Lead Opinion
Opinion
After an earlier joint trial on first degree murder indictments ended in mistrial as the result of the prosecution’s intentional misconduct, defendants Tracy L. Batts and Terrance McCrea were retried and convicted of those same charges. The Court of Appeal reversed the convictions, holding that the trial court erred by failing to grant defendants’ pretrial motions to dismiss on double jeopardy grounds, and remanding with directions to enter judgments of dismissal as to each defendant. We granted review to consider the circumstances under which a prosecutor’s intentional misconduct that results in a mistrial precludes retrial on double jeopardy grounds under the Fifth and Fourteenth Amendments to the federal Constitution, and under article I, section 15, of the California Constitution.
With regard to th $ federal constitutional double jeopardy issue, the United States Supreme Court held in Oregon v. Kennedy (1982)
As we shall explain, however, the standard adopted by the federal high court in Kennedy has been widely viewed as unduly narrow and as not fully protective of the interest that the double jeopardy clause was intended to safeguard, and in the two
Accordingly, with regard to the state constitutional double jeopardy issue, we conclude that when prosecutorial misconduct results in a defendant’s successful motion for mistrial, the double jeopardy clause of the California Constitution bars retrial in two circumstances. First, as under the federal Constitution, retrial is barred by the state double jeopardy clause when the prosecution intentionally commits misconduct for the purpose of triggering a mistrial. Second, the state double jeopardy clause also may bar retrial when the prosecution, believing (in view of
In other words, we conclude that when the prosecution in a criminal case commits misconduct that results in a mistrial, the double jeopardy clause of the state Constitution bars retrial in some circumstances in which the federal Constitution, as construed in Kennedy, supra,
Because we conclude that retrial of defendants was not barred under either the federal or state double jeopardy clause, we reverse the judgment of the Court of Appeal, which set aside defendants’ subsequent convictions on double jeopardy grounds. In light of the Court of Appeal’s conclusion on the double jeopardy issue, it did not reach or resolve the additional issues raised by defendants on appeal regarding the conduct of their subsequent trial, and we shall remand the matter to the Court of Appeal to permit it to address those remaining claims.
I
This case was tried three times: in 1998 (a trial in which Batts was the sole defendant, following which a new trial was granted); in late 1999 (a joint trial of both defendants, Batts and McCrea, ending in mistrial); and finally in 2000 (again, a joint trial of both defendants). The first and third trials resulted in first degree murder convictions. Events at the second trial, which as noted ended in a mistrial, give rise to the double jeopardy claim in the present appeal from the convictions and judgment rendered in the third trial.
Brothers Benczeon Jones and Brian Jones were young members of the Atlantic Drive Crips, a criminal street gang in
Brian’s girlfriend, Sonique Steward, from her apartment, saw Batts arrive. When she heard shots she ran outside and saw Brian dead and Benczeon prone and bleeding. She testified that Benczeon told her that “Tracy” had shot him, and that she immediately telephoned 911 and reported that Tracy had shot her boyfriend. Two men came upon the scene and dragged Benczeon toward the back of a building. Benczeon told them that defendants were the shooters.
Within hours of the shooting, Batts entered a hospital seeking treatment for a gunshot wound to his right shoulder. Batts was evasive with the officer who interviewed him, stating that he did not know where he had been when he was shot, and that he did not know who shot him. He later told another officer that he had been shot in Long Beach.
When interviewed at the hospital, Benczeon told the police that defendants had shot him. Benczeon also identified Batts from a photographic lineup, but further stated that he was afraid for his family and did not want to testify or otherwise cooperate with the police. Thereafter, Batts’s brother paid a visit to Benczeon in the hospital, leaving Benczeon upset and crying. Benczeon stated that Batts’s brother had told him not to testify and impliedly had threatened Benczeon’s family. In November 1997, Benczeon’s 10-year-old brother received a telephone call threatening Benczeon.
Several weeks after the shooting, Benczeon attended a photographic lineup and identified McCrea and again identifed Batts. In January of 1998, McCrea’s wife, Leslie Jones, contacted police to report a domestic assault. She informed an officer that McCrea had told her that he had killed persons before—including a “cousin in Compton”—and that she was afraid of him.
In January of 1998, Benczeon was shot and wounded by an unknown person. Benczeon believed that the shooting was related to his brother’s killing and to his own involvement in the case against defendants. Nevertheless, Benczeon testified against defendant Batts in the first trial in this case in June 1998, implicating both Batts and McCrea in the September 12, 1997, shootings. (At that time, McCrea had not yet been apprehended, and thus the prosecution had proceeded to trial against Batts alone.)
Defendant Batts was convicted at the first trial of murder, but subsequently was granted a retrial based on newly discovered evidence—a confession of guilt from one Richard Nava, who at that time was awaiting sentencing on another gang-related
In March 1999—nine months after the 1998 trial—Benczeon was brutally murdered after being chased and shot by assailants in two vehicles and then struck several times by traffic on a Compton street, in territory controlled by the Atlantic Drive Crips. No link between Benczeon’s murder and defendants ever was established.
Meanwhile, defendant McCrea had been apprehended. The People then went forward with a second trial, this one a joint proceeding against both defendants, held in late 1999. Benczeon’s testimony from the first trial was read to the jury at the second trial.
Benczeon’s testimony was admissible against Batts under two provisions of the Evidence Code: section 1291, permitting former testimony offered against a party to the earlier proceeding, and section 1231, which under certain circumstances allows admission of a decedent’s sworn statements regarding gang-related crimes. Because McCrea was not a party to the first trial, Benczeon’s testimony was admissible against McCrea under only the latter provision, section 1231.
One of the requirements for admissibility under Evidence Code section 1231 is that the decedent must have perished from other than natural causes. (Id., subd. (e).) Section 1231.4 further provides: “If evidence of a prior statement is introduced pursuant to this article, the jury may not be told that the declarant died from other than natural causes, but shall merely be told that the declarant is unavailable.” (Italics added.) Consistent with this statutory mandate, the trial court issued an order tracking the statute’s directive and emphasized several times before and during the trial to both the prosecution and the defense that counsel were not to mention Benczeon’s death in front of the jury, and instead were to approach the bench should any such issue arise.
