State ex rel. Bass v. Abbot, 18631

Citation180 W.Va. 119,375 S.E.2d 590
Decision Date08 December 1988
Docket NumberNo. 18631,18631
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia ex rel. Bruce BASS v. The Honorable W. Robert ABBOT.

Syllabus by the Court

1. " 'When a mistrial is granted on motion of the defendant, unless the defendant was provoked into moving for the mistrial because of prosecutorial or judicial conduct, a retrial may not be barred on the basis of jeopardy principles.' Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416, 427 (1982)." State v. Pennington, 179 W.Va. 139, 365 S.E.2d 803 (1987).

2. The determination of "intention" in the test for the application of double jeopardy when a defendant successfully moves for a mistrial is a question of fact, and the trial court's finding on this factual issue will not be set aside unless it is clearly wrong.

G. Ernest Skaggs, Skaggs & Skaggs, Fayetteville, for appellant.

Charles E. King, Jr., Pros. Atty., for appellee.

NEELY, Justice:

Petitioner seeks to prohibit a second trial on a charge of delivering cocaine. At the close of evidence in petitioner's first trial, petitioner's counsel moved the court to dismiss the case with prejudice because the state had provided petitioner with an incorrect date for the offense and petitioner relied on that date to prepare his alibi defense. The trial court found that the misinformation did not result from any intentional act by the prosecutor and granted a mistrial without prejudice.

Petitioner was arrested on 9 August 1987, for delivering cocaine. Although the offense actually took place on 26 June 1987, the arrest warrant stated the date of the offense as 27 June 1987. The complaint for the warrant provided both 26 June 1987, and 27 June 1987 as dates for the offense. The state filed a request for alibi that stated the date of the offense as 18 June 1987. Defense counsel responded ten days before trial as required, with an alibi defense for 27 June 1987, apparently relying on the arrest warrant. The state then filed a motion for a more definite statement of the alibi defense and provided 27 June 1987 as the date. Petitioner's sister testified for the state, and her statement, obtained several months prior to trial and discovered by petitioner, set the date of the offense on 27 June 1987. The report filed by the investigating officer, which was also discovered by petitioner, states that the offense occurred on 26 June 1987.

The trial began on Friday, 6 May 1988, apparently without either side's realizing the discrepancy concerning the date of the offense. The prosecutor said the crime took place on 26 June 1987 in his opening statement. Trooper Hylton, the investigating officer and the state's chief witness, testified on direct and on cross-examination that the crime took place on 26 June 1987. On Monday, 9 May 1988, the state concluded its case in chief, and petitioner presented his defense, which consisted primarily of an alibi for 27 June 1987. Then, in rebuttal, the state called Trooper Hylton who testified once again that the crime took place on 26 June 1987. Petitioner's counsel moved the court to grant a mistrial with prejudice. The trial court found that the confusion over the correct date for the offense resulted from a mistake rather than any deliberate action by the prosecutor. Therefore, the trial court declared a mistrial without prejudice, to which ruling petitioner objected. Petitioner now argues that allowing him to be re-tried would violate the "double jeopardy" provisions of the state and federal Constitutions. 1

In the case of a defendant who successfully moves for a mistrial, the U.S. Supreme Court, in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), held:

But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

456 U.S. at 679, 102 S.Ct. at 2091, 72 L.Ed.2d at 427.

We specifically adopted this standard in State v. Pennington, 179 W.Va. 139, 151-52, 365 S.E.2d 803, 815-816 (1987), where we held that when a mistrial is granted on motion of the defendant, unless the defendant was provoked into moving for the mistrial because of prosecutorial or judicial conduct, a retrial may not be barred on the basis of jeopardy principles. 2 Therefore, the only question in this case is whether the prosecutor intended to provoke petitioner's motion for a mistrial. The determination of intent in such a case is a question of fact, and the trial court's finding on this factual issue will not be set aside unless clearly wrong. Pennington, 179 W.Va. at 151, 365 S.E.2d at 815, note 15, citing U.S. v. Wentz, 800 F.2d 1325 (4th Cir.1986).

The...

To continue reading

Request your trial
4 cases
  • State Of West Va. v. Elswick, 35014.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...trial court's finding on this factual issue will not be set aside unless it is clearly wrong.” Syl. Pt. 2, State ex rel. Bass v. Abbot, 180 W.Va. 119, 375 S.E.2d 590 (1988). 5. “ ‘It is the three-term rule, W.Va.Code, 62-3-21 [1959], which constitutes the legislative pronouncement of our sp......
  • State v. Lee
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 12, 2000
    ...State v. Cochran, 51 Wash.App. 116, 751 P.2d 1194 (Wash.App.), review denied, 110 Wash.2d 1017 (1988); State ex rel. Bass v. Abbot, 180 W.Va. 119, 375 S.E.2d 590 (W.Va. 1988); State v. Quinn, 169 Wis.2d 620, 486 N.W.2d 542 (Wis.App.), review denied, 491 N.W.2d 768 (1992). 13. State v. Colto......
  • State ex rel. Smith v. Olejasz
    • United States
    • Supreme Court of West Virginia
    • November 19, 2021
    ...102 S.Ct. 2083, 2091, 72 L.Ed.2d 416, 427 (1982).’ State v. Pennington, 179 W.Va. 139, 365 S.E.2d 803 (1987)." State ex rel. Bass v. Abbot , 180 W. Va. 119, 375 S.E.2d 590 (1988) ; see also Syl. Pt. 3, in part, State v. Elswick , 225 W. Va. 285, 693 S.E.2d 38 (2010).Second, I would place no......
  • State ex rel. Smith v. Olejasz
    • United States
    • Supreme Court of Virginia
    • November 19, 2021
    ......139, 365 S.E.2d 803. (1987).". . . State ex rel. Bass v. Abbot , 180 W.Va. 119, 375. S.E.2d 590 (1988); see also Syl. Pt. 3, in part,. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT