*1 May S101183. [No. 2003.] PEOPLE,
THE Plaintiff and Respondent, al.,
TRACY L. BATTS et Defendants and Appellants.
Counsel Redburn, Court, Chris R. under for Defendant appointment by Supreme and L. Tracy Batts. Appellant Smith, Court,
Barbara A. under Defendant appointment Supreme and Terrance McCrea. Appellant General,
Bill Anderson, P. Druliner R. Lockyer, Attorney David and Robert General, Chief Attorneys Assistant Carol Wendelin Pollack and Pamela C. Hamanaka, General, Assistant John R. E. Max- Attorneys Gorey, Margaret Wildman, well A. General, and David for Plaintiff Attorneys and Deputy Respondent.
Steve Palmer, District Cooley, Attorney M. Head (Los Angeles), George Monforton, District G. Deputy Attorney, Roderick Leonard Matthew District as Amici Curiae on behalf of Plaintiff Deputy Attorneys, Respondent.
Opinion indict- first murder
GEORGE, degree After anearlier trial on joint C. J. intentional miscon- of the prosecution’s ments in mistrial as result ended duct, McCrea were retried L. Batts and Terrance defendants Tracy Court reversed convic- charges. of those of Appeal convicted same tions, pretrial court erred to defendants’ by failing grant the trial holding with direc- and remanding to dismiss double jeopardy grounds, motions We granted as each defendant. tions enter of dismissal judgments a intentional prosecutor’s circumstances under which review to consider the a retrial on double precludes misconduct that results in mistrial to the federal Consti- and Fourteenth Amendments under Fifth grounds tution, I, Constitution.1 under article section of California $ issue, the United to th constitutional double jeopardy With regard federal 456 U.S. States held in Oregon Kennedy (1982) Court Supreme the federal double jeop- S.Ct. under (Kennedy) L.Ed.2d 416] a defendant’s ardy prohibited following grant clause retrial with the mistrial motion if the committed misconduct prosecution as Kennedy intent this standard and deferring, mistrial. provoke Applying court, instructs, we conclude that factual trial findings intent, in the matter no such and that earlier in this had court Court erred in that the trial should accordingly concluding of Appeal have motion to dismiss under federal double granted defendants’ principles. however,
As the federal high we shall the standard explain, adopted by as fully as narrow and unduly court in has been viewed Kennedy widely that the double clause was intended interest protective was decided number safeguard, and the two decades since Kennedy their own state state have jeopardy guarantee courts interpreted as standards embodying protection. Although constitutions broader and, one another in these more recent decisions somewhat from adopted vary view, with the basic conclu- agree in our have their own we shortcomings, *6 commits a misconduct sion of these courts that instances in which prosecutor in a do exhaust the circumstances with the intent mistrial not provoke the a intentional defeat improperly may which misconduct prosecutor’s is to safeguard. interest that the double clause intended jeopardy issue, jeopardy to the state constitutional double Accordingly, regard with that results in a defendant’s we conclude when misconduct prosecutorial case, 1In the the federal or state proper application we have no occasion to address of this prosecutorial in the related but distinct circumstance in which jeopardy double clauses mistrial, a on appeal. in the of conviction results not in a but rather reversal misconduct mistrial, successful motion for the double the clause of California jeopardy First, Constitution bars retrial in two circumstances. as the under federal Constitution, retrial is by barred state double clause when the jeopardy prosecution intentionally commits misconduct for the of purpose triggering Second, mistrial. the state double clause also jeopardy bar retrial when may of prosecution, view that believing (in during events occurred that trial) trial, defendant is an likely secure at that acquittal knowingly and commits misconduct in thwart intentionally order to such an In the acquittal. circumstance, however, latter retrial is under the barred state double jeop- court, clause if a ardy only all of the as of reviewing circumstances the time misconduct, of the finds that only not believed that an was acquittal likely committed misconduct for the of purpose thwarting determines, such an but also acquittal, from an that objective perspective, prosecutorial misconduct the defendant of a deprived reasonable of prospect an acquittal. words,
In other we conclude when the prosecution in criminal case commits misconduct that results in a the double clause of jeopardy the state Constitution bars retrial in some circumstances in which the federal Constitution, as construed in 456 U.S. does Kennedy, not. It is however, important to recognize, although we conclude that the state double standard jeopardy is a broader properly protective range double interests than the set as jeopardy standard forth Kennedy, practical matter is retrial to be barred under state likely double standard jeopardy circumstances, only exceptional because standard we adopt requires not only prosecutor believe an was subjectively likely acquittal when he or she misconduct, committed but that a intentionally also court determine an objective misconduct de- perspective actually from prived defendant of the reasonable of an The state prospect acquittal. standard stringent, because the normal and appropriately sufficient usually vast remedy majority instances prejudicial misconduct that occur at prosecutorial trial is under federal and provided clauses, state due and calls for either a declaration of process mistrial retrial, followed or a reversal of a by defendant’s conviction appeal followed retrial. The by remedy mandated the double clause—an order retrial and to the barring dismissal criminal leading without an charges against defendant trial—is unusual and extraordinary measure that be should invoked with caution. As we properly great that, shall we standard, further conclude explain, under applicable case retrial barred state double clause.
Because we conclude that retrial of defendants was not barred under either clause, federal or state double we reverse jeopardy judgment convictions on subsequent defendants’ which set aside Court of Appeal, on the conclusion In of the Court of light Appeal’s grounds. double raised issues issue, or resolve additional it did reach double trial, and of their subsequent the conduct regarding defendants on appeal it to address permit to the Court of Appeal shall remand matter we remaining those claims.
I was sole trial in which Batts (a three times: in 1998 This case was tried joint trial in late 1999 defendant, (a a new was granted); which following McCrea, and defendants, finally Batts and ending mistrial); trial of both and third trials first joint defendants). a both (again, trial, at the second which murder convictions. Events degree resulted in first in the claim in a rise the double give as noted ended trial. rendered in third from the convictions and judgment present appeal Jones were members young Brothers Benczeon Jones and Brian On gang Compton. September Atlantic a criminal street Crips, Drive an when building car in front of washing apartment Benczeon his older members of and Terrance McCrea Tracy (both defendants Batts him to and man him and told Atlantic Drive a third Crips gang) approached out his area, Brian came something leave “or gonna happen.”2 defendants, then and, Benczeon, with who with together argued apartment hand, and returned, in each gun But soon Batts with defendants departed. shots, killing fired Brian McCrea several single weapon. They with leg. Benczeon in the wounding arrive. Steward, saw Batts from her girlfriend, Sonique apartment,
Brian’s dead and Benczeon ran and saw Brian she heard shots she outside When had told her that “Tracy” that Benczeon bleeding. She testified prone Tracy him, reported immediately telephoned shot she Benc- dragged came the scene and upon had shot her Two men boyfriend. were them that defendants Benczeon told building. zeon toward back of the shooters. treatment seeking entered a shooting, hospital hours of the Batts
Within with the officer Batts was evasive right for a wound to his shoulder. gunshot been when where he had him, that he did not know stating who interviewed may engaged in have been suggesting that Batts and Benczeon 2There is evidence drugs. concerning illegal dispute territorial the sale of *8 shot, he was and that he did not know who shot him. He later told another officer he had shot been in Beach.3 Long
When at the interviewed Benczeon told the hospital, that defend- police ants had shot him. Benczeon also identified Batts from a photographic but further stated that he lineup, was afraid for his and not family did want or Thereafter, otherwise with the testify cooperate police. Batts’s brother in the paid visit Benczeon leaving Benczeon hospital, upset crying. Benczeon stated that Batts’s brother had told him not testify impliedly 1997, had threatened Benczeon’s In November family. Benczeon’s 10-year- old brother received a telephone call Benczeon. threatening
Several weeks after shooting, Benczeon attended a photographic and identified McCrea lineup 1998, identifed Batts. In January again wife, Jones, McCrea’s Leslie contacted police to a domestic assault. report She informed an officer McCrea had told her that he had killed persons before—including “cousin she was afraid of him. Compton”—and In January of Benczeon shot was and wounded by an unknown person. Benczeon believed that the was related to his brother’s shooting killing and his own involvement in the case defendants. Never- against theless, Benczeon testified defendant in the against Batts first trial case in June both Batts and in the implicating McCrea September time, shootings. had been (At McCrea yet apprehended, thus the had trial proceeded to Batts against alone.) murder,
Defendant Batts was convicted first but subse- was a retrial quently granted based on discovered evidence—a con- newly Nava, guilt fession of from one Richard who at time was awaiting on another sentencing gang-related murder and housed in the same module county jail as defendant Batts.
In March months 1999—nine after 1998 trial—Benczeon was brutally murdered after chased being by and shot assailants in two vehicles and then street, struck several times traffic on a Compton controlled territory the Atlantic Drive No link between Benczeon’s murder and defend- Crips. ants ever was established.
Meanwhile, defendant McCrea had been then People apprehended. trial, went forward with a second this one a both joint against proceeding during testimony, 3Benczeon denied that or Brian he were armed the attack. But other trial, doubt, suggesting introduced at the 2000 called claim that he or Benczeon’s into his brother also were armed. *9 trial was from first defendants, testimony Benczeon’s held in late 1999. read the second trial. jury under against provisions Batts two testimony
Benczeon’s was admissible offered testimony former permitting of the Evidence Code: section under and section which to the earlier against party proceeding, sworn statements of a decedent’s certain circumstances allows admission the first was not a party Because McCrea crimes. regarding gang-related trial, under was admissible McCrea testimony against Benczeon’s 1231. latter section provision, section for under Evidence Code admissibility
One requirements than natural causes. that must from other 1231 is the decedent have perished evidence of prior 1231.4 further “If (Id., provides: subd. Section (e).) article, told that not be jury may statement introduced pursuant causes, be told natural but shall merely declarant died other than from with this statu that the declarant is Consistent (Italics added.) unavailable.” mandate, directive the trial court issued an order statute’s tory tracking the pros and the trial both during several times before emphasized death were not to mention Benczeon’s ecution the defense counsel such any of the were to bench should approach front instead jury, issue arise. are as led follows.
