Koster v. State

• Decision Date: 26 June 2008
• Docket Number: No. CR 07-1160.,CR 07-1160.
• Citation: 374 Ark. 74,286 S.W.3d 152
• Parties: Michael David KOSTER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

286 S.W.3d 152

374 Ark. 74

Michael David KOSTER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 07-1160.

Supreme Court of Arkansas.

June 26, 2008.

Cindy M. Baker, Berryville, AR, for appellant.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

JIM HANNAH, Chief Justice.

Appellant Michael David Koster appeals his convictions for possession of methamphetamine and possession of drug paraphernalia. Koster was sentenced to three years' imprisonment on each count to be served concurrently. Koster raises several points for reversal, contending that the circuit court erred (1) in denying his motion to dismiss, where after jeopardy attached, a mistrial was declared sua sponte, without the consent of Koster, and absent evidence a mistrial was manifestly necessary; (2) in denying his posttrial motion to dismiss the conviction for possession of a controlled substance, because it is a lesser-included offense of possession of drug paraphernalia; (3) in denying his motion to suppress evidence obtained as a result of his unlawful arrest; (4) in denying his motion to suppress statements that were not only tainted by his unlawful arrest, but which were admitted absent evidence of a valid waiver; and (5) in denying his motion to continue after allowing the State to dismiss two counts in the information, effectively amending the information, which was a surprise that prejudiced the defense. We affirm the circuit court.

Mistrial

Koster first contends that double jeopardy barred the State from trying him a second time after the circuit court declared a mistrial during his first trial. Koster states that the circuit court sua sponte declared a mistrial without his consent and absent evidence a mistrial was manifestly necessary. The State contends that the circuit court was within its discretion to declare a mistrial based on overruling necessity due to a sequence of events initiated by defense counsel, so double jeopardy did not preclude him from being retried.

This court reviews a circuit court's denial of a motion to dismiss on double jeopardy grounds de novo. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007). When the analysis presents itself as a mixed question of law and fact, the factual determinations made by the circuit court are given due deference and are not reversed unless clearly erroneous. See Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006). 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.

Koster was charged with a number of criminal offenses in addition to the two offenses for which he was convicted, including drug-related crimes, domestic-abuse crimes, and criminal use of a prohibited weapon. With regard to the latter offense, the State alleged that Koster possessed a bomb, in violation of Ark.Code Ann. § 5-73-104(a)(1) (Repl.2005). The device was discovered when officers were searching Koster's place of business, Green Forest Body Shop, after going there to question him about a domestic disturbance. Chief John Bailey of the Green Forest Police Department described the device as a cylinder six to seven inches long and two to three inches in diameter, wrapped in black electrical tape, with a fuse.

Koster's first jury trial began on September 27, 2005. Green Forest Police Officer Verlin Griggs testified that he found the device when he opened a drawer of a toolbox in Koster's shop. Griggs testified that, later, he was blocking traffic approximately two blocks away when the "bomb went off," and that he "felt the repercussion from the bomb on my back." Bailey testified that the blast felt like a "shock wave" that traveled through his body, and he stated that the blast broke windows in Koster's building, caused marks on the wall, and charred the asphalt where the device had been detonated.

Drew Deason, a senior bomb technician for the Springdale Police Department, was called to the scene after the device was found. Deason described the device as being "very unstable," noting that it was powerful as "a stick of dynamite, if not a little more." He testified that, hypothetically, if such a device were to go off in the middle of the courtroom, it would cause, "extreme, severe bodily injury, if not death" to those located in close proximity and that the "windows and walls [of the courtroom] could possibly be blown out from the blast-over pressure." A videotape of the detonation was played for the judge and jury, and Deason testified that the detonation caused a "considerable" fireball.

