State v. Fitzpatrick

• Decision Date: 11 September 1984
• Docket Number: No. 65564,65564
• Citation: 676 S.W.2d 831
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David FITZPATRICK, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 831

676 S.W.2d 831

STATE of Missouri, Plaintiff-Respondent, v. David FITZPATRICK, Defendant-Appellant.

No. 65564.

Supreme Court of Missouri En Banc.

Sept. 11, 1984.

Rehearing Denied Oct. 9, 1984.

Henry Robertson, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Frank Rubin, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GUNN, Judge.

Defendant-appellant appeals his conviction for forcible rape, a violation of § 566.030, RSMo Cum.Supp.1983.

The primary issue on appeal concerns double jeopardy. Defendant was convicted in the case involved in this appeal after his first trial on the same charge ended in a mistrial. The mistrial was granted on defense counsel's motion, but there is some dispute as to whether defendant agreed with his counsel's action.

Prior to the second trial, defendant moved to dismiss the information alleging that the second trial was barred by the Double Jeopardy Clause, U.S. Const. amend. V. The motion to dismiss was overruled. The second trial resulted in conviction, and defendant was sentenced to thirty years imprisonment as a persistent offender. Section 558.016, RSMo 1978.

The Eastern District affirmed the conviction. Upon proper application, transfer to this Court was granted, and we consider the case as on original appeal. Rules 83.03 and 83.09.

We affirm the judgment of conviction.

Defendant does not challenge the sufficiency of the evidence to support his conviction. It is therefore unnecessary to review the circumstances of the rape itself. It is enough to note that there was substantial evidence that defendant had indeed raped the prosecutrix.

The appeal raises two points: 1) that the second trial violated the Double Jeopardy Clause, in that defendant did not consent to his attorney's request for a mistrial in the prior prosecution; and, 2) that there was insufficient evidence identifying him as a prior offender.

During the presentation of the state's case in the first trial, a stack of exhibits which had been identified and received into evidence was passed to the jury by the prosecutor. Among these accepted exhibits was a police laboratory report. However, inadvertently attached to the lab report was a police report which had not been admitted into evidence. The prosecutor discovered the error and immediately brought it to the trial court's attention. It is conceded that the passing of the police report to the jury was completely unintentional. Inquiry was then made of the jurors as to whether any had read the police report, and nine responded affirmatively.

The following colloquy ensued between the trial court and counsel at the bench:

THE COURT: Did you talk to your man by this time?

MR. STRAGAND [defense counsel]: Yes sir, I did. We are not going to be able to work it out.

THE COURT: It is a mutual thing, apparently?

MR. STRAGAND: Judge, are you going to declare a mistrial?

THE COURT: Well, you haven't moved. That is the reason I turned it over to you.

MR. STRAGAND: Well, Judge, I would say that, so we make it clear on the record, we have had some off-the-record discussions, and what had happened earlier was that an exhibit had been passed to the jury, and attached to this was a police report. These were State's Exhibits that were passed by Mr. Hoag, and I do not say that Mr. Hoag passed these intentionally; however, they, through gross negligence, did end up in the jury's hands.

MR. HOAG [prosecuting attorney]: Gross negligence? I will make my record, Judge.

MR. STRAGAND: And through Mr. Hoag's gross negligence, at least nine members of the jury have seen, and most of them have read thoroughly the police report which was not admitted into evidence. In fact, it would be inadmissible hearsay. I believe that my client has a right to a trial with this particular jury because we have proceeded to trial. The State has placed all its evidence on, and my defendant has gone through the anxiety, embarrassment of a trial for two days now, and he would very much like to proceed to trial with this jury. However, based upon what has happened, and I will base my motion on United States v. Kessler, [530 F.2d 1246 (5th Cir.1976) ] which is the Fifth Circuit United States Appellate Court decision 1976. On the basis of that case I will make a Motion for Mistrial.

After some further argument concerning the inadvertence of the prosecutor's error and the failure of defense counsel to discover the report, the trial judge inquired if defense counsel was "asking, on behalf of the defendant, for a mistrial," to which counsel responded, "Yes."

