472 F.3d 1227 (10th Cir. 2007), 05-6273, Walck v. Edmondson

Docket Nº:05-6273.
Citation:472 F.3d 1227
Party Name:Darrah R. WALCK, Petitioner-Appellee, v. W.A. Drew EDMONDSON, Attorney General, Respondent, and Kurt Shirey, Sheriff, Pottawatomie County, Respondent-Appellant.
Case Date:January 04, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1227

472 F.3d 1227 (10th Cir. 2007)

Darrah R. WALCK, Petitioner-Appellee,


W.A. Drew EDMONDSON, Attorney General, Respondent,


Kurt Shirey, Sheriff, Pottawatomie County, Respondent-Appellant.

No. 05-6273.

United States Court of Appeals, Tenth Circuit.

January 4, 2007


Page 1228

[Copyrighted Material Omitted]

Page 1229

Steven Michael Presson, Jackson & Presson, P.C., Norman, OK, for Petitioner-Appellee.

Michael S. Ashworth, (John J. Foley, Assistant District Attorney, and Richard Smotherman, District Attorney, with him

Page 1230

on the briefs), Shawnee, OK, for Respondent-Appellant.

Before KELLY, LUCERO, and TYMKOVICH, Circuit Judges.

KELLY, Circuit Judge.

Respondent-Appellant Kurt Shirey, Sheriff of Pottawatomie County, appeals from the district court's judgment granting Petitioner-Appellee Darrah R. Walck's petition for habeas corpus pursuant to 28 U.S.C. § 2241. The judgment further ordered the State of Oklahoma to dismiss with prejudice pending first-degree manslaughter charges against Ms. Walck arising from a certain traffic accident and enjoined the State from retrying or further prosecuting her for the same incident. The district court held that further prosecution of Ms. Walck would violate the Double Jeopardy Clause because the state trial court previously granted a mistrial in her case after a jury was empaneled and two witnesses were heard. See Walck v. Edmondson, 2005 WL 1907347, at *6 (W.D.Okla. Aug.10, 2005). Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we affirm the carefully considered judgment of the district court.


This matter arises from a tragic traffic accident for which the driver, Ms. Walck, was charged with first-degree felony manslaughter. On December 28, 2003, following a night out with friends, Ms. Walck drove her vehicle in which Misty Moore, Clark Kincade and Lee Pena were passengers. Following close behind was a vehicle containing Jai Batson and Joe Smith, also Ms. Walck's companions. After traveling on I-40 for a time, Ms. Walck and the trailing vehicle eventually exited and drove on Highway 177 in Pottawatomie County, Oklahoma. While en route on Highway 177, Ms. Moore, seated in the front passenger seat of Ms. Walck's vehicle, partially exited the vehicle in order to "flash" [1 Mr. Batson and Mr. Smith in the trailing vehicle. At some point thereafter, Ms. Walck lost control of her vehicle and an accident occurred, resulting in the death of Mr. Pena and injuries to the other three occupants. Following the accident, the hospital to which Ms. Walck was transported performed a blood test at the request of the Oklahoma Highway Patrol, which indicated that Ms. Walck had a blood alcohol level of 0.06.2 On February 8, 2004, Ms. Walck was arrested and charged with first-degree manslaughter. See Okla. Stat. tit. 21 § 711(1).

The prosecution's theory of the case is that Ms. Walck, following Ms. Moore's "flashing" of the trailing vehicle, attempted to stand through the open sunroof of her vehicle to similarly "flash" the occupants of the trailing vehicle. The prosecution claims that Ms. Walck and Ms. Moore, at the time of the accident, were attempting to switch seats so that Ms. Moore could drive while Ms. Walck stood through the sunroof. Ms. Walck's proffered defense is that the fatal crash occurred when Ms. Moore grabbed, or attempted to grab, the steering wheel, causing the vehicle to veer out of control.

On May 26, 2004, the state trial court held a preliminary probable cause hearing during which the State called a number of witnesses. Most importantly for purposes of this appeal, Ms. Moore testified as to the events leading up to the fatal accident. In short, Ms. Moore testified that: Ms. Walck was driving the vehicle when it veered out of control, Aplt. App. at 103;

Page 1231

Ms. Walck had consumed beer and shots of alcohol prior to the accident, id. at 101-02, 108-09; Ms. Moore never switched, or attempted to switch, seats with Ms. Walck, id. at 106-07; and Ms. Moore had indeed grabbed the steering wheel, but she did so several minutes before the crash, id. at 108, 112. The trial judge found probable cause to support the first-degree manslaughter charge and, following the grant of two continuances requested by Ms. Walck, the case proceeded to trial.

