Opinion
Defendant ID # 9911000751
Date Submitted: September 6, 2002
Date Decided: October 16, 2002
Kim E. Ayvazian, Esquire Attorney for State of Delaware
James E. Liguori, Esquire Liguori, Morris Redding Attorney for Defendant, Alonzo Morris
MEMORANDUM OPINION
In Morris v. State, 795 A.2d 653 (Del. 2002), the Supreme Court reversed the Defendant's convictions of assault and possession of a deadly weapon during the commission of a felony. The reversal was based on two findings of prosecutorial misconduct.
The Court found that the prosecutor improperly distorted the State of Delaware's ("the State") burden of proof by stating "How many liars are we going to have in this case for [Morris] to be found not guilty?" An argument that the jury may acquit the Defendant only if it finds the State's witnesses are "lying" dilutes the State's burden of proving the Defendant guilty beyond a reasonable doubt. Fensterer v. State, 509 A.2d 1106 (Del. 1986). After the jury makes its credibility determinations, the jury still must consider those credibility determinations together with all of the evidence and then determine if the State has proven the Defendant guilty beyond a reasonable doubt. Based on this prosecutorial error, the case was reversed.
The second finding of prosecutorial error was that the prosecutor argued to the jury that a house would have blocked a witness's view, but there was no testimony concerning this. Thus, it was a misrepresentation.
At the oral argument of this case before the Supreme Court the Defendant claimed, for the first time, that in the event the Supreme Court reversed his conviction, then the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and similar amendment of the Delaware Constitution, Article I, Section 8, should bar reprosecution. Morris claimed that the prosecutor intended to goad the defense into moving for a mistrial; and that even though a mistrial was not requested, the Double Jeopardy Clause still should bar a retrial. This point struck a responsive chord in that the Supreme Court then requested supplemental memoranda on this issue and on whether Delaware should adopt a broader, more protective double jeopardy standard than under the Federal standard. Ultimately, the Supreme Court decided that it would be premature to rule on a double jeopardy claim because it was unknown as to whether or not the State would reprosecute upon reversal. The State has elected to reprosecute and therefore the Defendant is pursuing his argument that the Double Jeopardy Clause bars his retrial.
LEGAL BACKGROUND
A. Double Jeopardy and Reversals
Retrial is not precluded for those cases where a conviction is obtained, but then there is a reversal for trial error by the prosecutor or otherwise. United States v. DiFrancesco, 449 U.S. 117, 130-131 (1980), except if the reversal is for insufficiency of evidence to support a conviction. Monroe v. State, 652 A.2d 560 (Del. 1995). In other words, except for a reversal arising from insufficient evidence to support the verdict, there is no double jeopardy bar to retry a defendant if the appellate court reverses the conviction. Bailey v. State, 521 A.2d 1069, 1075 (Del. 1987).
B. Double Jeopardy and Mistrials
(i) U.S. v. Dinitz
If a mistrial is granted without the agreement or consent of a defendant, then that mistrial must be based on "manifest necessity"; otherwise, the bar of double jeopardy would bar a retrial. U.S. v. Dinitz, 424 U.S. 600 (1976) ("Dinitz"). But, if a defendant moves for a mistrial or agrees to a mistrial, the double jeopardy bar to prosecution is waived except in limited circumstances. U.S. v. Dinitz, 424 U.S. at 607,608. This waiver is based on the defendant's control over his own case. It is the defendant's decision not to take the case to verdict. He makes the election by making the mistrial application or consenting to it. If it is granted and the trial aborted, then he knows he is subject to retrial. What is important is the defendant's control over whether he should go to verdict (i.e. take his chances) or seek a mistrial. If error is injected into his trial and he does not seek a mistrial and is convicted, then he can pursue a reversal on appeal. If reversed, he is subject to retrial.
THE EXCEPTION
In Dinitz, the Court held that a defendant would have double jeopardy protection if the prosecutor intended to provoke the mistrial application (goading the defense into a mistrial motion). Dinitz also holds that "bad faith" or "overreaching" conduct by a prosecutor or judge also may result in the bar of double jeopardy, if reprosecution is attempted.
The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where `bad-faith conduct by judge or prosecutor,' United States v. Jorn, supra, 400 U.S., at 485, 91 S.Ct., at 557, threatens the `(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. [Citations omitted.]
U.S. v. Dinitz, 424 U.S. at 611.
(ii) Oregon v. Kennedy
Six years later, in Oregon v. Kennedy, 456 U.S. 667 (1982) ("Oregon v. Kennedy"), the United States Supreme Court limited the application of double jeopardy to circumstances where the prosecutor intentionally goaded the defense into requesting a mistrial. The Supreme Court chose to refine Dinitz by removing bad faith or overreaching as an independent basis for applying double jeopardy.
