State v. Shoemake, 78-10-448

• Decision Date: 13 April 1981
• Docket Number: No. 78-10-448,78-10-448
• Citation: 51 Or.App. 693,626 P.2d 948
• Parties: STATE of Oregon, Respondent, v. Stephen Ray SHOEMAKE, Appellant. ; CA 17387.
• Court: Oregon Court of Appeals

Page 948

626 P.2d 948

51 Or.App. 693

STATE of Oregon, Respondent, v. Stephen Ray SHOEMAKE, Appellant.

No. 78-10-448; CA 17387.

Court of Appeals of Oregon.

Argued and Submitted Dec. 12, 1980.

Decided April 13, 1981.

David E. Groom, Deputy Public Defender, Salem, argued the cause for the appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, 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 JOSEPH, P. J., and WARDEN and WARREN, JJ.

WARDEN, Judge.

Defendant was charged with the crime of burglary in the first degree. ORS 164.225. He moved for an order declaring a mistrial because the state, before resting, recalled a witness, Mrs. Milburn, to the stand, and she testified to something which the defendant asserts she "remembered" only because she was "coached" by the prosecutor. The trial court granted the motion for a mistrial. The trial court later reversed itself, declaring that there was no prosecutorial misconduct, and allowed the defendant to be tried again on the same charge. Defendant's motion to dismiss the charge on grounds of former jeopardy was denied. On retrial he was convicted. On appeal he claims that denial of his motion to dismiss was error. We affirm.

In its memorandum opinion, the trial court stated its findings as follows:

"At the time the State recalled Mrs. Milburn, over the objection of Defendant, the State had not rested its case and was recalling the witness on the grounds that the District Attorney had received information from Deputy Burch that Mrs. Milburn had originally stated to him that the Defendant was first observed on the second or third step. The Deputy had not put this in his written report so said information was unknown to the Deputy District Attorney or to defense counsel. After receiving this information from Deputy Burch, the Deputy District Attorney then asked Mrs. Milburn if she recalled having made that statement to Deputy Burch and Mrs. Milburn suddenly recalled that she had. Such testimony was not manufactured by the State nor was such testimony false and therefore, the State had every right to recall the witness to get that testimony before the jury."

Defendant argues on appeal that there was "prosecutorial overreaching" which resulted in a mistrial, and, therefore, defendant's retrial violates the Fifth Amendment to the U. S. Constitution, Article I, Section 12, of the Oregon Constitution and ORS 131.515(1). ¹ Defendant's argument and the authority he cites, however, relate only to the Double Jeopardy Clause of the Fifth Amendment to the U. S. Constitution. We will review this matter, therefore, in relation only to that clause.

Defendant relies particularly on United States v. Crouch, 566 F.2d 1311 (5th Cir. 1978), ² in which the court held that "prosecutorial overreaching" bars retrial on the grounds of the Double Jeopardy Clause notwithstanding the fact that the defendant requested the mistrial. To preclude retrial on double jeopardy grounds, prosecutorial misconduct must have been the result of gross negligence or intentional misconduct. United States v. Crouch, supra, at 1317-1318. The trial court's findings, which are supported by the evidence, belie defendant's contention that there was intentional misconduct or gross negligence on the part of the prosecutor.

Defendant also cites United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), as authority for denying retrial on grounds of double jeopardy in a case in which the earlier trial ended with an order of mistrial. Dinitz held that:

"The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad-faith conduct by judge or prosecutor' (citing United States v. Jorn, ...