The events that led to termination of the second trial are as follows.
Prosecution witness Detective Marvin Branscomb, who had testified at the first trial, recounted on cross-examination that he had interviewed Benczeon shortly after the September 12, 1997, shooting, while Benczeon was in the hospital recovering from gunshot wounds to his leg, and that at that time Benczeon was “noncooperative,” frightened, and concerned for his mother and other family members. Branscomb explained that he advised Benczeon of the district attorney’s “witness relocation program,” and told him “that we could see to it that he was part of that.” Benczeon did not respond to the offer, but Branscomb advised him that he would discuss the possibility of the witness protection plan with Benczeon’s mother.
Branscomb further testified that he did “eventually” give Benczeon $1,500 in cash from the witness protection program, to be used for first and last month’s rent for a new apartment. But, Branscomb stated, he gave Benczeon that money on October 6, 1998—four months after Benczeon testified at the first trial.
Counsel for Batts, Stanley Granville, proceeded during the course of further cross-examination to ridicule Branscomb’s testimony. Granville’s questions highlighted the absence of documentary evidence that the cash actually was used for relocation rent, and emphasized the four-month gap between Benczeon’s earlier testimony and the relocation payment. Finally, Granville asked Branscomb whether the funds truly were just a “payoff’ for Benczeon’s testimony. Granville also emphasized in his examination the circumstance that, after the payment, Benczeon “never
The two trial prosecutors were concerned that in light of defense counsel’s cross-examination, the jury may have been left with the impression that the prosecution had “paid off’ Benczeon for his testimony and then had made sure that Benczeon was not available to testify at subsequent preliminary hearings and before the jury in the second trial.
During the ensuing redirect examination, one of the deputy district attorneys, Phillip Stirling, referred to the May 10, 1999 preliminary hearing that had been held for defendant McCrea, and inquired whether Benczeon had testified at that hearing. Detective Branscomb answered, “no.” The prosecutor asked, “Why not?” Branscomb answered, “He was murdered.”
The court called a recess and, outside the presence of the rest of the jury, questioned a juror who, the bailiff reported, had broken down in tears in response to Branscomb’s answer. Both defendants moved for a mistrial. Thereafter the trial court held an extensive hearing on those motions.
Deputy District Attorney Larry Droeger argued that defense counsel’s cross-examination of Detective Branscomb deliberately had misled the jury concerning the reason for Benczeon’s absence from the prior proceedings and the trial, by suggesting that the prosecutors had paid off their witness after the first trial and then had taken further action to ensure that the witness remained unavailable, all so that the present jury would hear peijured testimony without subjecting Benczeon to cross-examination. Droeger argued that the message inherent in the cross-examination, “if accepted by the jury,” would
In response, defense counsel argued that there was no reason to object, because defendants had a right to rely upon the trial court’s prior rulings, and counsel had no reason to suspect that that the prosecutors or the witness would violate the court’s explicit orders that the reason for Benczeon’s absence not be disclosed.
In ruling upon defendants’ motions for mistrial, the court observed that defense counsel’s questioning “certainly could be interpreted as unfair questioning and unfair inferences. The People argued that that did, in fact, provide to the jury an unfair picture. And I’m inclined to think that it did.” But, the court continued, even conceding that the prosecutors “did appropriately feel [that] they had been boxed in to an extent and perhaps been taken unfair advantage of,” the prosecutors could and should have approached the bench and asked to work out a solution, and that “[t]here were other ways to make that jury absolutely clear that Benczeon Jones did not testify as a result of being paid off and lacking interest but rather that there were other good, legitimate legal reasons why Benczeon Jones wasn’t there.” The court noted that it was “shocked” and “stunned” by both the prosecutor’s question and the answer. The court found that under the circumstances there was no reasonable opportunity for defense counsel to object, and that the prosecutors had acted in “reckless disregard [of] the rights of the defendants in posing this question under the circumstances without it being screened.” The court concluded that the prosecution “committed misconduct in presenting the question at issue. And knowing what its response would be, the error caused by such conduct is too serious to be corrected.”
The trial court granted the motions for mistrial and then explained to the jury that it had done so, and the basis for its ruling. The court advised the parties that the matter later would be assigned to a court for further proceedings, possibly back to himself. Eventually the case was reassigned to the same trial judge—Honorable Jack W. Morgan—for retrial.
Five weeks after the mistrial, and prior to the start of the third trial in this matter, Attorney William Ringgold, new counsel for defendant Batts, moved to dismiss on
Although Ringgold’s motion relied upon only the federal Constitution, Attorney Cedric Payne, McCrea’s counsel, in joining Ringgold’s motion, stated that he was moving for dismissal under the double jeopardy provision of the California Constitution as well as under the federal Constitution, and he asserted that he assumed Ringgold would agree that the motion should be considered under both constitutional provisions. Payne further asserted that the approach set out in Kennedy, supra,
After hearing defense counsel’s arguments, the trial court called upon trial Prosecutor Larry Droeger. (Prosecutor Stirling was absent.) Droeger commenced by noting that he was “in a position of arguing . . . something of which I have personal knowledge,” namely his and Stirling’s respective intent when they met with Detective Branscomb at the recess during the second trial, directed him to “tell the truth,” and then proceeded to ask the detective, on redirect examination, why Benczeon had not been present at a certain preliminary hearing proceeding. Droeger offered to give his testimony under oath, but also added that any representation that he would make to the court would be made “as if it were under oath.” Neither defense counsel asked that Droeger actually take an oath.
