888 F.2d 1124 (6th Cir. 1989), 87-6290, Taylor v. Dawson

Docket Nº:87-6290.
Citation:888 F.2d 1124
Party Name:Mary Patricia TAYLOR, Petitioner-Appellant, v. Don DAWSON, Jailer, Lincoln County Jail, Respondent-Appellee.
Case Date:November 06, 1989
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1124

888 F.2d 1124 (6th Cir. 1989)

Mary Patricia TAYLOR, Petitioner-Appellant,

v.

Don DAWSON, Jailer, Lincoln County Jail, Respondent-Appellee.

No. 87-6290.

United States Court of Appeals, Sixth Circuit

November 6, 1989

        Argued Sept. 30, 1988.

        Rodney McDaniel, argued, Asst. Public Advocate, Frankfort, Ky., for petitioner-appellant.

        Frederic Cowen, Atty. Gen., of Kentucky, Frankfort, Ky., David Martin, Gregory C. Fuchs, Asst. Atty. Gen., argued, for respondent-appellee.

        Before WELLFORD and NELSON, Circuit Judges, and McQUADE, District Judge. [*]

        DAVID A. NELSON, Circuit Judge.

        Where a criminal proceeding is terminated by the declaration of a mistrial to which the defendant did not consent and for which there was no "manifest necessity," the Double Jeopardy Clause of the Fifth Amendment bars retrial of the defendant for the same offense. See United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971) (plurality opinion), quoting United States v. Perez,

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22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). The principles of the Double Jeopardy Clause have been made applicable to the states through the Fourteenth Amendment, see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), so the rule applies in both federal and state proceedings.

        The case at bar arises out of a retrial of appellant Mary Patricia Taylor in a Kentucky court on a charge of manslaughter. The retrial was initiated over Ms. Taylor's objection after an earlier prosecution had been cut short by the granting of a mistrial at the instance of the prosecutor. Ms. Taylor was eventually found guilty and was sentenced to imprisonment for 15 years. After exhausting her rights of appeal in the state courts, she sought a writ of habeas corpus from the United States District Court for the Western District of Kentucky. Ms. Taylor contended that there had been no manifest necessity for the Kentucky trial court to declare a mistrial, and that the Commonwealth had therefore violated the double jeopardy prohibition when it placed her on trial again.

        The habeas court denied Ms. Taylor's petition, concluding that the trial court's declaration of a mistrial had not been beyond the pale, as it were. Notwithstanding the broad discretion accorded trial judges in such matters, we disagree. The trial record, as we read it, does not manifest the kind of "necessity" for a mistrial that would make a retrial permissible; we shall therefore direct that a writ of habeas corpus be issued.

        I

        Mary Patricia Taylor, a divorced woman with two teenaged children, had a boyfriend named Timothy Culver. Mr. Culver was involved not only with Ms. Taylor, but with a young woman named Darby Dugan. On a Monday morning in July of 1981, Ms. Taylor came home unexpectedly and found Mr. Culver and Ms. Dugan asleep in bed together. Ms. Taylor grabbed Ms. Dugan by the hair, as the latter subsequently testified, and told her--without waking Mr. Culver--"Get out of my house." Ms. Dugan testified that Ms. Taylor also said "You're dead. You're both dead. I'll kill you both." Ms. Taylor admitted having told Ms. Dugan to get out of the house, but denied threatening to kill anyone.

        On Saturday of the following week, Ms. Taylor took a .25 caliber pistol and shot Mr. Culver dead. Five bullets were found in Mr. Culver's body; the entry paths indicated he had been shot from behind.

        After the shooting, Ms. Taylor ran to the house of a neighbor, a priest, and asked him to call the police. The local sheriff responded to the call and took Ms. Taylor into custody. A Kentucky state police officer who subsequently joined in the investigation observed that Ms. Taylor had bruises around her eyes and on both arms. She also complained of pain in her ribs, two of which were subsequently found to have been broken. Mr. Culver had beaten her up a day or two earlier, Ms. Taylor was to testify at her final trial, and he had beaten her repeatedly in the past.

