Oregon v. Kennedy

• Decision Date: 24 May 1982
• Docket Number: No. 80-1991,80-1991
• Citation: 456 U.S. 667,102 S.Ct. 2083,72 L.Ed.2d 416
• Parties: OREGON, Petitioner v. Bruce Alan KENNEDY
• Court: U.S. Supreme Court

456 U.S. 667

102 S.Ct. 2083

72 L.Ed.2d 416

OREGON, Petitioner

v Bruce Alan KENNEDY.

No. 80-1991.

Argued March 29, 1982.

Decided May 24, 1982.

Syllabus

During respondent's trial for theft in an Oregon state court, the State's expert witness testified as to the value and identity of the property involved. On cross-examination, he acknowledged that he had once filed an unrelated criminal complaint against respondent, but explained that no action had been taken on his complaint. On redirect examination, the court sustained a series of objections to the prosecutor's questions seeking to establish the reasons why the witness had filed a complaint against respondent. After eliciting from the witness that he had never done business with respondent, the prosecutor asked: "Is that because he is a crook?" The trial court then granted respondent's motion for a mistrial. On retrial, the court rejected respondent's contention that the Double Jeopardy Clause of the Fifth Amendment, as made applicable to the States by the Fourteenth Amendment, barred further prosecution, finding that "it was not the intention of the prosecutor in this case to cause a mistrial." Respondent was convicted, but the Oregon Court of Appeals reversed, sustaining the double jeopardy claim because the prosecutorial misconduct that had occasioned the mistrial, even if not intended to cause a mistrial, amounted to "overreaching."

Held:

1. There is no merit to respondent's contentions that the Court of Appeals' decision was based upon an adequate and independent state ground, or that in the alternative the case should be remanded in order that the court may clarify the grounds upon which its judgment rested. A fair reading of the opinion below shows that the court rested its decision solely on federal law. Pp. 670-671.

2. Where a defendant in a criminal trial successfully moves for a mistrial, he may invoke the bar of double jeopardy in a second effort to try him only if the conduct giving rise to the successful motion for a mistrial was prosecutorial or judicial conduct intended to provoke the defendant into moving for a mistrial. A more general test of "overreaching" is rejected because it offers virtually no standards for its application and because such a rule may not aid defendants as a class. By contrast, a standard that examines the prosecutor's intent is a manageable standard to apply. Since the courts below both agreed that the prosecutor did not intend her conduct to provoke respondent into moving for a mistrial that is the end of the matter for purposes of the Double Jeopardy Clause. Pp. 671-679.

49 Or.App. 415, 619 P.2d 948, reversed and remanded.

David B. Frohnmayer, Atty. Gen., Salem, Or., for petitioner.

Samuel A. Alito, Jr., Newark, N. J., for the United States as amicus curiae, by special leave of Court.

Donald C. Walker, Portland, Or., for respondent.

Justice REHNQUIST delivered the opinion of the Court.

The Oregon Court of Appeals decided that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred respondent's retrial after his first trial ended in a mistrial granted on his own motion. 49 Or.App. 415, 619 P.2d 948 (1980), cert. granted, 454 U.S. 891, 102 S.Ct. 385, 70 L.Ed.2d 205 (1981). The Court of Appeals concluded that retrial was barred because the prosecutorial misconduct that occasioned the mistrial in the first instance amounted to "overreaching." Because that court took an overly expansive view of the application of the Double Jeopardy Clause following a mistrial resulting from the defendant's own motion, we reverse its judgment.

I

Respondent was charged with the theft of an oriental rug. During his first trial, the State called an expert witness on the subject of Middle Eastern rugs to testify as to the value and the identity of the rug in question. On cross-examination, respondent's attorney apparently attempted to establish bias on the part of the expert witness by asking him whether he had filed a criminal complaint against respondent. The witness eventually acknowledged this fact, but explained that no action had been taken on his complaint. On redirect examination, the prosecutor sought to elicit the reasons why the witness had filed a complaint against respondent, but the trial court sustained a series of objections to this line of inquiry.¹ The following colloquy then ensued:

"Prosecutor: Have you ever done business with the Kennedys?

"Witness: No, I have not.

"Prosecutor: Is that because he is a crook?"