The Court explained why it adopted a standard that focused on the intent of the prosecutor as opposed to a separate alternate overreaching or bad faith prosecutorial conduct standard which Justice Stevens argued in his concurring opinion. Justice Stevens' concern was that the majority decision had unnecessarily lopped off prior precedent by refining Dinitz in such a way that it removed from the analysis the alternate grounds of bad faith.
The majority held as follows:
By contrast, a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system. . . .
Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant's motion for a mistrial constitutes `a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.' United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, `[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.' United States v. Dinitz, supra, 424 U.S., at 609, 96 S.Ct., at 1080. Only where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. Oregon v. Kennedy, 456 U.S. at 675-676.
In summary, the defendant has control of whether or not he seeks a mistrial as opposed to going to verdict and seeking a not guilty verdict. If he goes to verdict and is convicted, he can seek a reversal on appeal. Since double jeopardy does not apply if the case is reversed on appeal, it should not apply when a mistrial motion by the defense causes the trial to be aborted, unless it was the intent of the prosecutor to goad the mistrial application. Regardless of the prosecutor's reasons, whether it be to gain advantage in a second trial or merely harassment, if the Court finds the State intentionally caused the defense to seek a mistrial, then that subverting of justice requires that double jeopardy bar future prosecution.
(iii) Bailey v. State
In Bailey v. State, 521 A.2d 1069 (Del. 1987) ("Bailey"), the Delaware Supreme Court had the opportunity to discuss mistrials and double jeopardy under both the Fifth Amendment to the United States Constitution and Article I, § 8 of the Delaware Constitution. The Court determined that the analysis of the double jeopardy claim would be identical under either the federal constitution or Delaware's constitution.
The Court noted the tension in the defendant's double jeopardy interest in having the State's criminal allegations resolved in a single proceeding versus society's interest in enforcing criminal laws by way of a trial, regardless of the verdict. Society's interest sometimes results in more than one trial because the defendant is entitled to a review of the trial process on appeal. A reversal for grounds other than insufficiency of evidence will result in a retrial due to society's interest in ultimately reaching a verdict consistent with our criminal and procedural jurisprudence. Bailey v. State, 521 A.2d at 1075.
Bailey provides an analysis of both Dinitz and Oregon v. Kennedy, noting that Oregon v. Kennedy refined or limited Dinitz. Since the analyses of the Federal and State constitutions are identical, our Supreme Court embraced the holding of Oregon v. Kennedy finding "that Double Jeopardy considerations would bar a subsequent trial only if the conduct giving rise to the mistrial was conduct by the prosecutor or the court which was intended to provoke a mistrial". Bailey v. State, 521 A.2d at 1078.
But then there is language in Bailey that is troublesome, and it is found at page 1079:
For the reasons that we have already outlined, there was a manifest necessity for the sua sponte declaration of a mistrial by the Superior Court. The record does not support Bailey's contention that the prosecutor's final line of questioning was motivated by bad faith or intended to cause a mistrial. Under the circumstances of this case, the double jeopardy clauses of the State and Federal Constitution provide no bar to Bailey's retrial and neither does the applicable Delaware statute.
By concluding that the record did not support Bailey's theory that the prosecutor's question was motivated by bad faith "or" intended to cause a mistrial, the Court used language more compatible with the broader standard of Dinitz.
If, as I believe, Delaware is in the Oregon v. Kennedy camp, then Bailey's use of "or" does cause some confusion.
Later, in Sudler v. State, 611 A.2d 945 (Del. 1992), the Supreme Court's analysis of the double jeopardy standard and mistrials was limited to intentional goading by the prosecution to get the defense to apply for a mistrial. Sudler v. State, 611 A.2d at 948. Bad faith or overreaching is not a part of the Sudler analysis.
The Superior Court has applied the limited "goading" exception in State v. Freeman, Del. Super., Cr. A. Nos. IN-91-02-0207-0209, Herlihy, J. (July 22, 1991); State v. Weddington, Del. Super., Cr. A. Nos. IN86-02-0427, et al., Gebelein, J. (November 10, 1998); State v. Washington, Del. Super., Cr. A. Nos. IN-91-01-0558, et al., Herlihy, J. (Feb. 13, 1992); and State v. Long, Del. Super., K91-12-0047, Steele, J. (July 23, 1992), aff'd, Del. Supr., No. 367, 1992, Walsh, J. (June 21, 1993).
But, I think that because of the use of "or" in Bailey, a broader standard continues to be argued. Bad faith or overreaching conduct was argued in this case. In State v. Dorsey, Del. Super., Def. ID# 9609013882, Gebelein, J. (April 12, 2001), aff'd, 782 A.2d 263 (Del. 2001), the Superior Court held:
The Court now finds that while prosecutorial misconduct deprived Dorsey of a fair trial, that misconduct was neither intended to provoke the defendant to move for a mistrial, nor was the prosecution motivated by bad faith or malice, engaged in oppressive tactics, or acting to seriously prejudice and harass the defendant. Therefore, the Double Jeopardy Clause of the Delaware Constitution is not implicated to bar retrial of the defendant.
