Espinosa v. State, CR
| Decision Date | 31 May 1994 |
| Docket Number | No. CR,CR |
| Citation | 317 Ark. 198,876 S.W.2d 569 |
| Parties | Cloris Jean ESPINOSA, Appellant, v. STATE of Arkansas, Appellee. 93-1060. |
| Court | Arkansas Supreme Court |
Brenda Horn Austin, Fayetteville, for appellant.
Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.
Cloris Jean Espinosa was charged and convicted of five counts of delivery of a controlled substance, and received consecutive sentences of ten years on each count. Espinosa's two points for appeal in this case stem from a prior mistrial she previously obtained on these same charges.
At Espinosa's first trial, the state offered four witnesses. In sum, the state offered testimony that, with the employment of a confidential informant, and undercover police officer, five drug buys had been made involving Ms. Espinosa. Espinosa's defense at trial was based upon her contention that the state had no independent corroborative evidence to prove that any of the alleged drug buys occurred. In fact, Espinosa's counsel stated in opening argument that the state had no fingerprints, drugs, recordings or "marked money" to prove its charges. In making his argument, counsel had relied in part on the fact that the state had provided no such evidence in response to Espinosa's pretrial discovery. The state's first witness, Lieutenant Mike Jones, testified to having participated with other officers and an informant in surveilling Espinosa; he said that no body mike, video surveillance or fingerprints were used or obtained in their investigation of Espinosa. Jones was then asked on cross-examination, "But you don't have anything solid out of those investigations other than drugs and testimony of undercover agents, right?" And Jones responded as follows:
Lt. Jones: Yes, sir.
Defense counsel: I never saw it."
Another officer, Detective Frankie Hart, also testified that a "marked" one hundred dollar bill had been found in a safe in the business where drug purchases had occurred, and using a police report to refresh his memory, he further recalled that marked bill had been used in the officers' investigation of Espinosa, and had been provided to undercover officer Jim Wilkins.
Following Hart's testimony, Espinosa moved for a mistrial. At a hearing in chambers, the trial judge and respective counsel discussed thoroughly the failure of the state to furnish prior to trial the marked bill and police report testified to by Officers Jones and Hart. Espinosa's counsel ultimately convinced the judge that Espinosa had been prejudiced by the officers' testimonies, since counsel had in opening statement told the jury no marked bills would be introduced by the state.
Although the trial judge granted Espinosa a mistrial and rescheduled another which resulted in her convictions and this appeal, she claims the state was barred from prosecuting her again. Espinosa cites the case of Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) for the proposition that a defendant's retrial is barred under the Double Jeopardy Clause where governmental trial conduct was intended to provoke the defendant into moving for a mistrial. In sum, Espinosa argues that, in her original trial, the state intentionally withheld pretrial discovery information, revealed it for the first time at trial and provoked her into moving for a mistrial. We cannot agree.
First, we point out that the trial judge, who presided at the first trial, conducted a searching inquiry into why the state had failed to provide Espinosa the marked money and police report. The prosecuting attorney responded that the information had been in a police file and had not been given to him until the day of trial and after Officer Jones testified. The judge pointed out that the prosecutor had not offered the disputed evidence, but instead, it was first revealed when the defense cross-examined Jones. The judge announced that he was convinced the state was surprised that the evidence existed, and considering the nature of it, believed the state would have used the...
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Green v. State
...misconduct on the part of the prosecutor. The State also argues that this court adopted the Kennedy standard in Espinosa v. State, 317 Ark. 198, 876 S.W.2d 569 (1994). In Espinosa, the appellant cited the Kennedy standard and argued that the State had intentionally withheld pretrial discove......
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Dennis v. State
...admission of first-trial testimony in a second trial where the same issue and motive existed for cross-examination. Espinosa v. State , 317 Ark. 198, 876 S.W.2d 569 (1994). This court determined in Scroggins v. State , 312 Ark. 106, 848 S.W.2d 400 (1993), that previous testimony given at a ......
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Proctor v. State
...forego examination. The defense may not wish to disclose its theory of defense. Id. at 94-95, 612 S.W.2d at 113. In Espinosa v. State, 317 Ark. 198, 876 S.W.2d 569 (1994), a witness revealed that had not been disclosed to the defendant, and the trial court declared a mistrial. Id. Prior to ......
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Proctor v State
...forego examination. The defense may not wish to disclose its theory of defense. Id. at 94-95, 612 S.W.2d at 113. In Espinosa v. State, 317 Ark. 198, 876 S.W.2d 569 (1994), a witness revealed evidence that had not been disclosed to the defendant, and the trial court declared a mistrial. Id. ......