441 P.3d 451
Kan.2019Background
- Bowman was tried on rape, aggravated sodomy, and intimidation charges based on allegations by his then‑3/4‑year‑old granddaughter; a recorded forensic interview and out‑of‑court statements played central roles in the State's case.
- The State sought and the court granted closed‑circuit testimony and a comfort person for the child; a pretrial competency hearing found the child competent to testify.
- At trial the prosecutor previewed the child's forensic interview in opening; the State then introduced hearsay about the child's statements before calling the child.
- When the child was called via closed circuit, she repeatedly failed to respond to the oath; defense counsel objected and moved for dismissal with prejudice; the State moved for a mistrial instead.
- The trial judge granted a mistrial (citing K.S.A. 22‑3423(1)(a) and (1)(c))—relying in part on his inadvertent failure to mute a bench‑conference microphone and on the prejudicial opening—over Bowman’s objection; Bowman filed a habeas petition claiming double jeopardy barred retrial.
Issues
| Issue | Plaintiff's Argument (Bowman) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the trial court abused discretion in declaring mistrial under K.S.A. 22‑3423(1)(a) ("physically impossible") | Mistrial was improper because the child’s refusal to take the oath did not make trial physically impossible and the court could have cured prejudice with instructions | Trial judge properly found it impossible to proceed in conformity with law as child was unavailable to testify | Court: (1)(a) inapplicable — abuse of discretion; "physically impossible" requires more than an absent or recalcitrant witness |
| Whether K.S.A. 22‑3423(1)(c) (prejudicial conduct) justified mistrial | Mistrial improper because alleged prejudicial conduct (open mic bench conference, admission of hearsay) was speculative or resulted from prosecutor’s trial strategy risk; prejudice could have been cured | Prejudicial opening and possible overhearing by the child made a fair trial impossible; judge reasonably found prejudice incurable | Court: (1)(c) inapplicable — abuse of discretion; no evidence child heard bench conference and prejudice not necessarily incurable |
| Whether K.S.A. 2018 Supp. 21‑5110(a)(3)(C) (statutory double jeopardy exception for "impossibility" of jury arriving at verdict) permits retrial | Statute bars retrial because defendant was in jeopardy and termination occurred without his consent and none of the enumerated exceptions (incl. jury impossibility) apply | State contends (a)(3)(C) coextensive with mistrial statute exceptions and permits retrial when mistrial statutorily proper | Court: (a)(3)(C) does not apply — retrial barred because mistrial was improperly declared and statute’s "impossibility" requires inability to reach any verdict (including acquittal) |
| Remedy and jurisdiction | Bowman sought habeas relief/dismissal with prejudice and release | State sought permission to retry | Court granted writ of habeas corpus, dismissed criminal case, ordered Bowman’s release |
Key Cases Cited
- State v. Logsdon, 304 Kan. 3 (Kan. 2016) (jury presumed to follow curative instruction)
- State v. Davis, 236 Kan. 538 (Kan. 1985) (better practice to call hearsay declarant before admitting out‑of‑court statements)
- State v. Johnson, 261 Kan. 496 (Kan. 1997) (mistrial and double jeopardy statutes provide complementary exceptions)
- In re Habeas Corpus Petition of Mason, 245 Kan. 111 (Kan. 1989) (habeas is proper remedy to resolve pretrial double jeopardy claim)
- Washington v. Washington, 434 U.S. 497 (U.S. 1978) (trial judge's manifest necessity determination for mistrial entitled to deference)
- United States v. Perez, 22 U.S. (9 Wheat.) 579 (U.S. 1824) (origin of "manifest necessity" standard)