State ex rel. Betts v. Scott

• Decision Date: 04 June 1980
• Docket Number: No. 14707,14707
• Citation: 267 S.E.2d 173,165 W.Va. 73
• Parties: STATE ex rel. Kenard BETTS v. The Honorable George M. SCOTT, Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 173

267 S.E.2d 173

165 W.Va. 73

STATE ex rel. Kenard BETTS v. The Honorable George M. SCOTT, Judge, etc., et al.

No. 14707.

Supreme Court of Appeals of West Virginia.

June 4, 1980.

Syllabus by the Court

1. Where, in a criminal case, the defendant moves for a mistrial on the basis of reversible error not arising from evidentiary insufficiency or prosecutorial or judicial overreach and the mistrial is granted, jeopardy does not ordinarily bar a retrial, because the mistrial motion is functionally equivalent to an appeal based on the same trial error.

2. "The Double Jeopardy Clause of the Federal and this State's Constitutions forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Syllabus Point 4, State v. Frazier, W.Va., 252 S.E.2d 39 (1979).

3. "An act of the Legislature which repeals and simultaneously re-enacts a statute relating to a specific offense does not interrupt the continuous force of such statute, and an indictment thereunder may validly charge a 'second offense', even though the conviction of the alleged 'first offense' occurred prior to such repeal and re-enactment." Syllabus Point 1, State v. Mason, 141 W.Va. 217, 89 S.E.2d 425 (1955).

Alan H. Simms, Elizabeth, for petitioner.

Chauncey H. Browning, Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for respondents.

MILLER, Justice:

The principal question presented by this original proceeding in prohibition is whether double jeopardy principles bar a reprosecution where the first trial was ended by the defendant's motion for mistrial. The basis for the mistrial here was the failure of the prosecution to comply completely with our evidentiary rules regarding the admissibility of relator's blood alcohol test. A question is also raised as to the validity of the conviction under our statute relating to second offense drunk driving.

On May 16 and 19, 1978, relator Kenard Betts was tried in the Circuit Court of Calhoun County for the offense of driving a motor vehicle "while . . . under the influence of alcohol." W.Va.Code, 17C-5-2(a)(1). The indictment charged Betts with a second offense of drunk driving under W.Va.Code, 17C-5-2(d), which carries an enhanced penalty.

At trial the State sought to establish that Betts, while intoxicated, backed a pickup truck across a highway Route 16 between Grantsville and Millstone causing a chain reaction collision with two parked automobiles. He then caused the truck to careen into a guardrail and knock over a mailbox. The truck finally stopped in the middle of the road.

In order to prove intoxication, the prosecutor relied in part upon the testimony of local residents, who stated with varying degrees of certainty that Betts appeared intoxicated. The prosecutor's remaining evidence consisted of a blood test administered by qualified personnel of a local hospital at the direction of the Grantsville policeman who arrested the defendant. ¹

A State Police chemist testified that his examination of the blood sample purportedly taken from Betts resulted in a finding of an alcoholic content of "0.28% . . . by weight." ²

At the conclusion of the State's case, Betts moved for a directed verdict on the grounds that the lay opinion evidence of intoxication was "equivocal" and that the results of the blood analysis were inadmissible. The trial judge declined to grant a directed verdict, stating that even in the absence of blood test evidence, the lay opinion evidence was "sufficient to create a prima facie case." The judge went on to state, however, that he was "bother(ed)" that the State had not proved, in accordance with W.Va.Code, 17C-5A-5, that the chemical analysis of the defendant's blood had been "performed in accordance with methods and standards approved by the state department of health." ³ He also recognized that under this Code section and State v. Dyer, W.Va., 233 S.E.2d 309 (1977) (see State v. Hood, 155 W.Va. 337, 184 S.E.2d 334 (1971)), compliance with such methods and standards is necessary "in order to give rise to the presumptions or to have the effect provided for in subdivisions (a), (b) and (c) of this section." The trial judge informed defense counsel that "if the blood tests are improperly admitted, you have grounds for mistrial." Following a recess, defense counsel made the motion for mistrial, and the trial court granted the motion. ⁴

I

In any discussion of the broad topic of double jeopardy, it is important to keep in mind that double jeopardy is composed of a number of different principles. ⁵ Despite the deceptively simple statement in the Fifth Amendment to the United States Constitution, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," ⁶ double jeopardy has evolved from rather simple and harsh English common law origins to a complex constitutional question in this Country.

