The State v. Parker

• Decision Date: 07 April 2011
• Docket Number: No. 26940.,26940.
• Citation: 391 S.C. 606,707 S.E.2d 799
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent,v.Jack Edward Earl PARKER, Petitioner.

391 S.C. 606

707 S.E.2d 799

The STATE, Respondent,

v.Jack Edward Earl PARKER, Petitioner.

No. 26940.

Supreme Court of South Carolina.

Heard Jan. 5, 2011.Decided March 14, 2011.Rehearing Denied April 7, 2011.

Chief Appellate Defender Robert M. Dudek, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters, all of Columbia; Solicitor Robert Mills Ariail, of Greenville, for Respondent.Chief Justice TOAL.

In this case, the Court granted Jack Edward Earl Parker's (Petitioner) request for a writ of certiorari to review the court of appeals' decision in State v. Parker, 381 S.C. 539, 673 S.E.2d 833 (Ct.App.2009) affirming the trial court's decision to deny a motion to dismiss based on double jeopardy.

FACTS/PROCEDURAL HISTORY

It is undisputed that Petitioner shot and killed his sister's boyfriend, Robert Lee Stewart (Victim). In October 2003, Petitioner stood trial for murder. At trial, Petitioner claimed self-defense. The first trial ended when the judge granted Petitioner's motion for a mistrial. When Petitioner was tried again in 2005, he moved to dismiss based on double jeopardy. The circuit court judge at the second trial denied the motion and the jury convicted Petitioner of murder.

During the first trial, there was a great deal of animosity between the solicitor and defense counsel. Prior to questioning the first police witness, the solicitor explained that there was a videotape made of the crime scene that included graphic images of Victim's body. The solicitor redacted the original videotape to erase the graphic images and presented defense counsel a redacted copy on the day of trial. However, the original videotape, including the graphic images of Victim's body, was shown to the jury. Petitioner's counsel moved for a mistrial and dismissal with prejudice based on prosecutorial misconduct. Counsel for defense argued the solicitor's case was not going well and the State was now privy to his defense tactics. The solicitor claimed the tapes were switched unintentionally and inadvertently. The court found the explanation offered by the State “shocking” as to why “such a huge, substantial, material piece of evidence would be handled in such carefree fashion....” The circuit court judge admonished the solicitor, but denied the motion for a mistrial issuing a curative instruction that the jury was to disregard the fact that they viewed the body of Victim.

During the solicitor's closing argument, she accused defense counsel of unethical conduct in coaching witnesses and implied to the jury that it was their community duty to convict Petitioner of murder. After the solicitor concluded her closing argument, defense counsel again made a motion for a mistrial. Defense counsel contended a mistrial should be granted based on prosecutorial misconduct in closing argument in that the prosecution accused defense counsel of coaching witnesses, and argued facts not in evidence. Defense counsel ultimately argued that the cumulative effect of the prosecutorial misconduct warranted a mistrial. The circuit court judge charged the jury and then heard arguments on the mistrial motion. The solicitor contended her closing argument was justified by the evidence and was responsive to the defense's closing argument, thus, the mistrial motion should be denied. The jury then sent a note to the judge that it was deadlocked. The judge gave an Allen charge and the jury resumed deliberating. After further deliberation, the jury again reported that it was deadlocked. The judge received the note that the jury remained deadlocked as he was about to rule on the mistrial motion.

The circuit court judge noted he had reviewed the motion for a mistrial, the solicitor's closing argument, and his notes from the testimony. The judge found the statements made about Petitioner's counsel, the exhortation to the jury to convict in order to protect the community, and the introduction of the original videotape warranted a mistrial.

The circuit court judge stated, “In my readings of those opinions it's almost as if ... this court can infer that the defendant was almost goaded into the position of asking for a mistrial. So based on the totality of the circumstances that [have] occurred in this trial ... I will declare a mistrial....” The solicitor asked if the mistrial was based specifically on prosecutorial misconduct or the comments in her closing argument. The judge responded, “The comments made in closing arguments, I would consider to be prosecutorial misconduct as well as ... the video tape.... It's the cumulative nature of everything.” The State appealed the grant of a mistrial and the court of appeals dismissed the case as not immediately appealable.

