Opinion
ID No. 0102010574.
Submitted: February 25, 2002.
Decided: May 10, 2002.
Upon Defendant's Motion to Attach Jeopardy and Bar Retrial.
DENIED.
Allison L. Peters, Esquire, Deputy Attorney General, Wilmington, Delaware, Attorney for the State of Delaware.
Joseph W. Benson, Esquire, Joseph W. Benson, P.A., Wilmington, Delaware, Attorney for Defendant Eric Lloyd.
MEMORANDUM OPINION
I. Procedural and Factual Background
Defendant Eric Lloyd ("Lloyd") moves the Court to bar his retrial on the charges of Trafficking in Cocaine, Possession with Intent to Deliver Cocaine, and Maintaining a Vehicle for Keeping Controlled Substances and Possession of Drug Paraphernalia. On December 11, 2001, a jury was drawn, impaneled, and sworn and trial commenced. Prior to trial, the State sought a ruling from the Court on the issue of whether Lloyd's comments to an arresting officer could be elicited from the State's witnesses. Apparently, Lloyd recognized one of the officers at the time he was arrested and said, "Hey, Lar" to him. The Court ruled that the State was not to elicit Lloyd's greeting to Officer Lawrence Collins, finding that the statement lacked probative value and was highly and unfairly prejudicial. At the time of trial, Officer Lawrence Collins, a State Probation and Parole Officer, had served as a narcotics investigator detailed to the Federal Drug Task Force for the last four years. Prior to that, Officer Collins was a firearm investigator assigned to the Bureau of Alcohol, Tobacco and Firearms. He also spent twenty years in the police department, and five or six of those years he was assigned as an undercover officer with the Governor's Investigative Task Force. Before Officer Collins retired from the police department, he served as a supervisor of the Wilmington Organized Crime, Drug and Vice Unit. Officer Collins testified that prior to Defendant's arrest, he made "hundreds" of drug arrests. The basis for the Court's ruling excluding the Defendant's greeting to Officer Collins was the Court's concern that Officer Collins' extensive background in law enforcement, particularly in the area of narcotics investigation, coupled with Defendant's recognition and informal greeting, would cause the jury to speculate about why Defendant recognized an undercover narcotics investigator and knew him on a first name basis.
Exhibit B to Defendant's Opening Memorandum of Law in Support of his Motion to Attach Jeopardy at 14-15. (Hereinafter "Def. Ex. B at ___.")
Exhibit A to Defendant's Opening Memorandum of Law in Support of his Motion to Attach Jeopardy at 41. (Hereinafter "Def. Ex. A at ___.")
Id. at 41, 42.
Id. at 46-47.
Def. Ex. B at 14-15.
Officer Collins was the State's first witness. He testified that, on the day Lloyd was arrested, he was working undercover with Special Agents David Hughes and Eric Miller of the Drug Enforcement Administration. According to Officer Collins, a State Trooper stopped the vehicle in which Lloyd was driving. Officer Collins and Special Agents Hughes and Miller approached the vehicle, along with a uniformed State Police Trooper. Upon request, Lloyd and his passengers exited the vehicle, the officers patted them down, and Lloyd voluntarily submitted to a search of the automobile. Before the officers began the search, Special Agent Hughes asked Lloyd if there were "any guns or anything we may find." According to Officer Collins, Lloyd responded, "You're going to find some baggies and a scale in the console." Special Agent Hughes retrieved these articles along with a bag of what was believed to be crack cocaine. At this point, Lloyd and the other occupants of the vehicle were Mirandized and Lloyd was arrested.
Def. Ex. A at 51.
Id.
The State called Special Agent Hughes as its second witness. Agent Hughes provided a virtually identical account of the events leading up to Lloyd's arrest with one significant difference. When asked by the State to describe what occurred after Lloyd and his two passengers exited the vehicle, Agent Hughes answered, in relevant part, as follows:
Myself and Lawrence Collins patted the passengers down, the right front and back seat passengers for weapons, which was negative. At that point Mr. Lloyd acknowledged Lawrence Collins' presence, "Hey, Lar," something to that effect, as he was walking back with the Delaware trooper . . . .
