State v. Wittsell

• Decision Date: 18 April 2003
• Docket Number: No. 87,107,87,107
• Citation: 66 P.3d 831,275 Kan. 442
• Parties: STATE OF KANSAS, Appellant, v. CLYDE A. WITTSELL, Appellee.
• Court: Kansas Supreme Court

275 Kan. 442

66 P.3d 831

STATE OF KANSAS, Appellant, v. CLYDE A. WITTSELL, Appellee.

No. 87,107

Supreme Court of Kansas

Opinion filed April 18, 2003.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla Stovall, attorney general, were with him on the briefs for appellant.

Randall J. Price, of Wichita, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

During the trial of Clyde Wittsell on one count of aggravated incest, a State's witness violated an order in limine by stating that there had been a polygraph examination. The district court made an immediate sua sponte declaration of mistrial. Imputing the introduction of improper evidence to the prosecution, the district court denied retrial and dismissed the complaint on double jeopardy grounds. The State appealed, and the Court of Appeals affirmed. State v. Wittsell, 30 Kan. App. 2d 1083, 53 P.3d 1248 (2002).

The sole issue is whether double jeopardy bars a retrial where the State's witness' violation of an order in limine precipitated a mistrial.

A polygraph examination of Wittsell was administered by Joe Rankin. In response to Wittsell's motion in limine, the prosecuting attorney agreed "to keep the issue of polygraph completely out of the trial."

Administration of the polygraph examination and what happened at trial are described as follows in the opinion of the Court of Appeals:

"During a second police interview, Wittsell was given a polygraph examination. Present were Wittsell, Detective Shackelford, a social worker, and Joe Rankin, a civilian employee who administered the test. Only Wittsell and Rankin were present during the actual administering of the exam. Detective Shackelford interviewed Wittsell both before and after the polygraph exam, neither of which was tape recorded.

"Prior to trial, Wittsell filed a motion in limine, seeking to exclude any evidence he had taken and failed a polygraph exam. The State agreed not to introduce such evidence.

"At trial, Detective Shackelford began to testify about the second police interview. Defense counsel objected, stating he would be unable to effectively cross-examine the detective without violating the order in limine. The trial court overruled the objection, stating it would be appropriate if what the detective asked defendant pretest and posttest were presented to the jury as one continuous interview. The trial court granted defendant a continuing objection to all evidence of the second interview.

"Direct examination of Detective Shackelford continued, and she testified defendant made certain incriminating statements during the second interview. During cross-examination, defense counsel handed the detective Rankin's notes to refresh her recollection of the second interview. After a series of questions, apparently based on the detective's refreshed recollection, the following occurred:

"`[Prosecutor]: Your Honor, I'm confused if [the detective] was present for this part of the interview or if she's just reading what Mr. Rankin's notes are just for clarification for me and the jury. I guess my objection would be foundation at this point.

"`The Court: Well, she testified earlier that Mr. Rankin was present as well as [the social worker], and she recognizes that to be his handwritten notes.

"`[Detective Shackelford]: May I say something?

"`The Court: No.

"`Q. [Defense counsel]: You've heard these statements made by Mr. Wittsell, didn't you, Detective?

"`A. [Detective Shackelford]: Part of what Mr. Wittsell told Joe Rankin was a discussion between the two of them prior to the polygraph, which I may not have been present for.

"`[Defense counsel]: Objection, Your Honor.

"`The Court: Just got a mistrial.'" 30 Kan. App. 2d at 1084-85.

Following the mistrial, the State filed a motion for a new jury trial setting. The trial court conducted a hearing on the motion "to determine whether to proceed with retrial or whether a retrial was barred by double jeopardy." 30 Kan. App. 2d at 1085.

The State called to the stand Detective Shackelford who testified, "`In my mind I was thinking, don't say polygraph . . . and that's the first thing that blurted out of my mouth. . . . It was not — definitely not on my part intentional.'" 30 Kan. App. 2d at 1085.

