State v. Jorgenson

• Decision Date: 29 September 2000
• Docket Number: No. CV-00-0064-SA.,CV-00-0064-SA.
• Citation: 10 P.3d 1177,198 Ariz. 390
• Parties: STATE of Arizona, Petitioner, v. The Honorable Cindy Kelly JORGENSON, Judge of the Superior Court in and for the County of Pima, State of Arizona, Respondent, Alex Hughes, Real Party in Interest.
• Court: Arizona Supreme Court

10 P.3d 1177

198 Ariz. 390

STATE of Arizona, Petitioner, v.The Honorable Cindy Kelly JORGENSON, Judge of the Superior Court in and for the County of Pima, State of Arizona, Respondent,Alex Hughes, Real Party in Interest.

No. CV-00-0064-SA.

Supreme Court of Arizona, En Banc.

September 29, 2000.

Barbara LaWall, Pima County Attorney By: Elizabeth S.L. Tyszko, Tucson, Attorneys for State of Arizona.

Susan A. Kettlewell, Pima County Public Defender By: John Seamon, Tucson, Attorneys for Alex Hughes.

OPINION

FELDMAN, Justice.

¶ 1Alex Hughes(Defendant) was charged with first-degree murder.His insanity defense was supported by a great deal of evidence, including the opinions of all six experts who examined him.Evidently, the state's experts agreed, as the state presented no expert to contest Defendant's insanity defense.Notwithstanding this, the jury rejected the defense and convicted Defendant of first-degree murder.Defendant appealed.

¶ 2 In that appeal we determined that despite the state's weak case on the question of insanity, Defendant was convicted because the prosecutor at trial engaged in knowing and intentional misconduct.SeeState v. Hughes,193 Ariz. 72, 969 P.2d 1184(1998).The misconduct included "ignoring the facts..., [and] relying on prejudice...."Id.at 86 ¶ 61, 969 P.2d at 1198 ¶ 61.It was "a dishonest way to represent the State ..., and it was especially dishonest ... where the evidence of insanity was substantial, and where the State had no evidence that [Defendant] had fabricated an insanity defense."Id.We unanimously concluded that the "evidence of mental illness was overwhelming" and Defendant's case for acquittal on grounds of insanity was "substantial."Id.at 88 ¶ 73, 969 P.2d at 1200 ¶ 73.The state overwhelmed Defendant's insanity defense, "but it did not do so with evidence; it did so with prosecutorial misconduct."Id.at 87 ¶ 66, 969 P.2d at 1199 ¶ 66.We condemned this win-by-any-means strategy, agreeing with Defendant's argument that it "was a direct attempt to ... prejudice the jury" and to put the fear of acquittal in the jurors' minds.Id.at 87 ¶ 67, 969 P.2d at 1199 ¶ 67.¹

¶ 3 Thus, the prosecutor deliberately risked a mistrial or reversal to win the case and prevent an acquittal.Defendant, in fact, moved for a mistrial, and the original trial judge erred in denying that motion, compelling us to reverse because the prosecutor's multiple acts of misconduct deprived Defendant of a fair trial.Seeid.at 88 ¶ 74, 969 P.2d at 1200 ¶ 74.If the trial judge had granted the motion, as he should have, he would eventually have had to decide whether Arizona's double jeopardy clause prevented retrial.SeePool v. Superior Court,139 Ariz. 98, 677 P.2d 261(1984).But the judge denied the motion; and after we reversed and remanded, Defendant moved to dismiss the charges, raising double jeopardy as a bar to retrial.The new trial judge agreed and granted the motion, holding that article II, section 10 of the Arizona Constitution forbids retrial.The state now seeks special action relief, claiming Defendant is entitled only to a new trial, not dismissal.

¶ 4 The answer to this issue, as a matter of state law, is found in Pool.As the trial judge in the present proceeding correctly concluded, the prosecutor's deliberate conduct, which should have triggered a mistrial yet eventually resulted in reversal, deprived Defendant of his right to have the case fairly tried to a conclusion with the jury selected.Seeid. at 109, 677 P.2d at 272.Jeopardy attached on selection of the jury.SeeMcLaughlin v. Fahringer,150 Ariz. 274, 277, 723 P.2d 92, 95(1986).The grant of a mistrial does not bar retrial except when the mistrial is granted because of intentional prosecutorial misconduct aimed at preventing an acquittal.SeePool,139 Ariz. at 109, 677 P.2d at 272.In that situation, the double jeopardy clause bars retrial.Seeid.

¶ 5Pool rejects the rule adopted by the plurality opinion in Oregon v. Kennedy,456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416(1982).Seeid. at 108, 677 P.2d at 271.Instead, it follows the holding of the Oregon Supreme Court in State v. Kennedy,295 Or. 260, 666 P.2d 1316(1983), after remand from the United States Supreme Court.Seeid. at 109, 677 P.2d at 273.Double jeopardy prevents retrial when the prosecutor's deliberate, intentional, and knowing 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 [danger of] resulting mistrial or reversal.When this occurs, it is clear that the burden of a second trial is not attributable to the defendant's preference for a new trial over completing the trial infected by error.Rather, it results from the state's readiness, though perhaps not calculated intent, to force the defendant to such a choice.