Droeger told the court that when he and Stirling made their decisions concerning their examination of Detective Branscomb, mistrial was “the farthest thing” from their minds. Droeger asserted that in their private discussions preceding the misconduct, the prosecutors had felt personally attacked, causing them to “let our emotional response overcome our rational
The trial court stated that, pursuant to its reading of Kennedy, supra,
Following that approach, the trial court first asserted that, until the time of the mistrial, the case was “overall. . . going very well for the People.” The court recalled, “when I was evaluating this for several hours the night before I made the ruling ... I was perplexed for among other reasons as to how this could occur when the District Attorney had things going, in this court’s view, reasonably well from the People’s point of view a strong case, strong evidence that had already been presented.” The court stated that its “honest evaluation” was that “a District Attorney sitting in the circumstances that they were sitting in at the time would want to proceed and have a decision.” The court acknowledged that the cross-examination suggesting that the People had paid off Benczeon, “if left without rebuttal. . . would have been a potential negative.” (Italics added.) But, as the court previously had observed at the hearing on the mistrial motion, the prosecution had offered rebuttal testimony, explaining “how [the witness protection] process worked and how and why the money was given.” The court also acknowledged that the defense cross-examination that immediately preceded the trial-ending misconduct unfairly suggested that the prosecution had allowed Benczeon to absent himself from later proceedings, but again noted, as the court had reasoned at the hearing on the mistrial motion, “there was available to the District Attorney a procedure for handling the problem”—specifically, the prosecution could have approached the bench in order to work out acceptable means of correcting the false
The trial court mused that in attempting to discern the prosecutors’ intent, “the only way to do it is circumstantially. We can’t open their minds. . . . And I have attempted to do it that way. I do believe that I have objectively reviewed the situation and . . . although as I have said their conduct was perplexing to me . . .1 honestly do not believe that their conduct occurred because they wanted a mistrial. I think their conduct occurred because they let their emotions run far beyond where they should have [run]. And I think they realize that.” Having found that the prosecutors did not intend to provoke a mistrial, the trial court concluded that under the high court’s decision in Kennedy, supra, 456 U.S. 667, a retrial was not precluded, and hence the court denied the motions to dismiss.
Defendants did not seek writ review of the trial court’s ruling on their double jeopardy claim, and instead proceeded to another joint trial—the third trial for Batts, and the second for McCrea. At that trial, Richard Nava, whose earlier assertion of his own guilt in the underlying crimes had led to the vacating of Batts’s first murder conviction, and who at the time of the third trial was serving a prison term of more than 130 years to life for an unrelated murder, testified that on the morning of September 12, 1997, the Jones brothers had robbed him of a kilo of cocaine, and that he later had returned with his “homeboy” (whom he refused to name) to Jones’s apartment. Nava further testified that at that time, he, and not defendant Batts, engaged in a shoot-out with the Jones brothers. Nava’s testimony, however, was thoroughly and compellingly impeached.
Defendants were convicted at the third trial of first degree minder and attempted murder, various charged sentencing enhancements were found true, and they were sentenced to terms of 88 years to life and 90 years to life respectively. On appeal from that judgment, defendants contended in the Court of Appeal that the trial court lacked authority to conduct the
In the Court of Appeal, all parties argued the double jeopardy issue by focussing exclusively upon the federal Constitution and the intent-to-cause-mistrial test set out in Kennedy, supra,
After reviewing the record, the Court of Appeal found the trial court’s factual findings unsupported, and determined from its own reading of the record that the prosecutors did indeed intend to cause a mistrial by their misconduct at the second trial. Accordingly, the Court of Appeal concluded that retrial was barred and that the third trial should not have occurred. The Court of Appeal reversed defendants’ convictions and ordered dismissal of the charges with prejudice. We granted the Attorney General’s petition for review.
II
We initially address two procedural issues.
First, the People observe that Penal Code sections 1016 and 1017 include, among those defenses that should be specifically pleaded, a claim of “once in jeopardy.” The People suggest that because defendants in this litigation never entered such a plea, they have forfeited their double jeopardy claims. Courts long have observed, however, that “a claim of double jeopardy is most appropriately raised by way of a pretrial motion to dismiss the accusatory pleading or portion thereof allegedly barred by double jeopardy.” (Stone v. Superior Court (1982)
We reject the People’s claim and agree with the Court of Appeal, which observed that although an affirmative plea of “once in jeopardy” apparently was not entered, defendants’ motions to dismiss, which were made on double jeopardy grounds and fully litigated by the parties in the trial court, nevertheless “adequately covered this procedural requirement” and preserved the issue for review.
The Court of Appeal on its own raised a second procedural issue: “A more troubling question is why the defense did not seek a writ of prohibition after denial of the motions to dismiss. Prohibition is the preferred remedy, rather than putting everyone through the useless exercise of another trial. . . .” The Court of Appeal concluded, however, that under existing case law, defendants were permitted to proceed as they did and raise their double jeopardy claims on appeal, even though defendants did not first seek writ review to address those claims. (See In re Lozoya (1956)
Consistent with the Court of Appeal’s comment, we directed the parties to brief the following issue: “When a trial court denies a defendant’s claim of double jeopardy, should the defendant be required to seek timely review of thé denial by a petition for extraordinary writ as a condition to raising the double jeopardy claim on appeal?”
The People argue that a defendant must timely seek a writ of prohibition in order to preserve for appeal the issue of being placed twice in jeopardy. Defendants, on
Both defendants rely upon People v. Memro (1985)
“While respondent correctly notes that pretrial review is appropriate in discovery matters [citations], he fails to cite any authority for the proposition that such review is a prerequisite to review of discovery error on appeal. Indeed, several courts on direct appeal have entertained claims of erroneously denied discovery motions of the type involved in this case. [Citations.]
“Respondent’s argument also fails to recognize the unwarranted consequences which might result from a pretrial writ requirement. In addition to unnecessary delay and added expense [citation], such a requirement would limit the exercise of this court’s appellate jurisdiction, particularly in death penalty cases. [Citation.] This court’s constitutional responsibility in such cases should not be so easily circumscribed by procedural barriers, especially where the people of this state have not clearly spoken on the issue.
“It is also noteworthy that in analogous contexts California courts have declined to impose barriers to appellate review where important rights are involved. For example, the courts have sanctioned review on appeal of speedy trial rulings (People v. Wilson (1963)
Upon reflection, we agree that similar considerations apply here. In reaching this conclusion, we also find persuasive the circumstance that, of the scores of federal and out-of-state cases that we have reviewed (including Kennedy, supra,
Accordingly, we proceed to discuss the merits of defendants’ double jeopardy claim.