The events that to termination second Branscomb, had at the who testified Prosecution witness Detective Marvin trial, cross-examination Benczeon first that he had interviewed recounted 12, 1997, while Benczeon was in the shooting, after the shortly September his and that at time leg, from wounds to hospital recovering gunshot his mother Benczeon was and concerned for frightened, “noncooperative,” he Benczeon explained and other members. Branscomb advised family “that and told him we attorney’s of the district “witness relocation program,” to the to it that he of that.” Benczeon did part respond could see offer, he discuss but Branscomb advised him that would possibility with mother. Benczeon’s protection plan witness $1,500 “eventually” that he did Benczeon give Branscomb further testified be for and last used first in cash from the witness protection program, stated, But, he Benczeon gave rent new Branscomb month’s for a apartment. Benczeon testified at the months money on October 1998—four after first trial. Batts, Granville, course of during the Stanley
Counsel for proceeded Granville’s to ridicule Branscomb’s testimony. further cross-examination questions highlighted absence of evidence that the documentary cash rent, actually was used for relocation the four-month emphasized gap between Benczeon’s earlier and the testimony relocation payment. Finally, Granville asked Branscomb whether the funds were just truly “payoff’ Benczeon’s Granville also testimony. his examination the emphasized that, circumstance after Benczeon payment, “never showed at vari- up” ous preliminary course, were held in defendants’ Of hearings cases. I, pursuant to article section subdivision of the California (b), Constitu- *10 tion (added by in Benczeon’s Proposition 1990), statements hearsay made detective, to Detective Branscomb were admissible the through and hence he was not at to those required testify hearings. And in preliminary event, any as to one of those it was Benczeon hearings, for to impossible attend, that, because he had been murdered—a fact to the pursuant court’s earlier was to be from ruling, the kept jury.
The two trial were concerned that prosecutors light in defense counsel’s cross-examination, the have been left the jury may with the impression that had off’ for “paid Benczeon his had testimony then made sure that Benczeon was not to available testify subsequent preliminary and before in hearings jury the the second trial.4 rebut Seeking implication, the trial deliberately ignoring court’s order that counsel not elicit testimony concerning reason Benczeon’s without unavailability court, first discussing that matter with the the trial took the prosecutors met action. with Detective following They recess, Branscomb during advised him that he be would asked on redirect examination Benczeon why did not at a that in appear specific hearing, and Branscomb preliminary reply “should tell the detective, truth.” The also prosecutors cautioned the how- ever, that to answering their he to “make prior question, significant in pause,” order to afford defense an counsel opportunity object. examination, redirect one During ensuing district attor- deputy neys, referred to Stirling, May Phillip preliminary hearing had McCrea, been held for defendant whether Benczeon had inquired answered, testified at that Detective Branscomb hearing. “no.” The prosecu- asked, tor answered, not?” “Why Branscomb “He was murdered.” 4Two three preliminary hearings which defense counsel had referred occurred prior to Benczeon’s death. other preliminary hearing to which defense counsel referred May occurred on Regarding preliminary 1999—two months after Benczeon’s demise. however, hearing, specific defense counsel’s question to Detective Branscomb referred to it as having in Accordingly, occurred 1998. defendant Batts asserts his answer to the brief of knew, Angeles County Attorney, jury] amicus curiae Los hearing] District “for all [the [that whole, Nevertheless, was in questioning clearly 1998.” taken as a defense counsel implied “paid testimony implied that Benczeon had been off’ after his initial and further testify hearings Benczeon been the subsequent jury had available to both at and before trial, required testify. second but nonetheless had not been and, of the rest of jury, the presence called a recess outside
The court who, in tears bailiff had broken down reported, juror questioned a mistrial. defendants moved for answer. Both to Branscomb’s response those motions. hearing an extensive the trial court held Thereafter counsel’s that defense Droeger argued District Attorney Larry Deputy the jury had misled deliberately of Detective Branscomb cross-examination from the prior proceedings Benczeon’s absence reason for concerning their witness trial, that the had off paid and the suggesting prosecutors the witness action to ensure that the first trial and then had taken further after hear unavailable, would present jury peijured remained all so that ar- Droeger cross-examination. without Benczeon to testimony subjecting cross-examination, “if inherent in the message accepted by gued of both Benczeon and “devastate” and jury,” “destroy” credibility Branscomb, continued: that it had both impugned Droeger prosecutors. credibility, Do sit and allow our our “How do we that? we there respond *11 it is attacked, the to be when credibility destroyed to be witness’ reputation and else any lie? can’t else to do what I what we’re imagine supposed do that of attack.” Finally, Droeger would us to after kind lawyer expect had to and that pause, asserted that Detective Branscomb been instructed that, From there was no objection. “there was and significant pause,” yet wanted this They it be inferred situation. Droeger argued, might “they wanted the to ask for a mistrial.” opportunity to
In defense counsel that there was no reason argued object, response, had a the trial court’s right rely upon prior rulings, because defendants and had no reason to that that the or witness prosecutors counsel suspect that the reason for Benczeon’s would violate the court’s orders explicit absence not be disclosed. mistrial,
In motions for the court observed ruling upon defendants’ could be as unfair “certainly interpreted ques- defense counsel’s questioning did, fact, that that argued and unfair inferences. The tioning People that it to the an And inclined to think did.” unfair I’m provide jury picture. But, “did continued, the court even conceding prosecutors appropri- in to extent and been taken feel had been boxed an ately they perhaps [that] of,” and should have approached unfair could advantage prosecutors solution, ways were other bench and asked to work out and “[t]here as a result Jones did not testify make that clear that Benczeon jury absolutely but that there were other good, off and interest rather being lacking paid wasn’t there.” The court noted reasons Benczeon Jones legitimate legal why both by prosecutor’s question that it was “shocked” and “stunned” there was no The court found that under the circumstances answer. reasonable for defense counsel to opportunity object, prosecu- tors had acted in “reckless disregard the defendants in rights [of] posing question this under the circumstances it without screened.” The being court concluded that the prosecution “committed misconduct in presenting be, at issue. And what question its knowing error response such caused conduct is too serious be corrected.” The trial court granted motions mistrial and then to the explained so, that it had done jury the basis for its The ruling. court advised the that the matter parties later would be to a court for assigned proceed- further ings, back to himself. possibly Eventually the case was to the reassigned same trial Jack judge—Honorable Morgan—for W. retrial.5
Five weeks after the to the start the third trial in prior matter, Batts, William Attorney Ringgold, new counsel for defendant moved dismiss the basis that retrial was barred on double grounds.6 motion based exclusively 456 U.S. upon Kennedy, supra, S.Ct. 2089-2090], in which the court held that retrial is high barred following a defendant’s successful motion for mistrial if the prosecu- tion intended to cause a mistrial. At a conducted hearing by Judge Morgan, Ringgold argued because, view, that retrial was barred in counsel’s intended, misconduct, had its cause mistrial. motion
Although Ringgold’s Constitution, relied the federal upon only *12 counsel, Cedric McCrea’s Attorney Payne, motion, joining Ringgold’s stated that he was for under moving dismissal the double provision of the Constitution, California Constitution as as well under the federal he that asserted he assumed would the Ringgold should be agree motion under considered both constitutional Payne further asserted that provisions. the set out in approach Kennedy, U.S. what supra, “encompasses the rules are not the United but I only States Constitution think [under] hearing dismiss, 5At Judge Morgan shortly the on the motions to disclosed that after the granted (but reassignment mistrial prior himself), motions were to the the matter to he had and, parte by essence, received an Stirling, apologized ex visit Prosecutor who “came in his “nothing conduct and left.” The court recounted that substantive was at all in discussed regard simply by Stirling case. It apologized to the was a statement Mr. that he for his conduct, hoped he it wouldn’t . . . cause him to a bad reputation—I receive am paraphrasing—in building. the . . objective . I assured him that I be and . . . [that [i] history the personal Upon being matter as far as that and not a matter.” informed of this was] meeting, ex parte Judge Morgan defense did counsel not ask to recuse himself. 6Ringgold Granville, Upon granting Stanley was Batts’s third counsel. the trial, who had been retained to conduct the second to was allowed withdraw. Batts had represented by yet attorney been another at his first trial. well.[7] as And ap that position, has adopted California somewhat [that not, in the court’s whether or court to focus upon] trial proach requires .8 trial court pro to a mistrial The view,” the intended cause Kennedy, under determining, to motion ceeded resolve the dismissal the not misconduct occurred was or the U.S. “whether a mistrial.” to cause desire prosecution’s of the court caused view [the] trial court called upon arguments, After defense counsel’s hearing com- Stirling absent.) Droeger was (Prosecutor Prosecutor Larry Droeger. something . . “in a . arguing that he was by noting position menced and Stirling’s respective I his knowledge,” namely which have personal during at the recess when met with Detective Branscomb they intent truth,” ask the to then to trial, proceeded directed him “tell second examination, at a detective, had not been present on redirect Benczeon why testi- give offered to his hearing Droeger certain preliminary proceeding. oath, he make that would any representation under but also added mony if Neither defense made “as it were under oath.” court would be an oath. actually asked that take Droeger counsel he and made their decisions
Droeger Stirling told court that when Branscomb, mistrial “the their of Detective was examination concerning in their private from their minds. asserted that thing” Droeger farthest felt misconduct, had the prosecutors personally discussions preceding attacked, to “let our rational causing them our emotional overcome response He their belief the defense circumstances.” response explained true for Benczeon’s had the door to reason opened inquiry concerning trial, rather than absence and that Branscomb simply asking question, counsel, the court and opposing first a sidebar discussion with proceeding But, acknowledged, Droeger “seize moment.” appropriate way our one Droeger “that is where we made mistake.” further explained: “[The] tell don’t answer the we we should do the detective thing thought [was] then it at sidebar at go argue And we’ll right away. They’ll object. question time we it down. really going go .... And that was felt was way came out and were shocked as court when answer We as perhaps *13 minds, . felt were they absolutely when didn’t . . our we we object. [I]n Cal.App.3d referring People (1987) 195 may 7Counsel have been to v. Valenzuela-Gonzales 114], be Kennedy held the rule should the Cal.Rptr. in which the court 736-742 [241 I, article the clause of California Constitution applicable sole test under 15. section motion, 8Although subsequent concluding remarks the counsel moving, and in in so clause,” in context counsel’s the when read Payne referred to state and federal “confrontation that the apparent to to It is clearly were refer the double clause. statements intended as Payne’s supplementary comments trial court understood defendants’ motions and Counsel raising state federal double issues. sure that to were when they going object Stirling] asked [Prosecutor intention, . . . in question. So terms our . .. neither of us intended that we obtain a be, mistrial. Neither us a that mistrial was to expected going fact, in granted the until court made its And it wasn’t until then that ruling. we then started a looking at it little more rationally and in realized hindsight that we did make a tactical mistake in how we proceeded.” that,
The trial court stated to its pursuant reading of Kennedy, supra, 667, it U.S. “the would consider conduct and the circumstances and every- . . . that was in thing involved the trial . . to . order . . . make a [i]n not, fact, determination as or whether in the District Attorney committed misconduct . . . but misconduct, whether or not that [also] fact, was a designed cause mistrial or whether it arose out of other
circumstances justifiable unjustifiable.” The court it noted had observed the events to the mistrial that it leading up had “a reasonable recollection was what said done.” The court stated that in determining whether district mistrial, intended to cause attorney it would “look at the circum- at stances time of that, in their . . . from totality try [the mistrial] [a]nd to reason and would, whether the judge fact, District want a Attorney mistrial.”