The trial court granted the mistrial and then made it clear that he did not think the prosecutor was guilty of any intentional misconduct, concluding: "The defendant has asked for the mistrial and the Court is granting the mistrial on his request."

It is in this factual context that defendant raises his double jeopardy challenge to his reprosecution following mistrial. However, it is also important to note that defendant's motion to dismiss prior to the second trial was based solely on the contention that retrial was barred as a result of "gross negligence" on the part of the prosecution. The same allegation was pressed in his motion for new trial following his conviction. For the first time on appeal, defendant argues that the mistrial was ordered by the trial court sua sponte and that the trial court was therefore required to make an explicit finding of "manifest necessity" for the mistrial in order for reprosecution to be permissible. This contention will therefore be considered as a matter of plain error, Rule 30.20.

In reviewing for plain error, the relevant question is whether the record demonstrates error "which so substantially affects the rights of the accused that a 'manifest injustice or miscarriage of justice inexorably results if left uncorrected.' " State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983), quoting State v. Miller, 604 S.W.2d 702, 706 (Mo.App.1980).

Since defendant's complaint is not addressed to the propriety of the mistrial itself, our attention focuses on the denial by the second trial court of defendant's motion to dismiss. It is this ruling which is to be judged under the plain error standard of review.

The Double Jeopardy Clause of the fifth amendment protects a criminal defendant from repeated prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Concomitant with this protection is the defendant's "valued right to have his trial completed by a particular tribunal." Id. at 671-72, 102 S.Ct. at 2087, quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Thus, a defendant's right to be free from a subsequent prosecution for the same offense "attaches," or becomes effective, at the time the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2160, 57 L.Ed.2d 24 (1978). Following the attachment of jeopardy, if a mistrial is declared and the jury discharged, a defendant may be retried only in one of two distinct sets of circumstances.

The first is that the mistrial is declared by the trial court without the defendant's request or consent, but only after "a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings." United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976), quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). This rule expresses the "manifest necessity" doctrine first espoused in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 194 (1824). Id. The prototypical example of "manifest necessity" sufficient to remove the double jeopardy bar in a case of a court-declared mistrial is the jury's declaration that it is unable to reach a verdict. Oregon v. Kennedy, 456 U.S. at 672, 102 S.Ct. at 2087.

In contrast, if a mistrial is declared at defendant's request or with his consent, reprosecution will ordinarily not be barred. United States v. Bobo, 586 F.2d 355, 362 (5th Cir.1978). Yet, if the defendant has requested the mistrial, double jeopardy will bar reprosecution if the request is motivated by governmental conduct which is "intended to 'goad' the defendant into moving for a mistrial." Oregon v. Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089.

Defendant has abandoned his claim that the prosecutor's error was either conscious or reckless. Instead, his contention is that the mistrial was declared without his request or consent, thereby implicating the Perez "manifest necessity" doctrine. Defendant's argument is based upon the portions of the transcript recited above. From those excerpts, defendant argues that he and his counsel were in disagreement over the decision whether to request a mistrial and that, therefore, it is evident that defendant, as opposed to his counsel, neither requested nor consented to the discharge of the jury. But defendant's characterization of the record is not so free from murk as he suggests.

The first portion of the transcript relied on by the defendant is the following exchange between the trial judge and defense counsel:

THE COURT: Did you talk to your man by this time?

MR. STRAGAND: Yes sir, I did. We are not going to be able to work it out.

This latter comment by counsel, especially when read in context, is enigmatic at best. It is unclear who "we" refers to, and even less apparent what they are not going to be able to work out. While the comment may indicate a disagreement between defense counsel and his client, as defendant now suggests, it may equally pertain to the inability of defense counsel and the prosecution to come to terms. We are constrained by the record, and attempts at clarification by present counsel must not be heeded. Pretti v. Herre, 403 S.W.2d 568, 569 (Mo.1966).

Furthermore, we review the second trial court's denial of defendant's motion to dismiss...