The Fifth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment (Benton v. Maryland (1969)
A
It is well established that the Fifth Amendment’s double jeopardy clause bars reprosecution following a defendant’s acquittal. (Ball v. United States (1896)
The remedy for a violation of a defendant’s Fifth Amendment double jeopardy right is strong medicine—dismissal of the charges and a permanent bar to retrial. (Burks v. United States (1978)
In the event of a mistrial declared over the objection of the defendant, double jeopardy principles bar retrial unless the mistrial was justified by “manifest necessity”—for example, a hung jury. (DiFrancesco, supra,
In the event of a mistrial declared at the urging of the defendant, however (the situation we face in the case before us), the general rule is that the
B
The defendant in Kennedy was. charged with stealing a rug. The state called an expert witness to testify concerning the value and identity of the rug. On cross-examination, the defendant’s counsel impeached the witness by revealing to the jury that the witness had filed a criminal complaint against the defendant, alleging fraudulent advertising. On redirect examination, the prosecutor attempted to reveal the reasons why the witness had filed a complaint against the defendant, but the trial court—perhaps erroneously—barred such inquiry. Thereafter, the prosecutor asked the witness whether he had “ever done business with [the defendant].” The witness responded that he had not, and the prosecutor immediately asked: “Is that because he is a crook?” The trial court granted the defendant’s subsequent request for a mistrial. (Kennedy, supra,
The defendant moved under the Fifth Amendment’s double jeopardy clause to bar the state’s subsequent attempt to retry him. “After a hearing at which the prosecutor testified, the trial court found as a fact that ‘it was not the intention of the prosecutor in this case to cause a mistrial.’ ” (Kennedy, supra,
On appeal from the resulting conviction, the defendant argued that the trial court erred by failing to grant his motion to dismiss. The Oregon Court of Appeals agreed, found a Fifth Amendment double jeopardy violation, and barred retrial. (State v. Kennedy, supra,
As suggested by the Oregon appellate court, prior high court decisions had stated that retrial in such circumstances should be barred when a prosecutor’s misconduct was intended to (i) cause a mistrial, or (ii) result in harassment or overreaching sufficient to prejudice a defendant’s double
Four members of the court signed Justice Stevens’s concurring opinion in Kennedy, maintaining that the majority unnecessarily had abandoned the “harassment/overreaching” aspect of the standard that it had articulated and applied in the prior cases cited above, none of which resulted in the barring of a retrial. (Kennedy, supra,
Under the rule adopted by a majority of the high court in Kennedy, the
C
In reviewing the record in order to assess evidence of intent by the prosecution to induce a successful mistrial motion, we are mindful of the high court’s observation in Kennedy, supra,
Consistent with that approach, our appellate courts have upheld trial court findings of a lack of intent on the part of the prosecution to induce a successful mistrial motion. In Barajas v. Superior Court, supra,
As observed earlier, the Court of Appeal determined from the cold record that the prosecutors had intended to induce a successful mistrial motion. The court reasoned that by advising Detective Branscomb during the recess to “tell the truth,” and then, upon resumption of redirect examination, asking him why Benczeon did not testify at prior hearings, the prosecutors must have intended to cause a mistrial. Defendants embrace this view, arguing, among other things, that (i) under the circumstances the prosecutor’s serious misconduct could have been intended only to terminate the second trial; (ii) the record does not support the trial court’s findings that the prosecution’s case was, at the time of mistrial, “overall . . . going very well for the People” and that “a District Attorney sitting in the circumstances that they were sitting in at the time would want to proceed and have a decision”; (iii) the planning that occurred during the recess proves that the prosecutors wanted to terminate the second trial; and (iv) the prosecutors’ initial assessment, articulated during the mistrial motion hearing, that the
We conclude that the Court of Appeal failed to accord proper deference to the trial court’s factual findings. Indeed, a key passage of the Court of Appeal’s analysis rejecting the trial court’s findings is itself based upon a misreading of the reporter’s transcript. The Court of Appeal stated: “Our review of the record persuades us that there is insufficient evidence to support the trial court’s conclusion as to the prosecutors’ intent. Indeed, the record persuasively establishes their desire to cause a mistrial. In reaching this conclusion, we agree with an earlier assessment by the trial court: T think as soon as those words were uttered, it was clear that a mistrial was going to occur. It wasn’t so much, hey, let’s try to somehow gloss it over. Let’s try to somehow get to a point where we can make a corrective ruling or make some type of statement to the jury to somehow cure this mistake. It was obvious. And it was clear that when the district attorney, through their actions, through their plan, had Detective Branscomb state that he was murdered that meant that the case would be over.’ ” (Italics added.) The trial court, however, never uttered the quoted words; they were instead defense counsel’s argument to the trial court, and as noted above, the trial court ultimately reached the opposite finding.
The prosecutors instructed Detective Branscomb to provide a significant pause before answering their fateful question. Prosecutor Droeger stated that he and Prosecutor Stirling expected an objection prior to Branscomb’s answer, and that they were surprised when no objection was made and the answer ensued. The record does, in fact, reflect that Detective Branscomb paused significantly before giving his answer.
Although defendants assert that inconsistent testimony by various prosecution witnesses at the 1999 trial rendered the prosecution’s case weak and that the cross-examination of Detective Branscomb further weakened the prosecution’s case, the trial court’s contrary assessment of the strength of the prosecution’s case is supported by substantial evidence. Specifically, the former testimony of Benczeon identified both defendants as the shooters, and he also positively identified the shooters
Viewed as a whole, the record amply supports the trial court’s finding that, immediately prior to the declaration of mistrial, the evidence pointing to defendants as the actual killers of Brian Jones on September 12, 1997, was quite strong, and that the cross-examination of Detective Branscomb was not of a nature that would have left a reasonable prosecutor with the belief that the case was lost and beyond rehabilitation. This evaluation by the trial judge supports the trial court’s finding that the prosecutors did not intend to induce a successful mistrial motion.