Trial commenced on January 12, 2005, and both the State and defense announced that they were ready to proceed. During voir dire, the prosecutor was informed that a medical emergency regarding one of its witnesses, Misti Moore, was developing and her presence at trial might be problematic. Notwithstanding, a jury was selected and sworn. The prosecution gave its opening statement, indicating to the jury that it would be calling witnesses Joe Smith, Jai Batson, Misti Moore, and Clark Kincade, who would establish that on the night in question all had gone to a bar in Oklahoma City and consumed alcohol, that while in transit to another bar Ms. Moore "flashed" a trailing vehicle, that there were discussions about Ms. Walck doing the same even though she was driving, and that an accident ensued resulting in Mr. Pena's death. Id. at 139-40, 143-44. The defense countered in its opening that the accident only occurred because Ms. Moore, the passenger, grabbed the steering wheel. Id. at 146-47.

After opening statements the State called its first two witnesses--Mr. Batson and Mr. Smith. Following completion of Mr. Smith's testimony, the court took a recess, and it appears that during this time an off-the-record discussion regarding Ms. Moore's availability to testify occurred between the court and counsel. Id. at 198-99. Once the jury was brought back into the courtroom and the court had gone back on the record, the prosecution stated, "Your Honor, because of the unforeseen availability of Ms. Moore, we have to move for a mistrial." Id. at 199. The court in turn asked the defense if it had any objection, to which the defense replied that "we do not join in that motion, and we're ready to proceed." Id.

The court then addressed the jury, informing it that after the prosecution had completed its opening statement, the court had been informed that Ms. Moore, who was eight-and-a-half months pregnant, was en route to the hospital, but that the court had nonetheless continued with the case because it had hoped that the problem was "Braxton Hicks [contractions] or something other than delivery, and that she'd still be available ...." Id. at 200. The court further explained that Ms. Moore was undergoing a cesarean section and would be unavailable to testify for at least three days. Id. Because, in the court's eyes, Ms. Moore was an important witness to both the prosecution and defense, and without her testimony the State could not put on its best case, a mistrial was declared. Id. at 201-02 ("[Ms.] Moore is a necessary witness . . . for you to understand the full facts of this case in order to be able to reach a decision."). In so doing, the trial court specifically noted that defense counsel "has indicated he objects to the mistrial ...." Id. at 201.

Subsequent to the jury being excused, Ms. Walck's counsel moved that the case be dismissed with prejudice on double jeopardy grounds. Id. at 203. The court denied the motion, reasoning that the State's motion for mistrial was not "based on prosecutorial misconduct in any way, shape, or form." Id. Counsel commented to no avail that Ms. Moore's preliminary hearing transcript was available in place of her live testimony and that the State had proceeded to trial knowing that Ms. Moore was eight-and-a-half months pregnant. Id. at 204-05.

Page 1232

The trial court concluded the proceedings by ordering Ms. Walck to appear for trial on March 8, 2005. Id. at 205.

Before March 8 arrived, however, Ms. Walck filed an application to assume original jurisdiction, a petition for a writ of prohibition, and a request for stay of proceedings with the Oklahoma Court of Criminal Appeals (OCCA). While the OCCA initially granted a stay of proceedings, on March 28, 2005, it denied relief and lifted the stay for the simple reason that Ms. Walck had "not met her burden of proof" in order for a writ of prohibition to issue. Id. at 239-40. On April 18, 2005, Ms. Walck filed an emergency petition for a writ of habeas corpus in the district court. See Aplee. Supp. App. at 62. The district court referred the matter to a magistrate judge, and ultimately adopted the well-reasoned report and recommendation of Magistrate Judge Bacharach, after resolving the State's objections. Thus, the district court granted the petition and ordered the pending criminal charge against Ms. Walck dismissed with prejudice on double jeopardy grounds. Walck, 2005 WL 1907347, at *6.

On appeal, the State argues that: (1) pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the district court should have abstained from intervening in Ms. Walck's pending state criminal trial; (2) 28 U.S.C. § 2254, rather than 28 U.S.C. § 2241, governs our review in this case; and (3) assuming we reach the merits of Ms. Walck's double jeopardy claim, there has been no violation of Ms. Walck's double jeopardy rights because there is no evidence of prosecutorial misconduct and the declaration of mistrial resulted from "manifest necessity."


I. Abstention

The State first requests that we abstain from addressing Ms. Walck's double jeopardy claim. More concretely, the State submits that Ms. Walck failed to demonstrate that her case constitutes one of the very narrow circumstances under which the Supreme Court has given the lower federal courts permission to intervene in...

To continue reading