On appeal, the Supreme Court commented that the Superior Court found "that the prosecution had not willfully provoked a mistrial or exhibited the kind of bad faith conduct the double jeopardy bar to retrial is intended to address." In the Matter of the Petition of James Dorsey for a Writ of Prohibition, 782 A.2d 263 (Del. 2001), citing Bailey v. State, supra. See also State v. Lloyd, Del. Super., Def. ID# 0102010574, Jurden, J. (May 10, 2002) for a discussion and a review of the "bad faith" standard used in a minority of states.
In State v. Long, supra, ("Long"), then Judge Steele interprets Bailey as requiring a two prong test: bad faith and a declaration of a mistrial to afford the prosecution an advantage at a later trial by intentionally goading the defense into the mistrial application. He also noted that the bad faith or overreaching may be shown by a pattern or sequence of misconduct leading up to the triggering of a mistrial. This analysis harmonizes Bailey with Oregon v. Kennedy and does not consider bad faith as a separate ground.
I adopt the Long reasoning that for double jeopardy to be considered as a bar to reprosecution following a mistrial, the Court must find that the prosecution injected overreaching or bad faith conduct into the trial with the intent to cause a mistrial.
Nevertheless, as I analyze the facts of this case, I also shall rule based on all of the defendant's arguments, including the broader, separate bad faith argument, in the event my analysis is wrong. THIS CASE
On September 6, 2002, this Court conducted an evidentiary hearing to permit the defendant a full opportunity to develop his arguments. Wide latitude was granted to allow the defendant to develop most of his theories, including allowing, over the State's objections, an examination of the prosecutor involved in the trial.
On September 6, 2002 this Court ruled on the matter and promised a written decision to follow. This is that decision.
First, I find that although the defense has argued creatively and forcefully, there is a significant problem with its position. At his trial, there was no mistrial application. The defense is presumed to be in control of its destiny. By not electing to apply for a mistrial, the defense made the decision to take the case to verdict, obviously hoping for a defense verdict. But the defense also knew that if convicted, there would be grounds to seek a reversal on appeal. Without a mistrial or mistrial application, this can be said to be much ado about nothing.
Alternatively, I shall examine the State's conduct under the theory that, regardless of the lack of a mistrial application, the State's conduct still fell into that conduct which the Oregon v. Kennedy holding targeted.
What if the State intentionally goaded the defense in an attempt to obtain a mistrial, but the defense did not bite. In other words, if there is an unsuccessful intentional attempt to cause a mistrial, should double jeopardy attach? I think not because that would turn the previously discussed double jeopardy jurisprudence on its ear. A defendant could obtain the benefit of deciding to go to a verdict and then seek to have double jeopardy applied following a reversal. He would have his cake and could also eat it. But for purposes of judicial economy, (we only want to do this once), I allowed the defense the opportunity to establish that the State "attempted" to intentionally cause a mistrial so the State should be barred by double jeopardy.
Based upon the evidence presented on September 6, I find that the prosecutorial misconduct was not done intentionally for the purpose of goading the defense into a mistrial application or in an attempt to seek an advantage by a second trial.
The defense argued that, cumulatively, the errors and mistakes of the State showed a pattern of misconduct which can be used to support the inference that the State was trying to generate error in order to cause a mistrial. I did find a comment in the State's opening statement which could be construed to be one of burden shifting concerning standard of proof. Other than that, I find the remaining State's actions argued by the defense to have been reasonably appropriate, when considered in the context of what was happening at that particular time of the trial.
The defense argued that there was a basis for inferring that the State would wish to sabotage its own case in hopes of obtaining a better opportunity to convict the Defendant at a second trial. The victim was unable to identify the Defendant at trial. While this was a surprise to the State, there were other witnesses who identified the Defendant as the person who struck the victim with a pipe, causing a loss of vision in one eye. One of those witnesses had personally known the Defendant for a very long period of time.
The State's case also was based upon other evidence including motive, opportunity, and statements by the victim immediately after the incident which identified the Defendant as being the person who assaulted him.
Taking into consideration my review of the transcript and the trial judge's comment that the evidence was overwhelming, I find that the strength of the State's case would not give rise to an inference that the State was attempting to sabotage it.
Testimony was elicited that the State's case now may be stronger, if there is a second trial, but that is for reasons I find were unknown to the State at the time of the first trial. Another eyewitness has been located and interviewed and reportedly has identified Mr. Morris. I find that to be a result of the preparation for the retrial.