In sum, we conclude that the record supports the trial court’s determination that the prosecutors did not intend to cause a mistrial, and we defer to that factual finding.
IV
We turn to the state double jeopardy clause, article I, section 15, which, in language similar to but still somewhat different from the Fifth Amendment, provides: “Persons may not twice be put in jeopardy for the same offense . . . .” (Cal. Const., art. I, § 15.) The People ask us to “clarify” that the “intent-to-cause-mistrial” standard adopted by the high court in Kennedy, supra,
A
When the double jeopardy clause was made part of the 1849 California Constitution (1849 Cal. Const., art. I, § 8), it provided: “No person shall be subject to be twice put in jeopardy for the same offence.” (Browne, Rep. of Debates in Convention of Cal. on Formation of State Const. (1850) appen., p. IV.) This language, which was borrowed from the New York Constitution (see Browne, p. 31), was endorsed by the drafters of the 1849 Constitution without debate. (Id., pp. 30-31, 41.) Subsequently, the drafters of the 1879 Constitution adopted similar language (“No person shall be twice put in
As defendants observe, whereas the Fifth Amendment to the federal Constitution, as construed by Kennedy, supra,
B
Sister state jurisdictions that have determined the proper interpretation of their own state Constitution’s double jeopardy clause under similar circumstances have divided between following the narrow Kennedy test, and a broader, more expansive test.
1
Based in large part upon its clarity and perceived ease of application, the narrow “intent-to-cause-mistrial” test set- out by the majority in Kennedy, supra,
Nevertheless, the intent-to-cause-mistrial test has been viewed as inadequate because
The federal test’s application to the facts of this case (see ante, pt. III.C) illustrates the narrow scope and limitations of that test. Had the prosecutors intentionally committed their misconduct not to cause a mistrial, but instead to improperly prejudice the jury to convict in order to avoid a likely acquittal, the prosecutors’ misconduct clearly would implicate defendants’ double jeopardy interests, which, as we have seen, include a defendant’s “ ‘ “valued right to have his trial completed by a particular tribunal.” ’ ” (People v. Marshall (1996)
Competing tests designed to more fully protect double jeopardy interests have been adopted by the high courts of six states. (State v. Kennedy (1983)
These broader tests, however, have been subject to criticism as well. The standards adopted by Pennsylvania in Smith, supra,
In our view, each of these tests (and a similar formulation from Texas)
C
As noted above, we have concluded that a narrow test, focussing solely upon whether
At the same time, the standard that we adopt should not be so broad as to lead to the imposition of the double jeopardy bar—with its drastic sanction prohibiting retrial—in circumstances in which such a sanction is unwarranted. What is needed is a standard that sufficiently protects double jeopardy interests, but also retains and enforces a distinction between “normal” prejudicial prosecutorial misconduct that violates a defendant’s due process right to a fair trial and warrants reversal and retrial, and the form of prosecutorial misconduct that not only constitutes a due process violation but also a double jeopardy violation, and hence warrants not only reversal but dismissal and a bar to reprosecution.
D
In formulating such a standard, we find helpful a line of decisions stemming from the decision of the Second Circuit Court of Appeals in U.S. v. Wallach, supra,
At the criminal trial at issue in Wallach I, supra,
Prior to the commencement of retrial on reduced counts, Wallach moved to dismiss
The court in Wallach II continued: “If any extension of Kennedy beyond the mistrial context is warranted, it would be a bar to retrial only where the misconduct of the prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct. ” (Wallach II, supra,
The court in Wallach II concluded, however, that even under this broader standard, no double jeopardy violation was demonstrated in that case, because “[t]he evidence against Wallach and his co-defendants was quite strong,” giving the prosecution “every reason to anticipate a conviction” (Wallach II, supra,
Because we need consider in the present case only the proper standard under the state double jeopardy clause for prosecutorial misconduct that triggers a defendant’s successful mistrial motion, we need not,
E
Without attempting to articulate a double jeopardy test that will be applicable in all circumstances, we conclude that the double jeopardy clause of California Constitution article I, section 15 bars retrial following the grant of a defendant’s mistrial motion (1) when the prosecution intentionally commits misconduct for the purpose of triggering a mistrial, and also (2) when the prosecution, believing in view of events that unfold during an ongoing trial that the defendant is likely to secure an acquittal at that trial in the absence of misconduct, intentionally and knowingly commits misconduct in order to thwart such an acquittal—and a court, reviewing the circumstances as of the time of the misconduct, determines that from an objective perspective, the prosecutor’s misconduct in fact deprived the defendant of a
In our view, the latter aspect of the test, which requires a court to find, as an objective matter, that the prosecution’s misconduct in fact deprived the defendant of a reasonable or realistic prospect of acquittal, is appropriate to guard against an unwarranted imposition of the double jeopardy bar. If, despite a prosecutor’s subjective belief that an acquittal was likely to occur in the absence of misconduct, the court determines that, from an objective perspective, an acquittal was not a realistic prospect, a bar of retrial, permanently relieving such a defendant of any criminal responsibility for his or her charged conduct, would constitute a windfall for the defendant. In our view, when such prosecutorial misconduct has not deprived a defendant of a reasonable prospect of an acquittal, double jeopardy interests are not unfairly compromised if a defendant who successfully moves for a mistrial remains subject to retrial.
Applying the foregoing test to the present case, it is apparent that the misconduct was intentional, and that its prejudicial impact was sufficient to justify the trial court’s decision to grant a mistrial. As noted ante, part III.C, however, the trial court’s findings amply support its conclusion that the misconduct was not committed with the intent to induce a mistrial. Accordingly, in this case, the state constitutional double jeopardy guarantee would bar retrial only if the deliberate misconduct was intended by the prosecution to prevent an acquittal that the prosecution subjectively believed at the time was likely to occur in the absence of the misconduct, and acquittal was, in fact, an objectively reasonable prospect absent the misconduct.
