Reason: I attest to the accuracy Cite as 2020 Ark. App. 165 and integrity of this document Date: 2021-07-01 15:04:40 ARKANSAS COURT OF APPEALS Foxit PhantomPDF Version: 9.7.5 DIVISION III No. CR-19-532
Opinion Delivered: March 11, 2020 MICHAEL SHOCK
APPELLANT APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT V. [NO. 12CR-17-166]
STATE OF ARKANSAS HONORABLE TIM WEAVER, JUDGE APPELLEE AFFIRMED
RITA W. GRUBER, Chief Judge
Michael Shock appeals the circuit court’s denial of his motion to dismiss the charges
against him on double-jeopardy grounds based on prosecutorial misconduct of withholding
pretrial discovery information. He contends on appeal that the State’s repeated discovery
violations during his first trial were intended to provoke him to move for a mistrial and thus
that double jeopardy barred a second trial under the standard set by the United States
Supreme Court under the federal constitution in Oregon v. Kennedy, 456 U.S. 667 (1982).
In the alternative, he asks this court to expand double-jeopardy protections under the
Arkansas Constitution to include prosecutorial misconduct beyond the intention to provoke
the defendant into moving for a mistrial. We affirm the denial of appellant’s motion to
dismiss.
On October 17, 2017, appellant was charged with one count of rape of his
granddaughter, LS, who was five years old at the time. The victim first reported the allegations to her mother, Samantha Shock. Several days later, LS was interviewed at the
child-safety center in Searcy, where a SANE1 nurse also performed a physical exam, tested
for sexually transmitted diseases, and checked for evidence of sexual abuse. The medical
summary indicated the absence of any physical findings of sexual abuse, and the lab report
was negative for sexually transmitted diseases. After receiving the State’s file in response to
his broad discovery motion, appellant filed several pretrial motions requesting additional
information, including a bill of particulars contending that the file the State had provided
was insufficient to apprise him of the time, place, manner, and means of the alleged offense.
His motions were denied.
The trial began on December 5, 2018, and the State called Ms. Shock as its first
witness. During her testimony, appellant moved for a mistrial, arguing that Ms. Shock was
testifying about new information that “[appellant] and LS were in her room by themselves.”
He argued that this information had not been disclosed despite his request for a bill of
particulars. The court denied his motion. Ms. Shock’s testimony continued, and she
described the medical exam performed on LS at the child-safety center. The State concluded
its direct examination of Ms. Shock, and the court recessed for the day.
At the beginning of the second day of trial before he began his cross-examination of
Ms. Shock, defense counsel moved for a mistrial, alleging he had been provided no evidence
during discovery that a medical examination or testing had taken place. Defense counsel
proffered two pages he alleged the State had provided to him from the child-safety center,
which did not include results of a sexual-assault physical examination or suggest that LS had
1 SANE stands for sexual abuse nurse examiner.
2 been tested for sexually transmitted diseases. Appellant argued that the noted absence of
physical findings of sexual abuse and the negative lab results for sexually transmitted diseases
was exculpatory and was required to have been disclosed by the State. The State responded
that they had provided the name of the SANE nurse as a witness and that they had given
appellant the relevant documents regarding her examination. The court denied the motion
for mistrial, finding that the State had provided the information.
Defense counsel continued his cross-examination of Ms. Shock and again moved for
a mistrial based on the State’s failure to disclose that the prosecutor had represented Ms.
Shock years earlier in a civil action when the prosecutor was in private practice. The circuit
court denied the motion and continued with the proceedings.
During a subsequent break in Ms. Shock’s testimony, the prosecutor told the court
that she had asked the SANE nurse during the break to confirm the number of pages
contained in the medical records. The prosecutor discovered that there were numerous
pages, including lab results, that had not been provided to defense counsel. Appellant moved
for a mistrial, which the State conceded had merit, and the court granted it.
On March 20, 2019, prior to appellant’s second trial, he filed a motion to dismiss on
double-jeopardy grounds under the federal and state constitutions, arguing that the State’s
failure to turn over inculpatory and exculpatory information was a Brady2 violation,
constituted prosecutorial misconduct, and was disclosed during trial to provoke a mistrial
and avoid an acquittal. Therefore, he argued, under the United States Supreme Court’s
2 Brady v. Maryland, 373 U.S. 83 (1963) (holding suppression by the prosecution of requested evidence favorable to an accused violates due process when the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of prosecution).
