People v. Batts

• Decision Date: 19 May 2003
• Docket Number: No. S101183.,S101183.
• Citation: 68 P.3d 357,134 Cal.Rptr.2d 67,30 Cal.4th 660
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tracy L. BATTS et al., Defendants and Appellants.

134 Cal.Rptr.2d 67

30 Cal.4th 660

68 P.3d 357

The PEOPLE, Plaintiff and Respondent, v. Tracy L. BATTS et al., Defendants and Appellants.

No. S101183.

Supreme Court of California.

May 19, 2003.

Rehearing Denied July 30, 2003.¹

Chris R. Redburn, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant Tracy L. Batts.

Barbara A. Smith, Spring Valley, under appointment by the Supreme Court, for Defendant and Appellant Terrance McCrea.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant Attorneys General, John R. Gorey, Margaret E. Maxwell and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

Steve Cooley, District Attorney (Los Angeles), George M. Palmer, Head Deputy District Attorney, Roderick Leonard and Matthew G. Monforton, Deputy District Attorneys, as Amici Curiae on behalf of Plaintiff and Respondent.

GEORGE, C.J.

After an earlier joint trial on first degree murder indictments ended in mistrial as the result of the prosecution's intentional misconduct, defendants Tracy L. Batts and Terrance McCrea were retried and convicted of those same charges. The Court of Appeal reversed the convictions, holding that the trial court erred by failing to grant defendants' pretrial motions to dismiss on double jeopardy grounds, and remanding with directions to enter judgments of dismissal as to each defendant. We granted review to consider the circumstances under which a prosecutor's intentional misconduct that results in a mistrial precludes retrial on double jeopardy grounds under the Fifth and Fourteenth Amendments to the federal Constitution, and under article I, section 15, of the California Constitution.²

With regard to the federal constitutional double jeopardy issue, the United States Supreme Court held in Oregon v. Kennedy (1982) 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (Kennedy) that under the federal double jeopardy clause a retrial is prohibited following the grant of a defendant's mistrial motion only if the prosecution committed the misconduct with the intent to provoke a mistrial. Applying this standard and deferring, as Kennedy instructs, to the factual findings of the trial court, we conclude that the prosecution in the earlier trial in this matter had no such intent, and that the Court of Appeal accordingly erred in concluding that the trial court should have granted defendants' motion to dismiss under federal double jeopardy principles.

As we shall explain, however, the standard adopted by the federal high court in Kennedy has been widely viewed as unduly narrow and as not fully protective of the interest that the double jeopardy clause was intended to safeguard, and in the two decades since Kennedy was decided a number of state courts have interpreted the double jeopardy guarantee of their own state constitutions as embodying a broader protection. Although the standards adopted in these more recent decisions vary somewhat from one another and, in our view, have their own shortcomings, we agree with the basic conclusion of these courts that instances in which a prosecutor commits misconduct with the intent to provoke a mistrial do not exhaust the circumstances in which a prosecutor's intentional misconduct improperly may defeat the interest that the double jeopardy clause is intended to safeguard.

Accordingly, with regard to the state constitutional double jeopardy issue, we conclude that when prosecutorial misconduct results in a defendant's successful motion for mistrial, the double jeopardy clause of the California Constitution bars retrial in two circumstances. First, as under the federal Constitution, retrial is barred by the state double jeopardy clause when the prosecution intentionally commits misconduct for the purpose of triggering a mistrial. Second, the state double jeopardy clause also may bar retrial when the prosecution, believing (in view of events that occurred during trial) that a defendant is likely to secure an acquittal at that trial, knowingly and intentionally commits misconduct in order to thwart such an acquittal. In the latter circumstance, however, retrial is barred under the state double jeopardy clause only if a court, reviewing all of the circumstances as of the time of the misconduct, finds not only that the prosecution believed that an acquittal was likely and committed misconduct for the purpose of thwarting such an acquittal, but also determines, from an objective perspective, that the prosecutorial misconduct deprived the defendant of a reasonable prospect of an acquittal.

