 98 S.Ct. at 832-33. The State concedes, as it has previously to this court, that the photographs in Set 1 were relevant evidence and that assuming they had been offered into evidence after a proper foundation had been laid for their admission, the photographs would have been admitted into evidence. As pictures of the scene where the altercation occurred, the photographs in Set 1 were relevant evidence. See State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179, 181 (1981) (holding crime scene photographs properly admissible to show circumstances of the crime), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982); State v. Wells, 426 S.E.2d 814, 818 (S.C.Ct.App.1992) (noting that photographs of crime scene are admissible to corroborate other evidence). And, as the State also previously conceded, there is no basis for concluding that these photographs were subject to exclusion on the basis that they “are unfairly prejudicial so as to outweigh the probative value.” See State v. Franklin, 456 S.E.2d 357, 361 (S.C.) (holding that “[t]o constitute unfair prejudice, the photographs must create a ‘tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one’ ”) (quoting State v. Alexander, 303 S.C. 377, 401 S.E.2d 146, 149 (1991) (adopting unfair prejudice portion of Federal Rule of Evidence 403 as South Carolina law)), cert. denied, — U.S.-, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995); State v. Campbell, 259 S.C. 339, 191 S.E.2d 770, 773 (1972) (noting that court should exclude photographs that “are calculated to arouse the sympathy or prejudice of the jury,” that “are entirely irrelevant,” or that are “not necessary to substantiate facts”). We also note that the State appears to concede that the mere fact that the photographs in Set 1 were relevant and material evidence does not support a finding that the jury was biased by viewing the photographs or that its deliberations were adversely affected. Undoubtedly, as counsel for Petitioners noted during oral argument, all relevant evidence by definition is prejudicial to some extent in that it is intended to support the proponent’s case and prejudice the opponent’s. But, the “prejudice” engendered simply by the jury’s viewing of relevant evidence, when that evidence could not improperly bias the jury or adversely affect its deliberations, generally could not support a finding of manifest necessity for a mistrial. Consideration of the analysis leading the Supreme Court to conclude in Arizona v. Washington that the state trial judge had not abused his discretion in granting the prosecution’s motion for a mistrial over the defendant’s objection is instructive. During the opening argument in Washington’s state criminal trial, defense counsel informed the jury that the prosecution had intentionally withheld exculpatory evidence from the defense in a prior trial and that, as a result of the prosecution’s misconduct, the state supreme court had ordered that Washington be given a new trial. Arizona v. Washington, 434 U.S. at 499, 98 S.Ct. at 827. The Supreme Court found this information — that the prosecution had committed misconduct in the prior trial — to be immaterial, inadmissible, and highly inflammatory. See id. at 510-11, 98 S.Ct. at 832-33. And, for this reason, the Supreme Court began its analysis of whether the trial court had abused its discretion in granting the mistrial on the premise that the improper argument “may have affected the impartiality of the jury.” Id. at 511, 98 S.Ct. at 833. The type of bias the Supreme Court considered to be germane in evaluating the possibility that the jury’s deliberations would be adversely affected, and thus to determining whether manifest necessity existed for a mistrial, was that arising from the exposure of the jury to inadmissible and inflammatory material. See id. at 514-15, 98 S.Ct. at 835. Clearly, no fair reading of Arizona v. Washington can support a conclusion that a jury’s viewing of relevant, largely cumulative, and unobjectionable photographs could give rise to the type of adverse effect on the jury’s deliberations sufficient to create a manifest necessity for a mistrial. Rather, the State asserts that Officer Counts did not lay a proper foundation for the jury’s consideration of the photographs in Set 1 because he did not identify the photographs in Set 1 by number in the presence of the jury and because he did not specifically explain to the jury either the location depicted in the photographs or their relevance. The State claims that in the absence of this proper identification and foundation testimony, the jury’s viewing of the photographs unduly prejudiced the prosecution because the jury may have been confused. It asserts that without this proper foundation testimony, the jury may not have been able to determine that the different photographs depicted the same areas marked with yellow tape and, thus, may have been misled as to the location of these areas. Further, the State contends that in the absence of foundational proof of serological tests performed on the red spots shown in the photographs in Set 1, the jury could not properly have relied on photographs to conclude that the red spots were blood. We cannot agree. The State cites no authority for the proposition that before a jury may properly view photographs of a crime scene, the sponsoring witness must refer to each photograph by exhibit number, describe the location depicted in each photograph individually, or explain the relevance of each of the photographs individually. In other words, the State offers no support for its contention that this testimony is a necessary part of the foundation for admission of photographs into evidence in South Carolina state courts. This is not surprising because under South Carolina law, “[n]ormally it is sufficient to justify admittance of photographs