Hylton v. Eighth Judicial Dist. Court of State of Nev., Dept. IV

• Decision Date: 30 September 1987
• Docket Number: No. 17301,17301
• Citation: 743 P.2d 622,103 Nev. 418
• Parties: In the Matter of the Application of Lancelot Julian HYLTON, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE OF NEVADA, DEPT. IV and the Honorable Earle W. White, Judge of the Eighth Judicial District Court, Respondents.
• Court: Nevada Supreme Court

Page 622

743 P.2d 622

103 Nev. 418

In the Matter of the Application of Lancelot Julian HYLTON, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE OF NEVADA DEPT. IV and the Honorable Earle W. White, Judge of the Eighth Judicial District Court Respondents.

No. 17301.

Supreme Court of Nevada.

Sept. 30, 1987.

James O. Porter, Las Vegas, for petitioner.

Rex Bell, Clark Co. Dist. Atty. and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondents.

OPINION

PER CURIAM:

This petition for writ of prohibition asks this court to prohibit further prosecution of petitioner Hylton on the ground that to try him again would violate his right not to be twice put in jeopardy for the same offense. U.S. Const. amend. V; Nev. Const. art. 1, § 8.

Facts

In 1981, Lancelot Julian Hylton was charged with robbery, murder, and use of a deadly weapon in the commission of an offense. The first trial, in 1982, resulted in a conviction which was reversed on appeal due to prosecutorial misconduct. Hylton v. State, 100 Nev. 539, 688 P.2d 304 (1984). The matter was remanded for a new trial. Hylton, 100 Nev. at 541, 688 P.2d at 305. A defense counsel was appointed to represent Hylton.

At two separate appearances, approximately seven months prior to the second trial, the defense counsel informed the district court and the district attorney's office that one and one-half years earlier he had had a professional contact with one Paul Chambers, who was a possible prosecution witness at trial. The defense counsel had contacted Chambers in jail regarding the possibility of representing Chambers and had discussed the very criminal transaction from which the charges against Hylton arose. The defense counsel talked with the prosecutor; the prosecutor indicated that the state might call Chambers as a witness. The defense counsel pointed out to the district court and a deputy district attorney that Chambers might assert his attorney-client privilege if he were called as a witness at trial.

The district court instructed the assigned deputy district attorney that the district attorney's office was to "give us some better indication of whether or not they are going to use Mr. Chambers because the objection may not be forthcoming from anyone but Mr. Chambers himself if he had a discussion with [the defense counsel] wherein he was attempting to establish an attorney-client relationship." The deputy assented to the district court's instructions. Later, the state listed Paul Chambers as a prospective witness in an amended information and certified the state's efforts to compel Chamber's attendance to testify.

Trial was set for November 4, 1985. On October 30, 1985, the defense counsel filed a motion to continue. In an affidavit, the defense counsel reiterated to the district court that he had had a previous contact with Chambers and stated that it was not known to him if Chambers would be a witness. The defense counsel also stated that Hylton had an expectation of inheriting some money and had expressed a desire to retain his own lawyer. The prosecutor opposed the motion to continue. The prosecutor acknowledged that Chambers was a "potential witness" and stated that the defense counsel's relationship with Chambers posed no problem for the state. The motion to continue was denied.

At calendar call the prosecutor did not mention Chambers or express his intention to call him; he merely commented that he was proceeding to compel a certain witness to attend the trial. Apparently this alerted the defense attorney to the possibility that Chambers might be called, so he checked the record and found indeed that proceedings were afoot for the state to compel Chambers' appearance as a witness for the state.

During argument on the motion to grant the mistrial, the prosecutor pointed out that Chambers, a percipient witness to the homicide, was expected to testify in favor of the defendant, Hylton. The purpose behind the state's calling Chambers was its intention to impeach its own witness by confronting Chambers with a prior inconsistent statement said to have been made by Chambers.

At no time prior to trial did the prosecutor's office advise defense counsel that it planned to call Chambers, and defense counsel was not aware until calendar call of the state's intention to call Chambers. Appellate counsel for the state excuses this failure to notify defense counsel on the ground that the trial prosecutor "didn't perceive the problem in that [sixth amendment] context"; and further, that if the trial prosecutor "had recognized the problem there is no doubt that he would have done something about it." The state's appellate counsel blames the whole fiasco on a "communication breakdown" within the district attorney's office.

