Ex Parte Davis

957 S.W.2d 9, 1997 Tex. Crim. App. LEXIS 66, 1997 WL 573160

• Court: Court of Criminal Appeals of Texas
• Decided: September 17, 1997
• Docket: 495-95
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

Applicant, Jack Warren Davis, was convicted of capital murder and sentenced to life in prison. The court of appeals reversed and remanded the cause to the trial court for a new trial. Davis v. State (“Davis I”), 831 S.W.2d 426 (Tex.App.-Austin 1992, pet. ref d). Applicant subsequently filed a pretrial writ of habeas corpus, averring the double jeopardy clauses of the Texas and United States constitutions barred his retrial. The habeas court denied relief, and the court of appeals affirmed. Ex parte Davis (“Davis II”), 893 S.W.2d 252 (Tex.App.-Austin 1995). This Court granted applicant’s petition for discretionary review to consider the following ground for review:

Does the rationale of Bander v. State, 921 S.W.2d 696 (Tex.Crim.App.1996), barring a retrial on state double jeopardy grounds following the granting of a mistrial because of prosecutorial misconduct, apply when the cause goes to a verdict but is reversed on appeal?

At applicant’s trial, Fred Zain testified for the State as an expert witness. He testified as to DNA tests he allegedly performed on blood and other evidence, testimony which was found by the court at the habeas hearing to be false. The habeas court also found that the testimony of Lt. Richards, another State witness, was probably inaccurate, as it was based on Zain’s testimony. The habeas court concluded Zain’s conduct was intentional, outrageous and shocked the conscience of the court.

The court of appeals, in reversing applicant’s conviction {Davis I), sustained applicant’s contention the district attorney intimidated a witness, Toth, and, in effect, suborned perjury. Toth testified on direct examination she observed applicant and the victim’s sister embrace shortly after the murder was discovered. The significance of this testimony is that it supported applicant’s version as to how the victim’s blood and saliva got onto applicant’s vest (the victim’s sister attempted to revive her by giving her CPR; while doing so blood from the victim’s wounds stained the clothing she was wearing when she embraced applicant thus staining applicant’s vest). On redirect examination she confirmed her earlier testimony as to the embrace.

The next day the State recalled Toth. She testified then that, on second thought, she did not actually see applicant and the victim’s sister embrace. She testified she saw what she assumed was a just-concluded embrace. Defense counsel asked Toth if anyone had asked her to change her testimony or had threatened her if she did not do so; she said no one had done so.

Upon learning there had been contact between Toth and the district attorney after her testimony on the first day, applicant moved for a mistrial on the ground of prose-cutorial misconduct. The trial court conducted an informal hearing outside the presence of the jury.

The district attorney told the court he reviewed statements by two police officers which said applicant had only come halfway up the stairs to the victim’s apartment (Toth testified initially the embrace occurred at the top of the stairs). He also reviewed the sister’s testimony that she did not embrace applicant. Subsequently, he asked a police officer to contact Toth and for her to call his office. Upon her arrival, he informed her there was a conflict between her testimony and that of other witnesses and that he would present the matter to the grand jury if he could not resolve the conflict. He said he would indict the officers if they had lied, “or the reverse if she had not told the truth.” He told her he had already put one person in jail for lying on the stand last year. He finally asked her if she might have been mistaken about having seen a completed embrace; she said she had been mistaken.

The court then asked Toth, after granting her immunity from prosecution for perjury and assuring her she was not going to jail, if she had changed her testimony in response to the threat from the district attorney to have her brought before the grand jury. She answered, under oath, “that’s why I changed it.” She also told the court the district attorney had frightened and intimidated her. The district attorney and an employee of his office, Filkins, who was present when Toth appeared at his office to discuss her trial testimony, both testified there was no berating or intimidation of Toth; he only expressed his interest in cleaning up the inconsistencies in the testimony of Toth and the police officers. The district attorney did testify he would take anyone involved who was lying to the grand jury.