Although the trial court did not have in mind the subjective intent standard that we now articulate, and hence did not expressly consider whether the prosecutors’ deliberate misconduct was intended by them to prevent an acquittal that they believed at the time was likely to occur in the absence of the misconduct, the trial court did find that, despite the negative impact of the cross-examination upon the People’s case, the prosecutors never actually believed the case was lost. The court stated: “I don’t see that it rises to a level that ... a reasonable evaluation of the case would be that you’re going to lose because of that, in the District Attorney’s point of view. Nor do I believe that they thought that.” (Italics added.) Based upon these findings, we conclude that the prosecutors did not subjectively believe at the relevant time that, absent their misconduct, an acquittal was likely to occur—and hence we need not remand for a further hearing to resolve that factual question.
Furthermore, even if the record were viewed as ambiguous on the question of the prosecutors’ subjective intent, we
V
We wish to emphasize that we agree completely with the trial court’s finding in the 1999 trial that the misconduct of the prosecutors during that trial was indefensible and violated defendants’ due process rights to a fair trial. The proper remedy for such a due process violation was, and remains, the declaration of a mistrial, followed by a retrial. For the reasons set out above, we conclude that neither defendants’ federal nor their state double jeopardy rights were violated in this case.
Accordingly, the judgment of the Court of Appeal is reversed and the matter is remanded to that court for resolution of the remaining issues raised on appeal.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
Notes
In this case, we have no occasion to address the proper application of the federal or state double jeopardy clauses in the related but distinct circumstance in which prosecutorial misconduct results not in a mistrial, but rather in the reversal of a conviction on appeal.
There is evidence suggesting that Batts and Benczeon may have been engaged in a territorial dispute concerning the sale of illegal drugs.
Benczeon denied that he or Brian were armed during the attack. But other testimony, introduced at the 2000 trial, called Benczeon’s claim into doubt, suggesting that he or his brother also were armed.
Two of the three preliminary hearings to which defense counsel had referred occurred prior to Benczeon’s death. The other preliminary hearing to which defense counsel referred occurred on May 10, 1999—two months after Benczeon’s demise. Regarding that preliminary hearing, however, defense counsel’s specific question to Detective Branscomb referred to it as having occurred in 1998. Accordingly, defendant Batts asserts in his answer to the brief of amicus curiae Los Angeles County District Attorney, “for all [the jury] knew, [that hearing] was in 1998.” Nevertheless, taken as a whole, the questioning by defense counsel clearly implied that Benczeon had been “paid off’ after his initial testimony and further implied that Benczeon had been available to testify both at the subsequent hearings and before the jury in the second trial, but nonetheless had not been required to testify.
At the hearing on the motions to dismiss, Judge Morgan disclosed that shortly after the mistrial motions were granted (but prior to the reassignment of the matter to himself), he had received an ex parte visit by Prosecutor Stirling, who “came in and, in essence, apologized for his conduct and left.” The court recounted that “nothing substantive was discussed at all in regard to the case. It was simply a statement by Mr. Stirling that he apologized for his conduct, and he hoped it wouldn’t . . . cause him to receive a bad reputation—I am paraphrasing—in the building. . . . [i] I assured him that I would be objective and . . . [that the matter was] history as far as that and not a personal matter.” Upon being informed of this ex parte meeting, defense counsel did not ask Judge Morgan to recuse himself.
Ringgold was Batts’s third counsel. Upon the granting of the mistrial, Stanley Granville, who had been retained to conduct only the second trial, was allowed to withdraw. Batts had been represented by yet another attorney at his first trial.
Counsel may have been referring to People v. Valenzuela-Gonzales (1987)
Although in so moving, and in subsequent concluding remarks on the motion, counsel Payne referred to the state and federal “confrontation clause,” when read in context counsel’s statements clearly were intended to refer to the double jeopardy clause. It is apparent that the trial court understood defendants’ motions and Counsel Payne’s supplementary comments as raising state and federal double jeopardy issues.
The trial court commented: “Under the clearly described procedure that the court had set forth ... it was anticipated that there would be problems particularly in sensitive areas. [If] . . . [T]here was a way to [correct the unfair implication left by the defense cross-examination], And that was simply to say, Judge, can we come to sidebar. And then say, Granville is pulling all kinds of things on us here. He has us backed in a comer. He’s trying to make that jury believe we are paying off. . . that witness. That is absolutely unfair. This man is dead. What can we do about it, Judge? What will you do about it?”
The trial court proceeded to list options that could have been adopted to address the problem. The court observed that it could have delivered to the jury an appropriate cautionary instruction that there was “no reason” for the witness to have testified. Also, the court stated, it “could have considered other alternatives and would have had an open mind in terms of how best to handle this matter[,] recognizing that the People did have a legitimate concern.”
Specifically, after acknowledging the negative impact of the cross-examination on the prosecution’s case, the court stated: “I don’t see that it rises to a level that... a reasonable evaluation of the case would be that you’re going to lose because of that, in the District Attorney’s point of view. Nor do I believe that they thought that.”
As the high court explained in Green v. United States (1957)
See Ponsoldt, When Guilt Should Be Irrelevant: Government Overreaching as a Bar to Reprosecution Under the Double Jeopardy Clause After Oregon v. Kennedy (1983) 69 Cornell L.Rev. 76, 81 (noting that the high court’s double jeopardy cases are concerned with preservation of a defendant’s opportunity to obtain a favorable verdict from the first tribunal he or she confronts).
In none of these cases, nor in any other high court case, however, did the court find retrial to be barred by the broader “overreaching conduct” standard.
The concurring opinion reasoned that the defendant’s double jeopardy rights were not violated, because the prosecutor’s conduct at issue in Kennedy amounted to neither overreaching nor harassment and “could not have injected the kind of prejudice that would render unmeaningful the defendant’s option to proceed with the trial.” (Kennedy, supra,
An extension of the Kennedy standard has been recognized by some lower courts that have addressed the related issue of the proper application of the federal double jeopardy clause in the context of prosecutorial misconduct that results not in a mistrial, but instead in an appellate reversal of a tainted conviction. (See, e.g., U.S. v. Wallach (2d Cir. 1992)
Counsel for Batts, in his answer to the amicus curiae brief of the Los Angeles County District Attorney, asserts that the Court of Appeal’s attribution of the above quote to “the trial court’ was a mere “typographical error,” and that actually the Court of Appeal intended merely to assert its agreement with “the trial counsel.” Viewing the Court of Appeal’s syntax in context, we cannot agree with defense counsel’s creative reading.
