Ex parte Mitchell

• Citation: 977 S.W.2d 575
• Decision Date: 19 November 1997
• Docket Number: No. 1493-96,1493-96
• Parties: Ex parte Andrew Lee MITCHELL, Applicant.
• Court: Texas Court of Criminal Appeals

Page 575

977 S.W.2d 575

Ex parte Andrew Lee MITCHELL, Applicant.

No. 1493-96.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 19, 1997.

Rehearing Denied April 15, 1998.

David L. Botsford, Austin, Clifton Holmes, Longview, for appellant.

Edward J. Marty, Asst. District Attorney, Tyler, Matthew Paul, State's Attorney, Austin, for State.

Before the court en banc.

OPINION ON APPLICANT'S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

Applicant, Andrew Lee Mitchell, was convicted of the offense of capital murder alleged to have been committed on or about December 26, 1979. His conviction was affirmed on direct appeal. Mitchell v. State, 650 S.W.2d 801 (Tex.Crim.App.1983). Subsequently, applicant sought postconviction relief by filing a petition for writ of habeas corpus. Applicant alleged in his petition the State had withheld material exculpatory evidence, thereby denying his rights to due process and due course of law. This Court granted applicant's claim for relief and vacated his conviction and sentence. Ex parte Mitchell, 853 S.W.2d 1 (Tex.Crim.App.1993) (Mitchell I).

The State then scheduled applicant's case for retrial. Applicant, in order to prevent his retrial, filed the present petition for writ of habeas corpus. In his petition, applicant alleged the State's reprosecution of him for capital murder would violate his double jeopardy rights under both the United States and Texas Constitutions. Furthermore, applicant averred his reprosecution would violate his rights to due process and due course of law under the federal and state constitutions. The trial court denied relief, and the Twelfth Court of Appeals affirmed. Mitchell v. State 963 S.W.2d 532 (Tex.App.--Tyler 1996) (Mitchell II).

Applicant, in his petition for discretionary review, alleged six grounds for review. We granted his petition for discretionary review to consider only the following two grounds:

1. The Court of Appeals erred in holding that applicant's reprosecution is not barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution due to the intentional prosecutorial misconduct that formed the basis of this Court's reversal of applicant's prior conviction.

2. The Court of Appeals erred in holding that applicant's reprosecution is not barred by the double jeopardy clause of Article I, Section 14 of the Texas Constitution due to the intentional (or reckless) prosecutorial misconduct that formed the basis of this Court's reversal of applicant's prior conviction.

We affirm the judgment of the Court of Appeals, thereby overruling both of applicant's grounds for review and denying relief.

In reversing applicant's conviction in Mitchell I, in a unanimous decision, this Court found the State suppressed material exculpatory evidence which could have been used to impeach the State's accomplice witnesses and the suppression of which undermined confidence in the verdict. The suppressed evidence consisted of statements by a game warden, Ralph East, and a Smith County deputy sheriff, Kelly Stroud. East and Stroud, in their statements, indicated they observed the victim alive ("as far as they could tell") sometime around midnight at the fireworks stand where he worked. ¹ These statements contradicted testimony of the State's accomplice witnesses, who testified the offense was committed at least three hours prior to midnight. Other evidence introduced by the State placed appellant in the company of friends at midnight and thereafter at a club and motel in Tyler.

At the 1989 hearing held pursuant to the writ application which resulted in Mitchell I, it appeared that the existence of East's and Stroud's statements (which were in the possession of the Smith County Sheriff's Department) was not known to the Smith County District Attorney's Office. This Court found, however, the statements of East and Stroud were concealed by the Smith County Sheriff's Department. We found further the statements were material and exculpatory as they impeached the testimony of the accomplice witnesses on the critical issue of when applicant allegedly killed the victim. Thus, relying on our decision in Thomas v. State, 841 S.W.2d 399, 404-405 (Tex.Crim.App.1992), we vacated applicant's conviction.