into evidence if a person familiar with the scene can say that the pictures truly represent the scene involved.” Campbell, 191 S.E.2d at 773. There is no dispute that Officer Counts was present at the scene when the photographs were taken, either by himself or another SLED agent, or that the photographs accurately represented the scene outside the Silvers’ mobile home. As the district court found, these facts were adequately established during Officer Counts’ testimony; so, a proper authentication was laid for the admission of the photographs. This finding is buttressed by the fact that the photographs in Set 2 were admitted into evidence with the same foundational testimony as those in Set 1 — except for the fact that the Set 2 photographs were referred to by number — and without objection from the prosecuting attorney. Additionally, there is no requirement of South Carolina law that before crime scene photographs showing what appears to be blood may be admitted into evidence, the results of a serological test first must be introduced. Moreover, even if the State were correct that Officer Counts had not laid the proper foundation for admission of the photographs into evidence, there was no possibility that the jury could have been confused by seeing the photographs in Set 1 prior to having heard this testimony. Officer Counts had testified that yellow tape marked three areas on the ground outside the Silvers’ mobile home where what appeared to be blood was located. In addition, he had testified that these areas were located to the left of the mobile home and just beside the roadway, and he had marked the location of these three areas on an overlay of a diagram of the crime scene prepared by the prosecution. Further, he testified that all of the photographs (Sets 1 and 2) showed the same scene but from different angles. Given this testimony, it strains credibility to suggest that the Set 1 photographs could have misled the jury into believing that there were a greater number of areas where blood was located or that the blood was discovered in a location other than the one indicated by Officer Counts. And, whether the photographs actually showed blood was a matter properly within the jury’s discretion; no additional testimony or foundation was necessary to guide their discretion prior to viewing the photographs. Finally, in determining whether a high degree of necessity was shown for the mistrial, it is important to bear in mind that there is simply no rational argument that viewing the photographs in Set 1 somehow improperly biased the jury. Cf. Arizona v. Washington, 434 U.S. at 510-11, 98 S.Ct. at 832-33 (beginning analysis of whether trial court exercised sound discretion with the premise that counsel’s improper and highly inflammatory remarks to the jury during opening argument may have affected the jury’s impartiality). As the State previously conceded, the only error was in the fact that the photographs had not been formally admitted into evidence. The State’s own witness, Officer Counts, testified that what appeared to be blood had been located at the scene outside the Silvers’ mobile home. And, the difference in perspective of the two sets of photographs did not add any information concerning the location of the blood spots or tire tracks because Officer Counts testified, and indicated on a diagram prepared by the State, where SLED investigators had located blood at the scene and the location of the tire tracks. Particularly revealing is the testimony of one of the prosecuting attorneys given before the district court: He testified that the prosecution did not actually want to move for a mistrial and that the reason the motion was made was because the state trial judge sent a signal as big as “I have ever seen” that he desired the prosecution to so move. J.A. 428. In view of the state trial judge’s “signal” to the prosecution that the court was seeking a motion for a mistrial, it is understandable why the motion was made. This admission is strong evidence that the prosecution did not actually believe that the jury had been biased or that its deliberations were somehow affected as a result of seeing the photographs in Set 1. Indeed, nowhere in the prosecuting attorney’s testimony did he indicate that the prosecution was in some way prejudiced by the jury’s viewing of the Set 1 photographs. And, the prosecution’s lack of awareness of the serological test that had been performed and its decision not to conduct further serological testing to attempt to determine whose blood was found further illustrates the fact that the prosecution did not believe that the existence of drops of blood outside the mobile home was significant; it was undisputed that Gilliam bled from a gunshot wound to the lower leg and, therefore, that blood was present at the scene outside the mobile home. Alternatively, the State argues that even if the jury was not biased by viewing the Set 1 photographs, the state trial judge nevertheless properly may have concluded that the ends of public justice were served by the grant of a mistrial because the procedures for the proper admission of evidence for the jury’s consideration had been violated through defense counsel’s negligence. In fact, one of the prosecuting attorneys testified that this factor, rather than any perceived prejudice to the prosecution’s case, motivated the decision to seek a mistrial. In our view, this question forms the true issue raised by this appeal: Does a trial judge exercise sound discretion in concluding that a mistrial is supported by the ends of public justice when defense counsel negligently permits the jury to view photographs that have not been admitted into evidence, but that undoubtedly could and would be admitted if so offered? In examining some of the situations in which the ends of public justice were held to