Ex parte Adams

• Decision Date: 22 September 1995
• Citation: 669 So.2d 128
• Parties: Ex parte Jason Sinclair ADAMS. (Re State of Alabama v. Jason Sinclair Adams). 1941006.
• Court: Alabama Supreme Court

Page 128

669 So.2d 128

Ex parte Jason Sinclair ADAMS.

(Re State of Alabama v. Jason Sinclair Adams).

1941006.

Supreme Court of Alabama.

Sept. 22, 1995.

Petition for writ of Mandamus to the Mobile Circuit Court, No. CV-92-3668; Robert E. Lee Key, Judge.

Thomas M. Haas, Mobile, for Petitioner.

Jeff Sessions, Atty. Gen., and Jean Therkelsen, Asst. Atty. Gen., John M. Tyson, Jr., District Atty., Mobile, for Respondent.

HORNSBY, Chief Justice.

Jason Sinclair Adams petitioned the Court of Criminal Appeals for a writ of mandamus directing the Mobile County Circuit Court to bar his further prosecution on an indictment that has previously resulted in two mistrials. The Court of Criminal Appeals denied the writ, without opinion. Ex parte Adams, [CR-94-0909, April 6, 1995] --- So.2d --- (Ala.Crim.App.1995) (table). Adams has now filed a similar petition in this Court. See Rule 21, Ala.R.App.P.

Adams was charged with manslaughter, pursuant to Ala.Code 1975, § 13A-6-3, and was tried on October 31, 1994. The trial was before a jury and Mobile Circuit Judge Robert G. Kendall. During the course of the trial, Adams's counsel moved for a mistrial after the prosecutor asked one of the witnesses about possible improprieties on the part of Adams's counsel. The trial court instructed the jury to disregard the prosecutor's questions implying impropriety by the defense on the ground that they were not supported by any evidence and were "utterly and completely improper." The trial court denied the motion for a mistrial. However, later in the trial, the prosecutor, during his cross-examination of one of Adams's witnesses, asked whether the witness had heard that Adams had made a particular statement containing a pejorative racial term. Adams's counsel objected. The trial court, on its own motion and without hearing arguments from the defense or the prosecution, declared a mistrial.

When the State sought to reprosecute Adams on the same charge, he filed a plea of former jeopardy and requested a jury trial on the question of former jeopardy. The trial court denied the request for a jury trial on that issue and denied the plea of former jeopardy.

The second trial began on December 5, 1994, before Judge Robert E.L. Key. The case was submitted to the jury on December 6, 1994. However, on December 7, 1994, one of the 12 jurors failed to return from an overnight recess. Although Adams agreed to allow the 11 remaining jurors to continue deliberations, the State refused. Therefore, the trial court declared a second mistrial.

As the court prepared for a third trial, Adams filed another plea of former jeopardy and again requested a jury trial on the question of former jeopardy. He also moved to dismiss the indictment, supporting his motion with affidavits from Adams's attorney, the foreman of the second jury, and excerpts from the court reporter's transcript from the second trial. The affidavits indicated that the jury in the second trial had not believed that Adams was guilty of manslaughter, but that the jury had been unable to agree whether it should find Adams guilty of criminally negligent homicide or should find him not guilty. Adams alleges that on the morning of December 7, 1994, in the trial judge's chambers, the prosecutor had agreed to try the case with 11 jurors, but objected to an 11-person jury after entering the courtroom and realizing that the jury was unlikely to convict Adams for manslaughter. After a hearing on January 13, 1995, the trial court denied Adams's second plea of former jeopardy, without allowing a jury trial on that plea.

We pretermit discussion of various other issues raised by Adams, because we conclude that the trial court erred in denying Adams's request for a jury trial on the question whether the prosecutor intentionally and improperly acted so as to provoke a mistrial in the first trial. If the prosecutor so acted, his actions would require a finding for Adams on his plea of former jeopardy. United States v. Fine, 644 F.2d 1018 (5th Cir.), rehearing denied, 647 F.2d 1123, cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981).

In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the Court stated "[T]he circumstances under which such a defendant [one who has successfully moved for a mistrial] may invoke the bar of double jeopardy in a second effort to try him are limited to 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."

