State v. Hopson

• Decision Date: 14 September 1989
• Docket Number: No. 55885-0,55885-0
• Citation: 778 P.2d 1014,113 Wn.2d 273
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Ervin O'Dell HOPSON, Appellant.

Page 273

113 Wn.2d 273

778 P.2d 1014

The STATE of Washington, Respondent, v. Ervin O'Dell HOPSON, Appellant.

No. 55885-0.

Supreme Court of Washington En Banc.

Sept. 14, 1989.

Washington Appellate Defender, Jesse Wm. Barton, Seattle, for appellant.

Norm Maleng, King County Prosecutor, Robert S. Lasnik, Deputy, Seattle, for respondent.

UTTER, Justice.

Ervin O'Dell Hopson challenges the trial court's denial of his motion to prohibit retrial on the grounds of double jeopardy. He urges the court to interpret Washington's double jeopardy clause, Const. art. 1, § 9, to provide greater protection for defendants than its federal counterpart. The Oregon Supreme Court has enunciated a broader rule based on the provision in the Oregon State Constitution. Because the Washington provision is patterned after Oregon's provision, appellant contends it is appropriate to adopt the Oregon rule for determining when governmental misconduct causing a mistrial bars retrial. At this time, we need not determine the parameters of Washington's double jeopardy provision. The facts of this case would not merit relief under either the federal or the Oregon analysis. Appellant also contends that during his second trial, the trial court erred by refusing to grant his motion for mistrial when a prosecutorial witness again referred to his criminal record. We disagree.

Hopson was charged by information with second degree assault and first degree arson. He conceded he set fire to Theresa Young's (a/k/a Grayson) house, but planned to offer a diminished capacity defense. Trial followed on March 11-13, and 16, 1987, before Judge Richard M. Ishikawa. A motion in limine precluded reference to Hopson's extensive criminal record. Hopson did not testify or place his criminal record in evidence. When the State called Fire Investigator Richard Gehlhausen to the stand, however, the following exchange took place:

Q. [Prosecutor]: Did you make any attempts to locate a suspect by the name of Mr. Hopson?

A. [Gehlhausen]: Yes, I did. I ran the suspect's name through the computer system and obtained his criminal record and history.

Report of Proceedings, at 1-172 (Trial 1, p. 172). Defense counsel moved for a mistrial. The court denied the motion, finding that the statement was unfortunate but could be cured by a jury instruction. The prosecutor cautioned her witness not to refer to Hopson's criminal record, Report of Proceedings, at 1-176, 181; 2-14 (Trial 2, p. 14), but a few moments later, the following dialogue ensued:

Q. [Prosecutor]: Describe how you saw him and where you saw him.

A. [Gehlhausen]: My partner and I were parked about 60 feet north of the residence. A vehicle drove into the driveway with two males in it. We moved our vehicle. It was a very dark and foggy night and visibility was about 50 or 60 feet. I couldn't make out who was in the vehicle that drove into the driveway of the residence. We drove our car south of the residence so we could look on the back porch. We found there were two males who had exited the vehicle and were on the porch of 1435 22nd Avenue, and I tentatively identified Mr. Hopson from an old booking photograph.

Report of Proceedings, at 1-178. Defense counsel again moved for mistrial and the trial court granted the motion.

At the beginning of Hopson's retrial before Judge Terrence A. Carroll, the court denied defense counsel's motion to dismiss on double jeopardy grounds, but allowed him to present the motion to Judge Ishikawa or to an appellate court. While under redirect examination later in the trial, prosecution witness Josephine L. Gilliam mentioned that the defendant had been in the penitentiary.

Q. [Prosecutor]: Do you know how long Theresa's known him?

A. [Gilliam]: She said she'd known him three years before he went to the penitentiary last time.

Report of Proceedings, at 2-250. The court sustained defense counsel's objection and instructed the jury to disregard the answer.

Defense counsel then moved for a mistrial. The prosecutor argued that she had only been able to locate this witness the day of testimony because the witness was afraid of Hopson and did not want to testify. The prosecutor added that she had "burned in" to every other witness's mind that they could not refer to a criminal record in any way. The court concluded that the witness had volunteered the information and that there was not "any indication that it was suggested by the State by any question." RP 2-254. The court added that in light of the evidence needed for the planned diminished capacity defense, it would be difficult to find that the statement was unfairly prejudicial. The court denied the motion but gave the defendant the opportunity to talk to the jurors individually regarding the statement, the instruction, and whether it would "affect their ability to be fair." Report of Proceedings, at 2-261. Defense counsel concluded that questioning would merely highlight the problem.

