State v. Sullivan

• Decision Date: 06 October 1999
• Parties: Ex parte State of Alabama. In re STATE of Alabama v. Carroll H. SULLIVAN.
• Court: Alabama Court of Criminal Appeals

748 So.2d 914

Ex parte State of Alabama.

In re STATE of Alabama v. Carroll H. SULLIVAN.

CR-98-2153.

Court of Criminal Appeals of Alabama.

October 6, 1999.

Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for petitioner.

Donald M. Briskman, Mobile, for respondent.

LONG, Presiding Judge.

The State of Alabama filed this petition for a writ of mandamus requesting us to direct Judge Robert Kendall, circuit judge for the Thirteenth Judicial Circuit, to vacate the order granting Carroll H. Sullivan's motion to dismiss the perjury charge against him.¹ Sullivan had been indicted for first-degree perjury by the Mobile County grand jury that was convened in October 1998. Sullivan's trial was scheduled to begin on March 1, 1999, before Judge Chris Galanos. On that date a jury was empaneled and sworn, the attorneys made their opening statements, and court was then adjourned for the evening. The next morning the State called its first witness, Wayne Zimlich.² After a lengthy discussion with the trial court, Zimlich invoked his Fifth Amendment right to remain silent. The State immediately moved for a mistrial. Judge Galanos granted the motion and informed Sullivan that he could file a motion to dismiss the charge on the ground that to try him again would violate principles of double jeopardy. Sullivan moved to dismiss. After a hearing, Judge Galanos ruled that jeopardy had attached and, therefore, that a retrial was barred. Judge Galanos found that there was no manifest necessity for a mistrial; thus, he held, a retrial was barred on the principles of double jeopardy. The State filed a notice of appeal pursuant to Rule 15.7, Ala. R.Crim.P., which governs pretrial appeals by the State. We dismissed the appeal on July 2, 1999, holding that the State had no right to appeal the ruling, which was made after jeopardy had attached. State v. Sullivan, 741 So.2d 1125 (Ala.Cr.App.1999). The State then petitioned for a writ of mandamus challenging Judge Galanos's ruling.

This Court's opinion dismissing the direct appeal in this case also stated that the State was not without a remedy to seek review of Judge Galanos's ruling.

"The appellate courts of this State have frequently stated that a petition for a writ of mandamus is the proper remedy when there is no other relief available. See Rule 21, Ala.R.App.P. Ex parte Weeks, 611 So.2d 259 (Ala.1992); Ex parte Johnson Land Co., 561 So.2d 506 (Ala.1990); Ex parte Taylor Coal Co., 401 So.2d 1 (Ala.1981); Ex parte Hutto, 720 So.2d 1051 (Ala.Cr.App.1998)."

741 So.2d at 1127. This case is properly before this Court by way of a mandamus petition.

The facts surrounding the case were set out by this Court in an opinion issued in response to a mandamus petition filed by Wayne Zimlich, Sullivan's codefendant and the witness who invoked the Fifth Amendment at Sullivan's trial. See Ex parte Zimlich, [Ms. CR-98-1612, June 10, 1999] ___ So.2d ___ (Ala.Cr.App.1999). As we stated in that case:

"This complicated case arose after a female patient died during a surgical procedure in 1993. Her family filed a medical malpractice action, and in 1995 the case was tried in the Circuit Court for Mobile County. Zimlich, the nurse anesthetist present during the operation, testified at the trial. Zimlich was later indicted for perjury after he admitted that his testimony was false. Zimlich states in the petition to this Court that he `became a whistle-blower in that he admitted that he was coerced into giving false testimony by the insurance company, employees of the insurance company, his doctor-employer, and the defense attorney for the insurance company....'"

___ So.2d at ___.

The State first argues that Judge Galanos erred in granting the motion to dismiss because Sullivan had consented to the mistrial; thus, it argues, he waived any double jeopardy claim. It further argues that, even if Sullivan did not consent to the mistrial, the State met its burden of proving that "manifest necessity" existed for the mistrial.