Following approach, that, trial court first until asserted the time of the case was “overall. . . very well for the The going People.” recalled, court I “when was this for several hours the before evaluating night I made the ... I was for ruling other reasons perplexed among as to how this could occur when the District Attorney things had court’s going, view, well from the reasonably case, People’s point strong strong view evidence that had been The court already presented.” stated that its “honest evaluation” was that “a Attorney District in the sitting circumstances that they were in at the time want sitting and have a proceed decision.” The court that the acknowledged cross-examination suggesting Benczeon, had off People paid without rebuttal. . . would have been “if left But, potential negative.” (Italics added.) as court previously had at motion, observed on the hearing mistrial had prosecution offered rebuttal “how testimony, explaining witness worked protection] process [the and how and why money given.” court also acknowledged the defense cross-examination that preceded immediately trial-ending misconduct unfairly that the had allowed suggested Benczeon noted, absent himself from later but as the had proceedings, again court motion, reasoned on the “there hearing mistrial was available District Attorney procedure handling problem”—specifically, *14 out accept- in to work the bench order have could approached these consider- Based upon the false correcting implication.9 means of able not felt have that a would ations, prosecutor court reasonable the concluded the cross-examination. of defense merely the would be lost because that case actually here the added, it that Nor, prosecutors the did believe trial court cross-examination, lost.10 case had been that, based thought upon intent, the prosecutors’ to discern attempting The court mused that trial . minds. . . can’t their circumstantially. open to it is We only way “the do I that I have objectively to it that do believe way. And I have do attempted their conduct was . . as I have said although the situation and . reviewed occurred not that their conduct honestly to . .1 do believe me . perplexing they occurred because I think their conduct wanted a mistrial. they because I think have And should their run far where beyond they let emotions [run]. to that did intend found Having prosecutors realize that.” they court’s high that under the trial court concluded provoke was not precluded, 456 U.S. a retrial decision in Kennedy, supra, the motions to dismiss. hence the court denied on their ruling of the trial court’s
Defendants did not seek writ review trial—the claim, to another joint and instead proceeded double jeopardy Nava, trial, Batts, for McCrea. At that Richard third trial for and the second led crimes had to underlying earlier assertion of his own guilt whose conviction, the time of the murder and who at of Batts’s first vacating to for an of than 130 life years trial was term more serving third prison 12, 1997, the murder, that on the of morning September unrelated testified cocaine, he and that later had him of a kilo of Jones brothers had robbed he to Jones’s name) apart- his refused to “homeboy” (whom returned with Batts, time, he, not defendant that that ment. Nava further testified however, testimony, the Jones brothers. Nava’s in a shoot-out with engaged impeached. thoroughly compellingly was had set clearly procedure that court 9The court commented: “Under the described trial areas. problems particularly in sensitive anticipated ... that there would be forth it was [If] by the cross-examina implication the unfair left defense way . . was a to . [T]here [correct say, is Judge, to And then Granville tion], simply say, And can we come sidebar. that trying make that things all He us backed in comer. He’s pulling kinds of us here. has absolutely This is dead. that unfair. man
jury paying are off. . . witness. That believe we it, Judge? it?” you can do about we do about What will What options adopted have been address proceeded court to list could cautionary jury appropriate an it could have delivered problem. The court observed that Also, stated, to have testified. court that there was “no reason” for witness instruction mind terms of open have had an other alternatives it “could have considered legitimate concern.” recognizing People did have a matter[,] how best to handle this on the negative impact acknowledging the cross-examination 10Specifically, after case, level that... reasonable “I see it rises to a the court stated: don’t prosecution’s that, in the District you’re lose going because case would be evaluation thought they that.” Attorney’s Nor do I believe point view. *15 676
Defendants were convicted at the trial third of first degree minder and murder, attempted various charged enhancements were sentencing found true, and were sentenced to terms they of 88 to life 90 years years and to life On respectively. from that appeal judgment, defendants contended in the of Court trial, court Appeal lacked authority conduct third because the trial court had erred assertedly by failing defendants’ grant motions to the charges dismiss based grounds. double upon
In the Court all Appeal, the double parties argued issue by focussing the federal exclusively Constitution and upon the intent-to-cause- mistrial test set out in 456 Kennedy, supra, U.S. 667. No discussed party whether the Const., I, state provision art. (Cal. 15) an requires analysis § different from high court’s intent-to-cause-mistrial test. record,
After reviewing the the Court of found the trial Appeal court’s factual determined findings unsupported, from its own reading of record that the did prosecutors indeed intend to cause a mistrial their by misconduct at the second trial. the Court of Accordingly, concluded Appeal that retrial was barred and that the third trial should not have occurred. The Court reversed defendants’ Appeal convictions and ordered dismissal of the charges with prejudice. We granted Attorney General’s for petition review.
II
We two address initially procedural issues.
First, observe that Penal People Code sections 1016 and 1017 include, those defenses among that should be specifically claim pleaded, “once in jeopardy.” suggest because People defendants never entered litigation such a forfeited plea, they have their double jeopardy observed, claims. however, Courts have “a long claim of double jeop is most ardy raised appropriately by way of motion to pretrial dismiss or accusatory thereof pleading portion barred double allegedly jeopardy.” (Stone Court Superior Cal.3d fn. (1982) Cal.Rptr. 646 P.2d 809], cases cited.) reject
We claim and with the Court of People’s agree which Appeal, observed that an affirmative although “once in plea jeopardy” apparently entered, was not dismiss, defendants’ motions to which made on were court, jeopardy grounds fully litigated in the trial parties nevertheless covered this “adequately procedural requirement” pre- served issue review. *16 “A more issue: a second procedural on its own raised
The Court of Appeal after seek a writ of prohibition is the defense did not troubling why question rather remedy, is the preferred to dismiss. Prohibition denial of motions . .” trial. . exercise of another the useless through than putting everyone law, concluded, however, existing under case The Court of Appeal their double and raise as did they to proceed defendants were permitted not first seek writ did though even defendants claims on appeal, jeopardy 146 Cal.App.2d In re Lozoya (1956) claims. (See review to address those be raised on may appeal]); issue P.2d jeopardy 156] [double [304 P.2d 531-534 re 173 Cal.App.2d In McNeer (1959) 304] [double [343 issue be raised on habeas may corpus].) jeopardy comment, we directed with Court of Appeal’s Consistent court denies a defendant’s issue: “When a trial to brief following parties timely be to seek the defendant required claim of double should jeopardy, as condition to for writ extraordinary of thé denial aby review petition claim on raising appeal?” the double jeopardy writ of prohibition seek a timely that defendant must People argue twice in jeopardy. issue being placed
in order to
for
of
preserve
appeal
hand,
Defendants,
a writ of
although
prohibition
on the other
contend
a defendant’s double
be
means of protecting
often
the more
may
appropriate
a writ should
seeking
of a
such
rights,
timely filing
petition
issue on
Defendant
appeal.
the double
raising
be prerequisite
be
would
extraordinary
sought
that an
writ
McCrea
argues
requirement
counsel, “without
increase in
any
and defense
burden the Courts Appeal
argues
long-standing authority per-
Batts
economy”; defendant
judicial
or
claim writ
by appeal,
mits
of a
on a double
ruling
review
that flexible approach.
reasons exist
good
retaining
Accordingly, we proceed discuss the merits of defendants’ double claim. jeopardy
Ill
The Fifth
Constitution,
Amendment to the United States
which
states
applies
through
Fourteenth Amendment (Benton v. Maryland
784,
2056, 2061-2064,
395 U.S.
(1969)
793-796
S.Ct.
679 because, as have granted should been the motions to dismiss whether Amendment’s double the Fifth barred under assert, retrial is defendants clause. A double the Fifth Amendment’s
It well established v. United (Ball defendant’s following acquittal. clause bars reprosecution 1192, 1194, It 41 L.Ed. 300].)11 163 U.S. S.Ct. States (1896) [16 interest, of trial has an is in the midst that a criminal defendant who follows clause, her case his or having from the stemming case—and in to hear the sworn initially resolved jury Hunter (1949) from that Wadev. jury. (See an obtaining potentially acquittal a defendant’s L.Ed. [noting 336 U.S. S.Ct. 974] It also tribunal”].)12 a particular “valued have his trial right completed by circumstances, or the court that in certain conduct follows to resolution by thereby terminating prior results “double jeopardy” defendant’s impair aspect protected jury, may *18 interest. a Fifth Amendment double
The for a violation of defendant’s remedy of the and a charges permanent is medicine—dismissal jeopardy right strong 1, 11, 437 fn. 6 S.Ct. bar to retrial. 2141, 2147, v. United States U.S. (Burks (1978) [98 court has high developed 57 Over the the years, L.Ed.2d 1].) remedy a claim to such a may case law the circumstances in which defining raised, a violation. be and the double establishing standards defendant, the of the
In a declared over objection the event of mistrial retrial unless the mistrial was justified double bar jeopardy principles 449 jury. supra, “manifest a necessity”—for example, hung (DiFrancesco, Jorn, 470, 117, 426, 130 400 U.S. 480-487 433-434]; U.S. S.Ct. [101 547, S.Ct. 554-558].) [91 defendant, the
In at the however urging the event of a mistrial declared rule us), general we face in the case before situation (the 184, high (1957) v. 355 U.S. 187-188 explained 11 Asthe court in Green United States [78 idea, 221, 223, deeply ingrained in least underlying 2 one that is S.Ct. L.Ed.2d “The 199]: power all its resources and Anglo-American system jurisprudence, is that State with alleged an an individual for repeated attempts be to make to convict should not allowed embarrassment, offense, expense compelling ordeal and him to thereby subjecting him enhancing possibility continuing anxiety insecurity, as well as live in a state of may guilty.” though he be found even innocent Ponsoldt, Overreaching as Bar to Be Irrelevant: Government 12See When Guilt Should Kennedy (1983) 69 Cornell Jeopardy Oregon Clause v. Reprosecution Under the Double After 76, cases are concerned with (noting high court’s double L.Rev. 81 the first tribunal a favorable verdict from opportunity of a obtain preservation defendant’s confronts). he or she 680
defendant’s for a mistrial request constitutes consent that waives any claim, and hence there is no bar to retrial. (DiFrancesco, supra, 449 426, 117, U.S. 130 S.Ct. 433-434]; United States v. Toteo (1964) 377 [101 1587, 463, U.S. 1589-1590, S.Ct. 12 L.Ed.2d The exception 448].) [84 to this rule general is addressed supra, 456 U.S. to which Kennedy, we now turn.