The question presented in this case whether double jeopardy can be asserted on retrial where the first trial terminated in midtrial as the result of a defense motion for mistrial was largely unknown in the English common law. This was because in English common law, the right to claim jeopardy arose by virtue of the pleas in bar of autrefois acquit and autrefois convict, which were available only after the first trial had ended in either a conviction or acquittal by the factfinder. Thus, if the trial was broken for any reason before the final judgment of acquittal or conviction, a jeopardy plea was not available and a retrial could occur. ⁷

Notwithstanding the English rule, the United States Supreme Court has considered jeopardy to be implicated on a midtrial break. The classic formulation of the initial exception to the bar of jeopardy on midtrial terminations is found in Justice Story's opinion in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), where a "manifest necessity" resulting from a hung jury was deemed sufficient to abort the trial and permit a retrial. ⁸

In a series of cases, the United States Supreme Court has sought to establish guidelines as to what type of midtrial terminations will trigger double jeopardy so that a retrial is barred. The manifest necessity exception that will forestall jeopardy has evolved to the point that "the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused." Arizona v. Washington, 434 U.S. 497, 508, 98 S.Ct. 824, 832, 54 L.Ed.2d 717, 730 (1978). Moreover, there is the further requirement that before a midtrial break on manifest necessity grounds will be upheld, it must be shown that the trial court explored reasonable alternatives to a mistrial before granting a mistrial. See Arizona v. Washington, supra; United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion); Harris v. Young, 607 F.2d 1081, 1085 (4th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 688, 62 L.Ed.2d 659. It can be generally stated that a manifest necessity ground is one which arises from circumstances not within the control of the prosecution or the court.

Another category of midtrial termination consists of prosecutorial or judicial overreach, which creates a prejudicial climate against the defendant. In this situation, the defendant is entitled to procure a mistrial which will then result in a bar against retrial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976); cf. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). In the overreach area, the focus is upon the bad faith misconduct which has prejudiced or harassed the defendant. Lee v. United States, 432 U.S. 23, 33, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80, 89 (1977). ⁹

Between these two categories lies a third, which has no simple label but involves situations where the basis for mistrial is a mistake of law committed by the prosecutor during the criminal proceedings which may or may not actually prejudice the defendant in front of the jury, but which would result in a substantial probability of reversible error if the point were appealed. It is in this area that the most difficulty is encountered, perhaps because there is a tendency to analyze the double jeopardy problem by resorting to psychological or subjective labels, such as protecting the defendant from "embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . . .", Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957), or protecting his "valued right . . . to have his trial completed by the particular tribunal," Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100, 102 (1963).

These beguiling labels tends to obscure the fact that the Double Jeopardy Clause has never been thought to mean that a defendant may never be subjected to more than one trial no matter how complete the first trial, or regardless of the terms upon which it was terminated, and irrespective of whether it was reversed on appeal. ¹⁰ Once it is recognized that there are certain exceptions to the double jeopardy bar, such as manifest necessity and the right to retry if the defendant obtains a reversal on appeal for trial error, it is obvious that the concepts of embarrassment, anxiety and cost to the defendant on a retrial, or his valued right to the same tribunal, are not absolute. This is true because a defendant, retried as a result of his first trial having ended on the ground of a manifest necessity or having been reversed on appeal, has been deprived upon retrial of his valued right to have his case determined by the original tribunal and...