Earnest v. Dorsey

• Decision Date: 26 June 1996
• Docket Number: No. 94-2217,94-2217
• Parties: 44 Fed. R. Evid. Serv. 1338 Ralph Rodney EARNEST, Petitioner-Appellant, v. Donald DORSEY, Attorney General of the State of New Mexico, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1123

87 F.3d 1123

44 Fed. R. Evid. Serv. 1338

Ralph Rodney EARNEST, Petitioner-Appellant, v. Donald DORSEY, Attorney General of the State of New Mexico,

Respondents-Appellees.

No. 94-2217.

United States Court of Appeals, Tenth Circuit.

June 26, 1996.

J. Thomas Sullivan, Little Rock, Arkansas (Susan Gibbs, Santa Fe, New Mexico, with him on the brief), for Petitioner/Appellant.

William McEuen, Assistant Attorney General, Sante Fe, New Mexico (Tom Udall, Attorney General, with him on the brief), for Respondent/Appellee.

Before EBEL and HOLLOWAY, Circuit Judges, and BROWN, District Judge ^*.

EBEL, Circuit Judge.

Ralph Rodney Earnest appeals the district court's denial of his petition for a writ of habeas corpus. Earnest seeks relief on the grounds that: (1) he was retried after his first trial ended in a mistrial, in violation of the Double Jeopardy Clause of the Fifth Amendment; (2) a custodial statement by a nontestifying accomplice was admitted into evidence at his retrial in violation of the Confrontation Clause of the Sixth Amendment; and (3) on retrial, the prosecutor impermissibly referred to Earnest's post-arrest silence. We have jurisdiction under 28 U.S.C. § 2253 and now AFFIRM.

I.

On the morning of February 12, 1982, the body of David Eastman was discovered. Eastman had been shot and his throat had been cut. Ralph Rodney Earnest, Philip Boeglin, and Perry Connor were seen in Eastman's car that morning. The three were arrested and charged with murder, conspiracy to commit murder, kidnaping, conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine. Boeglin gave a statement to the police in which he incriminated all three defendants. Earnest, Boeglin and Connor were each tried separately. State v. Earnest, 103 N.M. 95, 703 P.2d 872, 873 (1985).

Earnest's first trial ended in a mistrial. He was subsequently retried, convicted on all counts, and sentenced to life imprisonment for murder, eighteen years for conspiracy to commit murder (with nine years suspended), nine years for kidnaping, eighteen months for conspiracy to distribute methamphetamine and three years for possession of methamphetamine. These sentences were to be served consecutively. Earnest appealed his conviction to the New Mexico Supreme Court on the grounds that his retrial subjected him to double jeopardy, that the prosecutor at retrial impermissibly referred to his post-arrest silence, that the admission at retrial of a prior statement by codefendant Boeglin violated the Confrontation Clause, and other grounds which are not relevant here. The New Mexico Supreme Court ruled that: (1) the second trial did not violate the Double Jeopardy Clause; (2) the references to Earnest's silence were not improper; but (3) the introduction of Boeglin's statement had violated Earnest's Sixth Amendment right to confrontation. It therefore set aside Earnest's conviction and ordered a new trial. State v. Earnest, 103 N.M. 95, 703 P.2d 872, 877 (1985) ("Earnest I ").

The United States Supreme Court vacated that decision and remanded to the New Mexico Supreme Court for proceedings "not inconsistent with the opinion in Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)." New Mexico v. Earnest, 477 U.S. 648, 648, 106 S.Ct. 2734, 91 L.Ed.2d 539 (1986). In Lee, the Supreme Court held that the custodial statement of a nontestifying accomplice is presumptively unreliable and therefore inadmissible, but that the state can rebut this presumption by demonstrating "particularized guarantees of trustworthiness." 476 U.S. at 543, 106 S.Ct. at 2063 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)). On remand, the New Mexico Supreme Court concluded that Boeglin's statement was reliable under the Lee standard and reversed its prior holding, thus affirming Earnest's conviction. State v. Earnest, 106 N.M. 411, 744 P.2d 539, 540 (1987) ("Earnest II "). Earnest's petition for certiorari to the United States Supreme Court was denied. Earnest v. New Mexico, 484 U.S. 924, 108 S.Ct. 284, 98 L.Ed.2d 245 (1987).

Earnest filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 in federal district court. The federal district court, adopting the findings and recommendations of a magistrate judge, dismissed Earnest's petition and denied a certificate of probable cause to appeal to this Court. ¹

II.

