Glеn Homer SHELTON, Jr., Appellant, v. STATE of Arkansas, Appellee.
No. CR 08-1035
Supreme Court of Arkansas.
June 25, 2009.
2009 Ark. 388
12 This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fаult where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
P.-Crim. 4 has since been amended to include the time for filing the record.
Brown‘s counsel admits fault within the motion. Pursuant to McDonald v. State, supra, we grant the motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted.
Dustin McDaniel, Att‘y Gen., by: Deborah Nolan Gore, Ass‘t Att‘y Gen., for appellee.
DONALD L. CORBIN, Justice.
Appellant, Glen Homer Shelton, Jr., filed this interlocutory appeal from the order of the Jefferson County Circuit Court denying his plea of prior jeopardy, in which he had moved for dismissal of the capital-murder charge pending against
Appellant was charged by felony information with the May 5, 2007 murder of Melanie Hughes, after Hughes was run over by a tractor driven by Appellant. Trial by jury began on February 19, 2008. After a jury was selected and sworn, both sides presented opening statements. At the conclusion of Appellant‘s opening statement, the State moved for a mistrial based on comments made by defense counsel during opening statement that the State alleged amounted to a change in defense theories. The trial court granted the State‘s motion for mistrial over Appellant‘s objection and discharged the jury. The trial court then reset the case for jury trial and denied Appellant‘s motion to set bond.
Appellant filed a plea of prior jeopardy and moved to dismiss the charges pending against him. After a hearing on May 8, 2008, the trial court took the matter under advisement and ultimately issued a written order denying without explanation Appellant‘s plea of prior jeopardy. This interlocutory appeal followed.1 An order denying a motion to dismiss charges because of double jeopardy is an appealable decision. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992); Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).
This court reviews de novo a circuit court‘s denial of a motion to dismiss on double-jeopardy grounds. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008). When the analysis presents itself аs a mixed question of law and fact, the factual determinations made by the circuit court are given due deference and are not reversed unless clearly erroneous. Id. However, the ultimate decision by the circuit court that the defendant‘s protection against double jeopardy was not violated is reviewed de novo, with no deference given to the circuit court‘s determination. Id.
Although raised as his second assignment of error, we first address Appellant‘s argument that the circuit court erred under Arkansas law in ordering a mistrial because of comments made by defense counsel during opening statement. At the outset we note that
“A former prosecution is an affirmative defense to a subsequent prosecution for the same offense [if] [t]he former prosecution was terminated without the express or implied consent of the defen-
In the instant case, Appellant specifically contends that there was no overruling necessity to grant the mistrial as required by
In Koster, this court affirmed a finding of overruling necessity when the jury was exposed to matters outside the courtroom that could affect its judgment in the case. Other examples of overruling necessity found by this court are illnеss of a juror, Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991); illness of a material witness for the State, Jones v. State, 288 Ark. 162, 702 S.W.2d 799 (1986); and intoxication of defense counsel, Franklin v. State, 251 Ark. 223, 471 S.W.2d 760 (1971). These are all examples of emergencies that are outside the control of the court and counsel, that could not have been averted with diligence or care, and that prevented the trial from proceeding.
The situation presented in the present case, however, is entirely distinct from those cases, as a review of the record below clearly demonstrates. At the cоre of this case are remarks of defense counsel made during opening statement regarding evidence that the prosecuting attorney had already explained to the jury would be admitted at trial. Indeed, the first reference to the challenged subject matter of the victim‘s death being accidental was, in fact, made by the prosecution in its opening statement:
You‘ll also hear that once the defendаnt to the-to the sheriff‘s office that he was advised of his rights and that he gave a statement. And I anticipate that you‘re going to see that statement. It was a video statement where he gives explanation as to what was involved and why-what happened happened. And in that statement, I anticipate you‘re going to hear several different explanations that range from being mad to range from she had my cell phone to range that it was an accident to, “I just meant to bump her, but I didn‘t mean to kill her.” Several different explanations.
(Emphasis added.) Defense counsel then proceeded with his opening statement, describing the events leading up to the death of Hughes:
Ms. Hughes, Glen will tell you, was between the car and the tractor when she fired the first three shots. He couldn‘t go toward the car. He couldn‘t go toward the school bus that he lived in bеcause that would have been running in the direction of the woman who was firing the gun at him. He runs to the tractor and gets in the tractor. And as he‘s in the tractor, she fires at least one more shot, according to Glen.
. . . .
The testimony will show he did not have a gun, he did not have a knife, he didn‘t have anything else he could use as a weapon to defend himself He drove the tractor.
Ms. Hughes starts to run up toward the highway as he‘s following behind her. Periodically Glen will tell you that
she turned around. He kept going. She kept running. As he chases her finally off the property where he lives, his tractor hits part of the ditch, I‘ll call it, and Glen is going to tell you that there was a momentary loss of control. And before he could bring that tractor back under control, he had run over Melanie Hughes.
(Emphasis added.) Defense counsel went on to assert that the evidence would show that Appellant аcted in self-defense:
If you look at the evidence, beginning in 2004 when Glen has it in his mind that she will assault him and she will hurt him and combine that with the evidence in 2007 when this time she has a gun and she fires it, we think you‘ll be satisfied that he was acting in self-defense when he got in that tractor. Thank you.
(Emphasis added.)