Def. Ex. B at 3.
Defense counsel immediately objected to this testimony and the Court requested a sidebar conference with counsel. The Court asked the prosecutor, "How did that happen in light of my pretrial ruling?" The prosecutor replied, "I told him over and over again you're not to say his nickname. . . ." When the Court indicated it would give a curative instruction, defense counsel said:
Id.
Id. at 4.
I don't know how you could, with all due respect, do that. You made a clear ruling pretrial. That's absolutely not supposed to have been touched upon, and how can you cure that? How do you say, 'Forget I said that. He really didn't know who he was,' or there was no prior relationship, especially after the jury heard 30 years of experience, drug agent, DEA, Probation and Parole, ATF, and everything else. It doesn't sound like a casual street stop, which was what this was supposed to be.
* * *
. . . [Y]ou can't tell them forget they had a relationship, that they knew each other, especially after hearing his experience.
Id. at 4.
Id. at 5.
Defense counsel was understandably concerned that because of Officer Collins extensive background in drug-related law enforcement, the jury might conclude that Lloyd knew Officer Collins because Lloyd was involved with narcotics in the past. By extension, the jury might then impermissibly find Lloyd guilty of the present charges based solely upon supposed prior bad acts.
The State argued that the objectionable response was not prejudicial to the defense because "there could be a hundred and one reasons why someone would know [Collins] that don't lead to a prejudicial inference."
Id. at 10.
After hearing extensive argument from counsel, the Court declared a mistrial:
I am going to grant the defendant's request for a mistrial and I will tell you why. In the meeting I had with counsel in Chambers before the trial, [the Prosecutor] . . . asked me whether or not it would be permissible to establish that when the defendant was stopped he recognized Officer Collins and said, 'Hello, Lar' or 'Hello, Larry,' . . .
When I asked [the prosecutor] . . . what the relevance of that comment was, I . . . [was] . . . not . . . persuaded that it had much, if any at all, relevance to proving any of the elements of the crimes for which the defendant is on trial today, and in fact, I think it was, and is, highly prejudicial. That's without having heard about Officer Collins extensive background in drug enforcement and criminal justice. . . . I thought it was clear during that office conference . . ., and I am sure that [the prosecutor] . . . told me that she was going to instruct her witnesses that they were not allowed to give any testimony about the greeting the defendant gave agent — Officer Collins or about the fact that he knew him and said, 'Hello, Lar,' and at the sidebar after this objection Was raised when the testimony did come out, [the prosecutor] . . . reiterated that she did indeed instruct her witnesses that that evidence had been ruled inadmissible by me and that it was not to come out.
It came out. It came out in the context of having already heard about Officer Collins role in drug enforcement administration, last four years, being a firearm investigator with the ATF, being 20 years in the Wilmington Police Department and having a total of 30 years law enforcement by May of 2002.
The curative instruction which the State proposes would not cure the incredible taint I find here, because to tell the jury now to disregard any statements that were made without the benefit of Miranda, doesn't undo the fact that here we have a defendant on trial for possession, is known on a first name basis, and is comfortable enough to address an Officer by first name.
The totality of all those circumstances, and Officer Collins having testified about his intensive background in drug enforcement, it is hugely prejudicial to the defendant. . . .
Id. at 14-16.
In order to determine whether or not double jeopardy attached, the Court questioned Officer Collins to determine why he disregarded the instructions given to him by the Prosecutor. The relevant portions of that exchange follow:
The Court: What were you told with respect to your testimony about the defendant recognizing Officer Collins? Were you given any instructions on that before the trial today?
