Benson v. State, 25992

• Citation: 111 Nev. 692,895 P.2d 1323
• Decision Date: 25 May 1995
• Docket Number: No. 25992,25992
• Parties: Richard Lee BENSON, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 1323

895 P.2d 1323

111 Nev. 692

Richard Lee BENSON, Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 25992.

Supreme Court of Nevada.

May 25, 1995.

Gensler and Kuehn, Tonopah, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City; Robert S. Beckett, Dist. Atty., and Rachel H. Nicholson and Kirk Vitto, Deputy Dist. Attys., Nye County, for respondent.

OPINION

ROSE, Justice:

Appellant Richard Lee Benson, Jr. was charged with three counts of sexual assault.

During Benson's first trial, the prosecutor moved for a mistrial, and the district court held Benson's counsel in criminal contempt and declared a mistrial. This court granted Benson's counsel's petition for a writ of mandamus, concluding that the trial court had abused its discretion in finding him in contempt. The district court denied Benson's motion to dismiss the charges on grounds of double jeopardy, and a second trial was held. The jury found him guilty on all three counts.

We conclude that the retrial violated the Fifth Amendment protection against double jeopardy and reverse.

FACTS

In April 1993, the first trial in this case ended in a mistrial after the district court held Benson's counsel, John Keaveney, in criminal contempt of court. The contempt ruling and declaration of mistrial arose out of a highly charged confrontation in which the prosecutor accused Keaveney of unethical conduct and deliberate violation of a court order. The prosecutor moved for a mistrial, asserting that Keaveney had intentionally violated the district court's order excluding evidence of prior consensual sex on the part of the alleged victim. The prosecutor addressed the court as follows:

I can't imagine--to be quite honest with you, I'm totally shocked, I really am. I'm absolutely shocked at this type of unethical, improper behavior on the part of defense counsel.

....

To be quite honest with you, I'm pretty shocked. I'm not really sure I'm totally in control of myself at the present time.

I'm asking the court for a mistrial.

When the district court asked for a response to the motion, Keaveney said: "If he wants a mistrial, I won't oppose a mistrial but I don't think I violated any order, I think the defendant certainly is entitled to a defense." Keaveney then argued in support of his line of questioning.

The prosecutor then stated: "I think Mr. Benson and Mr. Keaveney have cooked up this scheme on the theory if they can get a mistrial out of this that double jeopardy is going to bar a new trial in this case. I think this is deliberate and intentional and preplanned." Keaveney responded, "Your Honor--Your Honor, I also wouldn't oppose continuing the trial."

The prosecutor immediately replied, "Continuing the trial doesn't do us any good, this jury has been totally tainted on that issue." Keaveney attempted again to justify his presentation of Benson's case. The district court held Keaveney in criminal contempt and declared a mistrial.

In November 1993, this court granted Keaveney's petition for a writ of mandamus. We determined that Benson's counsel had not violated the district court's order. Moreover, we rejected the lower court's "overly restrictive interpretation" of the order, which excluded evidence of consensual sex between the alleged victim and Benson. We stated: "The rape shield statutes cannot be interpreted in such a manner as to preclude the defendant from putting forward a meaningful defense."

Before the retrial, Benson moved to dismiss on double jeopardy grounds. The court denied Benson's motion based on his "acquiescence" to the mistrial. The court made no findings to support its ruling, including no findings in regard to the actions or intent of the prosecutor. The second trial occurred from February 22 to 24, 1994.

The alleged victim testified that she had begun a consensual sexual relationship with Benson but that it had turned physically and emotionally abusive. She recounted three incidents where Benson used force to have sex with her against her will. Benson denied threatening or abusing her or ever having sex with her without her consent. The State presented rebuttal testimony which corroborated her claims that Benson had been abusive toward her.

The jury found Benson guilty of all three counts. The district court entered a

judgment of conviction and sentenced him to life in prison on each count and to an additional twenty years in prison as a habitual criminal, with all sentences to be served consecutively. ¹

DISCUSSION

The Fifth Amendment precludes putting a defendant twice in jeopardy for the same offense. Although Benson's first trial put him in jeopardy and was aborted unnecessarily, the State contends that Benson consented to the mistrial.

