State v. Morton, 94,815.

Citation153 P.3d 532
Decision Date16 March 2007
Docket NumberNo. 94,815.,94,815.
PartiesSTATE of Kansas, Appellee, v. Joseph Dodds MORTON, Appellant.
CourtUnited States State Supreme Court of Kansas

Ezra J. Ginsburg, of Topeka, argued the cause and was on the briefs for appellant.

Michael A. Russell, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

In this direct appeal from his conviction of first-degree murder and aggravated robbery on retrial, defendant Joseph Dodds Morton alleges that (1) prosecutorial misconduct in the first trial barred a new trial on a first-degree murder charge; (2) the district court's original ruling on a motion in limine excluding certain expert testimony should have controlled the issue on retrial; and (3) the State failed to prove premeditation beyond a reasonable doubt.

Defendant's initial convictions stemmed from a March 2001 robbery of a grocery store at which he had been employed; during the robbery, Morton shot and killed the store manager. At Morton's first trial, the jury unanimously found him guilty of first-degree murder and aggravated robbery, although jurors were unable to agree on whether the underlying first-degree theory was premeditation or felony murder. On direct appeal, we determined that the prosecutor had committed reversible misconduct by suggesting that premeditation can take place in an instant; she had held up her hand in the shape of a gun and pretended to pull its trigger, saying: "One squeeze of the trigger is all it takes." State v. Morton, 277 Kan. 575, 86 P.3d 535 (2004). At the time, we declined to find the prosecutor's conduct deliberate. But we agreed that, given some jurors' reluctance to convict on the basis of premeditation, the misconduct was not harmless beyond a reasonable doubt. 277 Kan. at 585-86, 86 P.3d 535.

On remand, before retrial, Morton filed a motion to dismiss the first-degree murder charge. He argued that intentional prosecutorial misconduct in his first trial barred a new proceeding on that charge under the Double Jeopardy Clause. See U.S. Const. Amend. 5; U.S. Const. Amend. 14; Kan. Const. Bill of Rights, § 10. The district court rejected the defendant's motion, noting that our opinion clearly contemplated a new trial on both the first-degree murder and aggravated robbery counts.

Morton also sought on remand to enforce an in limine order entered before his first trial. That order had prevented the State from presenting the testimony of Dr. William Newhouse, a ballistics expert who intended to testify that the fatal shot was fired from 15 inches to 18 inches away. At a preliminary hearing before the first trial, the district court granted a defense motion in limine because the State had produced Newhouse's report just a few days before trial was scheduled to begin. At that point, Morton was unable to prepare adequately for trial regarding the expert's findings; he was incapable of retaining his own competing expert; and he would have been prejudiced had the testimony been permitted. During the first trial, the coroner, Dr. Erik Mitchell, testified that the fatal shot was fired from "intermediate range," meaning from between several inches and 3 feet away. He also testified that the path of the bullet through the victim's body was roughly horizontal to the floor.

On remand, defendant argued that the law of the case restricted the district court from reconsidering its previous ruling on the limine motion. After a hearing, the district court reversed its earlier position and permitted Newhouse to testify in the new trial. The fear of prejudice from late disclosure of Newhouse's report had dissipated during the time it took Morton to appeal and obtain reversal and remand. The district court also concluded that the law of the case doctrine applied only to preclude relitigation of issues decided on appeal. The suppression of the Newhouse testimony at the first trial was not raised on Morton's appeal.

At the second trial, the jury again unanimously found defendant guilty of first-degree murder and aggravated robbery. Again, jurors could not agree on the underlying theory on the murder charge. Defendant received the same sentence as he had received after his first trial.

Prosecutorial Misconduct as a Bar to Retrial

The Double Jeopardy Clause of the United States Constitution protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. See, e.g., State v. Schoonover, 281 Kan. 453, 463, 133 P.3d 48 (2006) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 [1969], overruled on other grounds Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 [1989]). We have previously recognized that the language of the Fifth Amendment to the United States Constitution guarantees no greater double jeopardy protection to an accused than does § 10 of the Kansas Constitution Bill of Rights; the provisions are coextensive. See Schoonover, 281 Kan. at 474, 133 P.3d 48; State v. Thompkins, 271 Kan. 324, 336-37, 21 P.3d 997 (2001); State v. Williams, 268 Kan. 1, 6, 988 P.2d 722 (1999).

