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Date: 07-19-2011

Case Style: State of Oklahoma v. Daniel Gene Mosley

Case Number: 2011 OK CR 20

Judge: Smith

Court: Oklahoma Court of Criminal Appeals on appeal from the District Court, Cleveland County

Plaintiff's Attorney: David M. Brockman, First Assistant District Attorney, and Jennifer P. Austin, Assistant District Attorney, Cleveland County, Norman, Oklahoma

Defendant's Attorney: Fred J. Shaeffer and Todd Kernal, Shaeffer, Shaeffer & Kernal, Norman, Oklahoma

Description: ¶1 Daniel Gene Mosley was charged by Information in the District Court of Cleveland County, Case No. CF-2008-883, with one count of Trafficking in Illegal Drugs (Methamphetamine), under 63 O.S.Supp.2007, § 2-415 (Count I); and Failure to Display Tax Stamp on CDS, under 68 O.S.2001, § 450.8 (Count II).1 On October 20, 2008, a preliminary hearing was held before the Honorable Reginald D. Gaston, Special Judge. At the conclusion of the hearing, Mosley was bound over as charged.2

¶2 Jury trial commenced in the case on December 7, 2009, before the Honorable Candace Blalock, District Judge.3 Officer Darin Morgan, of the Norman Police Department, testified about the execution of a narcotics search warrant on August 4, 2008, at a residence in Norman, Oklahoma.4 Morgan testified that just before he arrived, Mosley had come out of the residence, gotten in his car, and was about to back up and drive away. Morgan pulled up, blocked Mosley's car from behind, ordered Mosley out of the car, and "did a pat-down search for weapons." Morgan testified that he noticed a "bulge" in Mosley's left front jeans pocket, which he immediately recognized, by its "feel" and based upon his narcotics experience, as illegal drug contraband. Morgan immediately removed the two baggies of powder that were in Mosley's pocket. Morgan testified that the baggies together contained approximately four ounces of methamphetamine, which typically sells for around $1000 per ounce.5

¶3 Morgan then testified about arresting Mosley and transporting him to the Norman Police Department, where he was interviewed. At this point in the trial, the following exchange occurred:

Q. While you were interviewing the defendant, what does he tell you?

A. I talked to him about the methamphetamine that was found. And he admitted to me that he--that he sells methamphetamine. And he told me that he had come over to 1324 Atlanta Circle to pick up the methamphetamine. He said he had purchased the methamphetamine for $4,000 for the 4 ounces. And then we talked, and he told me he'd been arrested many times for methamphetamine and was still doing--or was still on paper time for his previous arrests.

Defense counsel immediately asked to approach, noted that Mosley had filed a motion in limine regarding any reference to his prior convictions, and moved for a mistrial. When the court asked the State for a response, the prosecutor responded, "I have no response, Your Honor." The trial court then granted the defense motion for mistrial, asked Officer Morgan to step down, and announced to the jurors that they were going to be excused.6

¶4 The court then invited the prosecutor to explain to the jury what had happened.7 After the jury left, the court allowed the State to make a record, during which the prosecutor asserted that it was a "manifest necessity" to declare a mistrial and to proceed with a new jury.8 The court responded, "And the Court agrees."9 And the proceedings were adjourned.10

¶5 On January 22, 2010, Mosley filed a motion to dismiss, asserting that it would violate "Double Jeopardy and Due Process principles under both the United States and Oklahoma Constitution[s]" to allow the State to again proceed to trial in the case. Both parties subsequently filed extensive briefs.11 The Honorable Candace Blalock held a hearing on the issue on July 29, 2010. During the hearing Mosley's attorneys argued that they were totally surprised by Officer Morgan's testimony (about Mosley referring to prior arrests and probation) and that "it's just gross reckless negligence or indifferen[ce] that they allowed this officer to testify in the way he did." Mosley's counsel argued that the court shouldn't separate the behavior of the State from that of the officer and that the officer made the harpoon statement "to just gut our defense."12