Earnest's first contention is that his retrial after a mistrial was declared violated the Double Jeopardy Clause of the Fifth Amendment. At Earnest's first trial, Earnest moved for a mistrial on the ground that the court had admitted hearsay statements by Boeglin and Connor that had not been made in furtherance of the alleged conspiracy. The trial judge responded that he had instructed the jury not to accept the truth of the hearsay evidence until instructed otherwise. He went on to say that were the state to rest at that point, it would lose on all counts because it had not yet demonstrated the elements of any count. The trial judge denied the motion for mistrial "at this time, at least ... because as of this point, and unless we change some things, you're going to be better having a trial and a directed verdict, then you are a mistrial." He then stated that although he was denying defendant's motion at that time, he would hold it in abeyance and consider it a continuing motion which could be raised by the court again. ² Defense counsel agreed with this procedure and neither withdrew the mistrial motion nor moved for a directed verdict.

Later in the proceedings, the state called Boeglin to testify. Although Boeglin had been granted use immunity, Boeglin's counsel informed the court that Boeglin would refuse to answer any questions relevant to this case. The trial judge responded that Boeglin would be sworn in and questioned outside the presence of the jury, and would be sentenced to no more than thirty years imprisonment for the first question he refused to answer and one year for every subsequent question he refused to answer. Earnest's counsel again moved for mistrial, on the grounds that the judge's threat was coercive and showed improper involvement in the case. The trial judge replied that he would withhold ruling on the motion until after Boeglin's testimony, and might grant it then. He stated that he would be more than glad to grant a mistrial rather than dismiss the charges, since only if a mistrial were granted could Earnest be retried. Despite these warnings, Earnest's counsel did not withdraw the motion for mistrial. During Boeglin's testimony, Boeglin repeatedly refused to answer questions, and with each refusal the court found Boeglin in contempt of court, ultimately sentencing him to twenty-six years in prison for criminal contempt.

At the conclusion of Boeglin's testimony, the trial judge announced that he would grant defendant's motions for a mistrial. Earnest's counsel then immediately attempted to withdraw the motions. The judge nonetheless ordered a mistrial based upon defendant's motions, particularly the most recent motion. To Earnest's objection, the trial judge responded that he had warned counsel that his outstanding mistrial motion was not in Earnest's best interests because at the time it was made the state had not shown all of the elements of any of the offenses charged. The judge reiterated that he was declaring a mistrial based upon Earnest's motion and the court's confession of error on questioning Boeglin out of the jury's presence. The court found that the mistrial was also required by manifest necessity.

Whether a defendant's retrial is barred by the Double Jeopardy Clause is a question of law which we review de novo. Mannes v. Gillespie, 967 F.2d 1310, 1313 (9th Cir.1992), cert. denied, 506 U.S. 1048, 113 S.Ct. 964, 122 L.Ed.2d 121 (1993). However, the factual findings of the state appellate court, absent factors not present here, are presumed to be correct, see 28 U.S.C. § 2254(d), even when those facts may be dispositive of the ultimate constitutional issue, Case v. Mondragon, 887 F.2d 1388, 1393 (10th Cir.1989), cert. denied, 494 U.S. 1035, 110 S.Ct. 1490, 108 L.Ed.2d 626 (1990). The federal magistrate's factual findings are reviewed for clear error. See Hill v. Reynolds, 942 F.2d 1494, 1495 (10th Cir.1991).

When a trial is not completed and a mistrial is declared, the Double Jeopardy Clause precludes the retrial of the defendant unless the defendant consented to the mistrial, see United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976), or unless the mistrial was compelled by "manifest necessity," see Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). "[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. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion). There is, however, an exception to this principle: when a defendant's motion for mistrial is the result of judicial or prosecutorial impropriety that was intended to provoke the defendant into filing the motion, there has been no consent and the Double Jeopardy Clause bars retrial. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982).

Earnest protests that although he moved for a mistrial, his attempt to withdraw the motions immediately upon the trial court's announcement that it would terminate the trial demonstrates that he did not in fact consent to a mistrial. He directs our attention to cases in which a defendant's motion for mistrial was not found to constitute consent when the defendant timely withdrew or attempted to withdraw it. In United States v. Crotwell, 896 F.2d 437, 438-39 (10th Cir.1990), this Court held that a defendant who moved for a mistrial but then withdrew the motion at the hearing...