support the grant of a mistrial, the Supreme Court has written: A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve “the ends of public justice” to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court. Somerville, 410 U.S. at 464, 98 S.Ct. at 1070. As noted above, because these photographs could have been admitted into evidence, could not have caused the jury to have been confused or misled, and could not have biased or inflamed the jury, there is no basis upon which to conclude that the jury could not have reached an impartial verdict. And, any error in the jury’s viewing of these photographs would not have amounted to reversible error under South Carolina law. First, because there was no reason why the photographs could not have been formally admitted by the defense, any technical error in the jury’s viewing of the photographs could have been easily remedied before the case was submitted to the jury. Second, even if the technical error could not have been corrected, this error could not possibly have resulted in reversal of Petitioners’ convictions because harmless error does not necessitate the reversal of a South Carolina criminal conviction. See State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132, 141 (1985), cert. denied, 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 266 (1985). The erroneous consideration of evidence is not a ground for reversal unless it results in prejudice. See State v. Knight, 258 S.C. 452, 189 S.E.2d 1 (1972). And, when a jury considers a crime scene photograph, when other photographs of the same scene are already in evidence without objection, no prejudice can be inferred. See State v. Bellue, 260 S.C. 39, 194 S.E.2d 193, 194 (1973). Moreover, a jury’s exposure to evidence that is admissible, but not admitted, does not require reversal of a conviction. See Campbell, 191 S.E.2d at 772-73 (stating that display before the jury by the solicitor of an axe found at the crime scene did not warrant reversal of defendant’s conviction, when although not admitted into evidence, the axe properly could have been admitted). Thus, there is no possibility that if the trial had resulted in a conviction of Petitioners, the verdicts would have been reversed on appeal because the jury viewed the Set 1 photographs. Although the circumstances presented to the state trial judge created neither a risk that the jury would be unable to reach an impartial verdict nor a risk that a verdict of guilty would have been overturned on appeal or collateral review, an argument is made that the state trial judge’s grant of a mistrial under these circumstances nevertheless was supported by the ends of public justice. A trial judge must be permitted to ensure the integrity of the trial and its evidentiary procedures through the grant of a mistrial, the State maintains, and any rule that fails to recognize this institutional necessity would place unscrupulous defense counsel in a “no lose” situation: Unethical defense counsel will be undaunted from violating evidentiary procedures because, in the event a mistrial is granted, they obtain a real opportunity for a reviewing court to conclude that retrial is barred by the Double Jeopardy Clause or, in the event the trial judge does not grant a mistrial, they obtain the benefit of having the jury consider unadmitted or improperly admitted evidence. This parade of horribles rings hollow. Undoubtedly a trial judge possesses wide latitude to maintain control over the courtroom to ensure the integrity of the proceedings, but the traditionally broad discretion afforded in such matters necessarily accedes to the Constitution, requiring that the exercise of the discretion in favor of granting a mistrial over a defendant’s objection and after the jury has been sworn be exercised only when a high degree of necessity or the ends of public justice compel the act. We are unable to accept the State’s argument that a trial court may deprive a defendant of his constitutionally protected right to have an empaneled and unbiased jury decide his guilt on the ground that his attorney committed a technical and harmless error. See Harris v. Young, 607 F.2d 1081, 1086 (4th Cir.1979) (concluding that trial court did not exercise sound discretion in granting mistrial in part because “there [was] no indication that the traditional remedies for attorney misconduct, including censure, reprimand, contempt, or recommendation of disciplinary proceedings were not available”), cert. denied, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980). And, the State’s argument is particularly unconvincing on the present facts because there has never been any allegation that all of the defense attorneys were responsible for the error. Thus, the Petitioners whose separate counsel were not responsible for the error were deprived of a constitutional right in the absence of even unintentional harmless error by their own attorney. Our conclusion that the ends of public justice do not support the grant of a mistrial under the present circumstances — i.e., when admissible and largely cumulative evidence that was not unduly prejudicial, that would not cause juror confusion, and that had been properly authenticated, was inadvertently placed where the jury could view it — does not signal that a trial judge would be incorrect in concluding that the ends of justice supported the grant of a mistrial in other circumstances. For example, when evidence that would not have been admitted, or that may have biased the jury in some way, was aired before the jury, a mistrial may very well be appropriate. Accordingly, unscrupulous defense counsel will find no encouragement in our opinion to evade the rules of evidence: If counsel were to air evidence that might tend to improperly bias the jury or adversely affect its impartiality, any reviewing court applying the