EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, October 30, 2008

Mississippi Mistrial: Judge In Case Against State Trooper Declares Mistrial Despite Invited Error Doctrine

A judge in Mississippi has declared a mistrial in the trial of a state trooper charged with the improper touching or fondling of a child younger than 16 based upon the improper admission of character evidence, despite the fact that the judge found that this error was invited by defense counsel.  In addition to this charge, the defendant,  Richard Dane Davenport, 46, a Mississippi Highway Safety Patrol master sergeant, has been charged in another court with raping the alleged victim.

The drama started early in Davenport's trial, with the opening statement of defense counsel John Zelbst being interrupted twice by potential witnesses, including the alleged victim.  However, these interruptions were not what precipitated the mistrial.

Instead, the mistrial, stemmed from the fact that, before trial, Circuit Judge James T. Kitchens Jr. precluded the introduction of testimony relating to Davenport's alleged rape of the victim, presumably pursuant to Mississippi Rule of Evidence 404(a), which precludes the introduction of evidence of a person's character to prove that he has a propensity to act in a certain manner and that he thus likely acted in conformity with that propensity at the time in question.

During the prosecution's case-in-chief, however, it called the alleged victim to the stand.  And "[t]hree times during cross-examination in response to questions from Zelbst — sometimes multiple, open-ended questions at a time — the witness referred to being raped by the defendant.  Zelbst thereafter moved for a mistrial, and the judge found that, "If you invited the error, you could not complain about the result."   "[O]f the three instances of improper testimony by the witness, [Kitchens] ruled the first two 'invited error.' The third was borderline — if not quite invited, [but] still the result of poorly worded questions."

Now, traditionally, appellate courts invoke the invited error doctrine when a party complains about an evidentiary ruling, and those courts, not wanting to disturb the verdict, reject the appeals, concluding that a party is not permitted to take advantage of an error which he himself invited or induced the trial court to make.  In this case, however, defense counsel raised a motion for mistrial early during trial, and the court found that it should be granted, despite the invited error doctrine, concluding that "because the person that’s on trial here is Mr. Davenport and not Mr. Zelbst, prudence … dictates that I grant the motion (for a mistrial) at this time."

Obviously, this was a difficult call for the judge to make, and, according to the victim's family, it was the very goal of defense counsel to secure a mistrial and delay the proceedings by asking the questions at issue.  That said, unless there was evidence that the defendant directed his attorney to ask these questions, I think that the judge was correct that the defendant should not be punished for his attorney's actions when a mistrial could be declared during the early stages of trial.



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