After the hearing, the trial court ruled there had not been prosecutorial misconduct that would justify a mistrial. He did indicate he would instruct the jury not to consider Toth’s second day of testimony for any purpose, which he subsequently did.

The court of appeals acknowledged “it is not improper per se for a trial court judge or pro-secuting attorney to advise prospective witnesses of the penalties for testifying falsely.” Davis I, supra, at 437, citing United States v. Blackwell, 694 F.2d 1825, 1334 (D.C.Cir.1982). The court of appeals characterized the actions of the district attorney as having gone far beyond a cautious or judicious warning to Toth to tell the truth or risk a perjury charge, noting the meeting took place outside the presence of the trial judge. The court of appeals criticized strongly the district attorney for giving the jury the impression that it was Toth who first contacted him because she thought her initial testimony was misleading when the opposite was true. The court of appeals found this to be the knowing use of perjured testimony, found it to have denied applicant a fair trial and violated his due process rights, and held the trial court erred in denying applicant’s motion for mistrial.¹

At the habeas hearing, the court’s findings of fact noted: (1) certain key items of evidence were lost or mishandled, including hair and blood samples; (2) a taped statement of Marei French, made the night of the homicide, was erased by the police. French, a witness who testified at trial, did make a second taped statement the day after the homicide; (3) a second witness, Hanus, testified the two statements were contradictory as to French’s description of the persons she observed leaving the victim’s apartment the night of the crime; and (4) Zain committed aggravated perjury and tainted all of the evidence he handled.

The court of appeals, in affirming the denial of habeas relief, concluded “when a trial proceeds to conclusion despite a legitimate claim of serious prejudicial error and the conviction is reversed on appeal, retrial is not jeopardy-barred.” Davis II, 893 S.W.2d at 254. See Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

The Supreme Court has held on several occasions that the concept of “continuing jeopardy” is applicable where an individual has obtained a reversal of his conviction. That is because he was not denied his right under the double jeopardy clause to have the charges against him tried to a verdict before the first tribunal. Whereas, where a mistrial takes place, he is denied the opportunity to have the case decided by the first tribunal. Therefore, retrial after reversal of his conviction is not barred by the double jeopardy clause of the United States Constitution. Price v. Georgia, supra; Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984); Montana v. Hall, 481 U.S. 400, 402-403, 107 S.Ct. 1825, 1826, 95 L.Ed.2d 354 (1987).

It is a venerable principle of double jeopardy jurisprudence that the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict (citation omitted), poses no bar to further prosecution on the same charge ... Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they are now in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interests.

Montana v. Hall, 481 U.S. at 402-03, 107 S.Ct. at 1826; citing United States v. Toteo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964).

In general, double jeopardy “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289, 102 L.Ed.2d 265 (1988). There are a few exceptions to this rule. For example, if a conviction is reversed because the evidence is legally insufficient to convict, retrial is barred because, for double jeopardy purposes, this is equivalent to a judgment of acquittal. See United States v. Doyle, 121 F.3d 1078, 1083 (7th Cir.1997), citing Lockhart v. Nelson, 488 U.S. at 39, 109 S.Ct. at 290.

It is clear applicant’s retrial is not barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution.

We note initially that this Court, as well as the Texas Supreme Court, has held that the Texas Constitution gives greater protection in some instances to Texas citizens than does its federal counterpart. Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992); Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991); Autran v. State, 887 S.W.2d 31 (Tex.Crim.App.1994) (plurality op.). However, until recently, we have consistently held the Texas and United States constitutions’ double jeopardy provisions provide substantially identical protections. Phillips v. State, 787 S.W.2d 391 (Tex.Crim.App.1990); Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App.1990). Prior to our opinion in Bauder, supra, we have applied the standard of review set forth by the United States Supreme Court in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), to double jeopardy claims arising out of instances where mistrials were provoked by the State. Crawford v. State, 703 S.W.2d 655 (Tex.Crim.App.1986); Collins v. State, 640 S.W.2d 288 (Tex.Crim.App.1982) (panel op.); Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982). The Supreme Court held the double jeopardy clause of the Fifth Amendment is not offended by a second prosecution for the same offense where the earlier proceeding was terminated by mistrial at the defendant’s request unless the State deliberately set out to provoke the defendant’s motion for mistrial. Oregon v. Kennedy, supra.