B The defendant was. with Kennedy charged stealing rug. state called an expert witness to the value testify concerning identity cross-examination, On rug. counsel defendant’s impeached witness to the revealing witness had filed a criminal jury complaint defendant, against the fraudulent On alleging advertising. redirect examina- tion, the to reveal the prosecutor attempted why reasons the witness had filed defendant, against the but complaint errone- court—perhaps Thereafter, such ously—barred inquiry. asked witness prosecutor whether had he “ever done business with The witness [the defendant].” not, he responded that had and the prosecutor asked: “Is that immediately because he is crook?” The trial court the defendant’s granted subsequent for a mistrial. request 456 U.S. S.Ct. (Kennedy, supra, 669 [102 2086]; see also State P.2d Kennedy (1980) Or.App. 949].)
The defendant moved under Fifth Amendment’s double jeopardy clause to bar state’s subsequent him. “After a attempt retry hearing at *19 testified, which the the trial court found as a fact ‘it prosecutor that was not ” the intention of the in this case to cause a prosecutor mistrial.’ (Kennedy, 667, 2083, 456 U.S. 669 S.Ct. supra, 2086], basis, fn. that On omitted.) [102 the trial rejected court the defendant’s federal double jeopardy challenge denied the motion to The dismiss. defendant was retried and convicted. conviction,
On from the appeal resulting the defendant that the argued trial court erred his by failing grant motion dismiss. The Court Oregon agreed, violation, found a Fifth Amendment Appeals jeopardy 948, barred retrial. v. (State Kennedy, P.2d That court supra, 619 949.) it observed that was “bound” the trial accept finding court’s the did not cause a prosecutor But, intend to mistrial. (Ibid.) relying prior 600, court States 424 high authority—United v. Dinitz U.S. 611 (1976) [96 1075, 1081-1082, S.Ct. which 47 L.Ed.2d stated that retrial is (Dinitz), 267] barred when a misconduct prosecutor’s is “undertaken to harass or preju Jorn, defendant, 470, 547, dice” the supra, 400 U.S. 485 557], S.Ct. [91 which that retrial would be barred if or suggested judicial prosecutorial
681 court con- appellate Oregon misconduct to “overreaching”—the amounted clause federal double barred under the cluded that retrial was the one of other this case meets “the conduct in because prosecutor’s (State 619 P.2d at criteria, viz., overreaching.” Kennedy, supra, forbidden in reversed the Court turn review, States Supreme United p. 949.) Upon federal double decision, concluding Oregon appellate 667, 679 S.Ct. retrial. 456 U.S. supra, clause did not bar a (Kennedy, [102 unanimous; its 2083, reasoning, The court’s conclusion high 2091].) however, was divided. closely court, decisions had court Oregon prior high
As suggested by appellate barred a prosecu retrial in such circumstances should be when stated that in cause a or result (ii) tor’s misconduct was intended (i) a defendant’s double harassment or sufficient to overreaching prejudice 23, 432 U.S. 34 S.Ct. interests. v. United States (Lee (1977) [97 Dinitz, 600, 2141, 2147-2148, 424 U.S. S.Ct. 80]; 53 L.Ed.2d supra, [96 Jorn, 547, 557].)13 400 U.S. S.Ct. 1081-1082]; [91 in standards under determined that alternative majority Kennedy did which retrial be barred in circumstances in which the prosecutor not intend to cause a mistrial but instead intended specifically merely “overreach,” and unworkable in “harass” or were overbroad improperly 456 U.S. 674-679 S.Ct. 2088- practice. (Kennedy, supra, [102 Instead, the held when defendant majority Kennedy 2091].) has and the moved a mistrial because misconduct prosecutor’s is a mistrial motion has been the sole basis for retrial granted, barring if his her one: retrial is barred intended or prosecutor narrow misconduct to S.Ct. at produce (Id., p. 2091].) mistrial. p. test, of the state court of majority reversed Applying judgment the trial court’s denial of defendant’s motion appeals, thereby upholding to dismiss. signed concurring opinion
Four members of court Justice Stevens’s had abandoned unnecessarily Kennedy, maintaining majority it of the standard that had articulated “harassment/overreaching” aspect above, resulted in barring cases cited none which applied prior *20 2083, 667, S.Ct. of a 456 U.S. 681-684 retrial. (Kennedy, supra, [102 Stevens, Marshall, J., Brennan, (conc. joined by opn. 2091-2094] the Blackmun, that narrow concurring justices majority’s The asserted JJ.).) to cause a standard, the intent solely prosecutor’s subjective focussing upon the the core of double mistrial, failed address and interests at protect to at and these 2096-2097]), clause at 689 S.Ct. p. pp. jeopardy (id., [102 case, however, cases, retrial any high did the court find 13In of these nor in other court none by “overreaching to be the broader conduct” standard. barred 682 in
justices maintained that order invoke the to to the rule exception general retrial the permitting after defendant moves for mistrial for successfully “overreaching” the “a court by prosecutor, need not divine the exact moti- the the It is that court is persuaded vation for error. prosecutorial sufficient misconduct has egregious prosecutorial rendered unmeaningful defend- (Ibid., ant’s choice to or to continue abort proceeding.'” italics added.) however, The concurring agreed, justices this broader standard was not met on the facts of the Kennedy case itself.14
Under the rule a of the court in Kennedy, adopted by majority high if, federal if, Constitution bars retrial but only intended to prosecution U.S. v. Gonzalez cause a mistrial. (E.g., 1201, Cir. 248 F.3d (10th 2001) 1203-1205.)15 We to proceed standard. apply
C In reviewing the record in order assess evidence of intent motion, induce a successful mistrial are we mindful of the Kennedy, supra, high court’s observation 456 is U.S. that it to be expected “will not reach appellate judges the same conclu- inexorably sion on a cold at the record if of them stage might one appellate they any had been as sitting a and that judge,” judges “appellate [on matter] concurring opinion 14The reasoned that jeopardy rights the defendant’s double were not violated, prosecutor’s Kennedy because the conduct at issue amounted to neither overreach ing nor harassment and injected prejudice “could have the kind of that would render unmeaningful the option proceed (Kennedy, defendant’s with the trial.” 456 U.S. Stevens, determination, (conc. J.).) reaching S.Ct. opn. of In [102 2098] concurring opinion highlighted general two considerations that “follow the rationale from recognizing general permitting for to the exception” rule retrial after a defendant success fully First, (Id., p. reasoned, for at p. 2097].) moves mistrial. S.Ct. at Justice Stevens exception “because the justified is the intolerance of manipulation intentional of the interests, finding double jeopardy normally defendant’s of deliberate misconduct would be Second, prerequisite reprosecution reasoned, to a (Ibid., omitted.) bar.” fn. Justice Stevens option “because the defendant’s to abort proceeding prosecutorial after would misconduct meaning him, retain real any going badly for the defendant in case in which trial was eliminated, normally required finding prosecutorial virtually be that the error or at reduced, substantially probability acquittal going least proceeding badly in a that was government.” (Ibid., for the omitted.) fns. Kennedy recognized by 15An extension of the been standard has some lower courts that application have the related proper addressed issue federal double prosecutorial clause in the context misconduct that results not instead in but (See, e.g., an appellate (2d 1992) reversal of a tainted conviction. Wallach U.S. v. Cir. post, IV.D.) suggests F.2d discussed pt. party Neither that a standard different from that Kennedy applicable articulated in should be the federal claim issue in present case. high Kennedy, court has not retreated from the set standard out in any we test applicable decline address here whether other to a federal double following granting claim of a defendant’s motion for mistrial. *21 in this trial who are ‘on the scene’ the of judgment judges defer to [should] at fn. 7 S.Ct. at p. p. 2090].) area.” (Id., trial court upheld our courts have with that approach, appellate Consistent induce a the of intent on part prosecution of lack findings Court, supra, In v. Superior mistrial motion. Barajas successful it “some discomfort with that had although the court noted Cal.App.3d had an the trial court have “may the court and that findings,” suspected trial naivete,” determined the it nevertheless view of benign overly prosecutor’s facts, the we conclude we are from weighing “because precluded [that] at made the trial court.” by (Id., p. the findings substantial evidence supports Valenzuela-Gonzales, 4; accord, Cal.App.3d fn. People trial court’s the “findings that the [noting 736 (Valenzuela-Gonzales) and, therefore, evidence, In substantial dispositive”].) issue are supported the deferential approach the we shall same light holding Kennedy, apply here. earlier, from the cold record the determined
As observed Court Appeal mistrial motion. The that the had intended to induce a successful prosecutors the recess to court reasoned that Detective Branscomb by advising during examination, truth,” then, of redirect asking “tell the upon resumption at must prosecutors him did not testify hearings, Benczeon why prior view, arguing, intended cause a mistrial. Defendants embrace have serious other under circumstances among things, (i) prosecutor’s trial; terminate intended the second (ii) misconduct could have been the trial findings prosecution’s record does not court’s support . . for the was, case at time of . well going very “overall that they “a the circumstances Attorney sitting that District People” decision”; the time want to and have sitting (iii) were proceed that the proves prosecutors occurred the recess during planning trial; initial assess- wanted to terminate second and (iv) prosecutors’ credibility that the ment, mistrial motion during hearing, articulated the defense been Benczeon and Detective Branscomb had “devastated” case, cross-examination, they losing shows believed were they assert anew. Defendants also (v) to abort the trial in order begin intended hearing made dismissal during that Prosecutor accusations Droeger’s forced the and thereby —that defense counsel had baited the prosecutors that the were prosecutors motion—demonstrated instead successful mistrial defense, in so revealed doing their own motives upon “projecting” that the stress (vi) prosecutors their own intention. defendants Finally, third the second by ending for the strategic advantages various gained that retrial would trial, discount the prosecutors’ suggestions and defendants with the problems because various have been risky prosecution’s witnesses.