I also note that on several occasions, the prosecutor was very cautious and sought judicial guidance before asking certain questions in the presence of the jury. For example, the prosecutor received permission to cross-examine the Defendant under Delaware Rules of Evidence, Rule 609 for a specific felony, but chose not to out of an abundance of caution, and so advised the Court and defense counsel. This cautious approach does not fit the pattern the defense seeks to paint.
In summary, I find that the State did not intentionally attempt to cause a mistrial. I find that the State did not intentionally inject error into the case. Trial through the adversarial process creates an emotional, competitive environment in which, unfortunately, sometimes one takes his eye off the ball. Trials and closing arguments are fluid and lawyers are human. Mistakes will be made. All of us need to be more diligent in an effort to minimize error and the potential for prejudice against the defendant.
Finally, I consider the Defendant's argument that even absent a mistrial application and absent a finding of intentional goading by the prosecutor in an attempt to obtain a mistrial, I should still apply double jeopardy to bar retrial. This is considered because when the Supreme Court requested supplemental briefing on double jeopardy, it was considering a broader standard than when the State intentionally seeks to goad the defense into a mistrial application.
This is the defense's third line of attack and is only being considered in the event the Delaware Supreme Court construes Bailey differently than I have interpreted it in this ruling. The basis for the defense's argument is that a finding of bad faith conduct or overreaching by a prosecutor is sufficient reason to attack double jeopardy and bar retrial. It is the separate double jeopardy ground "lopped off" by the Court in Oregon v. Kennedy per Justice Stevens' concurring decision.
The problem I have with this argument initially is getting a handle on what is meant by "bad faith" or "overreaching". There is no definition of it. Justice Stevens suggests that it be developed on a case-by-case basis. The majority ruling in Oregon v. Kennedy rejected this approach as there are few standards for its application. Where is the line between mistakes and bad faith mistakes? Is it that the prosecutor should have known better? That is a tough standard because conceivably every mistake by a prosecutor is preventable had they known more law or more information about their case. Is it "we'll know it when we see it"?
If a broader standard is adopted because of egregious conduct, it must be done with eyes wide open as to the consequences. Every defense counsel will seek a hearing in all similar cases and the trial court will have to determine which side of the line the prosecutor's transgression fell. As the majority in Oregon v. Kennedy noted, such a standard would be a slippery slope.
Applying the guidance offered by Justice Stevens in his concurring opinion, I find that there is no evidence to support the Defendant's position that there was bad faith or overreaching in this case. There is nothing to show the State was motivated to put the Defendant through the expense and/or embarrassment of a criminal trial, just for that reason, regardless of the verdict. I do not find the prosecutor was calculating to inject just enough prejudice into the case to insure conviction but not enough to warrant reversal. I do not find that there was egregious prosecutorial misconduct which "rendered unmeaningful the defendant's choices to continue or to abort the proceeding". Oregon v. Kennedy, 456 U.S. at 689 (Stevens, J., concurring).
Finally, I do not find that the prosecutor's misconduct was "deliberate misconduct". I think it was done unintentionally and out of ignorance. That is an unfortunate finding because of the Supreme Court's frustration with the failure to learn from previous mistakes.
In summary, I find no bad faith or overreaching to the degree included in Justice Stevens' view, but again "to the degree" is the problem with the application of his standard.
And now a word from the bully pulpit, and these comments are not limited to those involved in this case. The frustration of the Supreme Court with "deja vu all over again" as to prosecutorial misconduct is apparent in its recent decisions on the subject. Between the lines, the Court seems to be saying "What are we going to have to do to curtail this?"
What might they do? Consider State v. Breit, 930 P.2d 792 (N.M. Supr. 1996), where the New Mexico Supreme Court applied double jeopardy to bar retrial holding that "when a trial is severely prejudiced by prosecutorial misconduct, the double-jeopardy analysis is identical, whether the defendant requests a mistrial, a new trial, or on appeal, a reversal." The New Mexico Supreme Court likewise was frustrated with misconduct. "There are numerous examples of cases, like the one at the bar, in which, despite repeated warnings from the court, a new trial is deemed necessary because of incessant prosecutorial misconduct, even though there was no intention to cause a mistrial." State v. Breit, 930 P.2d at 799. Compare our recent Supreme Court's comment in Williams v. State, 803 A.2d 927 (Del. 2002).
If we, prosecutors, defense counsel and trial judges, do not solve the problem on which the Supreme Court is shining a light, then we should not be shocked if the Supreme Court moves in a different direction to fix it. I hope it does not come to that as I agree that a bad faith or overreaching standard is the slippery slope noted in Oregon v. Kennedy, and once the slipping starts, who knows where it will end.
For the reasons aforestated, the defense application to bar reprosecution under the double jeopardy clause of the Federal and State Constitutions is denied.
IT IS SO ORDERED.