The trial court then granted respondent's motion for a mistrial.

When the State later sought to retry respondent, he moved to dismiss the charges because of double jeopardy. After a hearing at which the prosecutor testified, the trial court ² found as a fact that "it was not the intention of the prosecutor in this case to cause a mistrial." 49 Or.App., at 418, 619 P.2d, at 949. On the basis of this finding, the trial court held that double jeopardy principles did not bar retrial, and respondent was then tried and convicted.

Respondent then successfully appealed to the Oregon Court of Appeals, which sustained his double jeopardy claim. That court set out what it considered to be the governing principles in this kind of case:

"The general rule is said to be that the double jeopardy clause does not bar reprosecution, '. . . where circumstances develop not attributable to prosecutorial or judicial overreaching, . . . even if defendant's motion is necessitated by a prosecutorial error.' United States v. Jorn, 400 U.S. 470, 485 [91 S.Ct. 547, 557, 27 L.Ed.2d 543] (197[1] ). However, retrial is barred where the error that prompted the mistrial is intended to provoke a mistrial or is 'motivated by bad faith or undertaken to harass or prejudice' the defendant. United States v. Dinitz, 424 U.S. 600, 611 [96 S.Ct. 1075, 1081, 47 L.Ed.2d 267] (1976). Accord, State v. Rathbun, 37 Or.App. 259, 586 P.2d 1136 (1978), reversed on other grounds, 287 Or. 421, [329] (1979)." Id., at 417-418, 619 P.2d, at 949.

The Court of Appeals accepted the trial court's finding that it was not the intent of the prosecutor to cause a mistrial. Nevertheless, the court held that retrial was barred because the prosecutor's conduct in this case constituted what it viewed as "overreaching." Although the prosecutor intended to rehabilitate the witness, the Court of Appeals expressed the view that the question was in fact "a direct personal attack on the general character of the defendant." Id., at 418, 619 P.2d, at 949. This personal attack left respondent with a "Hobson's choice—either to accept a necessarily prejudiced jury, or to move for a mistrial and face the process of being retried at a later time." Id., at 418, 619 P.2d, at 950.

Before turning to the merits of the double jeopardy claim, we are met with the respondent's contention that the Court of Appeals' decision is based upon an adequate and independent state ground. Respondent contends in the alternative that the basis for the decision below is sufficiently uncertain that we ought to remand this case in order that the Court of Appeals may clarify the grounds upon which its judgment rested. See Delaware v. Prouse, 440 U.S. 648, 652, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979); California v. Krivda, 409 U.S. 33, 35, 93 S.Ct. 32, 33, 34 L.Ed.2d 45 (1972).

We reject both of these contentions. A fair reading of the opinion below convinces us that the Court of Appeals rested its decision solely on federal law. With one exception, the cases it cited in outlining the "general rule" that guided its decision are decisions of this Court. The Court of Appeals' citation to State v. Rathbun, 37 Or.App. 259, 586 P.2d 1136 (1978), rev'd, 287 Or. 421, 600 P.2d 392 (1979), was clearly to its own decision in that case, rather than the decision of the Oregon Supreme Court. Although the Supreme Court's decision in Rathbun was based on state statutory and constitutional grounds, the Court of Appeals' decision in Rathbun clearly rested on federal grounds, a fact which was so recognized by the Oregon Supreme Court. Id., at 430-431, 600 P.2d, at 396-397. Even if the case admitted of more doubt as to whether federal and state grounds for decision were intermixed, the fact that the state court relied to the extent it did on federal grounds requires us to reach the merits. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568, 97 S.Ct. 2849, 2853, 53 L.Ed.2d 965 (1977).

II

The Double Jeopardy Clause of the Fifth Amendment ³ protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). The Double Jeopardy Clause, however, does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding. United States v. Jorn, 400 U.S. 470, 483-484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971) (plurality opinion); Wade v. Hunter, 336 U.S., at 689, 69 S.Ct., at 837. If the law were otherwise, "the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again." Ibid.

Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the "manifest necessity" standard first enunciated in Justice Story's opinion for the Court in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). Perez dealt with the most common form of "manifest necessity": a mistrial declared by the judge following the jury's declaration that it was unable to reach a verdict. While...