The trial court remarked:

"`If I rule that double jeopardy bars retrial, it is not based upon the conduct of [the prosecutor]. . . . There was nothing that the prosecutor did to goad the defendant to move for a mistrial. Quite frankly, I'm not sure whether he moved for the mistrial. He lodged an objection. I declared a mistrial. I'm willing to take the blame or the credit. It was probably on the Court's own motion I declared the mistrial. I felt that the manner in which that came out was so absolutely prejudicial that there were no curing remarks that I could make to remove that out of the mind of the jury. You mentioned polygraph, and it's, "Well if he passed, then the police wouldn't have prosecuted so he must have flunked or was less than truthful because that's why we're here." I mean, that's the only conclusion the jury could draw.'" 30 Kan. App. 2d at 1085.

The trial court noted that Detective Shackelford, as the lead case investigator, had a strong interest in the outcome of the trial. The trial court found that Shackelford was uncomfortable during the cross-examination.

As stated in the Court of Appeals' opinion, the trial court then concluded:

"`And again, my take on it again was not that this was a rapid-fire drilling cross-examination, that it was a spontaneous statement. The transcript indicates that you [the prosecutor] objected and interrupted the cross — you objected as to foundation. You also kind of tipped it. You said, "I'm confused if she was present for this part of the interview or if she's just reading what Mr. Rankin's notes are just for clarification for me and the jury. I guess my objection would be foundation at this point."

"`My response was, "Well, she testified earlier that Mr. Rankin was present as well as [the SRS case worker], and she recognizes that to be his handwritten notes." Then the witness [Detective Shackelford] says, "Your Honor, may I say something?" And I said, "No." And the next question, "You've heard these statements made by Mr. Wittsell, didn't you, Detective?" She could have said, "No," or "I wasn't present for part of the interview," but she chose to say, "Part of what Mr. Wittsell told Joe Rankin was a discussion between the two of them prior to the polygraph, which I may not have been present for." Now, that is a long, deliberate answer. That is not some spontaneous quick-fire response in the heat of cross-examination.

"`It's my opinion that Detective Shackelford, after asking the Court — to address the Court and being denied that opportunity, wanted to terminate the cross-examination. That's my take, despite her testimony here today. . . . It's not a citizen witness. It is the case detective. And to that extent, the case detective is so connected with the prosecution of the case that I'm going to make a finding that as an agent of the prosecutor, that is the goading of the defendant into a mistrial. That warrants the invocation of the double jeopardy clause of the Constitution. I'm dismissing the case with prejudice.'" 30 Kan. App. 2d at 1086.

The Court of Appeals affirmed the trial court's decision, agreeing with the trial court's finding under the facts of this case, that Shackelford was an agent of the State and that her misconduct precludes retrial. 30 Kan. App. 2d at 1089. This court granted the State's petition for review on the question whether the witness' introduction of improper evidence should have been attributed to the prosecution for the purpose of double jeopardy analysis.

The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Double Jeopardy Clause is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969).

In In re C.M.J., 259 Kan. 854, 857, 915 P.2d 62 (1996), this court discussed double jeopardy, stating:

"The protection against double jeopardy has its source in both the United states and Kansas Constitutions:

"`The Fifth Amendment Double Jeopardy Clause of the United States Constitution states: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The double jeopardy guaranty is enforceable against the states through the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Kansas also enforces an analogous double jeopardy clause in Section 10 of the Kansas Constitution Bill of Rights. It states: "No person shall . . . be twice put in jeopardy for the same offense." The double jeopardy protection guaranteed in the Kansas Constitution Bill of Rights is equivalent to the protection guaranteed in the United States Constitution. See State v. Cady, 254 Kan. 393, 396-97, 867 P.2d 270 (1994).' Mertz, 258 Kan. at 749.

"In Mertz, we summarized the scope of the double jeopardy protections:

"`The Double Jeopardy Clause of the United States Constitution provides three different types of protection for a person charged with a crime. Double jeopardy protection shields an accused from: (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.' 258 Kan. 745, Syl. ¶ 3."

Because the Double Jeopardy Clause has been interpreted as a prohibition of being twice put in jeopardy, United States v. Ball, 163 U.S. 662, 669, 41 L. Ed. 300, 16 S. Ct. 1192 (1896), rather than of being twice punished for the same offense, a qualified mistrial exception to the prohibition has been developed...