teachings of Arizona v. Washington would conclude that the trial judge acted within his discretion in granting a mistrial. And, if counsel seeks to improperly place only innocuous, admissible evidence before the jury, no advantage is gained, and a significant risk exists that counsel may find that they face sanctions for their conduct. All in all, we do not view this scenario as creating any real possibility for abuse. In sum, we conclude that neither manifest necessity nor the ends of public justice required a mistrial. B. Do Other Factors Indicate that the State Trial Judge Exercised Sound Discretion? The other factors that the Supreme Court has indicated are relevant to a determination of whether a trial court exercised sound discretion in granting a mistrial also weigh against that finding here. First, as the district court found, the state trial judge acted precipitately: He refused defense counsel’s request to determine whether the jury had actually seen the photographs in question; he refused to determine whether Officer Counts had in fact authenticated the photographs diming his testimony; he refused simply to look at the photographs and rule on their admissibility; and he refused to allow defense counsel’s request to recall Officer Counts and formally move the admission of the photographs into evidence. The manner in which the state trial judge examined the appropriateness of the grant of a mistrial furnishes no indication of the exercise of sound discretion. In addition, the state trial judge never evinced any awareness that the grant of a mistrial might implicate or deprive Petitioners of their constitutional right to have the empaneled jury decide their guilt. Indeed, at no point during the brief colloquy with counsel concerning the State’s motion for a mistrial did the state trial judge allude to the Fifth Amendment, the Double Jeopardy Clause, or the proposition that in order to retry a criminal defendant after a mistrial has been granted over his objection, manifest necessity or the ends of public justice must require that it be granted. Finally, the state trial judge ignored an obvious and adequate alternative to the grant of a mistrial. See United States v. Sloan, 36 F.3d 386, 400 & n. 11 (4th Cir.1994); United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir.1993) (“If alternatives existed, then society’s interest in fair trials designed to end in just judgments was not in conflict with the defendant’s right to have the case submitted to the jury.”) (internal quotation marks & citation omitted); Harris, 607 F.2d at 1085 n. 4 (“If obvious and adequate alternatives to aborting the trial were disregarded, this suggests the trial judge acted unjustifiably.”). The State conceded in argument before this court that there was nothing to prevent the state trial judge from simply allowing Officer Counts (who was under subpoena and available) to be recalled to the witness stand to have the photographs formally introduced, as defense counsel offered to do prior to the state trial judge’s ruling on the prosecution’s motion for a mistrial. Without question, this would have cured the technical, and only, error that had occurred. Thus, in the absence of any prejudicial error, the state trial judge refused to consider or implement an obvious and completely adequate course of action to correct any possible error in the jury’s having viewed cumulative photographs that had not been formally moved and received into evidence. This factor, then, also weighs in favor of a conclusion that the state trial court acted irresponsibly in granting the mistrial. C. Summary In sum, we agree with the district court that the state trial judge did not exercise sound discretion in granting the mistrial. The record will not support a conclusion that manifest necessity existed: The jury was not exposed to any inadmissible evidence; the photographs in Set 1 could not have adversely affected the impartiality of the jury; and in light of Officer Counts’ testimony, the Set 1 photographs did not present any realistic potential for juror confusion. Additionally, the grant of the mistrial was not compelled by the ends of public justice: There was no reason a just verdict could not have been reached by the jury; there was no error that could have resulted in reversal if the trial had ended in conviction; and there was no necessity for the state trial judge to grant a mistrial to vindicate any institutional interest protecting the integrity of evidentiary procedures. Moreover, the state trial judge acted precipitately and ignored an obvious and completely adequate alternative offered to remedy any error arising from the jury’s consideration of the photographs. In reaching this conclusion, we consider it important to emphasize what we do not hold. We are not called upon to second guess a discretionary ruling on the admissibility of evidence by a state trial judge in a criminal proceeding or a finding that the jury was potentially biased or prejudiced. The state trial judge plainly refused to rule on the admissibility of the Set 1 photographs and made no finding that the impartiality of the jury had been, or may have been, affected by viewing the photographs in dispute. Nor are we faced with a situation in which the admissibility of evidence or the possibility of juror bias is subject to some doubt. Indeed, the State has repeatedly conceded that the Set 1 photographs were admissible and without question properly would have been admitted into evidence during the first trial if they had simply been moved into evidence when Officer Counts was on the stand; and, the testimony of Officer Counts foreclosed any possibility of juror confusion. As a result, we do not confront a situation in which a state trial judge has exercised his discretion to choose a mistrial in lieu of some other measure design