In re Bowman

• Decision Date: 17 May 2019
• Docket Number: No. 119,270,119,270
• Citation: 441 P.3d 451
• Parties: In the MATTER OF the Petition for a Writ of Habeas Corpus by Rictor BOWMAN.
• Court: Kansas Supreme Court

441 P.3d 451

In the MATTER OF the Petition for a Writ of Habeas Corpus by Rictor BOWMAN.

No. 119,270

Supreme Court of Kansas.

Opinion filed May 17, 2019.

Mark J. Dinkel, public defender, argued the cause and was on the briefs for petitioner.

Christine M. T. Ladner, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for respondent.

Per Curiam:

Rictor Bowman seeks habeas relief, challenging whether the State can pursue a second trial against him on criminal charges. His first trial ended after the district judge declared a mistrial because the alleged victim, a young child, did not respond when asked to take the oath required of all witnesses. Bowman now argues a second trial would violate the double jeopardy protections of the United States Constitution, the Kansas Constitution Bill of Rights, and Kansas statutes.

We resolve this case by applying the plain language of K.S.A. 22-3423 and K.S.A. 2018 Supp. 21-5110. K.S.A. 22-3423 identifies situations in which a district judge has the discretion to grant a mistrial. K.S.A. 2018 Supp. 21-5110 allows a second trial of a criminal defendant only in certain circumstances. We conclude that the declaration of mistrial in this case was error and that none of the circumstances allowing a second trial under K.S.A. 2018 Supp. 21-5110 applies. Bowman is therefore entitled to the habeas relief he seeks, and this court hereby orders dismissal of this case and Bowman's release from any confinement arising out of it.

FACTS AND PROCEDURAL HISTORY

The State charged Bowman with rape in violation of K.S.A. 2016 Supp. 21-5503(a)(3) ; aggravated criminal sodomy in violation of K.S.A. 2016 Supp. 21-5504(b)(1) ; and four counts of intimidation of a witness or victim under K.S.A. 2016 Supp. 21-5909(a)(2)(B). The charges stemmed from Bowman's alleged sexual abuse of his three-year-old granddaughter.

The State filed charges after the Salina Police Department investigated a report made by the alleged victim's mother. The mother related that she had been shopping with her daughter when, in the middle of a store, her daughter blurted out that Bowman had put his hands down the child's pants. Reportedly, without prompting, the child then showed how Bowman had touched her.

As part of the investigation, a detective conducted and recorded an interview of the child. The child relayed information about sexual contact between her and Bowman, including more contact than the reported touching. Her statements and the remainder of the investigation led to Bowman being charged with rape and aggravated criminal sodomy. At the preliminary hearing on the charges, the district judge watched a video recording of the child's forensic interview at the Child Advocacy Center. The judge found probable cause to believe the felonies had been committed and that Bowman had committed them.

Before trial, the State moved to present the child's testimony through closed circuit television broadcast under K.S.A. 22-3434 (video testimony of child victim admissible in specified cases) and asked that a comfort person be allowed to sit with the child while she testified. See State v. Rochelle , 297 Kan. 32, 33, 298 P.3d 293 (2013) (district judge has discretion to determine whether a comfort person may accompany a child witness). The judge granted both requests.

Fourteen days before Bowman's trial began, the judge held a competency hearing to determine if the child could testify at trial.

By then the child was four years old. See State v. Radke , 168 Kan. 334, 340-41, 212 P.2d 296 (1949) (district judge may determine witness' capacity, meaning witness has capacity to understand oath and can "receiv[e] just impressions of the facts respecting which he is examined"; incompetent witness cannot testify). At the competency hearing, the child took the witness stand and responded appropriately to the oath, as modified for a child witness. Although the child initially showed hesitance that the district judge later labeled as "shyness," she answered questions that probed her ability to distinguish a true statement from a lie. She was not asked questions about the facts underlying the criminal charges. At the end of the hearing, the district judge found the child competent to testify.

When the trial began, the prosecutor's opening statement laid out the State's anticipated evidence against Bowman, including the substance of the child's pretrial statements to the detective in her forensic interview. This anticipated evidence included descriptions of specific sex acts.