¶6 The State then presented the testimony of Officer Morgan, who asserted that although he was told that he could not talk about the methamphetamine that was later found in Mosley's home, he "never received instruction on not to talk about his previous convictions."13 After Morgan testified, the First Assistant District Attorney asserted that the two parties are "in agreement as to what the law is" and that the State agreed that it was "necessary to discharge the jury because of what happened." He then argued, however, that Morgan's testimony was not "goading," that the State "didn't need an evidentiary harpoon," and that the State "wanted a jury trial." He concluded by arguing that because Mosley requested the mistrial, the State should be allowed to re-try his case.14

¶7 At the conclusion of the hearing, the trial court ruled that the State was negligent in failing to advise Morgan regarding what he could not say and that the fact that Mosley requested the mistrial should not matter.15 The court noted its concern about the fact that Mosley had spent a lot of time in jail and had a right to a speedy trial. The court then granted Mosley's motion to dismiss. In a handwritten "court minute," the court wrote:

The Court finds after argument that the State was negligent in not instructing the witness re: motion in limine. The Court had no choice but to discharge the jury regardless of Defendant's consent or not to the discharge. The defendant had right to speedy trial issues. The Court finds Double Jeopardy attached. Defendant's motion to dismiss is granted.

¶8 The State now appeals this district court ruling, under 22 O.S.Supp.2009, § 1053, and the matter is properly before this Court. The State asserts in its brief that "[t]he trial court correctly found that manifest necessity existed," but that the court's dismissal of the case against Mosley "was not supported by the evidence or the law."16 Mosley discusses various "manifest necessity" cases in his brief, but then argues (for the first time) that these cases are irrelevant, because the real issue--since Mosley requested the mistrial--is whether the prosecutor's conduct "goaded" him into seeking a mistrial. Mosley asserts 1) that the trial court found that the State "goaded" Mosley into requesting a mistrial, and 2) that the record suggests Morgan very deliberately "harpooned" him, thereby "destroying any chance Mr. Mosley had of getting a fair trial." Hence Mosley maintains that the trial court's finding that double jeopardy prevented a retrial should be upheld by this Court.

¶9 This Court begins by finding that the record properly before this Court does not support Mosley's claim that the trial court granted his motion to dismiss based upon a finding that the State "goaded" him into requesting a mistrial.17

¶10 However, based upon a review of the record in this case (and others like it), this Court is convinced that clarification is needed regarding the rules for evaluating whether the constitutional protection against Double Jeopardy prevents or allows retrial when a mid-trial mistrial is granted in a case. In such cases, the first and most important question that must be asked is: Was the mistrial granted at the defendant's request or with his/her consent or was the mistrial granted over the defendant's objection or without consent? Whether the defendant consented to the grant of the mistrial is the critical first issue--and often the deciding issue--in determining whether or not he/she can be retried. ¶11 The seminal case on this issue is the United States Supreme Court's decision in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).18 In Kennedy, the Court begins by recognizing that the Double Jeopardy Clause of the Fifth Amendment protects a defendant against multiple prosecutions for the same offense.19 The Kennedy Court recognized that the Double Jeopardy Clause "does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding."20 Nevertheless, the Kennedy Court emphasized that "one of the principal threads making up the protection embodied in the Double Jeopardy Clause is the right of the defendant to have his trial completed before the first jury empaneled to try him . . . ."21 Thus because the defendant has a double jeopardy right to have his first trial "completed" before the first jury empaneled to try his case, when a mid-trial mistrial is declared, it makes all the difference--for double jeopardy purposes--whether or not the defendant consented to this result.

¶12 The Kennedy Court acknowledged that "[w]here the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the 'manifest necessity' standard first enunciated in Justice Story's opinion for the Court in United States v. Perez, 9 Wheat 579, 580, 6 L.Ed. 165 (1824)."22 The Kennedy Court noted that the Perez case involved the most common form of "manifest necessity," i.e., "the hung jury," when a mistrial is declared as a result of a jury being unable to reach a verdict.23 The Kennedy Court noted that other situations have been recognized as "meeting the 'manifest necessity' standard," but that "the hung jury remains the prototypical example."24 The Court concluded, "The 'manifest necessity' standard provides sufficient protection to the defendant's interests in having his case finally decided by the jury first selected while at the same time maintaining 'the public's interest in fair trials designed to end in just judgments.'"25

