Robinson v. Com.

• Decision Date: 11 January 1994
• Docket Number: No. 1002-92-2,1002-92-2
• Citation: 439 S.E.2d 622,17 Va.App. 551
• Parties: Earl ROBINSON, v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 622

439 S.E.2d 622

17 Va.App. 551

Earl ROBINSON, v. COMMONWEALTH of Virginia.

Record No. 1002-92-2.

Court of Appeals of Virginia.

Jan. 11, 1994.

Rehearing En Banc Granted March 24, 1994.

Joseph W. Kaestner (Kaestner & Associates, on briefs), for appellant.

Robert B. Condon, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and BENTON and FITZPATRICK, JJ.

FITZPATRICK, Judge.

In a prior opinion, a panel of this Court reversed Earl Robinson's convictions for first degree murder and use of a firearm in the commission of murder. See Robinson v. Commonwealth, 13 Va.App. 574, 413 S.E.2d 885 (1992). The panel held "that a manifest probability exists that the prosecutor's repeated questions, which interjected irrelevant and inflammatory implications about Robinson into the case, prejudiced the jury and denied Robinson a fair trial." Id. at 575, 413 S.E.2d at 885. On remand to the circuit court, Robinson moved to dismiss the charges on the ground that his further prosecution was barred by the double jeopardy clauses of the United States and the Virginia constitutions. After a hearing which included testimony from the Commonwealth's Attorney for the City of Richmond, the prosecutor in the first trial, the trial judge denied the motion. Robinson was again tried and convicted of a lesser offense of second degree murder and the use of a firearm in the commission of the murder. In this appeal, Robinson contends that the trial judge erred in denying his motion to dismiss his charges on double jeopardy grounds. We disagree and affirm the convictions.

" 'The Double Jeopardy Clause is not an absolute bar to successive trials. The general rule is that [it] does not bar reprosecution of a defendant whose conviction is overturned on appeal,' " Cantrell v. Commonwealth, 7 Va.App. 269, 279, 373 S.E.2d 328, 332 (1988), cert. denied, 496 U.S. 911, 110 S.Ct. 2600, 110 L.Ed.2d 280 (1990) (quoting Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984)), save in the limited instance where reversal is required because of insufficient evidence. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); see also United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). "[P]rosecutorial 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." MacKenzie v. Commonwealth, 8 Va.App. 236, 240, 380 S.E.2d 173, 175 (1989) (citing Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089-90, 72 L.Ed.2d 416 (1982)).

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.

Kennedy, 456 U.S. at 676, 102 S.Ct. at 2090 (emphasis added). In so holding, the Supreme Court noted that this "is a narrow exception to the rule that the Double Jeopardy Clause is no bar to retrial." Id. at 673, 102 S.Ct. at 2088.

The generally accepted purpose for this limited exception is to bar "retrials where 'bad-faith conduct by ... [the] prosecutor,' threatens the '[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant." United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976) (citations omitted). In Kennedy, the Supreme Court made it clear that the exclusive focus should not be on the fact of prosecutorial error or on the impact of such error upon a defendant, but only on the intent of the prosecutor in committing the error. ¹ Fields v. State, 96 Md.App. 722, 742, 626 A.2d 1037, 1047 (1993). Accordingly, Robinson, who has the burden of proving that the second prosecution is barred by double jeopardy, ² must produce sufficient evidence to allow the court to infer "the existence or nonexistence of intent from objective facts and circumstances." Kennedy, 456 U.S. at 675, 102 S.Ct. at 2089.

The trial judge found that "it was [not] intentional on [the prosecutor's] part to get a mistrial." At a hearing on remand, the prosecutor testified concerning the objective facts surrounding the events that caused the mistrial. Evidence was also adduced concerning the prosecutor's expertise and experience. Robinson's evidence consisted of testimony from two experienced criminal trial attorneys who had examined the record in the first trial. In finding that the prosecutor did not intend to cause a mistrial, the trial judge relied upon the prosecutor's representations about his intent, the prosecutor's credibility as a witness and the strength of the Commonwealth's evidence at the first trial. ³ The trial judge, in ruling on Robinson's motion, held:

I think from watching him [the prosecutor] testify, I think he is sincere in his error. ... I am convinced that Mr. Morrissey [the prosecutor] is wrong in the law. He did, he has testified that he had six witnesses to testify as to the drug trafficking. I don't know whether they had ever been read in the trial even though he was drug trafficking. I am convinced with Mr. Morrissey, it's the same old thing where lawyers make the other side look as bad as they can and how do they help [their] side? If you can't bring that person and bring the others down to your level? I don't think it was an attempt on his part to get a mistrial. ... I don't believe it was intentional on his part to get a mistrial.

