Parte v. R.E.D. (Ex parte State)
| Decision Date | 13 March 2020 |
| Docket Number | 1180639 |
| Citation | 304 So.3d 1170 |
| Parties | Ex parte State of Alabama (IN RE: Ex parte R.E.D. (In re: State of Alabama v. R.E.D.)) |
| Court | Alabama Supreme Court |
Steve Marshall, atty. gen., and Edmund G. LaCour, Jr., deputy atty. gen., and Laura Irby Cuthbert, asst. atty. gen., for petitioner.
Bret M. Gray, Bessemer, for respondent.
J. Patrick Lamb, gen. counsel, Alabama District Attorneys Association, Montgomery, for amicus curiae Alabama District Attorneys Association, in support of the petitioner.
The State of Alabama petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals' decision granting, by an order of that court, a petition for a writ of mandamus filed by R.E.D. R.E.D. had asked the Court of Criminal Appeals to vacate the Limestone Circuit Court's order denying his request for a jury trial on the issue whether the State intentionally committed misconduct during R.E.D.'s first trial so as to goad R.E.D. into requesting a mistrial and to enter an order granting his jury-trial request. See Ex parte R.E.D. (No. CR-17-0984, September 26, 2018). We granted certiorari review to determine whether the Court of Criminal Appeals' order vacating the trial court's ruling is in conflict with Ex parte Adams, 669 So. 2d 128 (Ala. 1995), and/or Pettibone v. State, 91 So. 3d 94 (Ala. Crim. App. 2011). We conclude that the Court of Criminal Appeals' decision is in conflict with both Ex parte Adams and Pettibone, and, thus, we reverse the Court of Criminal Appeals' order.
R.E.D. was indicted for 106 counts of various sexual crimes including rape, sexual abuse, sodomy, and incest. The alleged victim in this case is R.E.D.'s adopted daughter ("the victim"). During the trial, which was held on May 2, 2018, the victim testified regarding numerous instances of rape and other sexual crimes allegedly committed by R.E.D. against her. The issue before this Court concerns the victim's use of her handwritten notes during her testimony at trial.
During the victim's testimony at trial, the State sought to use two different sets of notes that had been created by the victim to refresh her recollection while she testified. The first set of notes that the State sought to use to refresh the victim's recollection were notes the victim had created in preparation for her testimony before the grand jury concerning the crimes R.E.D. allegedly had committed against the victim ("the grand-jury notes"). The grand-jury notes were provided to R.E.D. Although R.E.D. objected to any mention of the grand-jury proceedings, R.E.D. did not object to the victim's using the grand-jury notes to refresh her recollection while she testified at the trial. Ultimately, the trial court ruled that the victim could review the grand-jury notes to refresh her recollection but that "she may not read [the grand-jury notes] aloud and [they] will not be introduced into evidence and the jury will not receive [them]."
The second set of notes the State sought to use to refresh the victim's recollection were notes the victim had created in preparation for trial ("the trial notes"). It is undisputed that the State was aware that the victim was planning to use the trial notes to refresh her recollection during the trial and that it did not inform R.E.D. or the trial court of this fact. In fact, R.E.D. only became aware of the victim's use of the trial notes during the trial when R.E.D.'s trial counsel happened to notice that the victim was referencing the trial notes during her testimony. Based on the victim's use of the trial notes, R.E.D. requested that the trial court declare a mistrial.
The State made extensive argument as to why a mistrial was not necessary. Over the State's objection, the trial court ultimately granted R.E.D.'s request and declared a mistrial.
On May 25, 2018, R.E.D. filed a motion to dismiss the charges against him. R.E.D. argued that a retrial would violate his right to be free from double jeopardy. In Kinard v. State, 495 So. 2d 705, 707 (Ala. Crim. App. 1986), the Court of Criminal Appeals stated:
R.E.D. argued that, although "a retrial is not barred by the prohibition against double jeopardy ..., an exception to the rule is when the actions were intended to goad the defendant into moving for a mistrial." Specifically, R.E.D. argued:
"[T]he actions of the [State] in allowing the alleged victim to take the stand with notes that were not provided to defense counsel, nor made known to the court, knowing that such activity is a direct violation of the rules of discovery, evidence and trial conduct, was done in an effort to goad [R.E.D.] into requesting a mistrial."