Agent Hughes: I was. I met with [the prosecutor], along with several other officers involved, and I was told no prior history was to be discussed as to why we were there. In other words, we were starting right from the traffic stop, and all I was getting into was saying — before he acknowledged the presence of Officer Collins, I was going to say I then identified myself and get into it. I thought we were starting right from the traffic stop, and, Your Honor, I apologize if I — you know — if I misled you or anybody else in this courtroom.
In no way I meant to do that, but I was instructed by . . . [the prosecutor] to, you know, indicate about no prior history, what was going on. I didn't even know Mr. Lloyd prior to this incident anyway, but prior knowledge of what happened up until the traffic stop is where I thought that I was supposed to get into, from the time of the actual traffic stop took place.
* * *
The Court: Now, you testified that the defendant saw Officer Collins and said, "Hello, Lar;" is that what you said? Agent Hughes: Yes.
The Court: Were you told before the trial today that I had ruled that that comment was inadmissible?
Agent Hughes: That I was not going to allow the jury to hear that testimony? If I was, Your Honor, I don't recall, and I mean — like I said, I'll take full responsibility for not being aware. Maybe I didn't hear . . . [the prosecutor], but I know other individuals were present when she gave us specific instructions, and if that's — like I said, I apologize to the Court and everyone here involved, because I know every-body put hard work into this, and if I misled anyone in any way I apologize.
The Court: I appreciate that. I was trying to find out —
Agent Hughes: My specific — from what I specifically understood, was to bring up no prior history of Mr. Lloyd's involvement and our involvement prior to the stop.
The Court: So, your understanding was everything was going to start from the minute the car was pulled over?
Agent Hughes: Yes, and I think I misinterpreted from the time of the stop. I misinterpreted that as being — I — everybody in this state knows Larry Collins to say, "Hey, Lar." We walk down the street and 20 people will say, "Hey, Lar." To me that meant nothing. I wasn't aware that it would mean something to Mr. Benson or to everybody else.
* * *
The Court: I need to know, you were not told to not say that the defendant recognized Larry Collins?
Agent Hughes: I may have been told, Your Honor. If I was, I don't recall, honestly, and I'm sure . . . [the prosecutor] did tell me that, because we sat in her office for probably an hour and a — half to two hours at length discussing this, and I — all I can say is I made a mistake, and it was an honest mistake. I wasn't trying to do an end-run or, you know, I know . . . [the prosecutor] worked hard on this case and I would never do something intentionally to — I been in law enforcement approximately nine years. I never started a trial in the beginning. I've always — if we went through suppression, everything was allowed in, that's you guys' decision.
I don't have a problem with that. I want to want to make sure that it's a mistake on my behalf, and it was an honest mistake. I wasn't trying to pull any end-run on anybody or try to get that in. I didn't realize it when I said it, and when everybody jumped to the sidebar, I pretty much figured, okay, I know what this is about. It clicked in my head, obviously, you know, what I said was a mistake, but I — I know that sitting there for two hours at length with . . . [the prosecutor] and Ron Williams and Mr. — that's an oversight on our — all I can do is offer a sincere apology.
Id. at pp. 18-22.
The Court then permitted defense counsel to question Agent Hughes. Relevant portions of that exchange follow:
Defense Counsel: Now, the question is — what I'm asking you right now is — from that time when we met with the judge at 9:30, quarter of 10 this morning, whenever that was, till the time you took the stand, did the State, at any time, tell you specifically you must not, under any circumstances, allude to any relationship or any comment that Mr. Lloyd would have made about "Hey, Lar," "Hello, Larry" or anything like that from this morning at 9:30, till when you took the stand?
* * *
Agent Hughes: No. 1, I had one meeting with . . . [the prosecutor].
The other — Your Honor, when we were there at the meeting, I recall there were other statements made on the scene that — that would have led back to the prior history of Larry Collins and Eric Lloyd, and I specifically remember her saying to Larry that that couldn't be discussed as to what Larry had said at the stop.
The Court: Such as?
Agent Hughes: You know, why we're here. All that was discussed about why they were here, and in reference to a female that was arrested for smuggling cocaine.
