Commonwealth v. Clark
| Decision Date | 22 May 1981 |
| Citation | 430 A.2d 655,287 Pa.Super. 380 |
| Parties | COMMONWEALTH of Pennsylvania v. Leroy CLARK, Appellant. COMMONWEALTH of Pennsylvania v. Nathan OWENS, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Dec. 3, 1979.
Submitted Dec. 6, 1979. [Copyrighted Material Omitted]
C. Van Youngman, Philadelphia, for appellant in case no. 83.
John W. Packel, Chief, Appeals, Asst. Public Defender Philadelphia, for appellant in case no. 265.
Steven Cooperstein, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee in case no. 83.
Eric B. Henson, Asst. Dist. Atty., Philadelphia, for Commonwealth appellee in case no. 265.
Before PRICE, WATKINS and HOFFMAN, JJ.
On October 11, 1977, appellants, Nathan Owens and Leroy Clark, were arrested and charged with robbery, aggravated assault criminal conspiracy and the possession of an instrument of crime. A joint jury trial was commenced before the Honorable Berel Caesar on April 10, 1978. On April 11, 1978, a mistrial was granted at the urging of both appellants due to a prejudicial question asked by the assistant district attorney, and the jury was dismissed. Thereafter, both appellants filed a motion to dismiss the informations on double jeopardy grounds. [1] On January 5, 1979, a hearing was held before the Honorable William M. Marutani and the motions to dismiss were denied. This appeal followed. [2]
Both Owens and Clark assert that their retrial is barred by the double jeopardy clause because the improper conduct of the prosecutor forced them to move for a mistrial. [3] We disagree and, therefore, affirm the trial court's order denying appellants' motions for discharge.
At trial, the Commonwealth called as its first witness, Deana Rivers, an eyewitness to the robbery of Belinda's Lounge, a bar located at 6301 Wister Street in Philadelphia. On direct examination, she testified with certainty as to the details of the robbery and identified appellants as the perpetrators. Miss Rivers was then vigorously cross-examined for nearly one and one-half days in a studied effort by both defense counsel to point out differences between her testimony at the preliminary and suppression hearings and her testimony at trial. Throughout the entire period of cross examination, defense counsel referred to the suppression hearing by date only. [4] On redirect examination, however, the prosecutor was not as circumspect:
Q. (Assistant District Attorney) Ma'am, did you identify the two men who robbed you at the preliminary hearing?
A. (Miss Rivers) Yes.
Q. Did you identify them during the suppression hearing?
A. Yes.
Q. Did that hearing take three days?
A. Yes.
Q. And are those the same men that you have identified here today in this courtroom?
A. Yes.
(N.T. 342). Appellants' counsel then moved for a mistrial on the ground that any reference to "suppression hearing" could convey to the jury by reasonable implication the existence of additional inculpatory evidence. Following a side bar conference, the court agreed that the single reference to appellants' suppression hearing involved a substantial risk of reversible error. Although the court offered to instruct the jury to disregard the question, defense counsel opposed any curative instruction. Judge Caesar thereupon resumed the trial, holding the mistrial motions under advisement. After extended argument during a court recess, Judge Caesar finally granted the mistrial. [5]
The double jeopardy clause of the fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. [6] This constitutional guaranty against double jeopardy protects a defendant in a criminal proceeding against multiple punishments or successive prosecutions for the same offense. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The Supreme Court has explained that this policy of finality in criminal proceedings is underlaid by the idea that
the 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, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).
The double jeopardy proscription does not mean, however, that the government is barred from retrying an accused every time an earlier proceeding is terminated prior to judgment. See Illinois v. Sommerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). As Justice Pomeroy wrote, "societal interests militate against a literalistic reading of the Double Jeopardy Clause." Commonwealth v. Potter, 478 Pa. 251, 258, 386 A.2d 918, 921 (1978) (Pomeroy, J., Opinion in Support of Affirmance). To be sure, a balancing of the interests at stake is essential for determining whether retrial, following the declaration of a mistrial, constitutes double jeopardy. Retrial is permitted, for example, where a mistrial is declared by the trial court sua sponte over a defendant's objection because of manifest necessity, or the ends of public justice would otherwise be defeated. [7] See United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980) (Per Eagen, C.J.); Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975). In fashioning this rule, the Supreme Court determined that the public's interest in prosecuting those guilty of crimes would be frustrated if a defendant's double jeopardy interests were allowed to outweigh the powers of a court to retry him when unforeseeable circumstances have arisen during trial that makes its completion impossible. Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949).