The preliminary question is whether the mistrial was necessary. To avoid the bar of double jeopardy, there must be manifest necessity for a mistrial declared despite objection by the defendant. Carter v. State, 102 Nev. 164, 169, 717 P.2d 1111, 1114 (1986). The State does not argue on appeal that there was any manifest necessity for a mistrial in the first trial, and in fact the mistrial was completely improper. This court determined that Benson's counsel had not violated the district court's order and rejected that court's "overly restrictive interpretation" of the order.

The crucial issue, therefore, is whether Benson consented to the mistrial. "As a general rule, a defendant's motion for, or consent to, a mistrial removes any double jeopardy bar to reprosecution." Melchor-Gloria v. State, 99 Nev. 174, 178, 660 P.2d 109, 111 (1983). An exception to this rule "applies in those cases in which the prosecutor intended to provoke a mistrial or otherwise engaged in 'overreaching' or 'harassment.' " Id., 660 P.2d at 112. However, such overreaching or harassment, "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." Id. (citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)).

Melchor-Gloria and Oregon involved cases where prosecutorial misconduct led a defendant to seek a mistrial. Melchor-Gloria, 99 Nev. at 178, 660 P.2d at 111; Oregon, 456 U.S. at 669, 102 S.Ct. at 2086. In Oregon, the Court held that a defendant may invoke the bar of double jeopardy only in "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." Id. at 679, 102 S.Ct. at 2091. "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." Id. at 676, 102 S.Ct. at 2089.

In this case, the prosecutor, not Benson, moved for the mistrial, distinguishing this case from Melchor-Gloria and Oregon and other cases cited by the State. If the instant case is nevertheless analyzed under this case law, the prosecutor's unfounded motion for a mistrial appears functionally equivalent to, if not more egregious than, "goading" or "provoking" the defendant into calling for a mistrial. However, consent is not relevant to these cases. The issue of consent by a defendant arises most often when the trial court sua sponte declares a mistrial or, more rarely, in cases like this one where the prosecution moves for one. Cf. W.R. Habeeb, Annotation, What Constitutes Accused's Consent to Court's Discharge of Jury or to Grant State's Motion for Mistrial Which Will Constitute Waiver of Former Jeopardy Plea, 63 A.L.R.2d 782 (1959 & Supp.1994); John E. Theumann, Annotation, Former Jeopardy as Bar to Retrial of Criminal Defendant after Original Trial Court's Sua Sponte Declaration of a Mistrial--State Cases, 40 A.L.R.4th 741, § 8 (1985).

Although the State moved for the mistrial, Benson's counsel, Keaveney, at one point said he would not oppose a mistrial. The State contends that this statement conclusively In determining implied consent, the totality of the circumstances of each case must be considered, and consent to double jeopardy should not be lightly presumed.

establishes consent and the court need trouble itself no further. However, this statement did not stand alone, but came in the context of a heated personal attack by the prosecutor upon Keaveney.

While something more than mere silence on the defendant's part must be shown to establish his consent to being placed in double jeopardy, the consent need not be express; rather, it may be implied from a totality of the circumstances. See, e.g., United States v. Rich, 589 F.2d 1025 (10th Cir.1978); United States v. Goldman, 439 F.Supp. 358 (S.D.N.Y.1977) aff'd mem., 573 F.2d 1297 (1st Cir.1977); Harris v. Justices of the Supreme Court, 44 N.Y.2d 874, 407 N.Y.S.2d 478, 378 N.E.2d 1048 (1978). Stressing the view that consent to be placed in double jeopardy will not be lightly presumed, the court in Curry v. Superior Court, 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345 (1970), stated: "It is true that affirmative conduct by the defendant may constitute a waiver if it clearly evidences consent...." Id. 87 Cal.Rptr. at 364, 470 P.2d at 348. Idaho has consistently recognized the presumption against waiver of fundamental constitutional rights.

State v. Werneth, 101 Idaho 241, 611 P.2d 1026, 1027-28 (1980), cert. denied, 449 U.S. 1129, 101 S.Ct. 951, 67 L.Ed.2d 118 (1981).

In Gaitor v. State, 106 Nev. 785, 788, 801 P.2d 1372, 1374 (1990), this court concluded that the "failure of defense counsel to object or express an opinion to the district court regarding the propriety of the mistrial implied consent" when the trial judge stated that he believed it necessary to declare a mistrial. In that case, there was a manifest necessity for the mistrial because a juror saw a State's witness in handcuffs outside the courtroom and discussed it with...