In this regard, we agree with the observation of the Washington Court of Appeals: “When adrenaline overcomes judgment and trial court rulings are ignored, the trial may lose its civilized attributes and be reduced to the level of a dog chasing a cat. A mistrial will often be the result, as it was here. But we cannot say the trial court erred in characterizing the State’s conduct as insufficient to bar a retrial. . . .” (State v. Lewis (1995)
(See Cal. Const. Revision Com., Article I (Declaration of Rights) Background Study 4 (Dec. 1969) pp. 19, 24; Cal. Const. Revision Com., Article I (Declaration of Rights) Rep. IV (Feb. 1970) pp. 6-10; Cal. Const. Revision Com., Proposed Revision (pt. 5, 1971) p. 24; see generally Cal. Const. Revision Com., Rep., Materials Relating to Provisions in Cal. Const. Recommended or Endorsed by Com. (Dec. 10, 1974) pp. 74-81.) We also have examined the materials that were placed before the voters when the provision was amended in 1974. (Ballot Pamp., Gen. Elec. (Nov. 5, 1974) text of Prop. 7, pp. 26, 28-29.) We have found nothing in the ballot materials to suggest that the voters’ attention was focussed upon the scope of the double jeopardy guarantee as it relates to the issue we face here.
Most state jurisdictions have not addressed the question, and many others expressly have left it open. Indeed, this court itself has previously noted, and declined to resolve, a related issue. In In re Martin (1987)
In Valenzuela-Gonzales, supra,
The Pennsylvania Supreme Court held in Smith: “[T]he double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.” (Smith, supra,
The Supreme Court of Hawaii held in Rogan that under the state double jeopardy clause, “reprosecution of a defendant after a mistrial or reversal on appeal as a result of prosecutorial misconduct is barred where the prosecutorial misconduct is so egregious that, from an objective standpoint, it clearly denied a defendant his or her right to a fair trial. In other words, we hold that reprosecution is barred where, in the face of egregious prosecutorial misconduct, it cannot be said beyond a reasonable doubt that the defendant received a fair, trial.” (Rogan, supra,
In Smith, supra,
Pursuant to Texas law, “a successive prosecution is jeopardy barred [under the Texas Constitution’s double jeopardy clause] after declaration of a mistrial at the defendant’s request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request.” (Bauder, supra,
To the extent it is inconsistent with this conclusion, People v. Valenzuela-Gonzales, supra,
The test set out in Wallach II has been reaffirmed by the Second Circuit, and endorsed by the First Circuit Court of Appeals and various state jurisdictions. (U.S. v. Pavloyianis (2d Cir. 1993)
We recognize, of course, that the United States Supreme Court in Kennedy, supra,
The Los Angeles District Attorney, appearing as amicus curiae, argues that “a jeopardy defense premised upon a prosecutor’s intent presents a question of fact for the jury.” In support, amicus curiae relies upon the concluding sentences of an extensive footnote in Stone v. Superior Court, supra,
We have grave doubts that, under the double jeopardy standard set forth above, factual questions regarding the prosecution’s intent in committing misconduct are appropriate for resolution by a jury rather than by the court—as far as we are aware, all courts that have addressed similar double jeopardy issues have assumed that the court, rather than a jury, would make the relevant determination (see, e.g., Kennedy, supra,
Concurrence Opinion
I join in the majority’s holding that the double jeopardy clause of the California Constitution provides slightly broader protection than its federal counterpart. I write separately because, in my view, the Court of Appeal was correct that retrial is barred in the present case under the double jeopardy clause of the federal Constitution.
In Oregon v. Kennedy (1982)
As the majority opinion recounts in greater detail, defendant Tracy Batts was tried in 1998 for the murder of Brian Jones in a gang-related shooting. The victim’s brother, Benczeon Jones, was wounded during the attack and identified the shooters as Batts and Terrance McCrea, who had not been apprehended. Batts was convicted but was granted a new trial based upon newly discovered evidence. Prior to the retrial, Benczeon was murdered in March, 1999.
Also prior to the retrial, McCrea was apprehended. At the second trial against both defendants, Benczeon’s testimony at the first trial was admitted as to Batts alone under Evidence Code section 1291, which permits the former testimony of an unavailable witness to be admitted against a party to the earlier proceeding. Benczeon’s former testimony also was admitted as to both defendants under Evidence Code section 1231, which under specified circumstances allows admission of a decedent’s prior statements in a gang-related prosecution if the decedent “died from other than natural causes.”
Evidence Code section 1231.4 provides: “If evidence of a prior statement is introduced pursuant to this article, the jury may not be told that the declarant died from other than natural causes, but shall merely be told that the declarant is unavailable.” Accordingly, the trial court instructed the attorneys on several occasions prior to and during trial that the jury would not be informed that Benczeon was dead. Instead, the jury would be told only that he was unavailable. The prosecutors were told to instruct their witnesses not to mention that Benczeon was dead.
Prosecution witness Detective Marvin Branscomb testified on cross-examination that he visited Benczeon in the hospital hours after Benczeon had been shot and his brother had been killed. Benczeon was reluctant to cooperate with the police out of fear for the safety of his family. Detective Branscomb told Benczeon that the witness relocation program would pay the cost of the first and last month’s rent if his family wished to relocate to a residence in another neighborhood. Defense counsel established that Benczeon testified on June 8, 1998 at Batts’s first trial. Four months later on October 6, 1988, Detective Branscomb gave Benczeon a check for $1,500 under the witness relocation program. Cross-examination included the following exchange:
“[Defense counsel] Well, you didn’t give him this money, is that correct, until October 6th, 1998, right?
“[Detective Branscomb] Yes.