The Court: That was the Texas incident?
Agent Hughes: That's correct, and I thought that maybe I mistook that as when she directed that not to be discussed in the prior history, that that was him testifying to that and not me, but she did — I recall her saying that the prior history and the statements there couldn't be discussed, and I mean — I guess I just misinterpreted what she said as far as him saying — you know — hello or "Hey, Lar." If I thought that was going to do all this, believe me, I never would have made that statement if I thought that was the wrong thing to do, and I know that . . . [the prosecutor] advised us specifically, and when I say "us," it was one meeting that I'm aware of that I was there with Larry Collins, myself and Ron Williams, and she said that it couldn't be discussed about — and maybe I misinterpreted that. I specifically thought it was with Larry mentioning the part about, you know, why we're here. They were discussing why the — Larry was telling me why the stop was made and the whole background . . . .
Id. at 23-25.
The Court then permitted the State to question Agent Hughes. Relevant portions of that exchange follow:
The State: Last Friday I discussed the "Hey, Lar" as one of the possible things we shouldn't be talking about? Agent Hughes: Yes. I do recall you saying —
The State: I discussed it was quite possible that we were not going to be allowed to talk about prior contacts or their awareness of their knowledge of each other?
Agent Hughes: Yes.
The State: And I did return from the judge's chambers and say we can't talk about prior knowledge between the two of each?
Agent Hughes: You did say —
The State: When we came back upstairs I still had other officers that were not downstairs and I — I addressed them as well, this is where we need to start the case, there will be no Texas. Did I not go through that again in the hallway —
Agent Hughes: You did —
Id. at 30-31.
Lloyd seeks to bar his retrial on Double Jeopardy grounds. While admitting that the State did not engage in intentional prosecutorial misconduct, he nonetheless asserts that the State's witness knowingly violated the Court's order prohibiting any reference to Lloyd's statement, "Hey, Lar," thus intentionally provoking the defense to move for a mistrial. Lloyd seeks to impute the conduct of its witness to the State.
The State argues that it did not intentionally elicit the prohibited statement, nor did its witness intentionally deliver it. According to the State, the prosecutor repeatedly instructed the State's witnesses to avoid all references to a prior relationship between the defendant and Officer Collins, including the Defendant's greeting by defendant. The State characterizes the incident as an unfortunate mistake and not as an intentional ploy to impermissibly influence the jury. In support thereof, the State avers that Agent Hughes admitted that he had perhaps not listened while assuring the Court that the prosecutor repeatedly addressed the issue of prohibited testimony. For the reasons that follow, Defendant's motion is DENIED.
II. Legal Analysis
The Double Jeopardy Clause of the Fifth Amendment, binding on the states through the Fourteenth Amendment, provides that no person shall be twice put in jeopardy of life or limb for the same offense. Jeopardy attaches in a jury trial when the jury is impaneled and sworn. It signifies the promise of finality that inures to the benefit of the criminal defendant. The Double Jeopardy provision of the Delaware Constitution is virtually identical to its federal counterpart and analysis of the State Double Jeopardy Clause is coextensive with the federal Constitution. Thus, criminal defendants may seek refuge from multiple punishments or repeated prosecutions under the protective mantle of the Double Jeopardy Clause. In practice, Double Jeopardy considerations preclude a subsequent trial after a mistrial was declared if the Court or the prosecutor engaged in conduct that was intended to provoke the mistrial.
Benton v. Maryland, 395 U.S. 784 (1969).
Crist v. Bretz, 437 U.S. 28 (1978); Tarr v. State, 486 A.2d 672 (Del. 1984).
United States v. Jorn, 400 U.S. 470, 479 (1971).
Del. Const., art. I, § 8; Evans v. State, 445 A.2d 932, 933 (Del. 1982); Bailey v. State, 521 A.2d 1069 (Del. 1987).
Bailey v. State, 521 A.2d 1069 (Del. 1987).