Pool,139 Ariz. at 107, 677 P.2d at 270(quotingState v. Kennedy,666 P.2d at 1326(emphasis added)).

¶ 6We have previously held that our state's double jeopardy clause includes the right to be free from multiple trials.SeePool,139 Ariz. at 109, 677 P.2d at 272.To put it another way: the right to a fair trial to a conclusion before the impaneled jury.Seeid.While the defendant ordinarily waives that right when he seeks a new trial because of error in the original trial, the clause applies when the need for a second trial is brought about by the state's egregiously intentional, improper conduct.In Pool,we put it succinctly:

We agree with the Oregon Supreme Court that when [the state's knowing and intentional misconduct is the reason for the impanelment of a new jury and the start of a new trial] the burden of another trial cannot be attributed to defendant's preference to start anew rather than "completing the trial infected by error" and is, rather, attributable to the "state's readiness, though perhaps not calculated intent, to force the defendant to such a choice."In such a situation, the State has intentionally exposed the defendant to multiple trials for the same crime and has destroyed his expectation of completing the proceeding before the original tribunal.This is exactly what the double jeopardy provision was intended to prevent.

Id.(quotingState v. Kennedy,666 P.2d at 1326).

¶ 7 Of course, the fact that the original trial judge erroneously denied a mistrial, thus requiring reversal on appeal, cannot put a defendant in a worse position than if the judge had correctly granted the mistrial motion.Surely a defendant whose mistrial motion was erroneously denied, as in the present case, should have the same constitutional protection as one whose motion was correctly granted, as in Pool.SeeState v. Breit,122 N.M. 655, 930 P.2d 792, 797(1996).

¶ 8 The dissent, however, argues that double jeopardy cannot apply where "no mistrial has been declared" and a verdict was reached, even though the trial was unfair and the conviction obtained by the state's egregious and intentional misconduct had to be reversed on appeal.See dissent at ¶ 17.For the reasons stated previously, we disagree.

¶ 9 Significant authority contrary to the dissent's view exists in states, like Arizona, that do not follow the plurality rule of Oregon v. Kennedy.In Breit, for instance, the defendant was convicted of first-degree murder and was granted a new trial on grounds of extreme prosecutorial misconduct.930 P.2d at 795.He then moved to dismiss on grounds of double jeopardy.Seeid.The trial court granted that motion, but the New Mexico Court of Appeals reversed.Seeid.Defendant was retried and again convicted.Seeid.The New Mexico Supreme Court eventually held that the double jeopardy issue had not been waived and that the stateconstitution's double jeopardy clause barred retrial because in the first trial the prosecutor either intended to provoke a mistrial or acted in willful disregard of possible mistrial, retrial, or reversal and thus denied the defendant a fair trial.Seeid. at 797, 804, 806-07.

¶ 10 The Hawai'i Supreme Court reached a similar conclusion, holding that application of double jeopardy was required after reversal because egregious prosecutorial misconduct² denied the defendant a fair trial.SeeState v. Rogan,91 Hawai'i 405, 984 P.2d 1231, 1250(1999).The court said:

Finally, we are mindful of the fact that when egregious prosecutorial misconduct results in a reprosecution either by mistrial or a reversal on appeal, the burden of another trial cannot be attributed to defendant's preference to start anew rather than to complete the trial before the original tribunal.On the contrary, the burden of retrial in such a case is attributable to the prosecution's misconduct or overreaching, though perhaps not specific intent, designed to force the defendant to such a choice.

Id. at 1249(emphasis added).

¶ 11 Other states take the same view.See, e.g., Commonwealth v. Murchison,392 Mass. 273, 465 N.E.2d 256, 258(1984)(if prosecutor's conduct was intended to provoke mistrial and resulted in denial of fair trial, double jeopardy clause applies and requires dismissal even though trial was completed to jury verdict and then judge granted mistrial motion and ordered new trial);Commonwealth v. Smith,532 Pa. 177, 615 A.2d 321, 322-23(1992)(prosecutor's Brady violations in withholding exculpatory evidence prevented fair trial; conviction reversed for prosecutor's misconduct; double jeopardy applied as result of reversal, no mistrial motion having been made);see alsoState v. Colton,234 Conn. 683, 663 A.2d 339, 347(1995)(clandestine misconduct causing ultimate reversal on appeal invokes double jeopardy);Collier v. State,103 Nev. 563, 747 P.2d 225(1987);State v. Cochran,51 Wash.App. 116, 751 P.2d 1194(1988).

¶ 12 There are, of course, cases to the contrary.See, e.g., Ex parte Davis,957 S.W.2d 9(Tex.Crim.App.1997)....