After the State rested, Koster called his friend, Scott Tucker, to testify. Koster's attorney at trial and on appeal, Cindy Baker, produced an explosive device and showed it to Tucker. Tucker described the device as similar to the one he had seen in Koster's shop in Koster's toolbox. Tucker stated that Koster purchased the devices on July 4, 2002, and that one of them had been lying "in the top of [Koster's] toolbox for at least a year."

Later, during Tucker's testimony, the trial judge asked Baker to hand him the device. After inspecting the device, the judge stated that he could not tell if it had been disarmed. Baker asked Tucker if it had been disarmed, and Tucker replied, "I couldn't tell you." The judge then determined that the device he was holding had not been disarmed, and he requested that the bailiff remove it from the courthouse. After a discussion at the bench concerning Baker's bringing the device into the courthouse, the bailiff stated: "Mr. Gordon is calling the bomb expert back. He recommends the courthouse be cleared."¹ The device, according to the bailiff, was on the curb in front of the courthouse. The judge stated he was not going to clear the courtroom, and Baker resumed questioning Tucker. Subsequently, during Tucker's direct testimony, the bailiff informed the judge that, upon the advice of Mr. Rogers the courthouse was being evacuated.² After discussing the matter with counsel, the judge recessed until the next morning.

When court resumed the following day, Baker informed the court that she had filed a motion to dismiss the counts against Koster. The basis of the motion was that, by detonating the device she had brought into the courtroom, the State had destroyed exculpatory evidence in that the device would allow the jury to see that the explosive was a legal item and that Koster did not violate the law by possessing it. The motion further asserted that, contrary to the State's contention that the device was a "homemade bomb," the device was a "legal, commercially available firecracker," purchased from a local fireworks dealer. The motion averred that the State acted in bad faith when the officers destroyed the explosive and that the exculpatory nature of the evidence required dismissal of all of the counts against him. In addition, the motion also requested individual voir dire of the jurors because outside the courthouse, after court was adjourned the previous day, some members of the jury had seen the police activity concerning the explosive device.

Over Koster's objection, the judge construed Koster's motion to dismiss as one for a mistrial. The judge disagreed with Koster's argument that the destruction of exculpatory evidence required dismissal of the charges and noted that he was not convinced that the device was exculpatory. The judge further stated that he had heard no evidence that the device had been destroyed. The judge noted that, without seeking permission to do so, Baker had brought a live, explosive device into the courtroom. Accordingly, the judge determined that Baker's actions had resulted in a delay of the case and that the trial could not be completed in the time the court had allotted for it. Both the prosecutor and Baker acknowledged that, on the previous day, some of the jurors had watched the police activity concerning the explosive device. The judge then ruled that "the actions of the defendant have resulted in a situation where the proceedings in this case are unalterably compromised," and he declared a mistrial.

The judge dismissed the jury, explaining that he was declaring a mistrial for three reasons:

The first reason is that, yesterday, there occurred an introduction into the courtroom of an explosive device without adequate safeguards and without prior permission from the Court, which caused an unnecessary delay in these proceedings, and the trial cannot be completed within the time allowed the Court for this case, and the Court's docket next week provides no opening for which this case could be readily heard.

Secondly, the State and defense agree that several members of the jury panel watched police activity outside of the courtroom concerning the explosive device. I do not have information as to whether or not all of you observed the explosion or the proceedings of the police or not, and if some of you did observe them and some—in any event, it appears that members of the jury have information about this case or that may concern this case which may influence your decision and have evidence outside of the courtroom, or that you have obtained outside of the courtroom.

The third reason is that the defendant has filed a motion to dismiss in this case in regard to the preservation of evidence. There is no way that the Court can act on the facts and allegations alleged in the motion without further delaying this case. The Court is, therefore, treating the motion to dismiss as a motion for a mistrial filed by the defendant. The Court, therefore, does declare a mistrial, and you are excused.

On November 7, 2005, Koster filed a motion to dismiss, alleging, inter alia, that double jeopardy barred retrial because the mistrial was declared over his objection and there was no overruling necessity for the court to stop the trial. The circuit court denied the motion at a...