Oregon v. Kennedy, 456 U.S. 667, 679 (1982).
The United States Supreme Court described the policy underlying this provision, in pertinent part, as follows:
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184 (1957).
Armed with the shield of the Double Jeopardy Clause, a criminal defendant can exercise his "valued right to have his trial completed by a particular tribunal." That being said, the provision makes no promises that "the State will vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense." A criminal defendant can be reprosecuted for the same offense where his conviction is reversed on appeal. Retrial is also not barred where "a defendant's motion is necessitated by a prosecutorial error." Thus, a mistrial granted at the defendant's request will ordinarily not bar retrial because it constitutes "a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact." However, a narrow exception to this rule exists wherein retrial is barred. That exception, as set forth in Kennedy, is reserved 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."
Oregon v. Kennedy, 456 U.S. at 671-672.
United States v. Jorn, 400 U.S. 470, 484 (1971).
See Green v. United States, supra.
United States v. Jorn, 400 U.S. at 485.
United States v. Scott, 437 U.S. 82 (1978).
Oregon v. Kennedy, 456 U.S. at 679 (emphasis added).
A careful review of the record, including the transcripts, the memoranda submitted by the parties, an affidavit supplied by the State and relevant case law leads this Court to conclude that, although Lloyd is in the unenviable position of having to go forward with another trial, the facts do not warrant a dismissal of the charges on Double Jeopardy Clause grounds. The State properly and advisedly applied to the Court for a ruling before trial on the admissibility of Lloyd's greeting to Officer Collins. Once the Court ruled, the State took reasonable steps to avoid the introduction of that statement during the trial. The Court finds no evidence of bad faith or intent to goad the Defendant into moving for a mistrial on the part of the prosecutor or the State's witness.
The Court recognizes and appreciates the exemplary efforts put forth by the Deputy Attorney General in this case. She sought a judicial determination, in advance of trial, on the admissibility of Defendant's own comments. Although the ruling was adverse to the State, by securing the Court's decision before the witness took the stand, even though the witness mistakenly violated the ruling, it is clear that the State sought to protect Defendant's due process rights. The prosecutor is to be commended for her foresight and efforts to insure compliance with the Court's ruling.
The witness who mistakenly repeated the inadmissible comment credibly testified that the prosecutor repeatedly warned him to avoid making any reference to any relationship that existed between Lloyd and Officer Collins. He acknowledged a misunderstanding on his part and apologized profusely. The Court had the benefit of watching Agent Hughes' demeanor as he was vigorously cross examined by defense counsel and questioned by the Court on this issue. The Court is satisfied that Agent Hughes was advised of the Court's ruling but misunderstood its scope. Finally, an affidavit provided to the Court by another Deputy Attorney General specifically states that she personally heard the prosecuting attorney advise Agent Hughes that he was not to refer to the prohibited statement during his examination by the attorneys. Under these circumstances, there can be no finding of intentional prosecutorial misconduct.