However, at the hearing held pursuant to the present writ application in July of 1996, it was revealed that the lead prosecutor at applicant's 1981 trial had knowledge of East's observations at the time of trial. Handwritten notes of the lead prosecutor referred to East's observations. It is therefore reasonable to conclude that not only did the Sheriff's Department fail to reveal East's potentially exculpatory statement to applicant at both the time of his trial as well as at the time of the 1989 hearing conducted as part of Mitchell I, but that the Smith County District Attorney's Office also failed to reveal East's statement to applicant despite having knowledge of its existence at the time of the 1981 trial. It is not clear whether the Smith County District Attorney's Office was aware of Stroud's statement either at the time of the 1981 trial or at the time of the 1989 hearing. ² It is well-established that the State has an affirmative duty to make available to an accused, in a timely manner, exculpatory evidence which is in its possession. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Supreme Court, in Brady, held that "suppression by the prosecution ... violated due process ... irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196-97.

Brady has been extended to include the required revelation to an accused of material exculpatory evidence in the possession of police agencies and other parts of the "prosecutorial team." Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Evidence whose value is limited to that of impeachment must also be divulged to the accused if the failure to do so by the State undermined confidence in the trial's outcome. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

It is significant to note the Supreme Court has consistently treated the failure by the State to divulge potentially exculpatory evidence (whether directly exculpatory or exculpatory as having impeachment value) as a violation of an accused's due process right to a fair trial where the failure undermined confidence in the trial's outcome. The remedy prescribed in such cases is reversal of his conviction and remand of the cause to the trial court for further proceedings. Brady v. Maryland, supra; Kyles v. Whitley, supra; United States v. Bagley, supra.

In numerous cases, most recently Ex parte Davis, 957 S.W.2d 9 (Tex.Crim.App.1997), this Court has found reversal, and remand to the trial court for further proceedings, to be the proper remedy where the first trial was unconstitutionally tainted by prosecutorial misconduct. For example, in Cook v. State, 940 S.W.2d 623 (Tex.Crim.App.1996), we found prosecutorial misconduct, which included withholding of several pieces of potentially exculpatory evidence, combined with the false and misleading testimony of the prosecution's expert, violated applicant's rights under the Due Process Clause of the United States Constitution as well as his rights under the due course of law provisions of the Texas Constitution. In Davis, the prosecutorial misconduct included misleading the jury as to the quality of the police investigation, the misrepresentation by the prosecution as to his interrogation of a key witness (as to why she changed her testimony) and the use of false and perjured testimony by the State's expert witness. While finding the behavior of the prosecutor to be reprehensible, we rejected applicant's contention that he was entitled to anything more than he had already received: reversal of his conviction on appeal. ³

Applicant contends, however, that the double jeopardy clause of the Fifth Amendment to the United States Constitution bars his retrial because the reversal of this conviction was a result of intentional and egregious prosecutorial misconduct.

The United States Supreme Court has consistently held that when a trial proceeds to conclusion (i.e., a verdict) despite a legitimate claim of serious prejudicial error and the conviction is reversed on appeal, retrial is not automatically jeopardy-barred. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). A retrial is barred on jeopardy grounds only if there is insufficient evidence to support the conviction. United States v. Ball, supra; Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). The Supreme Court has held that where the State has in bad faith destroyed evidence favorable to the accused, retrial of the accused may be barred if the accused's due process rights are violated. Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S.Ct 333, 337-38, 102 L.Ed.2d 281 (1988). The Court left open the question of whether, in such instances, retrial would be jeopardy-barred.

Underlying the Supreme Court's application of double jeopardy principles to instances where convictions have been reversed on appeal is the concept of "continuing jeopardy." Continuing jeopardy means, in effect, an accused may be retried after his conviction has been reversed on appeal because the proceedings against him never stopped. Price v. Georgia, supra; Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984); Montana v. Hall, 481 U.S. 400, 402-403, 107 S.Ct. 1825, 1826, 95 L.Ed.2d 354 (1987).

It is a venerable principle of double jeopardy jurisprudence that the successful appeal of a judgment of...