In Bauder we held that, under the Texas Constitution’s double jeopardy clause, “a second prosecution is jeopardy barred after declaration of a mistrial at the defendant’s request, not only where the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an event for which he was responsible would require a mistrial at the defendant’s request ... He is accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing.” Bauder, supra, at 699.²

Bauder, however, is not dispositive with respect to the present case due to a most significant difference: applicant in the present ease had his conviction reversed after a full trial on the merits whereas in Bauder applicant’s trial was never completed (on two occasions) due to State-provoked mistrials. At least one federal appellate court has held that “[double jeopardy would bar retrial after reversal] only where the misconduct of the prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.” United States v. Wallach, 979 F.2d 912, 916 (2nd Cir.1992), cert. denied, 508 U.S. 939, 113 S.Ct. 2414, 124 L.Ed.2d 637 (1993).³ The Second Circuit noted that this standard embraced that set forth by the Supreme Court in Oregon v. Kennedy to bar retrial after a mistrial caused by egregious and intentional prosecu-torial misconduct. Applicant has not directed us to any cases, however, where the Supreme Court has explicitly extended Oregon v. Kennedy to apply to instances where verdicts of guilty have been reversed on appeal due to prosecutorial misconduct, and therefore holding retrials as jeopardy-barred.

Applicant contends that, under Bander, if mistrial had been granted in this case, retrial of applicant would have been barred. However, this is not the ground on which applicant’s petition for discretionary review was granted; as noted earlier we granted review to consider whether the Texas Constitution’s double jeopardy protections, as interpreted by this Court in Bander, apply where an applicant has obtained a reversal of his conviction on appeal, due at least in part to prosecutorial misconduct at trial.

With respect to the testimony of Fred Zain, we note the habeas court did not make any findings of fact indicating the State knew, or should have known, Zain’s testimony was false or perjured. Indeed, the habe-as court found Zain misled Lt. Richards, a key State witness, regarding the forensic facts, thus causing Lt. Richards’ testimony and conclusions to be probably inaccurate. While we are not bound by the findings of fact and conclusions of law of the habeas court, we generally defer to them if they are supported by the record, and, in this instance, find them to be reliable, supported by the record, and entitled to such deference. Ex parte Turner, 545 S.W.2d 470, 473 (Tex.Crim.App.1977); Ex parte Adams, 768 S.W.2d 281, 288 (Tex.Crim.App.1989); Ex parte Mowbray, 943 S.W.2d 461 (Tex.Crim.App.1996). We hold that the State did not intentionally or recklessly cause applicant’s trial to be tainted by Zain’s perjured testimony or Lt. Richard’s inaccurate testimony.

The habeas court also found the police mishandled certain key items of physical evidence and also erased a tape recorded statement of Marci French that may have been exculpatory or otherwise may have been useful to applicant to impeach French. There is no question that applicant would have been entitled to access to the missing tape. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The record does not support any assertion that the erasure of the tape or the mishandling of physical evidence was the result of intentional or reckless misconduct by the State. Bander does not stand for the proposition that retrial is barred by the Double Jeopardy Clause of the Texas Constitution where a mistrial is granted due to the prosecutor’s simple negligence or mere sloppiness. Bander certainly does not forbid, on state constitutional jeopardy grounds, a retrial following a reversal on appeal. Furthermore, the sloppiness and negligence was on the part of the police; the proper remedy for such police actions that, in effect, denied applicant due process of law is retrial. Brady v. Maryland, supra; Kyles v. Whitley, supra.