Lloyd concedes that the rule barring retrial on Double Jeopardy Clause grounds as formulated by the Court in Kennedy requires a finding that the prosecutor acted intentionally to "goad" the defendant into moving for a mistrial. Notwithstanding this, he asks the Court to broaden the scope of that rule to include the misconduct of State witnesses. In so arguing, Lloyd relies on Justice Marshall's dissent in Green v. United States. In that case, the United States Supreme Court denied a petition for a writ of certiorari after the United States Court of Appeals for the Fourth Circuit affirmed the District Court's denial of a defense motion to dismiss a second indictment on Double Jeopardy Clause grounds. In Green, the defense counsel on cross-examination discredited the prosecution's chief witness, Special Agent Robert Dixon of the Drug Enforcement Administration. Dixon retaliated by deliberately and impermissibly testifying to Green's prior conviction for armed robbery. Defense counsel moved for and was granted a mistrial. Defendant then sought dismissal of the second indictment on Double Jeopardy Clause grounds. The motion to dismiss was denied and affirmed on appeal. In his dissent, Justice Marshall stated that government witnesses who engage in misconduct designed to induce a defendant to move for a mistrial should also be counted for purposes of "prosecutorial . . . overreaching" sufficient to bar retrial on Double Jeopardy grounds. The Court does not find that Agent Hughes engaged in misconduct. The Court is satisfied that he inadvertently, without any intent or ill motive, testified about the greeting. Absent a finding of collusion between the government and its witness with an intent to "subvert the truth-determining process," the conduct of governmental witnesses is not imputed to the State. The record does not reflect any intention to subvert the truth-determining process. Lloyd looks to a handful of other states for support of his expanded view of the Double Jeopardy Clause. The Supreme Court of Pennsylvania in Commonwealth v. Smith, in reversing a lower court decision, interpreted the Pennsylvania Constitution's Double Jeopardy Clause to bar retrial of a criminal defendant when the government engaged in numerous acts of prosecutorial misconduct. In Smith, the prosecution failed to disclose material exculpatory physical evidence, intentionally suppressed evidence while arguing in favor of the death sentence on appeal and intentionally discredited a state trooper who had testified as to the existence of suppressed evidence. The Smith Court held that the state constitution bars retrial of a defendant "not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial."
451 U.S. 929 (1981).
Commonwealth v. Simons, 522 A.2d 537, 544 (Pa. 1987) (Flaherty, J., concurring).
615 A.2d 321 (Pa. 1992).
Id. at 323.
Lloyd's reliance on the Smith case is misplaced. Unlike Smith, no evidence exists from which a reasonable person could conclude that the State engaged in conduct designed to deprive Lloyd of a fair trial. In fact, the opposite is true. It was the State that sought a pretrial ruling on the admissibility of Lloyd's greeting to Officer Collins. The fact that the State was concerned enough about the potential prejudice to Lloyd underscores its desire to ensure that his due process right to a fair trial was safeguarded. Accordingly, the Court rejects this argument.
Lloyd also points to the New Mexico Supreme Court's holding in State v. Breit to support an expansion of Double Jeopardy Clause jurisprudence in Delaware. Once again, the facts of that case are inapposite to the evidence adduced during Lloyd's trial and fail to aid him in his quest to avoid a retrial. In contrast to Agent Hughes' isolated utterance of a precluded comment, from the moment the Breit trial commenced, the prosecutor's courtroom antics were so egregious, despite repeated admonitions from the court, that the court granted a motion for a new trial. The court's description of the most egregious instances of prosecutorial misconduct are provided, in relevant part, as follows:
930 P.2d 792 (N.M 1996).
In his opening, he [the prosecutor] attempted to inflame the jury with allegations that were irrelevant, matters that could not permissibly be presented as evidence, and exaggerated claims that no evidence could ever support. When objections were raised and sustained he expressed sarcasm and scorn toward opposing counsel and the court. During the questioning of witnesses he engaged in improper arguments with witnesses. On cross-examination, even after direct admonition from the court, he attempted to solicit irrelevant comments from the defendant on the testimony of other witnesses. He directed belligerent remarks at opposing counsel.
Apparently referring to defense counsel's hand movements as he held an item of evidence, the prosecutor, during a bench conference, uttered an implied threat without provocation, "You wave that at me one more time, sweetheart." Throughout the trial, in front of the jury, both his tone of voice and nonverbal conduct were highly prejudicial. He displayed "sarcasm, sneering, rolling of eyes and exaggerated expressions." So pervasive was the prosecutorial misconduct that, had the defense counsel objected at every opportunity, he would have been placed "in the untenable position of appearing to hamper the proceedings and hide evidence from the jury." The prosecutor's inappropriate conduct continued even after a new trial was granted. He submitted a motion asking the court to reconsider and withdraw its holding that double jeopardy barred any further prosecution of Breit. Accompanying this motion were affidavits from eleven jurors in which they alleged the prosecutor's actions did not prejudice their decision.
