Tuesday, March 15, 2011

Prosecutor Goaded Defense To Seek Mistrial, Double Jeopardy Bars Retrial

The South Carolina Supreme Court reversed a murder conviction, concluding that the prosecutor had "goaded" defense counsel into seeking a mistrial and then securing the conviction at a second trial. The court concluded that the second trial was barred by double jeopardy.

The court recited the facts:

It is undisputed that Petitioner shot and killed his sister's boyfriend, Robert Lee Stewart (Victim).  In October 2003, Petitioner stood trial for murder.  At trial, Petitioner claimed self-defense.  The first trial ended when the judge granted Petitioner's motion for a mistrial.  When Petitioner was tried again in 2005, he moved to dismiss based on double jeopardy.  The circuit court judge at the second trial denied the motion and the jury convicted Petitioner of murder.

During the first trial, there was a great deal of animosity between the solicitor and defense counsel.  Prior to questioning the first police witness, the solicitor explained that there was a videotape made of the crime scene that included graphic images of Victim's body.  The solicitor redacted the original videotape to erase the graphic images and presented defense counsel a redacted copy on the day of trial.  However, the original videotape, including the graphic images of Victim's body, was shown to the jury.  Petitioner's counsel moved for a mistrial and dismissal with prejudice based on prosecutorial misconduct.  Counsel for defense argued the solicitor's case was not going well and the State was now privy to his defense tactics.  The solicitor claimed the tapes were switched unintentionally and inadvertently.  The court found the explanation offered by the State "shocking" as to why "such a huge, substantial, material piece of evidence would be handled in such carefree fashion . . . ."  The circuit court judge admonished the solicitor, but denied the motion for a mistrial issuing a curative instruction that the jury was to disregard the fact that they viewed the body of Victim.

During the solicitor's closing argument, she accused defense counsel of unethical conduct in coaching witnesses and implied to the jury that it was their community duty to convict Petitioner of murder.  After the solicitor concluded her closing argument, defense counsel again made a motion for a mistrial.  Defense counsel contended a mistrial should be granted based on prosecutorial misconduct in closing argument in that the prosecution accused defense counsel of coaching witnesses, and argued facts not in evidence.  Defense counsel ultimately argued that the cumulative effect of the prosecutorial misconduct warranted a mistrial.  The circuit court judge charged the jury and then heard arguments on the mistrial motion.  The solicitor contended her closing argument was justified by the evidence and was responsive to the defense's closing argument, thus, the mistrial motion should be denied.  The jury then sent a note to the judge that it was deadlocked.  The judge gave an Allen charge and the jury resumed deliberating.  After further deliberation, the jury again reported that it was deadlocked.  The judge received the note that the jury remained deadlocked as he was about to rule on the mistrial motion. 

The circuit court judge noted he had reviewed the motion for a mistrial, the solicitor's closing argument, and his notes from the testimony.  The judge found the statements made about Petitioner's counsel, the exhortation to the jury to convict in order to protect the community, and the introduction of the original videotape warranted a mistrial. 

The circuit court judge stated, "In my readings of those opinions it's almost as if . . . this court can infer that the defendant was almost goaded into the position of asking for a mistrial.  So based on the totality of the circumstances that [have] occurred in this trial . . . I will declare a mistrial . . . ."  The solicitor asked if the mistrial was based specifically on prosecutorial misconduct or the comments in her closing argument.  The judge responded, "The comments made in closing arguments, I would consider to be prosecutorial misconduct as well as . . . the video tape. . . . It's the cumulative nature of everything."  The State appealed the grant of a mistrial and the court of appeals dismissed the case as not immediately appealable.

Almost two years later, the State retried Petitioner.  Petitioner moved to dismiss based on double jeopardy arguing the solicitor at the first trial intentionally goaded him into moving for a mistrial.  The circuit court judge at the second trial denied the motion to dismiss.  In denying the motion to dismiss that judge made two seemingly inconsistent findings.  That judge stated:

I am resolving this motion completely independent of whether or not the prosecutor intentionally goated [sic] the defense into making a motion for a mistrial. . . .

          . . . . Even if there had been prosecutorial misconduct, it was the fact that the jury was deadlocked that caused the mistrial. 

. . . . So regardless of my analysis of what happened in the first trial, this motion to dismiss is denied because it was the jury's being deadlocked that lead to the manifest necessity that lead [sic] to the mistrial.

Shortly after making the above finding, the circuit court judge also found the following:

I do not find that the prosecutor specifically committed misconduct that was designed to elicit a motion for mistrial from Defendant so that the prosecutor would have another bite at the apple, another time to try the Defendant.  I believe that the prosecutor was vigorously trying to win the case and not trying to throw the case in the way of a mistrial.  So I am for those reasons, denying the motions [sic] to dismiss based on double jeopardy.

The second trial proceeded and the jury convicted Petitioner of murder.  Petitioner appealed to the court of appeals.  The court of appeals affirmed the denial of Petitioner's motion to dismiss based on double jeopardy.

The court found that the finding that the prosecutor had not goaded the defense was clearly erroneous.

Details about the decision from FoxCarolina may be found here. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/03/the-south-carolina-supreme-court-reversed-a-criminal-conviction-concluding-that-the-prosecutor-had-goaded-defense-counsel-in.html

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