This Court in Cox v. State, 585 So.2d 182 (Ala.Cr.App.1991), cert. denied, 503 U.S. 987, 112 S.Ct. 1676, 118 L.Ed.2d 394 (1992), stated the following:

"The Double Jeopardy Clause protects a defendant's `valued right to have his trial completed by a particular tribunal.' United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)). A defendant may waive this protection by requesting or by consenting to a mistrial before a verdict is rendered. See United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079-80, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. at 485, 91 S.Ct. at 557. If, however, the defendant does not consent to a mistrial, he may still be retried without running afoul of the Double Jeopardy Clause, if there is a `manifest necessity' for a mistrial. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). The Supreme Court cautioned that the phrase `manifest necessity' cannot be interpreted literally; only a `high degree' of necessity is required before concluding that a mistrial is appropriate. Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. at 831. `Manifest necessity for a mistrial is not determined by whether in fact the event precipitating the mistrial did influence the juror, but whether it might have unlawfully influenced the juror.' Woods v. State, 367 So.2d 982, 984 (Ala.1978)."

(Emphasis original.)

In Stevenson v. State, 404 So.2d 111 (Ala.Cr.App.1981), this Court set out the basis for the rationale that a defendant's consent to a mistrial waives any double jeopardy argument upon retrial.

"In United States v. Bobo, [586 F.2d 355 (5th Cir.1978) ], the U.S. Fifth Circuit in referring to the former jeopardy rule stated:

"`By contrast, where the defendant moves for a mistrial or consents to its declaration, ordinarily the double jeopardy clause does not bar his retrial. United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978); Lee v. United States, 432 U.S. 23, 32, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80 (1977); United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion); United States v. Crouch, 566 F.2d 1311, 1317 (5th Cir.1978).'

"The theory for applying this exception in federal cases is that a defendant who moves for a mistrial consents to a termination of the present trial and impliedly consents to a retrial. United States v. Brooks [599 F.2d 943 (10th Cir. 1979) ]. The defendant, though he has a `valued right' to a speedy trial and against multiple prosecutions, has a comparable right to seek or suggest a termination of the present trial, to take the case from a jury when circumstances occur that might prejudice his case. United States v. Dinitz, [424 U.S. 600, 96 S.Ct. 1075 (1976)]. The evils that the double jeopardy bar seeks to prevent, therefore, vanish when the defendant induces the dismissal of the existing prosecution.

"We would point out that all double jeopardy cases should be carefully examined to assure protection of defendants' rights. However, defendants should not be allowed to induce error and thereby possibly escape prosecution by manipulation of the court under the guise of `double jeopardy' protection."

404 So.2d at 114. "`[C]onsent may always be implied form the totality of circumstances attendant on the declaration of a mistrial.'" State v. Tiger, 972 S.W.2d 385, 389 (Mo.App.1998). See also Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Here, the record reflects that when the prosecutor requested a mistrial, after its main witness—Zimlich—refused to testify, Sullivan moved to dismiss the charge with prejudice. Sullivan's counsel stated:

"Judge, for the record, no one in this courtroom is unaware of the significance of this case, not only to my client but this community. He has been charged and still has this matter hanging over him, given the Court's ruling. I would again urge the Court in view of these developments to not declare a mistrial but enter an order of dismissal. The jury has been empaneled and as Your Honor well knows, jeopardy has attached."

It does not appear that Sullivan consented to the mistrial. In fact, Sullivan twice requested that the charges against him be dismissed.

Because Sullivan did not consent to the mistrial, we are left to determine whether the mistrial was a "manifest necessity." A defendant may be retried, even if he did not consent to a mistrial, if there exists a "manifest necessity" for a mistrial. The standard of review when determining whether "manifest necessity" exists was explained by this Court in Ex parte Whirley 530 So.2d 865 (Ala.1988), quoting Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978),

"`The words "manifest necessity" appropriately characterize the magnitude of the prosecutor's burden. For that reason Mr. Justice Story's classic formulation of the test has been quoted over and over again to provide guidance in the decision of a wide variety of cases. Nevertheless, those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Indeed, it is manifest that the key word "necessity" cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a "high degree" before concluding that a mistrial is appropriate.'

"434 U.S. at 505-06, 98 S.Ct. 824 (footnotes omitted)."

Judge Galanos, in his order granting Sullivan's motion to dismiss, stated that the prosecutor had not adequately "prepared" the witness and had had reason to believe that the witness would not testify. He stated that four weeks before trial Zimlich had indicated that he would not be willing to testify at Sullivan's trial....