In other words, we conclude that when the prosecution in a criminal case commits misconduct that results in a mistrial, the double jeopardy clause of the state Constitution bars retrial in some circumstances in which the federal Constitution, as construed in Kennedy, supra, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416, does not. It is important to recognize, however, that although we conclude that the state double jeopardy standard is properly protective of a broader range of double jeopardy interests than the standard set forth in Kennedy, as a practical matter retrial is likely to be barred under the state double jeopardy standard only in exceptional circumstances, because the standard we adopt requires not only that the prosecutor subjectively believe that an acquittal was likely when he or she intentionally committed misconduct, but also that a court determine from an objective perspective that the misconduct actually deprived the defendant of the reasonable prospect of an acquittal. The state double jeopardy standard is appropriately stringent, because the normal and usually sufficient remedy for the vast majority of instances of prejudicial prosecutorial misconduct that occur at trial is provided under the federal and state due process clauses, and calls for either a declaration of mistrial followed by retrial, or a reversal of a defendant's conviction on appeal followed by retrial. The remedy mandated by the double jeopardy clause—an order barring retrial and leading to the dismissal of the criminal charges against the defendant without trial—is an unusual and extraordinary measure that properly should be invoked only with great caution. As we shall explain, we further conclude that, under the applicable standard, in this case retrial was not barred by the state double jeopardy clause.

Because we conclude that retrial of defendants was not barred under either the federal or state double jeopardy clause, we reverse the judgment of the [Court of Appeal, which set aside defendants' subsequent convictions on double jeopardy grounds. In light of the Court of Appeal's conclusion on the double jeopardy issue, it did not reach or resolve the additional issues raised by defendants on appeal regarding the conduct of their subsequent trial, and we shall remand the matter to the Court of Appeal to permit it to address those remaining claims.

I

This case was tried three times: in 1998 (a trial in which Batts was the sole defendant, following which a new trial was granted); in late 1999 (a joint trial of both defendants, Batts and McCrea, ending in mistrial); and finally in 2000 (again, a joint trial of both defendants). The first and third trials resulted in first degree murder convictions. Events at the second trial, which as noted ended in a mistrial, give rise to the double jeopardy claim in the present appeal from the convictions and judgment rendered in the third trial.

Brothers Benczeon Jones and Brian Jones were young members of the Atlantic Drive Crips, a criminal street gang in Compton. On September 12, 1997, Benczeon was washing his car in front of an apartment building when defendants Tracy Batts and Terrance McCrea (both older members of the Atlantic Drive Crips gang) and a third man approached him and told him to leave the area, "or something gonna happen."³ Brian came out of his apartment and, together with Benczeon, argued with defendants, who then departed. But defendants soon returned, Batts with a gun in each hand, and McCrea with a single weapon. They fired several shots, killing Brian and wounding Benczeon in the leg.

Brian's girlfriend, Sonique Steward, from her apartment, saw Batts arrive. When she heard shots she ran outside and saw Brian dead and Benczeon prone and bleeding. She testified that Benczeon told her that "Tracy" had shot him, and that she immediately telephoned 911 and reported that Tracy had shot her boyfriend. Two men came upon the scene and dragged Benczeon toward the back of a building. Benczeon told them that defendants were the shooters.

Within hours of the shooting, Batts entered a hospital seeking treatment for a gunshot wound to his right shoulder. Batts was evasive with the officer who interviewed him, stating that he did not know where he had been when he was shot, and that he did not know who shot him. He later told another officer that he had been shot in Long Beach.⁴

When interviewed at the hospital, Benczeon told the police that defendants had shot him. Benczeon also identified Batts from a photographic lineup, but further stated that he was afraid for his family and did not want to testify or otherwise cooperate with the police. Thereafter, Batts's brother paid a visit to Benczeon in the hospital, leaving Benczeon upset and crying. Benczeon stated that Batts's brother had told him not to testify and impliedly had threatened Benczeon's family. In November 1997, Benczeon's 10-year-old brother received a telephone call threatening Benczeon.

Several weeks after the shooting, Benczeon attended a photographic lineup and identified McCrea and again identifed Batts. In January of 1998, McCrea's wife, Leslie Jones, contacted police to report a domestic assault. She informed an officer that McCrea had told her that he had killed persons before—including a "cousin in Compton"...