“Q . . . It is after he already testified then, right?
“A Right.
“Q That is the only time he testified in connection with any of these cases, right?
“A Yes.
“Q He never showed up and testified at Tracy Batts’ preliminary hearing, right? . . .
“A Correct.
“Q He didn’t show up and testify in Terrance Me Crea’s first preliminary hearing. . . .
“A Correct.
“Q And he didn’t testify in Terrance Me Crea’s preliminary hearing on May 10, 1988. . . .
“A Correct, m . . . ffl
“Q At the time you give him this $1500 cash he testified just one time, right?
“A Yes.
“Q And then four months after he testifies you pay him $1500 cash?
“A Yes. [1] . . . m
“Q Isn’t it trae that you guys gave him this $1500 as a payoff?
“A No.”
On redirect examination, the prosecutor returned to the subject of the witness relocation program. After having Detective Branscomb describe how the program operates, the following exchange took place:
“[Prosecutor] . . . Before I go on, why relocate a witness?
“[Detective Branscomb] Because witnesses get murdered.
“Q Relocation has some affect upon that?
“A Yes.”
A short time later, following a brief recess, the crucial exchange took place:
“[Prosecutor] ... On May 10th, 1999, there was another preliminary hearing; is that correct?
“[Detective Branscomb] Yes.
“Q On that date, did Benczeon Jones testify? Did he testify? Simply that.
“A No.
“Q Why not?
“A He was murdered.”
Defense counsel asked to approach the bench and suggested that the jury be excused for the day. After the jury had left the courtroom, the bailiff reported that one juror “broke down,” saying “this is too much for her.” This juror was examined outside the presence of the other jurors and said she had cried because of the “comment that was made about the death or the murder of Benczeon.”
After all the jurors had left for the day, the following proceedings took place:
“The Court: . . . Now, let me ask, first of all, just preliminary of the district attorney when you asked that question, did you expect that answer?
“[Prosecutor]: Yes, your honor.
“The Court: All right.
“[Prosecutor]: The answer—I said if I ask you this question, I want you to tell the truth as to why he was not there. I said before he answered the question, make a significant pause to see if counsel wanted to object to the question. If they don’t object to the question, then answer truthfully as to why it was he was not there.”
When asked by the court for any other reason the information about Benczeon’s death was elicited, the prosecutor stated: “[Defense counsel] opened the door and specifically implied that Benczeon did not show up and . . . that it was intentional.”
Defendants moved for a mistrial and, the following day, one of the prosecutors argued that they had been forced to respond to defense counsel’s implication that Benczeon had been paid for his testimony and then intentionally failed to appear to testify because “this attack essentially if accepted by the jury completely devastates any credibility that Benczeon Jones’ testimony has. It destroys any credibility of this detective in testifying in this matter, and it impugns both of us as prosecutors in this case suggesting that we have not only paid the witness off in the first trial but then are taking further actions to present the jury that is perjured testimony that is bought and paid for testimony and making sure the witness isn’t here.” Reiterating that the detective was instructed to, and did in fact pause before answering, the prosecutor argued that defense counsel did not object because “[t]hey wanted the opportunity to ask for a mistrial.”
Prior to the retrial, defendants moved to dismiss on double jeopardy grounds before the same judge that had presided over the mistrial. One of the prosecutors who had represented the People at the mistrial argued his “tactical decision” to instruct the witness to reveal that Benczeon had been murdered was a “mistake” and admitted he had acted emotionally, but asserted that causing a mistrial was “the farthest thing from [his] mind.” He believed the trial had been going “extremely well” and the prosecution “had a good chance of obtaining a conviction.”
The trial court denied the motion to dismiss, noting that “the case was going very well for the People.” The court added: “[Although as I have said their conduct was perplexing to me . . .1 honestly do not believe that their conduct occurred because they wanted a mistrial. I think their conduct occurred because they let their emotions run far beyond where they should have ran. And I think they realize that.”
The United States Supreme Court in Oregon v. Kennedy, supra,
The court in Barajas v. Superior Court (1983)
The Courts of Appeal in Barajas and Valenzuela-Gonzales misstate the standard of review established in Oregon v. Kennedy, supra,
In the present case, as the Court of Appeal correctly noted, there is no doubt the prosecutors knew their misconduct would provoke a mistrial. Several factors make this case unusual. First, the prosecutor’s misconduct was deliberate and calculated. This was not a rash decision or improper question blurted out in the heat of battle. During a recess, the prosecutor instructed a police officer witness to disregard a direct court order that had been reiterated several times.
Second, the prosecutor’s deliberate misconduct violated not only a direct court order, but a statute. Evidence Code section 1231.4, of which the prosecutor was aware, requires that when a decedent’s statement is admitted under Evidence Code section 1231, as was Benczeon’s prior testimony, “the jury may not be told that the declarant died from other than natural causes, but shall merely be told that the declarant is unavailable.”
Third, it was obvious that this revelation would be a bombshell. The trial court stated it was “shocked” and “sat there stunned.” A juror broke down in tears upon hearing that Benczeon had been murdered.
Finally, although the trial court concluded that the prosecutor did not intend to cause a mistrial, it admitted that it could not understand the prosecutor’s intentions. Before granting the mistrial, the court questioned why the prosecutor did not approach the bench to discuss the issue, rather than instruct the witness to disobey the court order, stating: “Why? Why? Why on earth—why on earth would the district attorney in this circumstance not come before the court and follow that procedure? Although I painfully struggled with that question, I have absolutely no insight into that as I sit here today. None. I can’t imagine that such a thing could have happened under any reasonable scenario. . . Prior to denying the motion to dismiss, the court repeated that the prosecutor’s conduct “was perplexing to me.”
Under these circumstances, I have no doubt that the prosecutor intentionally violated both the trial court’s order and Evidence Code section 1231.4 knowing it would provoke a mistrial. Accordingly, retrial is barred by the double jeopardy clause of the federal Constitution.
The petition of appellant Tracy L. Batts for a rehearing was denied July 30, 2003. George, C. J., and Brown, J., did not participate therein.