State v. Kennedy, C-79-12-34399

Citation49 Or.App. 415,619 P.2d 948
Decision Date24 November 1980
Docket NumberNo. C-79-12-34399,C-79-12-34399
PartiesSTATE of Oregon, Respondent, v. Bruce Alan KENNEDY, Appellant. ; CA 17729.
CourtCourt of Appeals of Oregon

Donald C. Walker, Portland, argued the cause and filed the brief for appellant.

John C. Bradley, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

GILLETTE, Presiding Judge.

This is a criminal case in which the defendant's sole assignment of error is the trial court's failure to dismiss the case against him based upon a theory of prior jeopardy. We reverse.

Defendant was charged with the theft of an oriental rug. At his first trial, one of the principal witnesses against him was a Mr. Ewaldsen, whose testimony was crucial to the prosecution's case in that it provided proof of both the value and the identity of the rug in question.

On cross-examination, the defense attorney immediately attempted to establish bias on the part of the witness by asking him if he had filed a "complaint" against the defendant with the District Attorney's office in Medford. The witness first denied doing so, but then acknowledged that he had filed a complaint charging the defendant with fraudulent advertising. Without objection by the prosecution, it was further established that the District Attorney's office had taken no formal action as a result of the complaint.

Later, during redirect examination, the prosecutor unsuccessfully attempted to ask the witness why he had filed a complaint against the defendant. The trial judge sustained a series of objections by the defense to this line of inquiry. The objections were not well taken, and the judge's rulings were probably wrong, but that is not the issue before us now. The prosecutor then asked,

"Q: (The Prosecutor): Have you ever done business with the Kennedys?

"A: No I have not.

"Q: Is that because he is a crook?"

A mistrial was immediately granted.

When the case came on for retrial, a second judge declined to grant the defendant's motion for dismissal of the charges on the ground of prior jeopardy. The defendant was then tried and convicted.

The general rule is said to be that the double jeopardy clause does not bar reprosecution, " * * * where circumstances develop not attributable to prosecutorial or judicial overreaching, * * * even if defendant's motion is necessitated by a prosecutorial error." United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1970). However, retrial is barred where the error that prompted the mistrial is intended to provoke a mistrial or is "motivated by bad faith or undertaken to harass or prejudice" the defendant. United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976). Accord, State v. Rathbun, 37 Or.App. 259, 586 P.2d 1136 (1978), reversed on other grounds, 287 Or. 421, 600 P.2d 392 (1979).

With respect to the first of these alternative criteria, i. e., an intent to cause a mistrial, the trial court found as a matter of fact that it was not the intention of the prosecutor in this case to cause a mistrial. We are bound by this finding of fact. State v. Warner, 284 Or. 147, 585 P.2d 681 (1978); Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). 1

However, we are of the opinion that the prosecutor's conduct in this case meets one of the other forbidden criteria, viz.,...

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14 cases
  • State v. Kennedy
    • United States
    • Oregon Supreme Court
    • 6 Julio 1983
    ...because his trial followed a mistrial brought on by what the court described as "flagrant overreaching" by the prosecutor. 49 Or.App. 415, 418, 619 P.2d 948 (1980). After this court denied review, 290 Or. 551 (1981), the state obtained a writ of certiorari from the Supreme Court of the Unit......
  • Fields v. State
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1992
    ...to this line of inquiry. The Oregon Court of Appeals later observed that "the judge's rulings were probably wrong." State v. Kennedy, 49 Or.App. 415, 619 P.2d 948, 949 (1980). Right or wrong, they frustrated the prosecutor enough to produce the following brief "Prosecutor: Have you ever don......
  • State v. Jones, 1271
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1994
    ...been caused by prosecutorial overreaching. The trial court judge found that it had not, but the Oregon Court of Appeals reversed. 49 Or.App. 415, 619 P.2d 948. The Supreme Court reversed the Court of Appeals, holding that the issue of prosecutorial intent was quintessentially factual and sh......
  • Oregon v. Kennedy
    • United States
    • U.S. Supreme Court
    • 24 Mayo 1982
    ...respondent into moving for a mistrial, that is the end of the matter for purposes of the Double Jeopardy Clause. Pp. 671-679. 49 Or.App. 415, 619 P.2d 948, reversed and David B. Frohnmayer, Atty. Gen., Salem, Or., for petitioner. Samuel A. Alito, Jr., Newark, N. J., for the United States as......
  • Request a trial to view additional results
1 books & journal articles
  • Pronouncements of the U.s. Supreme Court Relating to the Criminal Law Field: 1981-1982
    • United States
    • Colorado Bar Association Colorado Lawyer No. 11-9, September 1982
    • Invalid date
    ...of the Fifth and Fourteenth Amendments barred the defendant's retrial because prosecutorial misconduct amounted to "overreaching." 49 Or. App. 415, 619 P.2d 948 (1980). In an opinion by Justice Rehnquist, the Supreme Court reversed. The majority found that there was no adequate and independ......

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