State v. Wrice

Citation235 S.W.3d 583
Decision Date16 October 2007
Docket NumberNo. ED 88727.,ED 88727.
PartiesSTATE of Missouri, Appellant, v. Sedrick WRICE, Respondent.
CourtCourt of Appeal of Missouri (US)

Timothy O'Leary, Assistant Circuit Attorney, Office of the Circuit Attorney, The Carnahan Courthouse, Saint Louis, MO, for appellant.

Jessica M. Hathaway, Office of the State Public Defender, Saint Louis, MO, for respondent.

OPINION

GLENN A. NORTON, Judge.

The State of Missouri appeals the judgment of the trial court dismissing the case against Sedrick Wrice on the grounds that retrial was barred by the double jeopardy clause of the United States Constitution. See U.S. Const. amend. V. We affirm.

I. BACKGROUND

On March 25, 2004, Wrice was charged by way of indictment with robbery in the first degree and armed criminal action. At the arraignment, the State filed its request for disclosure, asking Wrice to disclose his intention to rely on the defense of alibi. No such intention was disclosed by Wrice. During the period following the arraignment and before the trial, Wrice's case was transferred from the public defender's office to a private attorney, and then from the private attorney back to the public defender's office. The public defender who was ultimately assigned to the case did not meet with Wrice until Monday November 6, 2005. The case went to trial the following day and the jury was seated and sworn on November 8, 2005.

The State rested its case on Thursday, November 9, 2005. After the court denied Wrice's motion for judgment of acquittal, defense counsel asked the court to "take up the issue of the alibi witness" that was apparently raised the day prior. The court directed defense counsel to make an offer of proof regarding the alibi witness. Defense counsel explained that when she met with Wrice on the morning of November 6, Wrice asked her to contact Lawrence Roberts because Wrice knew that he was working for Roberts on the day of the robbery. Upon learning this, defense counsel made numerous attempts to contact Roberts. Finally, at seven in the morning on November 9, defense counsel received a return phone call from Roberts. During the call, Roberts stated that he had given the original public defender a notebook in which he recorded by date the names, work hours, and amount paid for each of the day laborers that he employed. Defense counsel looked through the case file and found the notebook. At that point, defense counsel asked Roberts to appear in court that morning.

The trial court decided to allow defense counsel to make an offer of proof under examination. Roberts was questioned by defense counsel, by the State and by the court. Roberts testified that on December 12, 2004, the day of the robbery, Wrice was working for him in Jennings, Missouri. According to Roberts, he picked Wrice up around 7:30 in the morning and took him home after finishing the day's work at 5:30 in the evening. Roberts further testified that he was with Wrice for the entirety of the day, with the exception of twenty minutes when Roberts went to purchase lunch for his crew. Roberts's notations in his notebook corroborated his testimony.

The testimony given by Roberts was in direct contradiction to the State's case, and to the victim's identification of Wrice. But the State learned of the alibi witness at the close of its evidence and had had no opportunity to investigate or prepare for this information. Thus, the court found that the State would be unduly prejudiced if Roberts was allowed to testify. However, the court determined that while the problem was occasioned by the defense, there was no bad faith on the part of Wrice or defense counsel. Therefore, the court believed that it would be unfair to Wrice to exclude Roberts's testimony.

The court asked the State for its position on the issue of allowing Roberts to testify. The State responded by requesting that the court declare a mistrial. The court considered continuing the case and asked the State what they would need to do to prepare for the alibi witness and how much time they would need. Counsel for the State answered, "I have no idea how long it's going to take." Thereafter, the court found that because the prejudice to the State was "occasioned by the defendant," a mistrial was "the only thing that [made] sense."

Subsequent to the court's indication that it was going to grant a mistrial, the State notified the court that it had discovered a case, State v. Stevenson, 589 S.W.2d 44 (Mo.App. E.D.1979), which suggested that double jeopardy would attach unless Wrice consented to a mistrial. In Stevenson, we reviewed a trial court's decision to declare a mistrial where the State claimed surprise as a result of defense counsel's attempt to call a witness that the State had previously been told would not testify. Id. at 48-49. Our review in Stevenson found that because the trial court was convinced that there was manifest necessity, there was no abuse of discretion in ordering a mistrial. Id. at 49. We noted that in determining manifest necessity existed, the trial court could consider, among other things, the fact that the defendant did not object to "the granting of a new trial." Id.