At the conclusion of Appellant‘s opening statement, the State moved for a mistrial, arguing that defense counsel‘s remarks about momentary loss of control amounted tо a change in defense theories from one of self-defense to one of accident, and that prejudice resulted therefrom because the jury had now heard comments about the victim‘s use of drugs and her previous attack on Appellant‘s neck and face with a knife. The State conceded the admissibility of this evidence prior to trial and asserts that if it had known that Appellant was proceeding under a theory of accident, it would not have done so, and that the jury was therefore prejudiced by hearing in opening statement that such evidence would be forthcoming at trial. Appellant‘s counsel responded to the State‘s motion by telling the trial court that
[t]he defense is self-defense. And [the prosecuting attorney], I believe, said that [Appellant] offered several examples of reasons for why his conduct оccurred and that it was an accident at some point when he ran over her.... [A]nd that‘s all I did was repeat them, that it was an accident at that point. But we‘re still arguing self-defense.... Now, it may be ultimately determined by the jury that it‘s an imperfect self-defense claim in which reckless conduct or negligent conduct is determined by the jury. But in no way has our defense changed to accident. Our defense is clearly self-defense.
(Emphasis added.)
The State continued to argue to the trial court that mistrial was the only appropriate remedy here. When questioned further by the court, Appellant‘s counsel responded that
[i]t could be imperfect self-defense if they think he was acting with a reckless mental state at that point.
I mean, I‘ll be glad to go back and clarify to the jury ... that this is not an accident, accidental killing; and the defense is relying on self-defense. It doesn‘t mаtter to me how it‘s done. I‘ll be glad to do it.
(Emphasis added.) Defense counsel, all the while asserting that he was proceeding under a theory of self-defense, again offered to clarify for the jury that Appellant was relying on a defense of self-defense. Defense counsel further averred that the court could clarify the situation to the jury or instruct the jury that comments made by counsel in opening statements are not tо be considered as evidence.
After considering the law on imperfect self-defense cited by Appellant, Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001), the trial court granted the State‘s motion for mistrial on the grounds that Harshaw and the concept of imperfect self-defense were not applicable to the facts presented and that defense counsel‘s
The State has not met its heavy burden of demonstrating that the mistrial was warranted by circumstances justifying overruling necessity, because if any error or prejudice occurred in this case it could have been corrected with curative relief such as an admonition or instructiоn to the jury. A mistrial is an extreme remedy that should only be granted when the error is beyond repair and cannot be corrected by any curative relief. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). There was no forceful or compelling emergency such as illness or incapacitation of a juror, counsel, judge, or witness that would make it impossible to proceed with the trial. There was no exposure to the jury of matters outside the courtroom. Therefore, there was no overruling necessity warranting a mistrial.
Because the trial court granted a mistrial over Appellant‘s objection and without his express or implied consent, and because there was no manifest or overruling necessity that justified the mistrial, the double jeopardy provision of the Arkansas Constitution precludes any subsequent attempt at prosecuting Appellant. Accordingly, we reverse and dismiss the order denying the plea of prior jeopardy, and we need not consider Appellant‘s remaining arguments for reversal.
Reversed and dismissed.
GUNTER, J., dissents.
JIM GUNTER, Justice, dissenting.
The majority has concluded that there was no overruling necessity for a mistrial; thus the trial court erred in granting the mistrial, and any subsequent prosecution is barred. The majority bases this conclusion on the finding that, if any error or prejudice resulted from defense counsel‘s remarks during opening statements, such prejudiсe could have been corrected with curative relief such as an admonition or instruction to the jury. I cannot agree with this conclusion and must, therefore, respectfully dissent.
First, a more detailed recitation of the facts leading up to trial is relevant. Prior to trial, the State filed a motion in limine seeking to exclude certain evidence pertaining to the victim, including the victim‘s autopsy report showing a blood-аlcohol level of .15 and the presence of methamphetamine, the victim‘s prior use of drugs, and prior violent conduct of the victim toward appellant, namely cutting him with a knife approximately a year and a half earlier. At a hearing on the motion, the State asserted that, to its knowledge, the defense had not pled self-defense and noted its belief that the defense would be accident. The State also indicated that, if the justification defense was used, that would change some of the State‘s arguments and some of the contested evidence would be relevant. The defense unequivocally stated that it was going to use a justification defense, so the State conceded that, under a justification defense, the victim‘s drug use at the time and her prior violent act toward appellant were relevant.
The majority characterizes the “core” of this case as a dispute over “remarks of defense counsel made during opening statements regarding evidence the prosecuting attorney had already explained to the jury would be admitted at trial.” Hоwever, the reference to accident, which I assume is to what the majority refers, was not the basis for the mistrial in and of itself; the necessity for a mistrial resulted from the references during voir dire and the State‘s opening statement to negative character evidence of the victim, which would not have been mentioned by the State if not for the defense‘s representation that self-defense was its theory of defense, and the resulting prejudice to the State due to the inability to undo the jury‘s knowledge of this evidence.1
The trial court, in explaining its grant of a mistrial, explained:
What we have here is saying, you know, he had decided to use deadly force. He‘s following her off the property and then he loses control and so, suddenly it‘s an accident. I don‘t think the way it was presented it can be either an-it‘s got to either be an accident or it has to be intentional. It can‘t be left up for the jury, in the Court‘s opinion.
So, based on that, based on the statement, I‘ve also [taken] a couple of extra minutes to try to figure out a way to admonish the jury. I know the Model instructions say opening statements are not evidence, not to be considered by the jury. But after we‘ve gone on through two hours of voir dire, through the State‘s opening, and then we get down to the end and say, “Well, he lost control and ran over her,” I don‘t think there‘s any way to cure that. So I‘m going to grant the State‘s motion. I‘m going to grant a mistrial in this case.
In other words, the trial court found there was an overruling necessity for the grant
We recognize that the extent of the possible bias cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not “necessary.” Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge‘s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.
Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Likewise, I would accord a great deal of deference to the trial court‘s determination that a mistrial was necessary in this case and would therefore affirm the denial of appellant‘s plea of prior jeopardy. For this reason, I respectfully dissent.