Opinion
ID No. 9609013882
Date Submitted: April 9, 2001
Date Decided: April 12, 2001
Upon Defendant's Motion to Dismiss: DENIED.
ORDER
This 12th day of April, 2001, the Court having reviewed the parties' submissions, finds that:
(1) The defendant, James Dorsey ("Dorsey"), was found guilty of Murder in the First Degree, Possession of a Firearm During the Commissioaof a Felony, and Possession of a Deadly Weapon by a Person Prohibited at a jury trial which concluded on May 28, 1998. In the penalty phase of that trial, the jury voted ten to two to recommend imposition of the death penalty. Dorsey moved for a judgment of acquittal or, in the alternative, for a mistrial. In the interest of justice, the Court granted Dorsey a new trial on November 5, 1998.
In determining that Dorsey did not receive a fair trial, this Court concluded that: (1) the Medical Examiner, an expert witness for the State, directly or indirectly expressed a personal opinion about the defendant's veracity; (2) there was not a satisfactory or complete ruling on the record as to why evidence of the defendant's prior bad acts (involving bootlegging) was admissible nor was there a ruling as to why the prejudice did not outweigh the probative value; and (3) the prosecutors' closing remarks were improper and no action was taken by the Court to control the conduct of the attorneys.
State v. Dorsey, Cr. A. No. 9609013882, Gebelein, J. (Nov. 5, 1998) (Opinion and Order).
(2) The defendant now moves this Court for an order prohibiting the retrial of the defendant and the dismissal of all charges against him. Dorsey predicates this motion on the grounds that the defendant was deprived a fair trial due to prosecutorial misconduct, thereby implicating the Double Jeopardy Provision of Art. I § 8 of the Delaware Constitution and barring the retrial of the defendant.
(3) Dorsey argues that the prosecution's closing remarks, which contained (1) comments on the defendant's credibility; (2) statements of personal opinion; (3) inflammatory and prejudicial remarks; and (4) statements vouching for the credibility of a State's witness, deprived the defendant of his Constitutionally protected right to a fair trial. The defendant also argues that the prosecution's opening statement inflamed the passions and prejudices of the jury, poisoning the minds of the jurors, thereby denying Dorsey a fair trial.
In the Court's decision granting Dorsey a new trial, the Court addressed the prosecutorial misconduct in the closing arguments and found that the statements by the prosecution deprived the defendant of a fair trial. The Court did not address any statements by the prosecution in the opening remarks which the defendant also argues deprived Dorsey of a fair trial. The Court does not find it necessary to address any misconduct in the opening statement as it does not change the analysis of this Court in deciding the issue of whether the Double Jeopardy Clause bars defendant's retrial. The Court has already concluded on November 5, 1998 that defendant was deprived a fair trial due to prosecutorial misconduct.
(4) The defendant argues that the Double Jeopardy Provision of the Delaware Constitution should attach because Dorsey's conviction was vacated and a new trial was granted due to prosecutorial misconduct. Dorsey asserts that while the reversal of a case does not automatically invoke the double jeopardy principles to bar retrial, there is a limited area where reversal precludes retrial, that is where reversal based upon the insufficiency of the evidence to support a conviction. In the context of a mistrial, there are circumstances in which double jeopardy attaches to preclude a retrial and the defendant argues that the facts in this case lead to that result.
Monroe v. State, Del. Supr., 652 A.2d 560 (1995).
The defendant concedes that the United States Supreme Court in Oregon v. Kennedy placed narrow limits on the bar to retrial in the context of a mistrial. The Kennedy decision limited the bar of retrial "to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial" The defendant argues, however, that under the standard prior to Kennedy, a standard which barred retrial where the prosecutor demonstrated gross negligence or intentional misconduct, was motivated by bad faith or malice, engaged in oppressive tactics, and acted to seriously prejudice and harass the defendant, Dorsey's trial would unquestionably have resulted in the invocation of the double jeopardy bar against subsequent prosecution.
456 U.S. 667 (1982).
Kennedy, 456 U.S. at 679.
United States v. Dinitz, 424 U.S. 600, 611 (1976).
The defendant further argues that several states have found that the Kennedy rule does not adequately protect double jeopardy interests and found that the double jeopardy clause of their respective state constitution bars retrial. One such example is Commonwealth v. Smith where the Pennsylvania Supreme Court ruled that while there may be no intent to provoke a mistrial, the misconduct of the prosecutor may be so egregious that double jeopardy must attach. The Smith Court concluded the Double Jeopardy Clause of the Pennsylvania Constitution bars retrial of a defendant when the prosecutorial misconduct "is intentionally undertaken to prejudice the defendant to the point of denial of a fair trial." Dorsey argues that this standard should apply here and bar the retrial of the defendant.