The record shows that the Commonwealth's evidence at the first trial included eyewitness testimony from several witnesses who observed Robinson approach the victim, pull his gun and start shooting. Thereafter, Robinson ran from the scene. The Commonwealth's witnesses all testified that the victim did not have a gun. Robinson admits that he fatally shot the victim. He claimed, however, that the shooting was in self-defense. That defense was seriously undermined by the Commonwealth's witnesses, including testimony elicited from a police officer who had taken a statement from Robinson on the day of the fatal shooting. The officer testified that Robinson, in response to the question, "did anybody else have any weapons," replied:

Yes, sir. I fired and they started running so I don't know what they had. They had to come back and take his [the victim's] gun.

The Commonwealth attorney then inquired of the officer:

Now, had you ever, during that meeting, had you ever discussed the fact whether or not the victim, William Jordan, had a gun there at his body or did not have a gun?

The officer answered: "No, sir."

We conclude that the judge, who was the original trial judge in this matter, properly considered the relative strengths and weaknesses of each party's case in the first trial, the credibility of the witnesses at the subsequent hearing on the double jeopardy plea, and other attendant circumstances. "[T]he question of whether prosecutorial misconduct was intended to provoke the defendant into seeking a mistrial is a factual question that is appropriately decided by the trial court." State v. Diaz, 521 A.2d 129, 133 (R.I.1987) (holding prosecutor's significant failure to disclose important discovery information required reversal of murder conviction, but did not bar retrial). The prosecutor's intent is a question of fact for the trial court to resolve. ⁴ In order to grant Robinson's plea of double jeopardy, the facts must warrant the conclusion that there was an instigative intention to subvert the protections afforded by the Double Jeopardy Clause. Williams v. State, 207 Ga.App. 124, 125, 427 S.E.2d 59, 60 (1993) (citations omitted).

The only explanation that the prosecutor offered for injecting clearly improper issues at the first trial was his belief that, for impeachment purposes, the jury should be informed of Robinson's alleged "reputation for trafficking narcotics," and that he believed such information was admissible:

Under the theory that [defense counsel] opened the door, it would be perhaps a collateral matter, but [defense counsel] opened the door to what [Robinson] was doing over there [at the scene of the shooting] and I was able to pursue it.

As explained in our prior opinion, the prosecutor's conduct was highly improper; therefore, we reversed the conviction and remanded the case. Without the requisite intent, however, gross prosecutorial misconduct will not satisfy the exception set forth in Kennedy.

Many of the prosecutorial errors that trigger mistrials and reversals consist of grossly negligent and even deliberate conduct. The law has never looked upon the declaration of a mistrial and the appellate reversal as mild slaps upon the wrist, but has treated them as rigorous means for redressing even grossly negligent and deliberate misconduct. ... [O]ur constitutional law has always permitted a retrial following such mistrial or reversal.... When the prosecution suffers a mistrial or an appellate reversal, it is considered to have suffered a stern rebuke in terms of lost days, lost dollars, lost resources of many varieties and the lost opportunity to make the conviction stick. It is only in the Machiavellian situation where the prosecutor deliberately courts a mistrial that the normal sanctions are self-evidently inadequate. A scheming prosecutor cannot be rewarded by being handed the very thing toward which he connived. For all other error, it is certainly not a condonation of misconduct simply to determine that, among the arsenal of sanctions, the sanction for such misconduct is a sanction other than the double jeopardy bar.

Fields, 626 A.2d at 1048 (citations omitted).

Other states have similarly held that serious prosecutorial misconduct, while justifying a mistrial or reversal of...