State v. Cochran

• Decision Date: 08 January 1988
• Docket Number: No. 20169-7-I,20169-7-I
• Citation: 751 P.2d 1194,51 Wn.App. 116
• Parties: STATE of Washington, Respondent, v. Corydan COCHRAN, Appellant.
• Court: Washington Court of Appeals

Page 116

51 Wn.App. 116

751 P.2d 1194

STATE of Washington, Respondent, v. Corydan COCHRAN, Appellant.

No. 20169-7-I.

Court of Appeals of Washington Division 1.

Jan. 8, 1988 Review Denied by Supreme Court April 5, 1988.

James Lobsenz, Wolfe & Cullen, Seattle, for appellant Corydan cochran.

Randall J. Watts, Bellingham, for respondent State of Wash.

WEBSTER, Judge.

Corydan Cochran appeals the denial of his motion to dismiss pursuant to CrR 8.3(b) and contends that his right against double jeopardy precludes retrial. We affirm.

Facts

Cochran appealed his conviction of first degree rape and first degree burglary in a personal restraint petition (PRP). One of the issues raised in the PRP was prosecutorial suppression of exculpatory evidence. The Court of Appeals, Division One, considered the matter, then remanded the PRP to Whatcom County Superior Court for a decision on the merits.

On remand, the parties stipulated that the prosecution had knowingly and intentionally withheld from Cochran's attorney and the appellate court the material, relevant and exculpatory fact that the witness had seen a photo of Cochran prior to her in-court identification of him. Detective Kuehnel was the only individual who knew of the photo incident; he suppressed the evidence prior to the jury's verdict. The prosecutor did not learn of the incident until sometime after the verdict had been entered. The parties also stipulated that the witness's credibility was affected, undermined and called into question by the information which the State intentionally withheld. Based upon these stipulated facts, the superior court vacated the judgment and sentence and granted a new trial. The court refused, however, to dismiss the charges with prejudice.

United States Constitution: Double Jeopardy

Cochran seeks relief from reprosecution under the proscriptions of the double jeopardy provisions of the United States and the Washington State Constitutions. We first address Cochran's claim under the United States Constitution.

Where a conviction is reversed on appeal, reprosecution is generally permissible. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); State v. Anderson, 96 Wash.2d 739, 638 P.2d 1205, cert. den'd, 459 U.S. 842, 103 S.Ct. 93, 74 L.Ed.2d 85 (1982). A bar against retrial is appropriate, however, where prosecutorial misconduct is intended to provoke a request for mistrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Although this rule generally applies to mistrials, this exception should apply with equal weight to appellate reversals resulting from prosecutorial misconduct. See United States v. Singer, 785 F.2d 228, 239 (8th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 273, 93 L.Ed.2d 249 (1986); United States v. Opager, 616 F.2d 231, 236 (5th Cir.1980). "The right of a criminal defendant not to be twice placed in jeopardy should not hang on which court correctly determines that misconduct infected the trial." Singer, at 239. See Robinson v. Wade, 686 F.2d 298, 307 (5th Cir.1982); United States v. Curtis, 683 F.2d 769, 774 (3rd Cir.1982), cert. denied, 459 U.S. 1018, 703 S.Ct. 379, 74 L.Ed.2d 512 (1982).

The reprosecution exception for prosecutorial misconduct is well established. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The definition of prosecutorial misconduct, however, has been the source of much confusion. In United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976), the Supreme Court articulated the reprosecution exception under double jeopardy in terms of government actions which tend to provoke mistrial requests. The Court then articulated a more lenient exception

where "bad faith conduct by [the] judge or prosecutor," threatens the "[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant.

(Citation omitted). Dinitz, at 611, 96 S.Ct. at 1081.

Six years later, the Supreme Court clarified the standard in Oregon v. Kennedy, supra. "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089. This standard merely calls for the court to make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances. Kennedy, at 675, 102 S.Ct. at 2089. By contrast, the Supreme Court stated that the broader "bad faith conduct" or "harassment" standard offers little criteria for its application because "[e]very act on the part of a rational prosecutor during a trial is designed to 'prejudice' the defendant by placing before the judge or jury evidence leading to a finding of his guilt." Kennedy, at 674, 102 S.Ct. at 2089. The Court, in explaining why the broader standard should be rejected, stated:

Knowing that the granting of the defendant's motion for mistrial would all but inevitably bring with it an attempt to bar a second trial on grounds of double jeopardy, the judge presiding over the first trial might well be more loath to grant a defendant's motion for mistrial.