Pa. Supr., 615 A.2d 321 (1992).
Smith, 615 A.2d at 325.
(5) The State, in opposing Dorsey's Motion to Dismiss, argues there is no bar to retrial because (1) the defendant moved for the mistrial; (2) Kennedy is not implicated because the mistrial was declared subsequent the jury's verdict; and (3) even if Kennedy did apply, the State did not intentionally goad the defendant into seeking a mistrial.
The State asserts that "a motion by the defendant for a mistrial, which is granted, generally removes any barrier to reprosecution." The State argues that because Dorsey moved for the mistrial, the Double Jeopardy Clause of the Delaware Constitution does not bar retrial since the defendant "retain[s] primary control over the course to be followed in the event of such error."
Bailey v. State, Del. Supr., 521 A.2d 1069, 1075 (1987) citing Oregon v. Kennedy, 456 U.S. 667 (1982).
Dinitz, 424 U.S. at 609.
The State also argues a defendant may be retried for the same offense when a defendant wins a reversal on appeal. The State asserts that the trial court's opinion granting the defendant a mistrial subsequent to conviction by the jury is equivalent to a reversal of conviction on appeal and poses no general bar to retrial. The State argues that the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set aside his conviction, and Kennedy is applicable only to mistrials declared prior to a jury verdict.
Bailey v. State, 521 A.2d at 1075.
United States v. Dinitz, 424 U.S. 600 (1976).
United States v. McAleer, 138 F.3d 852, 855-56 (10th Cir. 1998).
(6) The Double Jeopardy Clause protects a criminal defendant from repeated prosecutions for the same offense. "As part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a "valued right to have his trial completed by a particular tribunal." "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" Therefore, where a defendant moves for a mistrial, he has elected to terminate the proceedings against him and there is only a narrow exception that would bar retrial. That exception, as set forth in Kennedy, is for "those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial."
Dinitz, 424 U.S. at 606.
Kennedy, 456 U.S. at 671-672 citing Wade v. Hunter, 336 U.S. 684, 689 (1949).
Kennedy, 456 U.S. at 676 citing United States v. Scott, 437 U.S. 82, 93 (1978).
Kennedy, 456 U.S. at 672.
Kennedy, 456 U.S. at 679.
The defendant has also argued that Delaware should follow states like Pennsylvania in adopting a broader rule that would extend the bar to retry a defendant to those cases where the prosecution's misconduct is so egregious to deny the defendant a fair trial. The Court finds that cases such as Smith do not apply here. First, in Smith the prosecution withheld evidence from the defendant at trial which the defendant did not discover until after the trial concluded. In that case, unlike the facts here, the defendant had no opportunity to object to the misconduct or move for a mistrial at the time of trial. Here, Dorsey was aware of the prosecutorial misconduct (the improper remarks) and could have objected or moved for a mistrial before the case went to the jury. Second, the Smith standard still requires some egregious behavior on the part of the prosecution and the Court does not find that the prosecution's improper remarks, while depriving the defendant a fair trial, amounted to the level of egregious conduct that Smith is addressing.
Additionally, this is not a case like Kennedy where the defendant moved for a mistrial pre-verdict and the Court must analyze whether the prosecutorial misconduct was intended to goad the defendant to move for the mistrial. Dorsey had the right to have his trial completed by a particular tribunal and it was not until after the jury verdict that Dorsey moved for a mistrial. The Court's decision to vacate the conviction and grant the defendant a new trial does not implicate the Double Jeopardy Clause. The United States Supreme Court has held that the Double Jeopardy Clause imposes no limitation upon the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of the insufficiency of the evidence.
United States v. DiFrancesco, 449 U.S. 117, 130-131 (1980).
As stated in the November 5, 1998 decision, "[t]he numerous improper personal remarks in the prosecution's closing arguments substantially undermined [Dorsey]'s right to a fair trial." 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.
Holtzman v. State, Del. Supr., No. 221, 1997, Holland, J. (July 27, 1998) at 23.
Based upon the foregoing, the defendant's Motion to Dismiss Based on Double Jeopardy is DENIED.
IT IS SO ORDERED.