Almost two years later, the State retried Petitioner. Petitioner moved to dismiss based on double jeopardy arguing the solicitor at the first trial intentionally goaded him into moving for a mistrial. The circuit court judge at the second trial denied the motion to dismiss. In denying the motion to dismiss that judge made two seemingly inconsistent findings. That judge stated:

I am resolving this motion completely independent of whether or not the prosecutor intentionally goated [sic] the defense into making a motion for a mistrial....

.... Even if there had been prosecutorial misconduct, it was the fact that the jury was deadlocked that caused the mistrial.

.... So regardless of my analysis of what happened in the first trial, this motion to dismiss is denied because it was the jury's being deadlocked that lead to the manifest necessity that lead [sic] to the mistrial.

Shortly after making the above finding, the circuit court judge also found the following:

I do not find that the prosecutor specifically committed misconduct that was designed to elicit a motion for mistrial from Defendant so that the prosecutor would have another bite at the apple, another time to try the Defendant. I believe that the prosecutor was vigorously trying to win the case and not trying to throw the case in the way of a mistrial. So I am for those reasons, denying the motions [sic] to dismiss based on double jeopardy.

The second trial proceeded and the jury convicted Petitioner of murder. Petitioner appealed to the court of appeals. The court of appeals affirmed the denial of Petitioner's motion to dismiss based on double jeopardy.

ISSUE

Did the court of appeals err in affirming the circuit court judge's denial of defense counsel's motion to dismiss pursuant to the Double Jeopardy Clauses?

STANDARD OF REVIEW

In criminal cases, an appellate court sits to review errors of law only and is bound by the trial court's factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 5–6, 545 S.E.2d 827, 829 (2001) (citations omitted). “This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence.” Id. at 6, 545 S.E.2d at 829.

LAW/ANAYSIS

Petitioner argues the solicitor who initially prosecuted Petitioner intentionally provoked defense counsel into moving for a mistrial. We agree.

The Double Jeopardy Clauses of the United States and South Carolina Constitutions protect citizens from being twice placed in jeopardy of life or liberty. See U.S. Const. amend. V; S.C. Const. art. I, § 12; Harden v. State, 360 S.C. 405, 410, 602 S.E.2d 48, 50 (2004) (citation omitted). “Under the law of double jeopardy, a defendant may not be prosecuted for the same offense after an acquittal, a conviction, or an improvidently granted mistrial.” State v. Coleman, 365 S.C. 258, 263, 616 S.E.2d 444, 446 (Ct.App.2005) (citation omitted).

“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.” Oregon v. Kennedy, 456 U.S. 667, 675–76, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982).¹ Hence, a properly granted mistrial poses no double jeopardy bar to a subsequent prosecution. “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.” Id. at 676, 102 S.Ct. at 2089; see also State v. Mathis, 359 S.C. 450, 460, 597 S.E.2d 872, 877 (Ct.App.2004) (noting that a defendant who has moved for and been granted a mistrial may invoke the Double Jeopardy Clause to prevent a second prosecution when the prosecutor's conduct giving rise to the mistrial was intended to provoke him into moving for the mistrial). Hence, the determination of whether double jeopardy attaches depends upon whether the prosecutorial conduct was undertaken with the intent to subvert the Double Jeopardy Clause. State v. Coleman, 365 S.C. 258, 263, 616 S.E.2d 444, 447 (Ct.App.2005) (citation omitted). “The trial court's finding concerning the prosecutor's intent is a factual one and will not be disturbed on appeal unless clearly erroneous.” Id. (citation omitted).

The court of appeals held:

At the second trial, Judge Few first denied the motion to dismiss based on the jury deadlock. We need not address this issue as we are restricted in our review of his further factual finding that the solicitor had not intentionally goaded the defense into moving for a mistrial. We find support in the record to affirm the finding that the solicitor did not intentionally goad Parker into moving for a mistrial. Accordingly, the trial court did not err in denying the motion to dismiss based on double jeopardy.

Parker, 381 S.C. at 544, 673 S.E.2d at 836. This holding is...