In a sidebar conference later in the trial, defense counsel told the court that the defense witness would testify to one of Hopson's prior criminal acts because the act showed the symbiotic relationship between the defendant and the victim. He requested a limiting instruction. Dr. John Petrich, the only witness for the defense, then testified about Hopson's diminished capacity to form the requisite intent. He stated in part:

Now, this may seem hard to believe.... They got involved in some crime together, which he calls theft, back in 1981. He claims that knowing that she was on parole, that he lied about her involvement in order to get her as light a sentence as possible, and spent four years in Walla Walla Penitentiary, which is our maximum security institution over here in Walla Walla, from '82 through June of '86. So he just got released a little less than nine months ago.

Report of Proceedings, at 2-368-69.

The jury found Hopson guilty of first degree arson and simple assault. Clerk's Papers, at 27, 28. Defendant appealed. Division One of the Court of Appeals certified the appeal to this court pursuant to RCW 2.06.030.

This case presents two issues. First, did the trial court err by denying the defendant's motion to prohibit a retrial on double jeopardy grounds where a state fire inspector serving as a witness referred twice to defendant's criminal record? Second, in the second trial, did the trial court err by denying the defendant's motion for a mistrial based on a prosecution witness's reference to the defendant's time in the penitentiary where the defense witness also discussed incarceration?

I

Appellant bases his argument in favor of the Oregon rule, in part, on the constitutional history of article 1, section 9 of the Washington Constitution (section 9). The history demonstrates that section 9 was patterned after article 1, section 12 of the Oregon State Constitution and that the language of the two provisions is very similar. Journal of the Washington State Constitutional Convention, 1889, (B. Rosenow ed. 1962). In the alternative, appellant asserts that the facts of this case would also bar retrial under the federal standard.

To resolve a case with finality, where arguments are based on parallel provisions of federal and state constitutions, the state issue must be addressed first. State v. Coe, 101 Wash.2d 364, 373, 679 P.2d 353 (1984); State v. Wethered, 110 Wash.2d 466, 471, 755 P.2d 797 (1988). The history of State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1324 (1983) (Kennedy II), demonstrates the advantage of applying state constitutional standards before turning to their federal counterparts. The trial court had found no bar to retrial. After the Court of Appeals reversed on federal grounds, the Oregon Supreme Court denied review. The United States Supreme Court accepted review on a writ of certiorari to the Oregon Court of Appeals. Finding no federal bar to retrial, the United States Supreme Court reversed and remanded, pointing out that the Oregon courts were free to determine that the Oregon Constitution grants broader protection. Oregon v. Kennedy, 456 U.S. 667, 680, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982) (Kennedy I) (Brennan, J. concurring). On remand, the Court of Appeals affirmed the conviction on state grounds, assuming the state and federal protections were the same. On review, the Oregon Supreme Court first determined that the Oregon Constitution provided broader protection and then found that even under that standard, the facts of the case did not bar retrial. Kennedy II, 666 P.2d at 1318.

Nonetheless, to fully understand the Oregon rule, it is necessary to explain the federal standard. Under the federal standard, a defendant's motion for mistrial removes any double jeopardy bar to retrial unless the governmental misconduct "is intended to 'goad' the defendant into moving for a mistrial." Kennedy I, 456 U.S. at 676, 102 S.Ct. at 2089. The Court focused on judicial or prosecutorial intent, which may be inferred from objective facts. Kennedy I, at 675, 102 S.Ct. at 2089. Acknowledging that previous case law implied that overreaching or harassment not specifically intended to cause a mistrial might bar retrial, Kennedy I, at 674, 679, 102 S.Ct. at 2088, 2091, the Court rejected that formulation of the rule for two reasons. First, there are "virtually no standards" for defining overreaching or harassment absent intent to cause mistrial. Kennedy I, at 674, 102 S.Ct. at 2088. Second, the broader standard might not help defendants as a class because a presiding judge might be more loath to grant a mistrial. Kennedy I, at 676, 102 S.Ct. at 2089.

Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun, concurring in the judgment, would have found that conduct not specifically intended to provoke mistrial bars retrial in certain circumstances. He differed with the majority for two reasons. First, the majority's formulation places too heavy a burden of proof on the defendant. "It is almost...