Porter v. Ferguson

• Decision Date: 21 December 1984
• Docket Number: No. 16393,16393
• Citation: 324 S.E.2d 397,174 W.Va. 253
• Parties: Phillip M. PORTER v. Hon. Alfred E. FERGUSON, Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 397

324 S.E.2d 397

174 W.Va. 253

Phillip M. PORTER v. Hon. Alfred E. FERGUSON, Judge, etc., et al.

No. 16393.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1984.

Syllabus by the Court

1. Midtrial discharge of a jury at the behest of the prosecution and over the objection of a defendant is generally not favored.

2. Unless the occasion for mistrial is a manifest necessity beyond the control of the prosecutor or judge, the prosecution should not be permitted to move for and obtain a mistrial.

3. The determination of whether "manifest necessity" that will justify ordering a mistrial over a defendant's objection exists is a matter within the discretion of the trial court, to be exercised according to the particular circumstances of each case.

4. Improper conduct of defense counsel which prejudices the State's case may give rise to manifest necessity to order a mistrial over the defendant's objection.

John J. McOwen, Huntington, Ronald J. Flora, Milton, for appellant.

Chauncey Browning, Atty. Gen., Andrew Lopez, Asst. Atty. Gen., Charleston, for appellee.

HARSHBARGER, Justice:

Phillip M. Porter petitions for prohibition to prevent the Circuit Court of Cabell County from retrying him for first degree murder. He asserts that because the trial court erroneously declared a mistrial in a previous proceeding on the same charge, retrial is barred by double jeopardy.

In January, 1982, Porter was indicted on two counts of first degree murder. His motion for severance was granted, the State elected to try him on Count I, and in March, 1982, a jury acquitted him.

In September, 1982, Porter moved that Count II be dismissed on double jeopardy grounds. The motion was denied, he was tried on that count in August, 1983, the jury was unable to reach a verdict, and a mistrial was declared.

Porter's second trial on Count II commenced January 17, 1984. The State successfully moved in limine to prevent inquiry into a previous arrest of a key prosecution witness on charges unrelated to those against Porter. During cross-examination of this witness, however, defense counsel asked her, "Were you not arrested on anything?" Before the witness could answer, the trial court intervened. The prosecutor objected that the question violated the in limine order and, out of the presence of the jury, moved for a mistrial. The court sustained the objection and admonished defense counsel to limit his inquiry to prior convictions, but took the motion for a mistrial under advisement and adjourned until the next day.

Due to a snowstorm, however, resumption of the trial was delayed until January 19, 1984, when the State's motion was taken up in chambers. There was further discussion about the bounds of permissible inquiry, and the court admonished defense counsel to comply with its rulings or face contempt charges. The State then withdrew its mistrial motion.

Cross-examination of the same witness was resumed and defense counsel began questioning her about interviews she had given the police. In response to one question, the witness volunteered that she had been arrested. Defense counsel then asked, "What for?". The court immediately intervened, refusing to allow the witness to answer the question. After a discussion out of the presence of the jury, the State again moved for a mistrial. The motion was granted over Porter's objections.

Porter asks us to prohibit another trial on Count II because there was no manifest necessity for the declaration of a mistrial, and he will be doubly jeopardized.

The double jeopardy clauses of the Fifth Amendment to the federal Constitution and Article 3, Section 5 of the West Virginia Constitution ¹ protect an accused from repeated prosecutions or multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979). Jeopardy attaches when a jury has been impaneled and sworn, ² and embraces a defendant's "valued right to have his trial completed by a particular tribunal," ³ and is a consideration in midtrial terminations. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

Midtrial discharge of a jury at the behest of the prosecution and over the objection of a defendant is generally not favored. See, e.g., Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

As a result of the concern that harassment may occur where the state is allowed to seek mistrials, it has generally been held that if the prosecutor seeks and obtains a mistrial, or if one is declared sua sponte by the trial court for trial error by the state, then the defendant is entitled to the bar of double jeopardy on a retrial. Downum v. United States, supra; United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).

State ex rel. Betts v. Scott, W.Va., 267 S.E.2d 173, 179 (1980).

"Unless the occasion for mistrial is a manifest necessity beyond the control of the prosecutor or judge, the prosecution should not be permitted to move for and obtain a mistrial." Id.

The determination of whether "manifest necessity" that will justify ordering a mistrial over a defendant's objection exists is a matter within the discretion of the trial court, to be exercised according to the particular circumstances of each case. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); State v. Little, 120 W.Va. 213, 197 S.E. 626 (1938). It is neither possible nor desirable to define all the circumstances which will support a finding of manifest necessity.

It has been recognized, however, that in the trial court's exercise of its discretion, "unquestionably, an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process." United States v. Jorn, 400 U.S. 470, 486-487, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). Consequently, a general rule has evolved to the effect that improper conduct of defense counsel which prejudices the State's case may give rise to manifest necessity to order a mistrial over the defendant's objection. Arizona v. Washington, supra; United States v. Dinitz, supra; Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976); Walsh v. State, 418 So.2d 1000 (Fla.1982); Strawn v. State ex rel. Anderberg, 332 So.2d 601 (Fla.1976); Abdi v. State, 249 Ga. 827, 294 S.E.2d 506 (1982); State v. Aguilar, 478 S.W.2d 351 (Mo.1972); State v. Palmieri, 28 Ohio L.Abs. 398, 13 Ohio Ops. 517, 46 N.E.2d 318 (1938).

In those circumstances, a defendant's "valued right" to be tried by a particular tribunal has been held to be "subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." ⁴ (Footnote omitted.) Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830.

The ultimate determination in deciding whether improper conduct of counsel rises to the level of manifest necessity to warrant midtrial discharge of a jury over a defendant's objection is whether the jury has been so prejudiced as to deprive the State of a fair opportunity to try the defendant. That is peculiarly within the trial court's sound discretion. ⁵ See Braxton v. Commonwealth, 195 Va. 275, 77 S.E.2d 840 (1953). Accordingly, "the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper [conduct]." Arizona v. Washington, 434 U.S. at 511, 98 S.Ct. at 833.

This standard of review is less stringent than that required when a prosecution's motion for mistrial is motivated by a desire to buttress weaknesses in its case. ⁶ However, as the Supreme Court stated in Arizona v. Washington, supra:

Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred. The adoption of a stringent standard of appellate review in this area, therefore, would seriously impede the trial judge in the proper performance of his 'duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop ... professional misconduct. [United States v. Dinitz, 424 U.S.] at 612, 96 S.Ct., at 1082. (Footnote omitted.)

434 U.S. at 513, 98 S.Ct. at 834.

Of course, the trial court's discretion in this regard is not unlimited. He

"must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." United States v. Jorn, 400 U.S. at 486, 91 S.Ct. at 558 (Harlan, J.).

Id. at 514, 98 S.Ct. at 835.

Thus, when the trial court acts irrationally, irresponsibly or precipitately in response to a prosecutor's motion for a mistrial, such action will not be condoned, and double jeopardy will bar a retrial of the accused for the same offense.

We cannot say that this trial court abused its discretion in granting the State's motion for a mistrial. The record reveals that Porter's lawyer tried to impeach a key prosecution witness by asking her if she had ever been arrested for anything. The inquiry was not only improper, ⁷ but was also in direct violation of the limine ruling. Defense counsel was admonished, not once, but twice, against inquiring into the witness' prior arrests, and threatened with contempt if he...