The actions of the prosecutor in the present case were reprehensible. The habeas court found the prosecutor misled the jury as to why certain evidence was not tested and misled the jury as to the quality of the investigation conducted by the police (he told the jury it was excellent when he had, before trial, complained in writing about the lost evidence and negligence of the police department). As to his out-of-court conversation with witness Toth, while we find it was poorly and coercively handled, we do not agree with the court of appeals in Davis I that Toth was encouraged to perjure herself or otherwise misrepresent her observations to the jury. We are troubled by the false impression given to the jury that Toth approached the prosecutor out of concern that her initial testimony was potentially misleading when it was the prosecutor who approached her. Still, we are not persuaded that the actions of the prosecutor were so egregious as to bar the retrial of applicant on Texas constitutional double jeopardy-grounds, as he has already been accorded the relief to which he was entitled: reversal of his conviction on appeal.

Applicant cites a recent decision of the New Mexico Supreme Court in support of his contention that the holding of Bander be extended to cases involving prosecutorial misconduct where convictions have been reversed on appeal (thereby barring retrial by the Texas Constitution’s double jeopardy provisions). State v. Breit, 122 N.M. 655, 980 P.2d 792 (1996). In Breit, applicant’s conviction was reversed, and, on double jeopardy grounds, the court ordered applicant discharged from any further prosecution in that cause.

The court emphasized that “when a trial is severely prejudiced by prosecutorial conduct, the double jeopardy analysis is identical, whether the defendant requests a mistrial, a new trial, or, on appeal, a reversal.” Breit, supra, 930 P.2d at 797. Yet, the court fails to cite any federal appellate court opinions or opinions of other state high courts⁴ in support of its holding that double jeopardy principles are applicable where a defendant has obtained a reversal of his conviction on appeal due, at least in part, to prosecutorial misconduct during his first trial, thereby barring his retrial.⁵

What took place in the present case is, in many respects, similar to what we found to compel reversal on due process grounds in Cook v. State, 940 S.W.2d 623 (Tex.Crim.App.1996). In Cook, we found prosecutorial misconduct, which included withholding of potentially exculpatory evidence,⁶ combined with the false and' misleading testimony of a state’s expert witness concerning fingerprint evidence, violated applicant’s rights under the Due Process Clause of the United States Constitution, as well as his rights under the due course of law provisions of the Texas Constitution (Art. I, Secs. 13 and 19). We declined, however, to accept applicant’s contention the prosecution’s misconduct was so egregious as to bar retrial on either state or federal double jeopardy grounds.

As the court of appeals noted, “in considering other cases where the facts and circumstances were fully as outrageous and shocking as those in this case, the Court of Criminal Appeals has ordered a retrial and not the dismissal of charges and an acquittal.” Davis II, 893 S.W.2d at 257, citing Ex parte Adams, 768 S.W.2d 281 (Tex.Crim.App.1989); Ex parte Brandley, 781 S.W.2d 886, 887 (Tex.Crim.App.1989). We agree with the court of . appeals that retrial, not dismissal of the charge and acquittal, is the proper remedy.

Fundamentally, this is a due process ease. It has long been the law that where a defendant’s due process rights have been violated to the extent that he has been denied a fair trial, the proper remedy is reversal of his conviction and remand of the cause to the trial court for further proceedings. Brady v. Maryland, supra; Kyles v. Whitley, supra; United States v.Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). We decline applicant’s invitation to extend our interpretation of the Texas Constitution’s double jeopardy protections in Bander to instances like the present case which involve due process concerns for which the well-established remedy of reversal is intended to address. Bander applies only where a mistrial has been granted due to reckless or intentional prosecutorial misconduct; therefore it does not apply to the present case as no mistrial was granted and we further find no abuse of discretion on the part of the trial court in its denial of applicant’s mistrial motion.

