State v. Bishop

• Decision Date: 20 December 1971
• Docket Number: No. 896--I,896--I
• Citation: 6 Wn.App. 146,491 P.2d 1359
• Parties: STATE of Washington, Respondent, v. Wallace Glen BISHOP, Appellant.
• Court: Washington Court of Appeals

Page 146

6 Wn.App. 146

491 P.2d 1359

STATE of Washington, Respondent, v. Wallace Glen BISHOP, Appellant.

No. 896--I.

Court of Appeals of Washington, Division 1, Panel One.

Dec. 20, 1971.

Rehearing Denied Jan. 10, 1972.

Review Denied March 21, 1972.

Henry P. Opendack, Seattle, for appellant.

Christopher Bayley, King County Pros. Atty., James Miller, Deputy Pros. Atty., Seattle, for respondent.

FARRIS, Acting Chief Judge.

Mr. Bishop appeals from a conviction on retrial of the crime of second degree assault. In the original proceeding, the trial court upon its own motion and over Mr. Bishop's objection declared a mistrial.

At the first trial, defense counsel advised the court that a deputy prosecuting attorney committed an act which may have been an attempt to threaten or intimidate William Gregory, a proposed defense witness, by suggesting to Mr. Gregory the possibility of his prosecution for assault if he testified. After conducting its own examination of the matter, the trial court was satisfied that the witness had not been threatened or intimidated with prosecution and advised the defense counsel of certain guidelines to be observed in the questioning of the witness. After the state had completed its case and rested, and the defense had called six witnesses, Mr. Gregory was testifying when the events that prompted the declaring of a mistrial occurred. The defense counsel questioned Mr. Gregory as to whether he had been charged with assault and whether he had been 'warned by the state' that he might be charged if he testified at the trial. The state's objection to this second question was sustained and the jury was instructed to disregard it. Immediately, defendant Bishop interjected with 'disregard the truth?' The trial court called for a recess, indicated his thinking about declaring a mistrial, and afforded both parties opportunity to research the question and offer their view. Subsequently, after hearing from counsel, the court indicated to the state that it could move for a mistrial. The state declined, whereupon the court declared a mistrial on its own motion over the objections of the defendant. Appellant thereafter filed a written motion for dismissal of the action. He argued that he had a right to be tried by the jury selected and sworn to try the case and that to do otherwise amounted to double jeopardy. The motion was denied and the cause was reassigned for trial on the same day. A second jury was impaneled and appellant again made the motion for dismissal, both prior to the introduction of evidence and after the state had rested it case. He was subsequently found guilty as charged.

The appeal raises the question of whether Mr. Bishop was entitled to a dismissal of the charge based on the fifth and fourteenth amendments to the United States Constitution; that is, whether his retrial on the same charge violated his constitutional guarantees against double jeopardy in that the trial court declared a mistrial over his objection and in the absence of a request by the state, because of purportedly improper questions by defense counsel. We answer the question in the negative.

The court in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), held that the Fifth Amendment's double jeopardy provision applies to the states through the Fourteenth Amendment due process clause. In discussing the origins of this guarantee, the Benton opinion quotes from Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957):

'(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'

Benton, 395 U.S. at 795, 89 S.Ct. at 2063.

The rationale of the court, first announced in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), is pertinent in deciding the question before us:

(I)n all cases of this nature, 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; . . .

Perez, 22 U.S. (9 Wheat.) at 580.

In Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the trial judge, acting according to his convictions in protecting the rights of the accused, declared a mistrial sua sponte with neither approval nor objection by defense counsel. Mr. Gori's conviction on retrial was appealed based on the Fifth Amendment's double jeopardy provision. The United States Court of Appeals, Second Circuit, United States v. Gori,282 F.2d 43, noted that the trial judge's action was 'overassiduous' and 'premature,' but did not hold the mistrial erroneous or an abuse of discretion. The Supreme Court in a 5--4 decision affirmed, holding that the discretion exercised by the trial judge was within that allowed by the Perez rule. We find that the ruling in Gori disposes of the question here. The statement made by Mr. Bishop in open court and in the presence of the jury, if believed, would indicate that the court was keeping the truth from the jury. The trial court, in its discretion, could properly conclude after hearing arguments from both sides and exercising a deliberate judgment, that the state was prejudiced by the remark and that such prejudice could not be eradicated except by declaring a mistrial.

Mr. Bishop's additional argument that the mistrial was improper because it was declared to 'benefit' the state is not sound. The jury may be discharged and the defendant retried over his objection whenever, taking all of the circumstances into consideration, there is a manifest necessity to do so or the ends of public justice would otherwise be defeated. The Supreme Court in Gori discussed the application of the Perez principle: ¹

Since 1824 it has been settled law in this Court that 'The double-jeopardy provision of the Fifth Amendment . . . does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.' Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Keerl v. State of Montana, 213 U.S. 135, 137--138, 29 S.Ct. 469, 470, 53 L.Ed. 734; see Ex parte Lange, 18 Wall. 163, 173--174, 21 L.Ed. 872; Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199. Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 85--86, 23 S.Ct. 28, 32--33, 47 L.Ed. 79. It is also clear that 'This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served . . .,' Brock v. North Carolina, 344 U.S. 424, 427, 73 S.Ct. 349, 350, 97 L.Ed. 456, and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion. See Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244; cf. Wade v. Hunter, Supra.

(Footnote omitted.) Gori, 367 U.S. at 367, 81 S.Ct. at 1526.

Even when the motion to dismiss has been granted, See Downum v. United States, 372 U.S. 734, 10 L.Ed.2d 100, 83 S.Ct. 1033 (1963); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); and State v. Connors, 59 Wash.2d 879, 371 P.2d 541 (1962); the question is always the same: Is there the presence of extraordinary and striking circumstances which clearlyindicate to a court in the reasonable exercise of its discretion that the ends of substantial justice cannot be obtained without discontinuing the trial. Any type of mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant's consent 'would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.' Jorn, 400 U.S. at 480, 91 S.Ct. at 554.

(A) d...