Criminal Practice – Constitutional – Double Jeopardy – Mistrial – Prosecutorial Misconduct

State v. Parker. (Lawyers Weekly No. 010-028-11, 6 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) Appealed from Greenville County Circuit Court. (John C. Few, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct. Click here for the full text of the opinion.

Holding: Where the first trial judge ruled that prosecutorial misconduct goaded defendant into moving for a mistrial, the second trial judge erred when he denied defendant’s motion to dismiss based on the constitutional protection against double jeopardy.

We reverse the Court of Appeals’ decision to uphold the second trial judge’s denial of defendant’s motion to dismiss.

Background

During defendant’s first trial for the murder of his sister’s boyfriend, the solicitor gave defense counsel a videotape made of the crime scene. The solicitor had redacted the copy given to defense counsel to erase graphic images of the victim’s body. However, the unredacted tape was shown to the jury.

The trial court denied defendant’s first motion for a mistrial.

During the solicitor’s closing argument, she accused defense counsel of coaching witnesses and exhorted the jury to convict in order to protect the community. Defendant again moved for a mistrial.

The jury sent the trial judge a note that it was deadlocked. The trial judge gave an <I>Allen<P> charge.

As the judge was about to rule on defendant’s mistrial motion, he received a note that the jury remained deadlocked.

The judge said, “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.”

Almost two years later, the state retried defendant. Defendant moved to dismiss based on double jeopardy, arguing the solicitor at the first trial intentionally goaded him into moving for a mistrial. The judge at the second trial denied the motion to dismiss.

The second trial judge found that the prosecutor in defendant’s first trial was not trying to goad defendant into moving for a mistrial and that the first judge had granted a mistrial because of the jury deadlock. The Court of Appeals affirmed.

Analysis

Defendant argues the solicitor who initially prosecuted defendant intentionally provoked defense counsel into moving for a mistrial. We agree.

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. Hence, a properly granted mistrial poses no double jeopardy bar to a subsequent prosecution.

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. The trial court’s finding concerning the prosecutor’s intent is a factual one and will not be disturbed on appeal unless clearly erroneous.

Courts have to determine whether the subjective intent of the solicitor was to cause a mistrial. It is almost unimaginable that a solicitor would admit that he or she took certain actions in an effort to cause the defendant to move for a mistrial.

If we do not hold the solicitor intentionally caused the defense to move for a mistrial in this case, then it would seem the only possible way to find that a solicitor intentionally goaded the defense would be for a solicitor to admit he or she took certain actions in an effort to goad the defense.

The judge in the first trial found, “It’s almost as if … this court can infer that the defendant was almost goaded into the position of asking for a mistrial.” We construe this as a holding by the first trial judge that the solicitor intentionally goaded defense counsel into moving for a mistrial.

Regarding double jeopardy, the judge at the second trial held, “So 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….” It was clearly erroneous for the second judge to find that the solicitor’s conduct was not designed to elicit a motion for a mistrial in light of the first judge’s finding that defendant was goaded into asking for a mistrial.

In cases of this type, the second trial judge makes a double jeopardy determination based on what the previous court actually held. The second trial judge should have determined what the first trial judge held and then determined whether that finding was supported by the facts. Thus, it was error for the second trial judge to find that the solicitor did not intentionally goad defense counsel.

The Court of Appeals merely mentioned that it found support in the record to affirm the second judge’s finding regarding intentionally goading defense counsel, without listing any such evidence. We hold there is no evidence in the record to support the second judge’s finding that the solicitor did not intend to elicit a motion for a mistrial.

However, there is evidence in the record to support the first trial judge’s finding that defendant was goaded into seeking a mistrial. The solicitor’s statements about defense counsel, encouraging the jury to convict in order to protect the community, and the introduction of the original videotape show that it was the solicitor’s intent to cause a mistrial. Standing alone, any one of these actions might not show subjective intent on the part of the solicitor to goad the defense into seeking a mistrial.  Rather, the totality of what occurred in the first trial leads to the conclusion that it was the intent of the solicitor to goad defense counsel to move for a mistrial.

Additionally, the second trial judge made the legal finding that it was the jury deadlock that caused the mistrial. The first judge, however, never made a ruling that jury deadlock caused the mistrial. Rather, the first judge specifically granted a mistrial based on prosecutorial misconduct.

Because the first judge granted a mistrial based on prosecutorial misconduct, the second judge’s finding that “it was the fact that the jury was deadlocked that caused the mistrial” was a legal error. We hold the finding that the solicitor did not intentionally goad the defense into moving for a mistrial was clearly erroneous.

Reversed.