Kennedy, at 676, 102 S.Ct. at 2090. ¹

Although onerous, the standard for determining prosecutorial misconduct in light of Kennedy is clear. In order to invoke the protections of the double jeopardy clause, Cochran must show that prosecutorial misconduct was committed with the intent to provoke or goad a mistrial request. Kennedy, at 676, 102 S.Ct. at 2089. A determination of whether certain actions constitute intentional misconduct is a finding of fact which will not be disturbed unless it is clearly erroneous. Robinson, at 309.

In the case sub judice, suppression of exculpatory evidence by the State was discussed at the remand hearing. The court ordered a new trial because disclosure of the exculpatory evidence cast reasonable doubt on the outcome of the trial. The court did not, however, find any evidence of deliberate or intentional prosecutorial misconduct regarding the trial itself. Because the prosecutor did not intend to goad Cochran into moving for a mistrial, the standard enunciated in Kennedy is not met.

Cochran further argues that the court failed to impute the actions of Detective Kuehnel to the prosecutor at the time of the original trial. Assuming arguendo that such conduct had been imputed, it is not misconduct of sufficient magnitude that a double jeopardy bar to retrial would be triggered. Even if the withholding of information had been grounds for a mistrial, the prosecution did not act in a manner calculated to provoke or goad Cochran into requesting a mistrial. Thus, the Kennedy standard remains unsatisfied.

Washington State's Constitution: Double Jeopardy

Application of double jeopardy protections against reprosecution under these circumstances is an issue of first impression in the state of Washington. In State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), "nonexclusive neutral criteria" were used to determine whether the Washington State Constitution should be interpreted more broadly than rights granted to citizens under the United States Constitution. These criteria include: "(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern." Gunwall, at 58, 720 P.2d 808; see State v. Boyce, 44 Wash.App. 724, 728, 723 P.2d 28 (1986). Generally, where language of the federal and state constitutions is similar, the interpretation given by the United States Supreme Court is applied to the state provision. Pasco v. Mace, 98 Wash.2d 87, 96, 653 P.2d 618 (1982). See State v. Davis, 38 Wash.App. 600, 604, 686 P.2d 1143 (1984) (because the state due process clause is virtually identical to the federal due process clause, federal cases are entitled to great weight but do not control).

The language of the federal and state constitutions regarding double jeopardy is virtually identical. The fifth amendment of the United States Constitution provides that "[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb". Washington's State Constitution, article 1, section 9 provides "[no person shall] be twice put in jeopardy for the same offense." Both provisions protect the same interests. See State v. Dykstra, 33 Wash.App. 648, 650, 656 P.2d 1137 (1983).

The Kennedy standard for prosecutorial misconduct has been followed in the majority of circuits. See United States v. Sanchez, 806 F.2d 7 (1st Cir.1986), cert. den'd, --- U.S. ----, 107 S.Ct 1383, 94 L.Ed.2d 697 (1987); United States v. Wentz, 800 F.2d 1325 (4th Cir.1986); Singer, 785 F.2d 228 (8th Cir.1986); United States v. Thomas, 728 F.2d 313 (6th Cir.1984); Robinson, 686 F.2d 298 (5th Cir.1982); Curtis, 683 F.2d 769 (3rd Cir.1982); United States v. Robuck, 690 F.2d 794 (10th Cir.1982); and United States v. Mitchell, 572 F.Supp. 709 (N.D.Cal.1983), aff'd 736 F.2d 1229 (9th Cir. 1984), cert. den'd, 474 U.S. 830, 106 S.Ct. 94, 88 L.Ed.2d 77 (1985). However, some state courts have adopted a standard which is more protective of defendants' rights. In State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1326 (1983), the court held that reprosecution is barred where

improper official conduct is so prejudicial to the defendant that it cannot be cured by means short of a mistrial, and if the official knows that the conduct is improper and prejudicial and either intends or is indifferent to the resulting mistrial or reversal.

Accord Pool v. Superior Court, 139 Ariz. 98, 105, 677 P.2d 261, 268 (1984) (similar to Oregon's standard); Commonwealth v. Murchison, 392 Mass. 273, 465 N.E.2d 256, 258 (1984) (reprosecution is prohibited where...