MacKenzie v. Com., 0105-87-2

• Decision Date: 16 May 1989
• Docket Number: No. 0105-87-2,0105-87-2
• Citation: 380 S.E.2d 173,8 Va.App. 236
• Court: Virginia Court of Appeals
• Parties: Seth Dabney MacKENZIE, Jr. v. COMMONWEALTH of Virginia. Record

Page 173

380 S.E.2d 173

8 Va.App. 236

Seth Dabney MacKENZIE, Jr. v. COMMONWEALTH of Virginia.

Record No. 0105-87-2.

Court of Appeals of Virginia.

May 16, 1989.

Blair D. Howard (Howard & Howard, P.C., Alexandria, on brief), for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, HODGES and KEENAN, JJ.

JOSEPH E. BAKER, Judge.

Seth Dabney MacKenzie, Jr. (appellant) appeals judgments of the Circuit Court of Henrico County (trial court) which affirmed his jury convictions for sodomy, statutory rape, aggravated sexual battery, and taking indecent liberties with a minor. He assigns as error the failure of the trial judge to sustain his motion to dismiss the charges on double jeopardy and collateral estoppel grounds or, in the alternative, the failure to sustain his motion for a new trial on the ground that his due process rights had been violated. We will state the case and facts separately as applicable to the errors alleged. Appellant does not claim that the evidence was insufficient; therefore, we will recite only facts necessary to an explanation of the issues presented on his appeal.

Appellant is the step-father of the victim. She was born on April 12, 1971. The offenses were alleged to have occurred between April 1984 and December 1984 in the counties of Henrico, Chesterfield and Goochland. Appellant was charged and indicted in Henrico and Chesterfield. The first trial, which was begun in Henrico, ended before the opening statements were completed when the trial court sustained appellant's motion for a mistrial based on several improper statements made by the prosecutor to the jury.

In her opening statement the prosecutor called the jury's attention to the "incredible facts" of certain Nazi atrocities. She remarked that it was not until the ovens were opened, revealing bodies stacked one on the other, that "the world was forced to believe the unbelievable." Appellant objected, the jury was excluded, and the trial court asked if he had a motion. At that stage, appellant declined to move for mistrial, saying, "I want to try this case."

The prosecutor was admonished by the court to tell the jury only what she expected to prove and refrain from argument during her opening statement. The record discloses that she did not abide by the court's ruling. When she resumed, her remarks were argumentative and the trial court interrupted her, advising that if she kept "arguing the case" it was going to "cut [her] off." After this warning she proceeded to outline the case she would present and in conclusion made the following statement:

[I]t will be the job of Mr. Howard (defendant's counsel) right here to convince you that she (the victim) is not telling the truth. He will do that in a number of ways. He's a good defense attorney. Expect him to employ every legal maneuver, every trick, everything he knows to do. That's his job, and we respect him for that.

At that point, appellant moved for, and over the strong objection of the prosecutor, was granted a mistrial.

Subsequently, the matter was again set for trial. Prior to that trial date, appellant filed written pleas asserting that a second trial in Henrico was barred by principles of double jeopardy and collateral estoppel.

Collateral Estoppel

Appellant's collateral estoppel plea was based on an argument that, between the mistrial in Henrico and the day of his motion, he had been tried and acquitted in Chesterfield on the same charges, with substantially the same evidence, as was alleged to have occurred in Henrico. "The party seeking the protection of collateral estoppel carries the burden of showing that the verdict in the prior action necessarily decided the precise issue he seeks to now preclude." Rogers v. Commonwealth, 5 Va.App. 337, 341, 362 S.E.2d 752, 755 (1987). Based upon our examination of the record of the Chesterfield proceedings, we conclude that the verdict could have been based on a ground other than that which appellant seeks to foreclose from further consideration. Based on this record, the jury may well have concluded that the offenses occurred, but not in Chesterfield County. As the trial court said in its August 1, 1986 letter, the Commonwealth may not prosecute a defendant in Chesterfield for crimes alleged to have occurred in Henrico, and vice versa. Accordingly, we affirm the trial court's ruling on the issue of collateral estoppel.