This type of double jeopardy question, however, is not present in the case sub judice. As we have noted, the mistrial had been granted at appellants' request. Quite different considerations obtain when a mistrial is ordered on defendant's motion because of prosecutorial or judicial impropriety. See Illinois v. Sommerville, 410 U.S. at 464, 93 S.Ct. at 1070; Commonwealth v. Meekins, 266 Pa.Super. 157, 162, 403 A.2d 591, 594 (1979). Nevertheless, as with sua sponte declarations of mistrial, this type of double jeopardy claim can only be properly disposed of by analyzing a defendant's valued right to have his trial completed by the jury first impaneled and the public's countervailing interest in prosecuting those guilty of crime. In applying this analysis the Supreme Court has held that, when a mistrial is granted at the defendant's request, the double jeopardy bar does not arise until misconduct on the part of the judge or prosecutor amounts to overreaching. See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Thus, it is when the integrity of the judicial proceeding breaks down that the burdens incident to reprosecution are deemed to outweigh the public's interest in prosecuting those plainly subject to prosecution. As the Supreme Court has stated: "(W) here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error." United States v. Dinitz, 424 U.S. at 607, 96 S.Ct. at 1079.
The Supreme Court has delineated on several occasions two principal types of prosecutorial overreaching: (1) prosecutorial misconduct intentionally calculated to trigger the declaration of a mistrial in order to secure a more favorable opportunity to convict an accused; and (2) prosecutorial misconduct undertaken in bad faith to harass an accused by successive prosecutions or prejudice his prospects for an acquittal. See Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977) (Rehnquist, J.); Lee v. United States, supra; United States v. Dinitz, supra. Pennsylvania decisions have determined that those forms of overreaching forbidden by the double jeopardy clause of the federal constitution as interpreted by the United States Supreme Court will likewise bar a defendant's reprosecution under state law when he has successfully moved for a mistrial on prosecutorial misconduct grounds. [8] See Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980); Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980). In Commonwealth v. Starks, supra, our supreme court held that prosecutorial misconduct rising to the level of overreaching will bar retrial only if the specified misconduct is attributable to a bad faith effort to prejudice the defendant or an intent to provoke a mistrial. 490 Pa. at 343, 416 A.2d at 501. [9]
The Commonwealth is thus barred from retrying a defendant after a mistrial has been granted at his request if the defendant can successfully prove the requisite intentional or bad faith misconduct. See Commonwealth v Thomas, 270 Pa.Super. 375, 378, 411 A.2d 767, 769 (1979). Accord, Commonwealth v. Palazzo, 275 Pa.Super. 135, 418 A.2d 649 (1980); Commonwealth v. Nelson, 268 Pa.Super. 411, 408 A.2d 854 (1979). On review of a pretrial motion to dismiss on double jeopardy grounds, this court will affirm the order entered below unless the record supports a finding of prosecutorial overreaching. Commonwealth v. Perry, 270 Pa.Super. 412, 416, 411 A.2d 786, 788 (1979). In assessing the degree of any asserted impropriety, we direct our attention "to the sequence of events...
To continue reading
Request your trial
-
Com. v. Proulx
...State v. Chase, 335 N.W.2d 630, 632 (Iowa 1983); Bell v. State, 286 Md. 193, 205-207, 406 A.2d 909 (1979); Commonwealth v. Clark, 287 Pa.Super. 380, 394-398, 430 A.2d 655 (1981). The defendant does not argue that he was irremediably prejudiced, so that he never could be fairly tried. Compar......