456 U.S. at 679, 102 S.Ct. at 2091. In Brannon v. State, 549 So.2d 532 (Ala.Crim.App.1989), the trial court considered the prosecution's attempt to introduce inadmissible evidence before the jury to be so prejudicial that on the defendant's motion for a mistrial it gave the defendant "the option of having a mistrial declared or waiting for a jury verdict and receiving a new trial should the jury convict him." 549 So.2d at 536. The defendant chose the second alternative; after the jury returned a conviction, the trial court set the verdict aside and ordered a new trial. On appeal after a second conviction, the defendant argued that he should get the benefit of the Oregon v. Kennedy rule, contending that the prosecutor had improperly and deliberately provoked him into moving for a mistrial. The Court of Criminal Appeals held that the defendant had failed to show that in the first trial the prosecutor had improperly "intended" to provoke a mistrial; therefore, that court held that the retrial was not barred. In explaining its holding, the court reasoned:

"[T]he trial court ruled on its admissibility as a question of law. Obviously, both the prosecutor and the trial court thought there was a reasonable possibility that the statement was admissible because the court received it on the contingency that the prosecutor could show that it was indeed admissible. The court, had it perceived the evidence to be unquestionably inadmissible, could have, and would have, prohibited its admission right then and there. Indeed, had the court done so, there might be some basis for appellant's contention that the prosecutor had intentionally attempted to provoke appellant into moving for a mistrial. The record as it stands, however, is devoid of [evidence indicating] any such intent by the prosecutor."

Brannon, 549 So.2d at 536.

Adams makes a stronger showing than did the defendant in Brannon that there is a question as to whether the prosecutor improperly "intended" to provoke a mistrial. Ala.R.Crim.P. 15.4(b) states that "unless a jury trial of an issue of fact raised by [a motion raising defenses or objections made before trial pursuant to Rule 15] is waived, such issue shall be tried by a jury if a jury trial is constitutionally required." If Adams had the right to a jury trial, he did not waive it. Based on the particular facts before us, we believe Adams presented substantial evidence that the first mistrial was due to the prosecutor's intentional misconduct. These factual questions create the need for a trial by jury on that issue, pursuant to Rule 15.

During the first trial, the prosecutor asked a witness if Adams's defense counsel had suggested that the witness "lose" the gun that was allegedly used to commit the crime. The defense objected, and the trial court conducted a hearing on the matter. The record shows that when questioned as to his reason for asking that question, the prosecutor never justified asking it. Although the trial court held that the prosecutor's asking the question was not grounds for a mistrial, he found the prosecutor's question unsupported by the evidence and instructed the jury to disregard the question. Soon after, the following transpired:

"Q: Have you hear rumors or reports that Jason threatened to shoot an individual named Cory Martin?

"A: No, sir.

"Q: Have you heard rumors or reports that Jason brandished a pistol and said words to the effect that if any niggers in a particular area of town threatened him he would take care of it?

"Objection by defense counsel: I object to this, if the Court please.

"The Court: All right, [prosecutor], it now appears that you have injected race into this case for no purpose other than prejudicing this jury. What do you have to say about it?

"Response by prosecutor: Judge, he is putting people on--he is putting people on the stand--

"The Court: I declare a mistrial. I have had enough of this, and I ought to dismiss it with prejudice.

"Response by prosecutor: Judge, he is putting people as witnesses to say that this man has a good reputation. Now, when he does that he opens the door to all kinds of stuff.

"The Court: He does not open the door to your attempting to prejudice this jury with a racial remark, which you did, and because of it I declare a mistrial. This case is over for now. I will notify you of the resetting date."

This case is unlike Brannon, supra, in that, here, the trial court immediately stopped the proceedings and declared a mistrial based on the prosecutor's question. There is no evidence in the record that the prosecutor was prepared to submit proof that the defendant had ever made the statement the prosecutor asked about. There is no indication in the record that the prosecutor, in any subsequent motion or proceeding, was prepared to show that the question as to the defendant's statement had a factual basis. Under these circumstances, the prosecutor's actions during the first trial could support an inference that he intended to provoke a mistrial by presenting an inflammatory statement in the context of a question without factual support. The Court of Criminal Appeals has stated that "where the appellant's motion for mistrial is prompted by judicial or prosecutorial error intended to provoke the motion" or is otherwise prompted by bad faith actions taken by the prosecutor in an attempt "to harass or prejudice the defendant, then double jeopardy considerations may...