Double Jeopardy

Appellant's double jeopardy plea was founded on the principle of prosecutorial misconduct which caused him to request a mistrial. In appellant's oral argument before us he conceded that his motion concerning double jeopardy was controlled by Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). We agree. We must determine whether the double jeopardy clause of the fifth amendment, as made applicable to the States by the fourteenth amendment, bars further prosecution of the Henrico cases because the prosecutor intentionally caused appellant to move for a mistrial. We find that the record does not support that contention.

In its letter dated August 1, 1986, the trial court found that the Commonwealth Attorney did not exercise good judgment in her remarks; that the remarks should not have been made in an opening statement; and that they were prejudicial to appellant. There was no finding of intent to cause a mistrial.

The standard applied in Kennedy is that prosecutorial conduct, even if viewed as harassment or overreaching and sufficient to justify a mistrial, does not bar retrial absent proof of intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause. Id. at 675-76, 102 S.Ct. at 2089-90.

Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

Id. at 676, 102 S.Ct. at 2089. Applying the stated rule to this record we affirm the finding of the trial court on the issue of double jeopardy.

Motion for New Trial

Prior to the first Henrico trial which ended in mistrial appellant filed a written motion requesting any prior inconsistent statements made by witnesses that the Commonwealth intended to call at trial. Subsequent to the mistrial, but prior to the trial from which this appeal emanates, appellant was tried and acquitted in Chesterfield on indictments for offenses alleged to have occurred in that county and which were similar to those involved in this appeal.

As a part of the Commonwealth's Henrico case, Denise Lewis was called to testify. Lewis had not appeared in the Chesterfield case. She was an employee of a film developing company and had personally developed film for appellant's business, MacKenzie Roofing. Lewis became familiar with appellant as a customer and identified him in court. She had developed some film for MacKenzie Roofing, depicting roofs, buildings and people working; however, she also developed two sets of pictures depicting the victim clothed in a costume. These pictures were admitted into evidence by agreement. When Lewis was asked by the prosecutor whether there came a time "where some of the film he [appellant] brought in was different from the normal film," appellant objected and the jury and witness were excluded. The prosecutor advised the trial court that the witness would testify that she remembered a third set of pictures in sequence with the other two which were nude pictures ¹ of the same little girl [victim] depicted in the other two sets that had been admitted by agreement. Appellant objected, advising the trial court that in response to his production motion he had been advised of the two sets in evidence, but was not advised of a third set. Moreover, he argued that unless she could identify who took the pictures she should not be permitted to describe them. When the trial court inquired as to why the prosecutor had not advised appellant of the third set, she replied that she was not obligated to because there was nothing exculpatory about Lewis' memory. ²

The trial court sustained appellant's objection because Lewis could not identify the person who had taken the pictures contained in the third set and because it was agreed that the pictures, if any, had been taken in Goochland. Hence, they would have no relevancy to the cases being tried. Without success, the prosecutor vigorously sought to persuade the trial court to change its ruling. The court, after repeatedly and patiently reminding the prosecutor that it had made its decision, finally firmly said: "I told you that I had ruled on that point and I'm not going to go through that again."

Although not supported by any evidence in the record appellant asserts that Lewis was not known to appellant or his counsel. The record does disclose a clear statement that Lewis knew appellant and made an in-court identification of him. In the Chesterfield trial appellant testified on his own behalf, denied the allegations made by the victim, and was acquitted by a jury. In the second Henrico trial appellant did not testify. The record before us does not disclose appellant's thought process in declining to testify in Henrico; however, his counsel argues that he fully intended to have appellant testify as he had in Chesterfield, but after hearing the prosecutor's representation to the trial court concerning what she expected Lewis to relate, he strongly advised appellant to forego that right. To bring the issue before us in clear focus we recite here the statement made by appellant's counsel to us in oral argument:

And this is really the crux of this appeal--I fully intended to put Mr. MacKenzie on that stand. And I fully intended him to do the same thing as I did down in Chesterfield--and I submit to you all what reason in the world would I be possessed to change my trial strategy on...