        In an encounter immediately before the shooting, Mr. Culver (who, like Ms. Taylor, had been injecting cocaine into his veins), allegedly threatened to "knock all [her] teeth down [her] damn throat" and kill her. Mr. Culver had a .45 caliber pistol close at hand, and Ms. Taylor was aware of the fact that a month or so earlier Mr. Culver had broken the jaw of a friend of hers named Doug Hill. "I shot Timmy Culver," Ms. Taylor maintained, "because I was afraid he was going to kill me."

        II

        Ms. Taylor was placed on trial a total of three times. At her first trial, in 1982, the jury acquitted her of murder but found her guilty of manslaughter in the first-degree. The Kentucky Court of Appeals reversed the conviction on the ground that Ms. Taylor's credibility had been improperly impeached with evidence of a misdemeanor conviction. The case was remanded for a new trial.

        It was the second trial, conducted in July of 1983, that ended in a mistrial. The

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events that led up to the declaration of a mistrial may be summarized as follows.

        In proceedings conducted in the judge's chambers before the jury was impaneled, counsel for defendant Taylor suggested that the same reasoning which precluded mention of Ms. Taylor's misdemeanor conviction ought to rule out mention of her past drug use. The trial judge told the prosecutor not to go into that in his opening statement or in his case in chief, leaving open the possibility that it might be used on rebuttal. The prosecutor then moved that defendant Taylor and her counsel be instructed not to mention prior bad acts of the decedent, Tim Culver. During the first trial, the prosecutor went on to explain, defense counsel had disclosed to the jury that

"Tim Culver beat the defendant on several occasions over a long period and that Tim Culver used drugs on several occasions during a long period, that Tim Culver had a prior felony conviction and was on parole from prison at the time defendant killed him, and Tim Culver tore up her house several months before the defendant killed him, that Tim Culver chased the defendant at speeds approaching 100 miles an hour through Bardstown and Springfield and rammed her car from behind a week before she killed him, that Tim Culver severely beat the defendant, blackened her eye, put bruises on her arms, hurt her wrist, knocked her down and kicked her in the ribs two days before she killed him."

        The basis for the prosecutor's limiting motion was a decision handed down by the Kentucky Supreme Court a month earlier in Thompson v. Commonwealth, 652 S.W.2d 78 (1983). The defendant in Thompson had shot and killed a man in the course of attempting to break up a fight outside a bar. The trial court admitted evidence of the victim's prior criminal convictions on the theory that it went to the question of who the aggressor was. The defendant, it appears, "was unaware of the victim's reputation for violence...." Id. at 82 (dissenting opinion of Rouse, J.) The Court of Appeals, in an opinion adopted by the Supreme Court, declared that evidence of prior specific acts could not be shown to establish the victim's character for violence or aggression; "[s]uch can only be proved by evidence of the individual's reputation in the community not by personal opinion, nor by specific acts of conduct." Id. at 80. Relying on that case, the prosecutor asked that defendant Taylor's counsel be restricted to proving Tim Culver's bad character by showing his reputation in the community, and not by specific bad acts.

        The trial judge asked if it had come out in the prior trial that Mr. Culver had been convicted of a felony. When told that such a conviction had been mentioned, the judge said (if the court reporter got it right) "Let's not get into statement now as to prior violent acts and incidents of the decedent." The judge expressed agreement with the argument that such acts might be relevant to show defendant Taylor's state of mind, but seemed inclined initially to think that only threats and acts of violence directed at Ms. Taylor herself would be relevant.

        Citing Carnes v. Commonwealth, 453 S.W.2d 595 (Ky.1970), where the court held it was prejudicial error to exclude evidence of angry and profane remarks that the decedent had directed at someone other than the defendant, but which had been communicated to the defendant, Ms. Taylor's counsel went on to argue that acts of violence towards others--Doug Hill, e.g.--would also have a bearing on the defendant's state of mind if she knew of such acts. "Evidence of the mental attitude of the accused is germane...

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