We conclude that the Court failed to Appeal accord proper to Indeed, deference the trial court’s factual a findings. of the key passage Court of Appeal’s analysis trial itself rejecting court’s based findings upon of the misreading The Court of reporter’s transcript. stated: Appeal “Our review record us that persuades there is insufficient evidence to the trial to support Indeed, court’s conclusion as intent. prosecutors’ record establishes their desire to persuasively cause In mistrial. reaching conclusion, we with an agree earlier assessment the trial T by court: think as soon those uttered, as words were was it clear that mistrial going much, occur. It wasn’t so hey, let’s it gloss somehow over. Let’s try try somehow to a where get point we can make a corrective or make some ruling type statement to the to somehow cure jury this mistake. It was obvious. And it was clear that when actions, the district their attorney, through through their had Detective plan, Branscomb state that he was murdered that ” meant case be court, over.’ trial (Italics The added.) however, words; never uttered the quoted they were instead coun defense court, sel’s above, to the trial argument and as noted the trial court ultimately reached the opposite finding.16 to the Granting deference trial appropriate court’s actual based observations, its findings upon firsthand we conclude that those findings—that did not prosecutors intend to cause a mistrial— are by substantial evidence. supported
The instructed prosecutors Detective Branscomb provide significant pause before their fateful answering Prosecutor stated question. Droeger he and Prosecutor an Stirling expected objection to Branscomb’s prior answer, were when they surprised no was made and objection does, fact, answer ensued. record reflect that Detective Branscomb paused significantly before answer. giving his assert
Although defendants that inconsistent various testimony by pros- ecution witnesses at the 1999 trial rendered the case weak and prosecution’s that the cross-examination of Detective Branscomb further weakened the case, the trial prosecution’s court’s assessment of the contrary strength of the case is prosecution’s supported substantial evidence. Specifically, former of Benczeon identified testimony shooters, both defendants as the and he also identified the positively shooters from Benczeon’s arrays. photo former testimony was corroborated (i) Steward Jones’s Sonique (Brian who that she girlfriend), stated saw defendant Batts arrive just prior Batts, Angeles 16Counsel for answer to County his the amicus curiae brief the Los Attorney, District Appeal’s quote asserts that the Court of attribution of the to “the above error,” court’ mere “typographical actually was a and that the Court of Appeal intended merely agreement Viewing syntax to assert its with “the trial Appeal’s counsel.” Court of context, agree reading. cannot we with defense counsel’s creative shooters; one of her that Batts was and that Benczeon told shootings *23 afraid Jones, that she was wife, Leslie stated that McCrea’s by testimony (ii) before, cousin including (Brian he had killed persons of McCrea because in Jones) Compton. finding the trial court’s whole, amply as a record supports
Viewed mistrial, the of evidence that, pointing to declaration immediately prior killers of Brian Jones on September defendants as the actual to not of Branscomb was the cross-examination Detective and that strong, quite that with the belief left reasonable of a nature that would have prosecutor the trial This evaluation by the case was lost and rehabilitation. beyond intend to that the did not the trial court’s supports finding prosecutors judge mistrial motion. induce successful sum, the trial determina
In we that the record court’s supports conclude defer to that the did not intend to cause a and we tion prosecutors by declining factual It that the Court of erred finding.17 Appeal follows The trial court properly to defer to the trial court’s supported findings. Constitution, retrial is not barred under federal pursuant concluded that ante, 456 fn. (See 15.) to the standard set out in U.S 667. Kennedy, supra, IV clause, I, which, in turn to double article section
We the state jeopardy Amendment, the Fifth similar to but still somewhat different from language in for the offense be same may put “Persons twice provides: jeopardy Const., I, to . art. ask us (Cal. People “clarify” . . .” 15.) § court in high Kennedy, standard adopted by “intent-to-cause-mistrial” state of defendants’ 456 also disposes U.S. applies note the scope constitutional double claim. Defendants in was not addressed the state constitutional by provision afforded protection if it becomes argue the trial court or in Court of but Appeal, is, Fifth the issue if—as we have concluded—their reach necessary (that Amendment should does not entitle them we conclude relief), claim than the I, 15, more jeopardy rights article section protective the high Fifth Amendment as construed court. “When regard, Washington Appeals: of the Court of agree 17In this with observation we its rulings ignored, may lose judgment trial court are adrenaline overcomes dog chasing A often be level of a a cat. mistrial will civilized attributes and be reduced to the result, characterizing say the State’s as it But we cannot the trial court erred was here. (State Lewis (1995) Wash.App. bar a . . .” conduct as insufficient retrial. 874, 877].) P.2d
A When the double clause was made of the 1849 California part Const., I, Constitution (1849 Cal. art. it be 8), “No shall provided: person § subject be twice for the same offence.” put (Browne, Rep. Debates Convention Cal. on Formation of State Const. (1850) appen., This IV.) which was borrowed p. language, from New York Constitution Browne, was endorsed (see p. 31), drafters 1849 Constitution 30-31, without debate. (Id., the drafters of pp. 41.) Subsequently, the 1879 *24 Constitution similar shall in adopted language (“No be twice person put for the same jeopardy I, debate. offense”)—again, Const., without art. (Cal. 13, 15; former 3 Stockton, now see Willis & Debates and Proceedings, § § 1878-1879, 1188-1189, Cal. Const. 1425-1426, 1491, Convention pp. 1509.) cited, discovered, have not nor parties have we any indication in these drafters, materials that the or suggesting the electorate that these adopted provisions, considered the of the meaning guarantee double in jeopardy context in presented this case. Nor have we discovered evidence that any drafters of the 1974 constitutional revision of I article current incarna- (the of the clause, I, tion double article section jeopardy 15)—or electorate it—considered the of adopted issue of the double application jeop- ardy must, in the guarantee nonetheless, context We presented.18 determine I, of article appropriate interpretation section 15 (“Persons may twice be same put for the jeopardy as to the offense”) applied circumstances in this case. presented observe,
As defendants whereas the Fifth Amendment to the federal Constitution, as 667, construed 456 U.S. Kennedy, establishes supra, defendants, minimum standards of double for criminal jeopardy protection the California may Constitution level of double provide higher jeopardy Court, 503, 510; v. Cal.3d protection. (Stone 31 see also Superior v. 52 326, Raven Cal.3d 336 Deukmejian (1990) 801 P.2d Cal.Rptr. [276 Indeed, in our 1077].) some double contexts court has jeopardy interpreted double I, 15, in article jeopardy safeguard section of the California Constitution as greater than double providing protection clause jeopardy Com., 18(See (Declaration Background Study Cal. Const. I 4 Rights) Revision Article of 19, 24; Com., 1969) (Dec. pp. (Declaration Cal. Revision Rights) Rep. Const. Article I IV 6-10; Com., 5, 1970) 24; (Feb. pp. (pt. Cal. Const. Revision see Proposed 1971) p. Revision Com., generally Relating Cal. Rep., Const. Revision Materials to Provisions in Cal. Const. 10, (Dec. 1974) 74-81.) Recommended or pp. Endorsed Com. We also have examined placed provision (Ballot materials were before voters when the was amended in 1974. 5, 7, Pamp., 1974) 26, 28-29.) nothing text (Nov. Prop. pp. Gen. Elec. We have found suggest upon the ballot materials to that the focussed scope voters’ attention was jeopardy guarantee relates to double as it the issue we face here.
687
2 Cal.3d
Court (1970)
v.
(See Curry
Superior
federal Constitution.
double state
361,
[construing
P.2d
470
707,
Cal.Rptr.
716
345]
[87
court’s own
on the trial
of a mistrial
retrial after the granting
to bar
provision
benefit,
the defendant’s
consent, but for
defendant’s
motion
without
v.
of Gori
rule
federal constitutional
declining
adopt
applicable
1526-1529, 6
1523,
364,
S.Ct.
367 U.S.
369
States (1961)
United
[81
208,
Cal.Rptr.
21 Cal.3d
v. Collins (1978)
901]]; People
[145
L.Ed.2d
to bar
provision
686,
state
[construing
Sister state
have
jurisdictions
circum-
clause under similar
double their own state Constitution’s
test, and a
narrow Kennedy
between
following
stances have divided
cases below.
broader,
examine those two lines of
more
test.19 We
expansive
many
have
expressly
others
jurisdictions
question,
not addressed the
19Most state
have
resolve,
noted,
Indeed,
a related
previously
and declined
open.
left it
this court itself has
263,
374],
corpus
a habeas
P.2d
(1987)
Cal.Rptr.
re
1
Based in large
its
part upon
clarity and
ease of
perceived
application,
narrow “intent-to-cause-mistrial”
test set- out
Kennedy,
majority
supra,
667,
456
U.S.
has been
adopted by
high courts
six states as the
test
appropriate
under
the double
clause of each
jurisdiction’s
(State
v.
Bell
constitution.
93, 94;
322
State v. Chapman
(Iowa
N.W.2d
1982)
State v. Diaz
(Me.
297, 300;
A.2d
1985) 496
129, 133;
521
(R.I. 1987)
A.2d
State v. White
Harris v.
(1988)
813,
N.C. 506
S.E.2d
People
815];
[369
259, 266,
4;
State v. Williams
(Colo. 1995)
P.2d
fn.