In the present case, the trial court reviewed Stevenson and asked defense counsel whether they objected to the mistrial, to which they responded that they "did not object to a mistrial, but did not consent." The court then discussed the facts of the Stevenson case and found them to be "on all fours" with the situation at hand. Specifically, the court found that, like in Stevenson, Roberts's testimony was crucial to the defense, but "at the same time the State . . . had no opportunity to prepare for a witness who in fact completely not only proves great reasonable doubt, but proves actual innocence." Based on these facts, the court found that to allow the trial to proceed would result in a "manifest injustice" — to either the State if Roberts was allowed to testify, or to Wrice if Roberts was not — and ordered a mistrial in the case.

On September 11, 2006, the parties appeared to retry the case. Citing State v. Gatlin, defense counsel moved to dismiss the case with prejudice on the grounds that double jeopardy had attached in the earlier proceeding, thus precluding a retrial. 539 S.W.2d 731 (Mo.App.1976). The appellate court in Gatlin found that when surprise occurs in the trial of the case, the proper remedy is a continuance. Id. at 733. In presenting Gatlin to the court, defense counsel argued that because the State rejected the court's offer to postpone the proceedings and instead sought a mistrial, it should be barred from prosecuting a subsequent trial on the same counts. In light of Gatlin, the court reviewed its earlier decision to grant a mistrial and determined that the appropriate remedy, upon surprise to the State, was instead to order a continuance. Based on its implicit finding that the order of mistrial in the first proceeding was erroneous, the trial court entered an order and judgment dismissing the case with prejudice. The State appeals.

II. DISCUSSION
A. Standard of Review and Applicable Law

In its sole point on appeal, the State argues that the trial court abused its discretion by granting Wrice's motion to dismiss on the grounds that double jeopardy precluded a retrial following a mistrial in the initial proceeding. Missouri law protecting against double jeopardy applies only to retrial after an acquittal, and thus does not apply here. Mo. Const. art. I, sec. 19; State v. Tolliver, 839 S.W.2d 296, 298-99 (Mo. banc 1992). Instead, in arguing that double jeopardy attached, thereby precluding retrial, Wrice relies on the Fifth Amendment to the United States Constitution, under which double jeopardy attaches when the jury is impaneled and sworn. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). The prohibition against putting a defendant twice in jeopardy is based upon the fundamental right of a defendant to have his case heard to completion by a particular tribunal. City of Smithville v. Summers, 690 S.W.2d 850, 858 (Mo.App. W.D.1985); see also Kemper v. Vincent, 191 S.W.3d 45, 51 (Mo. banc 2006), citing United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) ("Once a trial has begun, the defendant has a right to have his trial completed by the jury that has been selected."). Double jeopardy, however, will not preclude a retrial if a defendant requests or consents to a mistrial. State v. Fitzpatrick, 676 S.W.2d 831, 835 (Mo. banc 1984).

Where, as here, the defendant did not consent to a mistrial, we must review the trial court's decision in the initial proceeding to grant a mistrial for an abuse of discretion in order to determine whether double jeopardy precludes retrial. Kemper, 191 S.W.3d at 49. Double jeopardy will bar a retrial unless there was manifest necessity to declare a mistrial. Id. at 51. Manifest necessity exists where "a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings." Fitzpatrick, 676 S.W.2d at 835.

In this case, where the trial court found that double jeopardy precluded retrial, we must determine whether or not the granting of the mistrial in the preceding action was a manifest necessity. If there was no manifest necessity to initially grant a mistrial, then double jeopardy will preclude the State from pursuing a new trial on the same charges brought in the preceding action.

B. Determination of Whether Manifest Necessity Required a Mistrial

We find that the trial court's determination that double jeopardy precluded the second trial was proper because the granting of a mistrial in the first proceeding was not a manifest necessity. In the first trial, after the voir dire of the alibi witness, the court asked the State for its position on allowing Roberts to testify. The State responded...

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  • State v. Rinehart
    • United States
    • Court of Appeal of Missouri (US)
    • 17 Enero 2018
    ...his trial before that particular jury. See State ex rel. Kemper v. Vincent , 191 S.W.3d 45, 51 (Mo. banc 2006) ; State v. Wrice , 235 S.W.3d 583, 586 (Mo. App. 2007) ; City of Smithville v. Summers , 690 S.W.2d 850, 854 (Mo. App. 1985). There was no need to implicate double jeopardy, sua sp......

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