The State then began its case by introducing evidence of how the child's allegations against Bowman came to light. This included an audiotape of a call to police and descriptions of out-of-court statements made by the child to her mother and grandmother. Bowman objected to this evidence, arguing that the district judge should not allow witnesses to testify about the child's statements until after the child had testified, that the statements were inadmissible hearsay, and that admitting the evidence would violate Bowman's constitutional right to confront witnesses against him. The judge overruled Bowman's objections under K.S.A. 60-460(a) (hearsay exception for "[a] statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness").

The State then called the child as a witness. The judge, jury, and the defendant watched by closed-circuit television in one courtroom while, in another courtroom, the State called the child to the stand and the court reporter tried to administer the oath required of all witnesses. See K.S.A. 22-3434 (establishing closed circuit procedure for certain child witnesses); K.S.A. 60-418 ("Every witness before testifying shall be required to express his or her purpose to testify by the oath or affirmation required by law."). Although the court reporter repeatedly asked the child to raise her hand, the child did not react. The court reporter then simply asked, "Do you promise to tell the truth today when you answer questions?" The child did not respond to the initial question or when the reporter repeated the question four times. At that point, Bowman's counsel asked for a bench conference.

The court reporter and counsel returned to the other courtroom where the jury and Bowman were and, at the bench, Bowman's counsel argued the witness was "being forced basically to say something that apparently she doesn't care to say. ... She is not a competent witness to testify." The judge responded, "What the Court has seen is 30 seconds, maybe at most a minute, of counsel getting her up there to try and get her to take the oath. It is apparent to the Court that she is shy." Bowman's counsel expanded on his argument that the witness was being coerced and was not a competent witness, and the State responded. The judge found that the child was "shy in a very intimidating environment" and said he had not "heard anything that would give the Court [reason] to believe she is being coerced." The judge stated he would allow the State some leeway in trying to get the child to respond to the administration of the oath.

The attorneys and the court reporter returned to the courtroom where the child witness waited with her comfort person. Again, the reporter twice asked the child to raise her hand, but the child did not respond. The reporter then twice asked the child whether she promised to tell the truth. Again, the child did not respond.

Bowman again objected. Back in the courtroom where Bowman was present but the jury had been excused, the judge remarked that "the witness is not giving the Court any indication that she is going to take the oath."

The judge then observed that the witness had to take the oath before she could testify and that the parties had "a hearsay issue with anything admitted prior." The judge asked the State how it wanted to proceed, and the State responded that it could not continue with the trial. Bowman's counsel then argued, "[I]f the State cannot produce the evidence consistent with hearsay and confrontation rules jeopardy has already attached and this case should be dismissed with prejudice." The State countered with a request for mistrial rather than dismissal with prejudice.

After additional argument, the judge ruled, "The child did not take the oath, therefore she is not competent to testify and she cannot provide testimony." The judge found the State would not be able to prove certain of the sex offense counts without the child's testimony, but the child's testimony was unnecessary to the State's prosecution of intimidation counts. Still, the judge said, the jury had heard "inadmissible hearsay evidence regarding that child that would bleed over" to the intimidation counts. The judge therefore granted a mistrial on the entire case. The judge took under advisement whether any or all counts should be dismissed with prejudice and asked counsel to brief the issue. The judge then discharged the jury.

Within a few weeks, the district judge heard additional arguments on Bowman's motion to dismiss with prejudice on double jeopardy grounds. Defense counsel began his remarks, arguing that manifest necessity evaluated under strictest scrutiny was needed to justify a mistrial due to a failure of prosecution evidence. Had Bowman's trial continued, counsel asserted, either with an incompetent witness or without the child's testimony, Bowman would have been acquitted on the sex crime charges.

The judge raised the possibility of proceeding in another trial under K.S.A. 60-460(dd) if the child remained unavailable. See K.S.A. 60-460(dd) (allowing admission of child's pretrial statement in some cases, including if "the trial judge finds, after a hearing on the matter, that the child is disqualified...