Nevertheless, the intent-to-cause-mistrial test has been viewed as inad because it equate protects very narrow of a range defendant’s double legitimate (See Henning, Prosecutorial Miscon jeopardy interests. duct and Constitutional Remedies (1999) 77 Wash.U. L.Q. 803-808 (Constitutional Remedies); Ponsoldt, When Guilt Should Be Irrelevant: Gov ernment as a Bar Overreaching to Reprosecution Under the Double Jeopardy Clause Oregon Kennedy, supra, 69 Cornell L.Rev. 94-99 (Government After Misconduct, Convictions, Over Rosenthal, reaching); Prosecutor (id., p. Stevens, p. (conc. L.Ed.2d at opn. of J.)). He then claims that this 434] ‘rule’ proper constitutes the implementing test for the independent guar state constitutional against antee jeopardy. Finally, he concludes that under this ‘rule’ retrial is barred in (Martin, 54.) case.” 44 Cal.3d We held that if the ‘rule’ is sound and “[e]ven proper constitutes the test for implementing independent guarantee, state constitutional its *26 application to the facts of this case does not result in petitioner the outcome . seeks. . . [Although petitioner clearly has prosecution engaged demonstrated that the prejudicial trial, misconduct at simply his he has ‘intentionally] failed to show that it manipulated]. . . jeopardy (Ibid.) double . . interests . .’” [his] Valenzuela-Gonzales, 20In supra, Cal.App.3d 195 prosecutor asked a witness a question relating arrest, prior drug to the defendant’s response and in the trial court indicated Later, that it questioning however, would not allow subject. on that prosecutor asked another witness whether the any problems defendant “has drugs.” with The defendant objected mistrial, and moved for a granted, which the upon court based the prosecutor’s (Id., 732.) misconduct. at p. Thereafter the plea defendant entered a jeopardy once in filed a motion plea. to sustain that The trial findings, court denied the motion. In detailed prosecutor court concluded that the did not intend simply to cause a but instead attempting (Id., pp. 734-736.) to obtain a at Appeal conviction. The Court of concluded that judge’s evidence, findings by and, therefore, were “supported substantial disposi (Id., p. 736.) Accordingly, tive.” at the court concluded that the Fifth Amendment’s double jeopardy apply. (Ibid.) bar did not Appeal, considering argu The Court of the defendant’s support construing ments in the California Constitution’s double clause in a fashion, broader protective acknowledged and more (1987), that at the time two states— Oregon adopted I, and Arizona—had approach, such an but it declined to do so under article section 15.
689 Jurisprudence (1998) in an Emerging Case Studies Jeopardy: Double Tho 909-917, 887, 892-895, Jurisprudence); 961 (Emerging L.Rev. Temple L.Rev. 69 So.Cal. Riddle mas, (1996) the Double Jeopardy Solving Procedure Criminal Reiss, Intent in Constitutional 1563-1564; Prosecutorial For ex Intent).) 1425-1428 (Prosecutorial 135 U.Pa. L.Rev. (1987) Intent, 135 U.Pa. in Prosecutorial Professor Reiss as noted by ample, his trial to have right a defendant’s ‘valued 1426: “When L.Rev. at page serious prosecutorial tribunal’ is threatened aby completed particular of the right trial, deny any protection does much Kennedy misbehavior with prosecutorial concern any eliminates . . . [because it] the intent to provoke motives other than by improper overreaching prompted willing who is Thus, faced with a prosecutor a defendant a mistrial. under . . has no redress reasons . error for other improper commit reversible omitted.) the clause.” (Fns. ante, III.C) this case (see pt. to the facts of
The federal test’s application that test. Had the prosecutors and limitations of illustrates the narrow scope mistrial, but instead to cause a their misconduct not committed intentionally a likely in order avoid to convict jury to improperly prejudice defendants’ clearly implicate misconduct acquittal, prosecutors’ which, seen, include a defendant’s interests, as we have double “ ‘ ’ ” tribunal.” aby particular to have his trial right completed “valued 347, 919 799, 824 Cal.Rptr.2d 13 Cal.4th Marshall (People (1996) see also clauses]; state double jeopardy federal and [construing P.2d 1280] And yet Cornell L.Rev. 81.) Overreaching, supra, Government court’s high interests lies outside of a defendant’s double jeopardy aspect the state double test, jeop it. Because narrow and is unprotected jury that a believing particular clause is when ardy implicated prosecutor, in order to commits misconduct intentionally to return an likely acquittal, because the a conviction—and and obtain jury prejudice improperly of a defendant’s fails to protect aspect narrow test in Kennedy majority’s alone, test, standing that the federal interests—we conclude double jeopardy double jeop Constitution’s interests that our state is insufficient to protect safeguard. clause is intended to ardy *27 interests double jeopardy to more fully protect tests designed
Competing
(State Kennedy (1983)
v.
courts of six states.
been
by
high
have
adopted
v.
Court
1316,
Pool
II);
Superior
(Kennedy
Or. 260
P.2d
295
1326]
[666
261,
Com. v. Smith (1992)
(Pool);
P.2d
S.W.2d
(Bauder);
Rogan
699
These broader
have been
to criticism as well. The
subject
Smith,
standards
supra,
adopted by Pennsylvania
615 A.2d
by
Rogan, supra, 984
Hawaii
P.2d
bar
example,
reprosecution
when
only
mistrial,
misconduct
is
prosecutorial
intended to cause a
but also
when
conduct
is
prosecutor’s
undertaken to
“intentionally
prejudice
defendant
to the
of the denial
(Smith, supra,
point
of
fair trial”
The standards II, Court, in Kennedy Oregon Supreme exhibit similar problems. clause double jeopardy Constitution’s Oregon construed the
666 P.2d to the conduct is so prejudicial official retrial “when barring improper as mistrial, a and means short of by it cannot be cured defendant that if either intends and is and improper prejudicial knows that the conduct official 1326, italics mistrial or reversal.” (Id., p. to the resulting or is indifferent standard, finding a similar Court has adopted The Arizona added.) Supreme a mistrial is granted the Arizona Constitution “when retrial barred under conditions: following the court under the or declared by motion of defendant by conduct or actions because of improper 1. Mistrial is granted flj] error, of legal the result merely 2. such conduct is prosecutor; ft[] but, whole, as a mistake, insignificant or taken negligence, impropriety, to be improper conduct which the knows prosecutor amounts to intentional he with any improper purpose and which pursues prejudicial, indif- for reversal; and 3. the mistrial or to a significant resulting danger [^[] ference cured means to the defendant which cannot be conduct causes prejudice added, 261, 271-272, italics in. a P.2d short of mistrial.” (Pool, supra, a modified version The New Mexico Court has Supreme adopted omitted.) Con- standard, under the New Mexico of the retrial barred Oregon finding to the official conduct is so unfairly prejudicial stitution “when improper a mistrial or a motion for defendant that it cannot be cured means short of trial, the conduct is improper a new and if the knows that official acts in a mistrial or either intends provoke prejudicial, if official mistrial, retrial, reversal.” (Breit, supra, or resulting disregard willful 792, 803, 930 P.2d italics added.) view, Texas)24 formulation from In our each of these tests similar (and the precise less than because none articulates satisfactory, explicitly is that the underlying double basis for a conclusion principles jeopardy as Accordingly, been violated. defendant’s double interest have jeopardy mandate each test improperly may to different factual settings, applied vein, Henning, in Constitutional Saylor, J.).) Professor (dis. opn. of In a similar 1226] Remedies, 713, 813, tendency of courts has criticized supra, 77 Wash.U. L.Q. automatically remedy jeopardy which “respond[] superficial to the allure of double retrial, for severity appear[s] punish prosecutor of the sanction prohibits because Yet, is another way neither misconduct in a that a new trial not. his [would] ensuring the criminal trial nor a means process protection propriety the due form of against outrageous government conduct.” protect law, the Texas barred 24Pursuant to Texas “a successive [under a mistrial at the defendant’s after declaration of Constitution’s double clause] intended to induce objectionable prosecutor request, not when the conduct consciously disregarded was aware but prosecutor for but also when the motion a mistrial at the require objectionable responsible event which he was risk that an 696, 699, added.) italics (Bauder, supra, S.W.2d request.” defendant’s *29 692 is,
double relief for instances of (that barring any trial) prosecuto- jeopardy rial misconduct that more should be remedied reversal appropriately Remedies, retrial. L.Q. Constitutional 77 Wash.U. 813 (See supra, of the New Mexico standard as a double [criticizing affording application a for due jeopardy remedy process violation].)
C above, test, As noted we have concluded that a narrow focussing solely motion, whether the intended to induce a successful mistrial upon prosecutor fails to interest of a defendant in fully securing protect legitimate trial, resolution in the and hence inad- (and possible acquittal) pending double interests set out in California Constitution equately protects jeopardy I, article section 15. we conclude that reasons . . . Accordingly, “cogent exist” for the double clause of the state Constitution construing jeopardy from its federal 16 Cal.4th differently counterpart (Monge, 844) supra, broader test is in order to more double required fully protect interests under our state Constitution.25 guaranteed time, At the same the standard that we should not be so broad as to adopt lead to the of the double its drastic sanction imposition bar—with retrial—in prohibiting circumstances which such sanction is unwar- ranted. What is needed is a standard that sufficiently protects jeop- interests, but also retains and enforces a distinction between “normal” ardy misconduct that violates a defendant’s due prejudicial prosecutorial process retrial, to a fair trial and the form right warrants reversal and misconduct that not constitutes a due violation but prosecutorial only process violation, also a double and hence warrants not reversal but dismissal a bar reprosecution.