Accordingly, we decline to apply our holding in Bauder to instances, like the present case, to bar a retrial, on Texas constitutional double jeopardy grounds, where an applicant has had his conviction reversed on appeal due, at least in part, to prosecutorial misconduct.⁷

We affirm the judgment of the court of appeals.

KELLER, J., concurs in the result. OVERSTREET, J., dissents.

1 . Given the importance of Toth’s initial testimony and the taint resulting from the actions of the district attorney, the court of appeals (Davis /) found the instruction to the jury to disregard Toth’s subsequent testimony insufficient. The court of appeals also sustained applicant's tenth point of error (application for warrant to take a sample of applicant’s blood not supported by affidavit establishing probable cause; see Tex. Code Crim. Proc Art. 18.01) and his eleventh point of error (trial court erred in refusing to permit applicant an opportunity to impeach State witness Balonis as to bias or prejudice).

2 . Several state supreme courts have explicitly adopted the Oregon v. Kennedy standard under their state constitutions. Robinson v. Commonwealth, 18 Va.App. 814, 447 S.E.2d 542 (1994); Stamps v. Commonwealth, 648 S.W.2d 868 (Ky.1983); State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988). The Pennsylvania Supreme Court’s reasoning in Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992) is similar to that of Bauder.

3 . But see, however, United States v. Oseni, 996 F.2d 186, 187-188 (7th Cir.1993), in which the court specifically rejected the Second Circuit’s holding in Wallach, extending Oregon v. Kennedy to bar retrial following a reversal due, in part, to prosecutorial misconduct.

4 . The North Carolina Supreme Court did affirm the North Carolina Court of Appeals’ holding that a retrial following reversal on appeal should be jeopardy-barred where the reversal was due to prosecutorial overreaching or harassment aimed at prejudicing the defendant’s chances for acquittal, whether in the current trial or a retrial. State v. White, 85 N.C.App. 81, 354 S.E.2d 324, 329 (1987), aff’d, 322 N.C. 506, 369 S.E.2d 813 (N.C.1988).

5 . The actions of the prosecutor in Breit were pervasively improper, intentional, and tainted nearly every phase of the trial, from opening statement to closing argument. See Breit, supra, Appendix. The prosecutorial misconduct in the present case, though significant, is by no means comparable to that which took place in Breit.

6 .This evidence included evidence of misrepresentation of a deal between a convicted criminal and the State to testify (falsely, it turned out) against applicant, evidence pointing to another person as a viable suspect, and evidence concerning a key prosecution witness (Hoehne), which indicated he may have perjured himself.

7 . The dissent fails to recognize the considerable adverse impact of a reversal of a conviction on the State. The State must decide whether or not to retry the cause, a decision often complicated by the passage of several years since the first trial, the possible loss of evidence over time and the fact that witnesses may no longer be available or their memories of the event may be less reliable, rendering their testimony less accurate. The cost to the State of a “second bite of the apple" is significant, financially and otherwise (indeed, the State often elects not to pursue a retrial following a reversal; see, e.g., Ex parte Brandley, supra); the dissent's implicit dismissal of this fact is troubling. Our holding in the present cause cannot be read as sanctioning prosecutorial misconduct, misconduct for which the well-established remedy of reversal was correctly applied in this case by the court of appeals. We should decline to create a new remedy, the expansion of Bauder to bar retrial on Texas constitutional grounds after reversal due to prosecu-torial misconduct, where there is no compelling need to do so. The well-established remedy of reversal has not been demonstrated as being inadequate to deter prosecutorial misconduct so as to justify an extension of Bauder.

Finally, the evidence that the State intentionally acted in an improper manner at the first trial so as to avoid the risk of an acquittal is simply not supported by the record. Assuming, arguen-do, there was no prosecutorial misconduct during appellant’s trial, he does not persuade us the evidence was factually or legally insufficient to support a conviction, which would bar his retrial. Lockhart v. Nelson, supra.