¶13 The Kennedy Court insisted, however, that a mistrial granted at the defendant's request presents an entirely different situation:

[I]n the case of a mistrial declared at the behest of the defendant, quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the 'manifest necessity' standard has no place in the application of the Double Jeopardy Clause.26

The Kennedy Court noted that in cases where a mistrial is granted at the request of the defendant, the general rule is that the Double Jeopardy Clause does not prohibit retrial, but that there is a "narrow exception" to this rule, namely, "where the prosecutor's actions giving rise to the motion for mistrial were done 'in order to goad the [defendant] into requesting a mistrial.'"27

¶14 The Kennedy Court acknowledged that the Supreme Court's prior cases in this area had not always been entirely consistent or clear and that some cases seemed to suggest a "broader rule" for interpreting prosecutorial misconduct (leading to a mistrial) as causing a double jeopardy bar to retrial.28 Nevertheless, the Kennedy Court held as follows:

[T]he circumstances under which [ ] a defendant [who consented to a mistrial] may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.29

The Court emphasized the critical distinction--in terms of double jeopardy--between prosecutorial misconduct that could jeopardize a defendant's right to a fair trial and misconduct committed with the intent of provoking a mistrial: "Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause."30 Hence the distinction often comes down to evaluating whether the prosecutorial misconduct at issue was inspired by an overzealous State attempt to "win" at trial or, rather, was based upon a perception that the State might be about to "lose"--and hence that a retrial of the defendant was a better result than an acquittal or other unfavorable verdict.31

¶15 And the Kennedy Court likewise recognized that the distinction between the situation where a retrial is presumptively permissible (mistrial at request of or with consent of defendant) and the situation where a retrial is permissible only if the State can establish "manifest necessity" for the mistrial (because mistrial granted over defendant's objection or without consent) is the defendant's desire to continue with his trial--and receive a verdict from the empaneled jury--or not.

A defendant's motion for a mistrial constitutes "a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact." . . . Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, "[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error."32

Hence the defendant's right to a verdict from the first jury empaneled to hear his case makes the defendant's consent to any mid-trial mistrial critical.33
¶16 In the current case, Mosley clearly requested that the trial court declare a mistrial. In addition, the record leaves no doubt that on the day the mistrial was declared, the parties, as well as the trial court, expected that Mosley's case would be retried. Furthermore, there is nothing in the record that would support a finding that the State, in eliciting the testimony from Officer Morgan, was intentionally causing a mistrial or "goading" Mosley into seeking a mistrial. Although the State did not attempt to justify Morgan's improper testimony and did not seek a "curative" admonition or other remedy, there is nothing in the record that supports a conclusion that the State was intentionally aborting this first trial of Mosley; and the State had no reason to do so.

¶17 The trial court's finding that the State was "negligent" in not properly instructing Morgan regarding the limits of his testimony clearly did not justify the court's conclusion that the Double Jeopardy Clause prevented retrial in this case.34 Although both parties argued the doctrine of "manifest necessity" to the court, this doctrine simply does not apply to the current case, since Mosley requested the mistrial that was granted. Furthermore, the trial court was incorrect to suggest that whether or not Mosley consented to the mistrial was not a significant factor in determining whether it should be granted.35 The trial court's grant of a mistrial in this case and subsequent grant of the motion to dismiss reflects a genuine and laudable concern with the defendant's right to a fair trial (and also a "speedy trial"). Yet because Mosley sought the mistrial that was granted in his case (and was not "goaded" into doing so), this Court concludes that the trial court's determination that the constitutional protection against double jeopardy prohibited a retrial of Mosley was clearly erroneous and an abuse of discretion.36

¶18 The trial court did not apply the proper test in evaluating the double jeopardy question before it, nor would the record in the current case support a conclusion that the prosecutors intentionally provoked or goaded Mosley into seeking a mistrial.37 Hence the Double Jeopardy Clause of the United States and the Oklahoma Constitutions poses no bar to retrial in the current case.

* * *

See: http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=2011+OK+CR+20

Outcome: ¶19 The decision of the district court in sustaining Mosley's motion to dismiss based upon Double Jeopardy is REVERSED and this case is REMANDED for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon

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Defendant's Experts:


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