State v. McCoy, 1005008059A

Isaiah McCoy was convicted at trial (guilt phase May 2012) of murder and related charges; penalty phase began July 2012. The Delaware Supreme Court later reversed and remanded McCoy’s conviction.
During trial, the prosecutor made multiple improper statements (vouching for a witness, hostile remarks to defendant, comments about jury recollection, objections to standby counsel) and, post-conviction, threatened to publicize that McCoy had “snitched.”
McCoy moved for a mistrial once during trial (June 5, 2012); that motion was denied. Other misconduct occurred but was not the basis for a mistrial at the time.
On appeal the Delaware Supreme Court reversed due to prosecutorial vouching and improper interference with peremptory challenges.
McCoy then moved in the Superior Court to dismiss the retrial on Double Jeopardy grounds, arguing the prosecutor intentionally goaded him into moving for a mistrial (or that the prosecutor’s misconduct otherwise bars retrial).
The Superior Court denied the motion, concluding McCoy did not prove the prosecutor intended to goad him into requesting a mistrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Double Jeopardy bars retrial because the prosecutor intended to goad McCoy into moving for a mistrial	State: retrial permitted; only misconduct that produced reversal should be considered and prosecutor did not intend to goad	McCoy: prosecutorial misconduct (vouching, threats, comments) shows an intent to provoke mistrial, so retrial is barred	Denied: court found no sufficient objective evidence that prosecutor intended to goad McCoy into seeking a mistrial; retrial not barred

Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (Double Jeopardy bars retrial when prosecutor acts with specific intent to goad defendant into moving for mistrial)
Burks v. United States, 437 U.S. 1 (U.S. 1978) (reversal for insufficiency is equivalent to an acquittal and bars retrial)
United States v. Wallach, 979 F.2d 912 (2d Cir. 1992) (prosecutorial misconduct intended to prevent an anticipated acquittal can bar retrial)
Butler v. State, 95 A.3d 21 (Del. 2014) (sequence of overreaching by trial judge can support inference of intent to provoke mistrial)
Sullins v. State, 930 A.2d 911 (Del. 2007) (prosecutor’s surprise and opposition to mistrial weigh against inference of intent to goad)
McCoy v. State, 112 A.3d 239 (Del. 2015) (Delaware Supreme Court reversal and remand for prosecutorial vouching and jury-selection error)