State v. Aguilar

• Decision Date: 10 April 1972
• Docket Number: No. 56675,No. 2,56675,2
• Citation: 478 S.W.2d 351
• Parties: STATE of Missouri, Respondent, v. Richard Herman AGUILAR, Appellant
• Court: Missouri Supreme Court

Page 351

478 S.W.2d 351

STATE of Missouri, Respondent, v. Richard Herman AGUILAR, Appellant.

No. 56675.

Supreme Court of Missouri, Division No. 2.

April 10, 1972.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Philip H. Schwarz, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; John J. Cosgrove, Public Defender, of counsel.

STOCKARD, Commissioner.

Appellant was found guilty by a jury of burglary in the second degree, and sentenced by the court, the habitual criminal act being charged and found applicable, to imprisonment for a term of ten years with credit for the time he was confined in jail.

The sufficiency of the evidence is not challenged but we shall briefly outline the circumstances. A jury reasonably could find that about 2:30 o'clock of the morning of March 24, 1970, Police Officers Welch and Eber investigated an alarm at the Smith-Grieves Printing Company in Kansas City. The officers saw appellant and Gilbert Aguilar, appellant's brother, run from the building. They did not stop when ordered to do so, and the officers shot at them and both were wounded and apprehended. The building had been broken into.

Appellant's trial began in the Circuit Court of Jackson County on December 28, 1970. During the cross-examination of Officer Welch counsel for appellant asked him: 'And it's a fact, is it, that Gilbert Aguilar had to have his leg amputated as the result of the shot you fired into it?' An objection was sustained, and the court stated that the amputation of the leg of Gilbert Aguilar had nothing to do with the impeachment of the witness. Thereafter counsel for appellant asked Officer Welch if he had testified in the trial of Gilbert Aguilar. The State again objected and requested a protective order forbidding inquiry into this irrelevant area. The order was not made, but the court stated: 'I am sure counsel is aware that the outcome of another trial has no bearing on the issues of this matter.' Following this counsel for appellant asked: 'Now, the case against Gilbert Aguilar was dismissed, wasn't it" The question was not answered. The State objected and requested a mistrial. After a recess the court granted the mistrial, and made this statement in explanation:

Let the record show that the Court has considered the State's motion for a mistrial and it's the Court's feeling that the question with reference to a companion case having been dismissed is so prejudicial to the State's case that there would be no relief that could erase the matter from the minds of the jury and that it's a matter that is sufficiently prejudicial that in the Court's discretion the Court is sustaining the State's motion for a mistrial.

The trial of appellant before a different jury was started the following day, over the objection of appellant, and as previously noted, the jury returned a verdict of guilty of burglary in the second degree.

Appellant's first point is that by declaring a mistrial after the jury was sworn in the first trial, and requiring him to be tried before a second jury, he was twice placed in jeopardy for the same offense.

The Fifth Amendment to the Constitution of the United States provides that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb,' and in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, it was held that the guarantee of the Fifth Amendment against double jeopardy is enforceable against the states through the Fourteenth Amendment. Although Missouri could be Constitution or statute, be more restrictive than the requirement of the Fifth Amendment, as construed by the federal courts, the Fifth Amendment requirements are the minimum permissible standards. The provision of Art. I, § 19, Constitution of Missouri, V.A.M.S. that 'nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury,' does not strictly apply since appellant was not acquitted by a jury, but 'the common-law rule that no person shall for the same offense be twice put in jeopardy is in force in this state * * *, and precludes a second conviction and punishment for the same offense.' State v. Toombs, 326 Mo. 981, 986, 34 S.W.2d 61, 63. We find no readily discernible difference between the Fifth Amendment guarantee against double jeopardy and he common law gurarantee as applied in this State. State v. Richardson, Mo., 460 S.W.2d 537.

The prohibition against placing a defendant 'twice in jeopardy' represents a constitutional policy of finality for the defendant's benefit, but as stated in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, 'A criminal trial is, even in the best of circumstances, a complicated affair to manage,' and it was held in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, that 'a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.' The United States Supreme Court, for the most part, has declined 'to formulate rules based on categories of circumstances which will permit or preclude retrial.' United States v. Jorn, supra. In United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165, as early as 1824, the United States Supreme Court stated:

* * * the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the geatest caution, under urgent circumstances, and for very plain and obvious causes; * * * But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

The double jeopardy clause does not guarantee a defendant that in all circumstances the government will be prepared to vindicate the social interest in...