The Kansas Legislature attempted to codify the constitutional guarantees against double jeopardy in K.S.A. 21-3107 and K.S.A. 21-3108. Thompkins, 271 Kan. at 336-37, 21 P.3d 997; Williams, 268 Kan. at 6-7, 988 P.2d 722. K.S.A. 21-3108 provides, in pertinent part, that a second prosecution is not barred if a subsequent proceeding resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the defendant was adjudged not guilty.

Whether a particular criminal defendant's protection against double jeopardy was violated is a question of law over which we have unlimited review. See Thompkins, 271 Kan. at 337, 21 P.3d 997.

Generally, in Kansas, "[a]n accused waives his right to plead double jeopardy when after conviction he applies for and is granted a new trial." State v. Bloomer, 197 Kan. 668, 675, 421 P.2d 58 (1966), cert. denied 387 U.S. 911, 87 S.Ct. 1697, 18 L.Ed.2d 631 (1967). Further, "when a new trial is granted on the motion of the defendant in a criminal prosecution, the granting of the same places the party accused in the same position as if no trial had been had. [Citations omitted.]" State v. Osburn, 216 Kan. 638, 641-42, 533 P.2d 1229 (1975).

There is, however, a recognized exception to this general rule for certain egregious prosecutorial misconduct, under the authority of Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

In that case, Bruce Kennedy had been charged with theft. A series of sustained objections prevented the prosecutor from eliciting certain testimony. The prosecutor nevertheless returned to the well one more time. He asked the witness if the reason he had never done business with the defendant was the defendant's status as a crook. Defendant's resulting motion for a mistrial was granted. After a second trial led to his conviction, Kennedy persuaded the Oregon Court of Appeals that double jeopardy should have barred the retrial because the prosecutor's conduct in the first trial was "overreaching." 456 U.S. at 668, 102 S.Ct. 2083.

The United States Supreme Court reversed the Oregon Court of Appeals and remanded for further proceedings, but it noted that double jeopardy would bar retrial if the prosecutor had intentionally provoked the defendant's request for mistrial. 456 U.S. at 676-79, 102 S.Ct. 2083.

We have discussed Kennedy on several previous occasions. See State v. Williams, 268 Kan. 1, 7, 988 P.2d 722 (1999); State v. Muck, 262 Kan. 459, 467, 939 P.2d 896 (1997); State v. McClanahan, 259 Kan. 86, 102, 910 P.2d 193 (1996); State v. Cady, 254 Kan. 393, 399-400, 867 P.2d 270 (1994).

In Cady, the defendant argued to this court that Kennedy should be extended to cover situations when a defendant obtains reversal of a conviction because of prosecutorial misconduct. 254 Kan. at 399, 867 P.2d 270. We declined to do so and remarked on the limits of the Kennedy rule in this way:

"Kennedy applies to situations where the defendant's request for mistrial was inevitable because the prosecution subverted the defendant's right to a fair trial. . . .

". . . [A] defendant should be allowed to freely choose whether he or she should request a mistrial and forego the right to have the matter decided by the first trier of fact. Where the prosecutor seeks to force the defendant into the choice, the choice is not freely made, and the prosecution has subverted the defendant's rights protected by the Double Jeopardy Clause of the Constitution." Cady, 254 Kan. at 399-400, 867 P.2d 270.

Our subsequent discussions of Kennedy have consistently enforced these limits. Without prosecutorial intent to provoke the defendant into moving for a mistrial, the Kennedy rule does not apply. See Williams, 268 Kan. at 7, 988 P.2d 722 ("Intentional prosecutorial conduct motivated by a desire to obtain a conviction but not by a desire to provoke the defendant into moving for a mistrial may be grounds for a mistrial but it does not preclude retrial of the case."); Muck, 262 Kan. at 470, 939 P.2d 896 (quoting Kennedy, 456 U.S. at 675-76, 102 S.Ct. 2083) ("`Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, . . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. . . . 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.'"); McClanahan, 259 Kan. at 102, 910 P.2d 193 ("In evaluating [miscond...

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