State ex rel. Kemper v. Vincent
| Decision Date | 16 May 2006 |
| Docket Number | No. SC87246.,SC87246. |
| Citation | 191 S.W.3d 45 |
| Parties | STATE ex rel. Sandra KEMPER, Relator, v. The Honorable David Lee VINCENT, Respondent. |
| Court | Missouri Supreme Court |
Susan K. Roach, Melissa A. Featherston, Shaun M. Falvey, Clayton, for Relator.
Sheila Whirley, John J. Duepner, Office of Prosecuting Atty., Clayton, for Respondent.
Does the constitutional prohibition of double jeopardy bar a second trial after a court-declared mistrial in the first trial? The inquiry in this case centers on whether granting a mistrial was a "manifest necessity."
The state introduced Sandra Kemper's confessions to setting a fatal fire in her home. The confessions came after police told Kemper that she had failed a polygraph test. The trial court permitted Kemper's defense to introduce the results of the polygraph that showed she did not fail it; some of the details of her confession were inconsistent with the physical evidence. The trial court, on its own and over the objections of the defense, granted a mistrial after deciding that admission of the polygraph result was error.
The circumstances of this case show no manifest necessity for a mistrial. A second trial will violate the double jeopardy provision of the United States Constitution.
Kemper's son, Zachariah, was killed in a fire at the family's home in November 2001. Kemper escaped the fire unharmed, as did her husband, her mother, and an adult friend who lived in the home. Investigators determined that the fire, which started in the basement area where Kemper and Zachariah slept, was intentionally set.
Approximately four months after the fire, in March 2002, Kemper was taken into police custody and interrogated for several hours. During the initial interrogation, Kemper repeatedly denied any part in the fire. A police detective administered a polygraph examination, which took nearly three hours. During the pre-examination interview, Kemper stated that she woke up, smelled smoke, and saw three-foot high flames engulfing a mattress between the water heater and the dryer. After calling for Zachariah and receiving no answer, she went upstairs to get a fire extinguisher, forgetting that there was also an extinguisher in the basement. When she tried to go back down the stairs, the smoke was too thick and she could not make it back down.
The detective told Kemper that the polygraph examination would reveal whether she was lying and that if she was telling the truth, she would pass the test. During the polygraph, Kemper denied setting the fire, helping someone else set the fire, or knowing who had set the fire.
After the polygraph, the detective told Kemper that the test had shown that she was lying about not being involved with the fire and that she needed to tell the truth. Kemper made two confessions later that evening, stating that she had planned the fire to obtain insurance payments. She said that, after everyone was asleep, she sprayed the trashcan in the basement with hairspray and set it on fire with her lighter. She then said she watched the fire burn for 20-30 minutes before going upstairs. When she unexpectedly encountered her husband in the kitchen, she got a fire extinguisher and pretended to be trying to put the fire out.
Some of the statements Kemper made in her confessions after the polygraph test were not consistent with the physical evidence. For example, the state's expert testified that it would have been impossible for anyone to remain in the same room with the fire for more than five minutes after it was set.
Kemper was charged with arson, first-degree murder, and three counts of first-degree assault.
Kemper endorsed Dr. David Raskin, an expert on polygraph examinations, as an expert witness. The state filed a "Motion in Limine to Exclude Evidence of Defendant's Polygraph Examination." The trial court overruled the motion and ruled that evidence of the polygraph could be admitted if the state attempted to introduce either of Kemper's confessions.
Before trial, Kemper's attorney requested that the prosecution produce any and all records related to Kemper's polygraph examination. Nothing was produced. During his deposition, the detective denied that he used or had a "polyscore" printout that would detail Kemper's scores.1 The prosecutor subsequently learned that, even if the detective had not used the polyscore, the polygraph equipment would have made such a report. The prosecutor obtained the report and turned it over to Kemper's attorney six days before trial.
At trial, the state played for the jury Kemper's two taped confessions, made following the polygraph test, and the detective's statements that she had failed the polygraph. The state also elicited that the detective had told other police officers that Kemper had shown "signs of deception" on the polygraph.
After this testimony, the trial court judge, outside the jury's presence, stated that he had planned to rule that polygraph results are inadmissible, but that the prosecution had "opened the scope of that issue when you examined this last witness on signs of deception." Thus, the trial court told Kemper's attorney that "through your [expert] witness, you will be able to give — to respond to the signs of deception."
Dr. Raskin, Kemper's expert, then testified as to his interpretation of the polygraph score. Specifically, he said that the results showed an 88 percent probability that Kemper was telling the truth when she denied involvement in the fire. "It clearly was not a deceptive result," Dr. Raskin testified. Later, he confirmed these statements: "very likely she was being truthful when she answered the relevant questions, denying any involvement in the fire, in setting the fire and participating in it."
Dr. Raskin also testified about the behavior of the detective in administering and interpreting the test, as follows:
Q. [By Kemper's attorney]: Okay. Did she pass the test?
A. Yes.
Q. Did he tell her after the test that she failed it?
A. Yes.
Q. And what is the significance of that, from a polygraph science standpoint?
A. Well, he misrepresented the results to her. And it was incorrect. And, therefore, it has a chilling effect on a person, if they are telling the truth, that they are now told that they failed. Especially if it's an important matter like this, and their life may be on the line.
. . .
A. Overall, my opinion is that this was a grossly substandard polygraph examination. It not only violated many of the fundamental procedures that are necessary to conduct a proper polygraph for the purpose of assessing truth or deception, it apparently — and the way it was conducted and the way it was used was designed simply for the purpose of breaking her down and giving her information during the pretest that would make it easier for him to extract a statement from her in which she admitted that she set the fire.
This test was so substandard that I can only think of one other videotape of an examination that I've reviewed that was worse in that regard.
The day after Dr. Raskin testified, the trial court sua sponte revisited the polygraph admissibility issue. The judge said that, when he made his original order, The trial judge then declared a mistrial, sua sponte, over Kemper's objection. The judge stated that there was "manifest injustice" presented by the admission of the polygraph results, so as to justify a sua sponte mistrial. Kemper requested that the court consider less drastic remedies, such as a limiting instruction.
After the mistrial, Kemper filed a motion to dismiss based on double jeopardy. In overruling the motion, the trial court indicated that Kemper's attorney had exceeded the scope of the court's earlier orders by eliciting evidence of the results of the polygraph, not just the fact that the polygraph had been taken. The case was set for retrial, and Kemper filed this petition for writ of prohibition, requesting that the case be dismissed for lack of jurisdiction. This Court granted a preliminary writ, which is now made absolute.
"A mistrial is a drastic remedy, granted only in extraordinary circumstances." State v. Parker, 886 S.W.2d 908, 922 (Mo. banc 1994). Whether to grant a mistrial is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Clover, 924 S.W.2d 853, 856 (Mo. banc 1996). An abuse of discretion occurs when the trial court's ruling "is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988).
A writ of prohibition is appropriate "(1) to prevent the usurpation of judicial power when the trial court lacks jurisdiction; (2) to remedy an excess of jurisdiction or an abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not made available in response to the trial court's order." State ex rel. Proctor v. Bryson, 100 S.W.3d 775, 776 (Mo. banc 2003). A writ of prohibition is appropriate here because the trial court abused its discretion in granting the mistrial and now seeks to act outside its constitutional authority in retrying Kemper.
The results of a polygraph examination generally are inadmissible in Missouri criminal trials. State v. Biddle, 599 S.W.2d...
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