The end result of the communication breakdown was that defense counsel was confronted with a prosecution witness who was a former client with whom he had discussed the very matter being tried.

The problem came to a head when Chambers was called as a witness by the state. Chambers first claimed the privilege against self-incrimination. This privilege was denied by the trial court on the ground that Chambers was no longer in jeopardy in the matter at hand.

At this juncture, defense counsel called the court's attention to the difficulties inherent in cross-examining his former client, Chambers. The prosecutor then moved for a mistrial, stating that Chambers was a "primary" witness whose inability to testify would be prejudicial to the state's case.

Without canvassing Chambers to determine the nature of his testimony or whether Chambers asserted the attorney-client privilege, the trial court declared a mistrial. Defense counsel then moved to dismiss the information on the ground that a subsequent prosecution would put Hylton twice in jeopardy. The motion was denied; and, thereafter, Hylton filed this petition for prohibition to prohibit further prosecution.

Relief Sought

A writ of prohibition arrests the proceedings of any tribunal exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal. NRS 34.340. Hylton claims that the district court does not have jurisdiction to order a new trial because a new trial would violate his constitutional right against double jeopardy.

A state may not put a defendant in jeopardy twice for the same offense. ¹ U.S. Const. amend. V; Nev. Const. art. 1, § 8. The double jeopardy clause of the fifth amendment directly applies to states under the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

As a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). Retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused. Id. Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, the defendant's valued right to have the trial concluded by a particular tribunal is sometimes subordinated to the public interest in affording the prosecutor one full and fair opportunity to present the state's evidence to an impartial jury. Id.; Illinois v. Somerville, 410 U.S. 458, 470, 93 S.Ct 1066, 1073, 35 L.Ed.2d 425 (1973); Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963) (defendant's right subordinated to the public interest "when there is imperious necessity to do so"); Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.Ct. 834, 836-37, 93 L.Ed. 974 (1949) (defendant's right may be subordinated to the "public's interest in fair trials designed to end in just judgments").

The prosecutor has a heavy burden of justifying the mistrial in order to avoid the double jeopardy bar. Washington, 434 U.S. at 505, 98 S.Ct. at 830. The reviewing court must decide whether the declaration of a mistrial was dictated by "manifest necessity" or the "ends of public justice." ² Somerville, 410 U.S. at 463, 93 S.Ct. at 1070; see Carter v. State, 102 Nev. 164, 717 P.2d 1111 (1986); Wheeler v. District Court, 82 Nev. 225, 229, 415 P.2d 63, 65 (1966) (double jeopardy protects defendant when the jury is discharged before the verdict, unless defendant consents or some overruling necessity operates as an acquittal). There are degrees of necessity; the United States Supreme Court requires a "high degree" before concluding that a mistrial is appropriate. Washington, 434 U.S. at 506, 98 S.Ct. at 830-31; Carter, 102 Nev. at 169, 717 P.2d at 1114.

The United States Supreme Court has consistently refused to pronounce general rules delineating when the manifest necessity standard has been met; each case must turn on its facts. Downum, 372 U.S. at 737, 83 S.Ct. at 1035; see Somerville, 410 U.S. at 462-64, 93 S.Ct. at 1069-71.

In analyzing the facts of this case to determine if double jeopardy bars further prosecution, this court must make a two-part inquiry. We must first decide whether declaration of the mistrial was dictated by manifest necessity or the ends of justice and, second, in the presence of manifest necessity, whether the prosecutor is responsible for the circumstances which necessitated declaration of a mistrial.

Manifest Necessity for New Trial

On the question of whether a mistrial was manifestly necessary or dictated by the ends of justice, we note first that Hylton made no objections nor complaints that his counsel was going to be so impaired in his examination of Chambers that Hylton would be denied a fair trial. As in the case of Chambers, the trial court did not choose to canvass defendant Hylton before granting the mistrial to the state. It is highly probable that Hylton, if asked, would have had...