D standard, In such a we find a line of decisions formulating helpful from the decision of the Second Circuit Court of U.S. stemming Appeals Wallach, v. F.2d a decision that considered the 979 912 supra, (Wallach II), not of a mistrial based double jeopardy consequences upon prosecutorial misconduct, but instead of a reversal a conviction on because of appeal at trial. The decision in II followed the misconduct Wallach prosecutorial v. Cir. F.2d 1991) Second Circuit’s earlier decision U.S. Wallach 935 (2d a brief of the first Wallach summary 445 and we with (Wallach I), begin decision. conclusion, Valenzuela-Gonzales, People supra, 25To the extent it is inconsistent with this Cal.App.3d disapproved. 445, I, key F.2d in Wallach
At the criminal trial at issue witness, gambling that he had forsworn testified who previously evidence time, documentary (gambling with after a certain was impeached *30 time, in fact had that, the witness the relevant during markers) suggesting collateral to wholly This was in engage gambling. impeachment continued reflected on but it clearly the defendant against (Wallach), the case the wit- prosecution, On redirect examination credibility. witness’s documentation, as- the gambling an innocent for ness offered explanation $50,000 but had in chips that in fact he had obtained serting, example, (Id., them himself. at pp. 453-456.) them to a friend and had not used given surfaced, convicted, making evidence was and thereafter additional Wallach his indeed had lied own concerning it clear that the witness prosecution the wit- At that and convicted government gambling. point prosecuted granted, motion for a new was ness for Wallach’s perjury. subsequent (the on the of misconduct ground prosecutorial his convictions were reversed have known” that the witness court that the “should concluding government and a gambling), when he claimed to have committing stopped peijury trial was ordered. at (Id., p. 457.) new counts, retrial reduced Wallach moved
Prior to the commencement of on The on that retrial was barred. grounds, asserting to dismiss double jeopardy Circuit, motion, in district court denied that review Second upon II, court’s conclud- ruling, Wallach F.2d affirmed the district supra, that under that retrial was not barred. Wallach’s contention ing Addressing 456 U.S. rationale of the court’s decision in high Kennedy, supra, “ the federal double clause ‘bars a second when intention an in serious misconduct with the prosecutor engages preventing of ” II, the circuit 979 F.2d at italics acquittaV (Wallach added), supra, p. for some sort of court that “there is force to Wallach’s agreed argument it, “[ejvery extension” of in the context before but reasoned that Kennedy the intention of action of a in the course of a trial is taken ‘with prosecutor were as broad Kennedy an If the rationale of preventing acquittal.’ [Citation.] Wallach, retrial of as claimed the Double Clause would bar Jeopardy of intentional miscon- defendant whose conviction is reversed because every For use of knowing peijured duct on part prosecutor. example, would result jury’ that ‘could have affected testimony judgment conviction, also in a bar to retrial not in reversal of a but only [citation] Court could not have mandated possibly grounds. Supreme distinction in Such a result would obliterate precise result Kennedy. results in a mistrial merely between misconduct Kennedy drawn a mistrial.” of provoking misconduct undertaken for the specific purpose (Id., p. 916.) of Kennedy beyond “If extension any
The court in Wallach II continued: warranted, it be a bar to retrial where the mistrial context is undertaken, misconduct is an prosecutor simply prevent acquittal, but to an prevent that the believed at the time acquittal prosecutor was likely ” II, to occur in the absence his misconduct. (Wallach 979 F.2d 916, italics The court added.) “The who acts with the explained: prosecutor intention of the defendant into goading mistrial motion making presumably does so because he believes that of the trial will completion likely result an acquittal. That rationale aspect Kennedy suggests retrial precluding and, where a an prosecutor instead of apprehends acquittal provoking Indeed, avoids the an act of acquittal by deliberate misconduct. if Kennedy not extended to this limited degree, an prosecutor apprehending acquittal encounters bar to retrial when he engages miscon motion, duct of sufficient a mistrial but not he visibility precipitate when *31 fends off the misconduct of anticipated acquittal by which defendant is unaware until after the verdict. There is no for that justification distinction.” (Ibid.) concluded, however,
The court in II Wallach that even under this broader standard, case, no double violation was demonstrated in that be jeopardy cause evidence against Wallach his co-defendants was quite “[t]he strong,” giving reason to a conviction” prosecution “every anticipate II, 912, F.2d (Wallach supra, 979 and because the record 916), supported trial court’s did not of the finding prosecutors know perjury. (Id., determined, the court “the p. 917.) Accordingly, factual for predicate” a misconduct finding double violation—“deliberate jeopardy prosecutorial undertaken to an avoid that the believed was in acquittal prosecutors likely the absence of their misconduct—is totally lacking.” (Ibid.)
Because we need consider in the
case
present
only
proper standard
under the state double
clause
misconduct that
jeopardy
prosecutorial
motion,
not,
not,
a
triggers
defendant’s successful mistrial
we need
and do
determine whether Wallach II articulates a
test—under either the
proper
federal or state constitutional double
clauses—for misconduct that
jeopardy
ante,
results in reversal on
or in relief on habeas
fns. 15
appeal
corpus. (See
&
in
Our sole concern
this case is the
test under our state
19.)26
proper
Constitution’s double
clause for intentional
jeopardy
miscon
prosecutorial
duct that
not a reversal on
but a
produces
mistrial. In
appeal,
formulating
Circuit,
26The test set out in
II has been reaffirmed
the Second
Wallach
endorsed
Appeals
jurisdictions.
(U.S. Pavloyianis (2d
the First Circuit Court of
and various state
v.
Cir.
1467,
1993)
[finding
bar];
Gary (1st
F.2d
jeopardy
996
1473-1475
no double
U.S. v.
Cir.
339,
1996)
[same];
(1995)
74 F.3d
315
State v. Colton
E be test that will Without articulate attempting circumstances, clause conclude that the double all we applicable *32 I, 15 retrial the following grant of California Constitution article section bars intentionally of a defendant’s mistrial motion when the (1) the a and also (2) commits misconduct for of triggering purpose an during when the in view events unfold prosecution, believing trial in to an at that likely acquittal that the defendant is secure ongoing misconduct, absence of commits misconduct intentionally knowingly court, the circum such an reviewing in order thwart acquittal—and misconduct, that from an objective as of the time of determines stances of a in defendant misconduct fact prosecutor’s deprived perspective, II, 1316, P.2d of an 666 acquittal. (See Kennedy supra, reasonable prospect II, 1326; 912, 916-917; Emerging Wallach 979 F.2d Jurisprudence, supra, 887, 71 L.Rev. Temple 916.) find, test, as view, court to In our the latter of the which aspect requires in fact matter, that the misconduct prosecution’s deprived an objective that, noting on the facts (Iowa 1995) 541 538-540 also Ct.App. N.W.2d Swartz [but it, approach]; Parte II Ex find not barred under the Wallach before court would retrial 575, 579-580; (1998) v. 81 Ohio 1997) State Keenan (Tex.Crim.App. Mitchell 977 S.W.2d initially expressed skepticism 940]). jurisdictions that N.E.2d Still other St.3d Doyle (7th Cir. (Compare U.S. v. spoken approach. of the II positively have since Wallach Posner, (7th 1997) Cir. 130 F.3d 1997) (per J.) 121 F.3d with U.S. Catton Posner, Temple L.Rev. at Emerging Jurisprudence, supra, 71 (per J.).) generally See 807-808 pages 926-933. defendant of a reasonable or realistic prospect acquittal, appropriate an guard against unwarranted of the imposition If, bar. despite prosecutor’s subjective belief that an to occur acquittal likely misconduct, the absence of that, court determines an objective from an perspective, was not acquittal a realistic retrial, a bar of prospect, perma- nently relieving such a defendant of criminal any responsibility his or her conduct, charged would constitute a windfall for the view, defendant. In our when such prosecutorial misconduct has not a defendant of deprived reasonable anof prospect acquittal, double interests are not unfairly if a compromised defendant who successfully moves for a mistrial remains to retrial.27 subject
Applying case, test to the foregoing it is present apparent intentional, misconduct was and that its prejudicial impact was sufficient the trial justify court’s decision ante, a mistrial. grant As noted part III.C, however, the trial court’s findings its amply support conclusion that the misconduct was not committed with the intent to induce a mistrial. case, Accordingly, the state constitutional double jeopardy guarantee would bar retrial if the deliberate misconduct was intended prosecution to an prevent that the acquittal prosecution subjectively believed at the time was to occur in likely the absence misconduct, of the was, fact, acquittal an objectively reasonable absent the miscon prospect duct.
Although the trial court did not have in mind the subjective intent standard articulate, that we now and hence did not expressly consider whether the prosecutors’ deliberate misconduct was intended them an prevent acquittal they believed at the time was to occur in likely the absence misconduct, the trial that, court did find despite negative impact cross-examination case, upon People’s never *33 prosecutors 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 that, lose because of in the District Attorney’s of view. Nor do point I believe that they that.” thought Based (Italics added.) these upon findings, we conclude that the did prosecutors not subjectively believe at the relevant course, recognize, 27We of Kennedy, that the United supra, Supreme States Court objective U.S. attached no component similar barring to its standard retrial whenever the prosecution mistrial, commits misconduct with the produce intent to a similarly and we have objective not included such component an in the first (intent-to-provoke-mistrial) prong of the state constitutional standard articulated here. When the specific acts for the mistrial, purpose provoking of and thereby intentionally directly subverts the defend right subjected ant’s not to be repeated prosecutions offense, for the same we believe that prohibiting sanction, appropriate retrial is an and proportional acquittal whether or not was a prospect. realistic misconduct, occur—and that, likely absent an acquittal time their that factual to resolve hearing for a further need remand hence we question. the
Furthermore, question were as ambiguous even if the record viewed intent, no of defend- find violation of we would subjective the prosecutors’ here, we conclude because double jeopardy rights ants’ state constitutional in part of the test not satisfied. As explained the objective that III.C, component ante, after the defense cross- demonstrates that even record words, immediately prior Branscomb other (in examination Detective case the People’s a successful mistrial motion), the misconduct induced and, from an objective perspective, prosecutorial still was quite strong an did not defendants of reasonable prospect misconduct deprive err in defendants’ It follows that the trial court did not denying acquittal. to dismiss on double grounds. motions state jeopardy
V that we with the trial court’s agree We wish emphasize completely during in the 1999 trial that the misconduct of finding prosecutors due to a fair trial was indefensible and violated defendants’ process rights was, remains, for such a violation trial. due proper remedy process of a For reasons set out the declaration followed a retrial. above, conclude federal their state double we that neither defendants’ nor were in this rights violated case.28 jeopardy is reversed and the
Accordingly, Appeal Court judgment is remanded to that court for resolution of issues raised remaining matter on appeal. J., J., Brown, J.,
Kennard,
Baxter, J.,
J., Chin,
concurred.
Werdegar,
curiae,
Angeles
Attorney, appearing
argues
jeopardy
that “a
28The Los
District
as amicus
jury.”
premised upon
prosecutor’s
presents
question
intent
of fact for
In
defense
Stone
concluding
curiae
of an extensive footnote
support,
upon
amicus
relies
sentences
Court,
Superior
mentioning that
In Oregon Kennedy 456 U.S. (1982) S.Ct. 72 L.Ed.2d [102 416], the high court held that when a defendant moves for a successfully mistrial based upon prosecutorial misconduct, the double clause of the Fifth Amendment bars a retrial if “the only conduct rise to giving successful motion for a mistrial was intended to provoke defendant into (Id. for a moving mistrial.” S.Ct. at p. p. 2091].) Despite court’s I contrary finding, with the agree Court of that there is Appeal no doubt the prosecutors knew their intentional misconduct would provoke mistrial.