R.E.D. requested that the trial court dismiss the charges against him or, in the alternative, set the matter for a jury trial "to allow a jury to make a determination of the factual issue of whether the conduct in the first trial was intentionally designated to provoke a mistrial." R.E.D. did not submit any evidence in support of his motion. On May 29, 2018, the trial court denied R.E.D.'s motion.
On June 1, 2018, R.E.D. filed a motion requesting that the trial court reconsider its ruling. Citing Ex parte Adams, 669 So. 2d 128 (Ala. 1995), R.E.D. again requested that he be granted a jury trial "to determine the factual issue of whether the conduct was intentionally designated to provoke a mistrial." Once again, R.E.D. did not submit any evidence in support of his motion. On June 6, 2018, the trial court denied R.E.D.'s motion.
On July 10, 2018, R.E.D. filed a petition for a writ of mandamus in the Court of Criminal Appeals, requesting that that court vacate the trial court's denial of his motion for a jury trial and order the trial court to conduct a jury trial "to determine the factual issue of whether the conduct, which caused a mistrial in the first trial, was intentional thereby invoking the defense of double jeopardy."
On September 26, 2018, the Court of Criminal Appeals issued an order granting R.E.D.'s mandamus petition and ordering that the trial court "afford R.E.D. a trial by jury pursuant to Rule 15.4(b), Ala. R. Crim. P., on the question of whether the [State] intentionally and improperly acted so as to provoke a mistrial." Ex parte R.E.D. (No. CR-17-0984, September 26, 2018). The State filed an application for rehearing, which was ultimately denied on May 10, 2019.
On May 17, 2019, the State filed a petition for certiorari review with this Court, which we granted on August 8, 2019, to determine whether the Court of Criminal Appeals' decision is in conflict with Ex parte Adams, 669 So. 2d 128 (Ala. 1995), or Pettibone v. State, 91 So. 3d 94 (Ala. Crim. App. 2011).
The State argues that the Court of Criminal Appeals' decision is in conflict with Ex parte Adams and Pettibone. We find the State's argument convincing, and we reverse the Court of Criminal Appeals' judgment.
In Pettibone, after his first trial ended in a mistrial, Bryan Pettibone was convicted in a second trial of numerous counts of enticing a child for immoral purposes, second-degree sexual abuse, and attempted second-degree sexual abuse. During the course of Pettibone's first trial, one of the victims of Pettibone's criminal conduct offered testimony that Pettibone was unaware would be presented. After the victim testified and was cross-examined, Pettibone filed a motion for a mistrial, arguing that he had no notice that the victim would offer the particular testimony she offered and arguing that the testimony was highly prejudicial. The prosecutor stated that the victim informed him the day of the trial that she was going to offer the disputed testimony, but the prosecutor failed to inform Pettibone of this fact before trial. Upon questioning by the trial court, the victim confirmed that she did, in fact, notify the prosecutor on the day of trial about the testimony she would offer. The trial court granted Pettibone's motion for a mistrial.
Pettibone, 91 So. 3d at 101-02. Essentially, Pettibone argued that the prosecutor's "conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Pettibone also "requested that the trial court empanel a jury to determine if the prosecution in Pettibone's first trial did, in fact, goad the defense into moving for a mistrial." Pettibone, 91 So. 3d at 102. The trial court did not grant Pettibone's request for a jury trial on the prosecutorial-intent issue but did conduct a pretrial hearing on Pettibone's motion. The trial court denied Pettibone's motion to dismiss, and the matter proceeded to a second trial on the indictment...
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