Green v. State

• Decision Date: 03 March 2011
• Docket Number: No. CR 10–511.,CR 10–511.
• Parties: Billy Dale GREEN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 92

380 S.W.3d 368

Billy Dale GREEN, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 10–511.

Supreme Court of Arkansas.

March 3, 2011.

Montgomery, Adams & Wyatt, PLC, by: James W. Wyatt and Dale E. Adams, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., Little Rock, for appellee.

JIM GUNTER, Justice.

Appellant appeals the circuit court's denial of his motion to dismiss the charges against him on double-jeopardy grounds based on prosecutorial misconduct. On appeal, appellant argues that, due to the State's Brady violation in his first trial, and the fact that he has already been granted a new trial on other grounds, the only appropriate remedy for this violation is a dismissal of the charges against him. Because this is a subsequent appeal following an appeal that was decided by this court, we have jurisdiction pursuant to Ark. Sup.Ct. R. 1–2(a)(7). We affirm the denial of the motion to dismiss.

In August 2003, appellant was charged with four counts of capital murder for the deaths of Lisa and Carl Elliott and their two children, Felicia and Gregory. Appellant was also charged with kidnapping with regard to Felicia Elliott. In a judgment and commitment order filed May 24, 2004, appellant was found guilty of the above charges and sentenced to death on each count of capital murder and to life imprisonment on the count of kidnapping. This court reversed appellant's convictions and remanded for a new trial, however, based on the circuit court's error in allowing the State to present reputation and other bad acts evidence. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). After remand, appellant was again charged with four counts of capital murder and one count of kidnapping.

On April 16, 2010, appellant filed a motion to dismiss the charges against him based on prosecutorial misconduct during his previous trial. Specifically, appellant asserted that, during the trial, the State had failed to provide to the defense a statement made by Chad Green, one of the State's primary witnesses and appellant's son. At appellant's trial, Chad testified that his father, appellant, was the person who committed the crimes and that he had only been an observer. But in the statement discovered by the defense, given prior to appellant's trial, Chad confessed that he alone committed the murders and never implicated his father. Appellant argued that this was a clear Brady violation and that, as a remedy, the charges against him should be dismissed.

A hearing on this motion was held on April 21, 2010. At the hearing, defense counsel explained that, at appellant's previous trial, Chad testified pursuant to a plea agreement under which he received twenty-years' imprisonment. Then, after the appeal and remand by this court, it was discovered that Chad had also given a statement to his attorney's investigator in February 2004 in which he said that he committed the murders. Appellant was not given a copy of this statement prior to or during the first trial, even though his attorneys sought full discovery from the State. Appellant asserted that having the opportunity to cross-examine Chad regarding the statement would have substantially changed the outcome of appellant's trial.

In response, the deputy prosecuting attorney conceded that the statement should have been provided to the defense and that a Brady violation had occurred. But, he argued, the remedy for such a violation is a new trial, which appellant had already been granted, and there was no basis for dismissal on double-jeopardy grounds based on prosecutorial misconduct. Appellant disagreed and argued that there was case law that supported dismissal for prosecutorial misconduct.

After deliberating the issue, the court pronounced from the bench that it was denying the motion to dismiss. After the court's ruling, the prosecuting attorney added that, at the time he received the proffered statement in question, he believed it was “hypothetical testimony in exchange for a possible plea,” and that, after determining it did not comport with the previous version of events that Chad had offered, dismissed it as not admissible and “forgot about it.” An order denying appellant's motion to dismiss was entered on May 3, 2010, and appellant filed a notice of appeal from this order on May 4, 2010.

This court reviews a circuit court's denial of a motion to dismiss on double-jeopardy grounds de novo. Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006). We have further said that “when the analysis presents itself as a mixed question of law and fact, the factual determinations made by the trial court are given due deference and are not reversed unless clearly erroneous.” Id. at 320, 235 S.W.3d at 483. However, the ultimate decision by the circuit court that the defendant's protection against double jeopardy was not violated is reviewed de novo, with no deference given to the circuit court's determination. Id. A double-jeopardy claim may be raised by interlocutory appeal because if a defendant is illegally tried a second time, the right would have been forfeited. See Zawodniak v. State, 339 Ark. 66, 3 S.W.3d 292 (1999).

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” In the present case, the parties did not dispute that the prosecution's failure to disclose Chad's statement was a Brady violation. Thus, the dispute in this case turns on what is the proper remedy for this violation. Appellant acknowledges that, ordinarily, the remedy would be a new trial and cites to this court's recent opinion in Buckley v. State, 2010 Ark. 154, 2010 WL 1255763, in which we granted a petition to reinvest jurisdiction in the circuit court to proceed with a writ of error coram nobis based on a possible Brady violation. However, because appellant has already been granted a new trial on other grounds, he argues that there is no other remedy for the prosecutorial misconduct in this case other than dismissal.

To support his argument, appellant cites to several cases from other jurisdictions, in particular Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992), which presented facts very similar to the case at bar and found that prosecutorial misconduct implicated the double-jeopardy clause of the Pennsylvania Constitution. In Smith, the appellant was convicted of three counts of first-degree murder and sentenced to death, but the Pennsylvania Supreme Court reversed his conviction due to the admission of impermissible hearsay testimony and remanded for a new trial. Prior to his retrial, the appellant filed a motion to dismiss the charges based on double jeopardy due to recently-discovered evidence of prosecutorial misconduct during his first trial. The Pennsylvania Supreme Court agreed that the State's actions constituted violations of the rule in Brady. The court acknowledged that it had previously held that double jeopardy attached only to those mistrials that have been intentionally caused by prosecutorial misconduct, and that this was the standard decided by the United States Supreme Court under the federal constitution in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). In Kennedy, the Supreme Court held that

the circumstances under which such a defendant 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.

Id. at 679, 102 S.Ct. 2083. However, the Pennsylvania Supreme Court decided that, whatever the result may be under the Kennedy standard, their own state constitution barred retrial. Appellant also cites several other states that have similarly held that their state constitutions encompass more protection for the double-jeopardy clause in the context of prosecutorial misconduct than the federal Kennedy standard. See State v. Rogan, 91 Hawai‘i 405, 984 P.2d 1231 (1999); State v. Breit, 122 N.M. 655, 930 P.2d 792 (1996); Pool v. Superior Ct., 139 Ariz. 98, 677 P.2d 261 (1984); State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983).

In response, the State contends that the remedy for the Brady violation in this case is a new trial. The State cites Timmons v. State, 290 Ark. 121, 717 S.W.2d 208 (1986), in which this court held that double jeopardy did not bar retrial after a mistrial based on prosecutorial misconduct. In Timmons, we declined to follow United States v. Martin, 561 F.2d 135, 140 (8th Cir.1977), which held that an indictment should have been dismissed after finding that the prosecutorial misconduct in that case was best described as “prejudicial error undertaken to harass or prejudice the defendant” and constituted “prosecutorial overreaching.” The State also cites Thompson v. State, 273 Ark. 29, 616 S.W.2d 18 (1981), which affirmed the trial court's determination that double jeopardy did not attach when a defendant requested a mistrial and there was no intentional 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 discovery information and revealed it for the first time at trial, which provoked her into moving for a mistrial. The trial judge, however, found that the State had not intentionally withheld the disputed evidence, and this court held that Espinosa had failed to show this finding was in error.

Also, in Jackson v. State, 322 Ark. 710, 911 S.W.2d 578 (1995), this court held that a second trial was not barred by double...