As the majority opinion detail, recounts in greater defendant Batts Tracy was tried in 1998 for the murder of Brian Jones in a gang-related shooting. brother, Jones, victim’s Benczeon was wounded the attack and during identified the shooters as McCrea, Batts and Terrance who had not been apprehended. Batts was convicted but was granted new trial based upon discovered newly retrial, evidence. Prior to the Benczeon was murdered in March, 1999. retrial,
Also to the prior McCrea was apprehended. At the second trial defendants, against both Benczeon’s at the first trial testimony was admitted as to Batts alone under Evidence Code section which permits former of an unavailable testimony witness to be admitted against party the earlier proceeding. Benczeon’s former also testimony was admitted as to both defendants under Evidence Code section which under specified circumstances allows admission of a decedent’s prior statements in a gang- related if the decedent “died from other than natural causes.”
Evidence Code section 1231.4 “If provides: evidence of a statement prior article, introduced pursuant not be jury may told that the declarant died causes, from other than natural but shall be told merely the declarant is unavailable.” the trial court Accordingly, instructed the attorneys several occasions to and prior trial that the during jury not be informed Instead, that Benczeon was dead. the jury would be told that he was unavailable. The were told to prosecutors instruct their witnesses not to mention that Benczeon was dead.
Prosecution witness Detective Marvin Branscomb testified on cross-ex- amination that he visited Benczeon in the hours after hospital Benczeon had *35 was reluctant been killed. Benczeon shot and his brother had been family. his Detective safety of fear for the out police with cooperate relocation would pay that the witness program Branscomb told Benczeon to relocate to rent his wished family and last month’s if cost of the first Benc- Defense counsel established residence in another neighborhood. on trial. Four months later June at Batts’s first zeon testified on $1,500 a check for 6, 1988, Branscomb Benczeon gave October Detective included the fol- relocation Cross-examination program. under witness lowing exchange: correct, this is that Well, money, him didn’t you give counsel]
“[Defense 6th, 1998, until October right? Yes.
“[Detective Branscomb] then, . . he “Q right? . It is after testified already “A Right. cases, That time he testified in connection with these
“Q any right?
“A Yes. hearing, He Batts’ “Q Tracy never showed testified at up preliminary . . . right?
“A Correct. He Me first
“Q testify preliminary didn’t show and in Terrance Crea’s up hearing. . . .
“A Correct. Crea’s
“Q hearing And he didn’t in Terrance Me testify preliminary . 1988. . . May Correct, . .
“A .m ffl time, just $1500 cash he testified one At the time him “Q you give right?
“A Yes. $1500 cash? after he him you pay And then four months testifies
“Q *36 “A Yes. [1] . . . m
“Q Isn’t it trae that you $1500 him guys gave as a payoff?
“A No.”
On examination, redirect the prosecutor returned to the subject of the witness relocation After program. having Detective Branscomb describe how the program operates, following took exchange place: . on, . . Before I go relocate a why witness?
“[Prosecutor] Because witnesses get “[Detective murdered. Branscomb] “Q Relocation has some affect upon that?
“A Yes.” later, A short time following recess, brief the crucial exchange took place: 10th, ... On May there was another
“[Prosecutor] preliminary is that hearing; correct? Yes.
“[Detective Branscomb] “Q date, On that did Benczeon Jones Did he testify? testify? that. Simply “A No.
“Q not? Why
“A He was murdered.” Defense counsel asked approach bench and that the suggested jury be excused for the day. After the jury courtroom, had left the the bailiff reported down,” one juror “broke “this is too saying much for her.” This juror was examined outside the presence other jurors and said she had cried because of the “comment that was made about the death or murder of Benczeon.” took day, following proceedings had left for the
After all the jurors place: all, ask, Now, just let first of preliminary
“The . . . me Court: that answer? did you expect when asked that attorney you question, district *37 Yes, honor. your “[Prosecutor]:
“The All Court: right. I want to you if I ask this question, The answer—I said you
“[Prosecutor]: the there. before he answered the as to he was not I said why tell truth to to the object to see if wanted make a counsel significant pause question, to truthfully then answer as don’t to the they object question, If question. it he was there.” was not why the about court for other reason information by any
When asked elicited, death stated: Benczeon’s was prosecutor counsel] “[Defense not show and that Benczeon did up the door and opened specifically implied . . . that it was intentional.” and, one following day,
Defendants moved for mistrial had forced to to defense counsel’s argued they respond that been prosecutors that had his and then inten- testimony Benczeon been for implication paid if essentially accepted failed to because “this attack tionally testify appear that Benczeon Jones’ any credibility devastates jury completely in this testifying It of this detective in any credibility has. testimony destroys matter, in this that suggesting and it both of us as case prosecutors impugns trial then are taking not the witness off the first but only paid we have that is bought that is testimony further actions present jury perjured isn’t here.” Reiterating sure witness paid testimony making to, answering, and did in fact before pause detective was instructed because object “[t]hey that defense counsel did prosecutor argued ask wanted the for mistrial.” opportunity mistrial, the court that de- motion for observed
In defendants’ granting have might given Branscomb fense counsel’s cross-examination Detective had not to mistaken that Benczeon chosen jury appear impression could addressed this problem but the have testify, prosecutors easily the court to instruct the jury. the bench and asking approaching all as I analysis in this court then stated: “Now what is most perplexing asking this I morning, kept it for hours last hours through night went myself one thing. Why? Why? Why on earth would the earth—why district in this attorney circumstance not come before the court and follow that procedure? Although I with painfully struggled I have question, no into as I sit here absolutely insight None. I today. imagine can’t such a thing could have under reasonable ... I happened any scenario. sat shocked. I there stunned when I heard it. ... I have come to the conclusion there was reckless to the disregard rights the defendants in under the posing question circumstances it without screened. . . . being That is it where went wrong order of irretrievably wrong, defying the court, the orders of specifically defying the court.” retrial,
Prior defendants moved to dismiss on double jeopardy grounds before same that had over the One judge presided mistrial. *38 prosecutors who had at the represented People argued mistrial his “tactical decision” to instruct witness to reveal that Benczeon had been murdered was a “mistake” and admitted he had acted but emotionally, asserted that a mistrial was causing “the farthest from thing mind.” He [his] believed the trial had been well” and the going “extremely “had a chance of good a conviction.” obtaining dismiss,
The court trial denied the motion to that “the case noting was well for the The going very court I People.” added: as have said “[Although their conduct was to me . . .1 do not perplexing honestly believe that their conduct occurred because wanted a mistrial. I they think their conduct occurred because let their emotions they run far where should beyond they have ran. I think And realize that.” they
The United States Court in v. Supreme 456 Oregon Kennedy, U.S. 667, 676, 2083, footnote 7 S.Ct. 2090], recognized courts appellate [102 should deference grant to a trial court’s findings concerning prosecutor’s intent, stating: therefore, “It seems entirely reasonable to expect, appel- late will continue judges to defer to the of trial are judgment who ‘on judges area, the scene’ in this that they will not reach the same inexorably conclusion on a cold record at if appellate stage one they might any of them had been trial as a The in sitting judge.” majority case present standard, this but then acknowledges erroneously relies Court of two upon ante, decisions that a far more Appeal apply standard. stringent (Maj. opn., at pp. 682-683.) 30, in 33, court v. Court Barajas Superior (1983) 149 Cal.App.3d
footnote 4 599], without citation to Cal.Rptr. admitted to authority, [196 “some discomfort with the trial court that the had not findings” prosecutor
703 “Nonetheless, are because we pre- but held: intended to cause a facts, supports evidence we conclude substantial cluded from weighing in this footnote upon Barajas, court.” Relying made findings 728, 736 195 (1987) Cal.App.3d the court in v. Valenzuela-Gonzales People on the issue are “findings the trial court’s stated that Cal.Rptr. 114], [241 therefore, evidence, and, dispositive.” substantial supported by misstate the The Courts of in and Valenzuela-Gonzales Barajas Appeal 667, 456 U.S. v. Kennedy, supra, of review established Oregon standard held, court we must As high footnote 7 S.Ct. 2090]. [102 contexts, but, as we have noted other findings defer to the trial court’s Cal.4th is not Dennis (1998) deference abdication. (People P.2d 1035].) Cal.Rptr.2d noted, case, there is no correctly
In the as the Court of Appeal present a mistrial. provoke doubt the knew their misconduct would prosecutors First, misconduct Several factors make case unusual. the prosecutor’s This not a decision or improper was deliberate and calculated. rash recess, the heat of battle. During prosecutor blurted out question court order had officer direct police disregard instructed witness been reiterated several times.
Second, not direct deliberate misconduct violated prosecutor’s 1231.4, order, of which the court but a statute. Evidence Code section aware, that when a decedent’s statement is admitted was prosecutor requires “the testimony, under as Benczeon’s prior Evidence Code section causes, not be that the declarant died from other than natural jury told may but shall told that the declarant is unavailable.” merely be
Third, The trial it was that this revelation would be bombshell. obvious A juror court it and “sat there stunned.” broke down stated was “shocked” had tears that Benczeon been murdered. hearing upon did not prosecutor the trial court concluded that Finally, although it mistrial, it admitted that could understand intend to cause a mistrial, the court questioned Before granting intentions. prosecutor’s issue, rather to discuss the did not the bench why approach prosecutor order, “Why? Why? court disobey stating: than instruct the witness to circumstance attorney on earth would the district Why earth—why I court follow that procedure? Although painfully not come before the as I sit insight I have no into absolutely with that struggled question, could have thing happened I can’t that such imagine here None. today. under any dismiss, reasonable scenario. . . Prior to the motion to denying the court that the repeated prosecutor’s conduct “was to me.” perplexing circumstances,
Under these I no have doubt that the intention- prosecutor ally violated the trial both court’s order and Evidence Code section 1231.4 it knowing a mistrial. provoke Accordingly, retrial barred clause the federal Constitution. petition appellant L. Batts for a Tracy rehearing was denied July J., J., 2003. Brown, C. George, did not therein. participate