Judge Grisham, in a memorandum opinion on this motion, was appropriately outraged.
Id. at 805.
After a new trial was granted, Breit filed a motion to dismiss all the charges on Double Jeopardy grounds. The motion was granted but the State's appeal of this decision yielded a reversal by the Court of Appeals. At the conclusion of the second trial, Breit was convicted and sentenced to life imprisonment. The Supreme Court entertained a direct appeal of the outcome and, concluded that, under the circumstances, Breit should not have been retried. The Court held that the Double Jeopardy Clause of the State Constitution bars retrial of a defendant when the State knows that its conduct is improper and prejudicial and either intends to provoke a mistrial or acts in willful disregard of resulting mistrial, retrial or reversal. Under this standard, the Supreme Court reversed Breit's convictions and discharged him from any further prosecution.
Id. at 803.
The facts present in the case at bar are in no way analogous to those in Breit. The prosecutor in Breit, despite repeated warnings from the court and numerous objections from opposing counsel, persisted in his relentless pursuit of unethical behavior to the detriment of the defendant. The same claim cannot be made here. In the case sub judice, the prosecutor advised her witnesses about the inadmissibility of the statement, and it is clear from a review of the transcript that the questions she posed on direct examination of Agent Hughes were not designed to elicit the inadmissible evidence.
The Arizona case of Pool v. Superior Court County of Pima is also unavailing for Lloyd. Confronted with a similar set of circumstances, the Supreme Court of Arizona, interpreting Article 2 § 10 of the Arizona Constitution, held that jeopardy attaches when a mistrial is granted on motion of the defendant or declared by the court when the prosecutor engages in improper conduct that is not merely the result of a legal error or negligence, but constitutes intentional conduct which the prosecutor "knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal and the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial." In Pool, the court found that jeopardy attached and retrial was barred when, among other things, the prosecutor, in cross-examination of the defendant on trial for theft, made irrelevant and prejudicial references to the defendant's handling of a gun while intoxicated, characterized the defendant as a 'cool talker,' asked a witness for his view of the evidence and asked a witness to speculate on testimony which might have been given by someone who had claimed the Fifth Amendment privilege. No such outbursts occurred here. Accordingly, Lloyd's application for relief pursuant to the Arizona standard is denied.
677 P.2d 261 (Ariz. 1984).
Id. at 271.
The Texas case of Bauder v. State, is also inapposite. In Bauder, the Texas Court of Criminal Appeals held, on state constitutional grounds, that "successive prosecution is jeopardy barred after declaration of a mistrial at the defendant's request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." In that case, the defendant was charged with driving while intoxicated. On two occasions the State's attempts to try Bauder ended in mistrials. The second time around, the prosecutor presented the jury with evidence that the defendant engaged in an act of misconduct other than that charged in the information. A mistrial was declared and Bauder moved to bar retrial on Double Jeopardy grounds. Although the appellate court found that the prosecuting attorney had deliberately produced prohibited evidence for the purpose of prejudicing Bauder unfairly before the jury, it refused to dismiss the prosecution because Bauder had "moved for the mistrial himself and because the judge did not believe the prosecutor elicited the objectionable testimony for the purpose of goading appellant into making a motion for mistrial." The court granted Bauder's petition for a discretionary review and withdrew its previous opinion, reversed the judgment and remanded the cause for reconsideration in a manner consistent with the court's holding. Once again, the facts of this case do not suggest that the prosecutor intended to trigger Lloyd's motion for a mistrial or that she consciously disregarded a risk that her direct examination of Agent Hughes would give rise to an objection requiring the declaration of a mistrial.
921 S.W.2d 696 (Tex.Crim.App. 1996).
Id. at 699.
Id. at 697.
III. CONCLUSION
Based upon the foregoing analysis, Lloyd's Motion to Attach Jeopardy and Bar Retrial on Double Jeopardy grounds is DENIED.