3 opinion in Kennedy, double jeopardy attached to bar re-prosecution. The circuit court
denied appellant’s motion, specifically finding no bad faith on behalf of the State and no
attempt by the prosecutor to “goad” appellant into requesting a mistrial. This appeal is from
that denial.
A double-jeopardy claim may be raised by interlocutory appeal because if a defendant
is illegally tried a second time, the right is forfeited. Zawodniak v. State, 339 Ark. 66, 68, 3
S.W.3d 292, 293 (1999). We review a circuit court’s denial of a motion to dismiss on
double-jeopardy grounds de novo. Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006).
When the analysis presents itself as a mixed question of law and fact, we give the factual
determinations made by the circuit court due deference and will not reverse them unless
clearly erroneous. Id. at 320, 235 S.W.3d at 483. 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.” Green v.
State, 2011 Ark. 92, at 4, 380 S.W.3d 368, 371.
The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant
from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606
(1976). The Double Jeopardy Clause, however, does not offer the defendant a guarantee
that the State will vindicate its societal interest in the enforcement of the criminal laws in
one proceeding. Kennedy, 456 U.S. at 672. It protects criminal defendants from (1) a second
prosecution for the same offense after acquittal, (2) a second prosecution for the same offense
after conviction, and (3) multiple punishments for the same offense. Wilcox v. State, 342
Ark. 388, 39 S.W.3d 434 (2000) (citing North Carolina v.
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Reason: I attest to the accuracy Cite as 2020 Ark. App. 165 and integrity of this document Date: 2021-07-01 15:04:40 ARKANSAS COURT OF APPEALS Foxit PhantomPDF Version: 9.7.5 DIVISION III No. CR-19-532
Opinion Delivered: March 11, 2020 MICHAEL SHOCK
APPELLANT APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT V. [NO. 12CR-17-166]
STATE OF ARKANSAS HONORABLE TIM WEAVER, JUDGE APPELLEE AFFIRMED
RITA W. GRUBER, Chief Judge
Michael Shock appeals the circuit court’s denial of his motion to dismiss the charges
against him on double-jeopardy grounds based on prosecutorial misconduct of withholding
pretrial discovery information. He contends on appeal that the State’s repeated discovery
violations during his first trial were intended to provoke him to move for a mistrial and thus
that double jeopardy barred a second trial under the standard set by the United States
Supreme Court under the federal constitution in Oregon v. Kennedy, 456 U.S. 667 (1982).
In the alternative, he asks this court to expand double-jeopardy protections under the
Arkansas Constitution to include prosecutorial misconduct beyond the intention to provoke
the defendant into moving for a mistrial. We affirm the denial of appellant’s motion to
dismiss.
On October 17, 2017, appellant was charged with one count of rape of his
granddaughter, LS, who was five years old at the time. The victim first reported the allegations to her mother, Samantha Shock. Several days later, LS was interviewed at the
child-safety center in Searcy, where a SANE1 nurse also performed a physical exam, tested
for sexually transmitted diseases, and checked for evidence of sexual abuse. The medical
summary indicated the absence of any physical findings of sexual abuse, and the lab report
was negative for sexually transmitted diseases. After receiving the State’s file in response to
his broad discovery motion, appellant filed several pretrial motions requesting additional
information, including a bill of particulars contending that the file the State had provided
was insufficient to apprise him of the time, place, manner, and means of the alleged offense.
His motions were denied.
The trial began on December 5, 2018, and the State called Ms. Shock as its first
witness. During her testimony, appellant moved for a mistrial, arguing that Ms. Shock was
testifying about new information that “[appellant] and LS were in her room by themselves.”
He argued that this information had not been disclosed despite his request for a bill of
particulars. The court denied his motion. Ms. Shock’s testimony continued, and she
described the medical exam performed on LS at the child-safety center. The State concluded
its direct examination of Ms. Shock, and the court recessed for the day.
At the beginning of the second day of trial before he began his cross-examination of
Ms. Shock, defense counsel moved for a mistrial, alleging he had been provided no evidence
during discovery that a medical examination or testing had taken place. Defense counsel
proffered two pages he alleged the State had provided to him from the child-safety center,
which did not include results of a sexual-assault physical examination or suggest that LS had
1 SANE stands for sexual abuse nurse examiner.
2 been tested for sexually transmitted diseases. Appellant argued that the noted absence of
physical findings of sexual abuse and the negative lab results for sexually transmitted diseases
was exculpatory and was required to have been disclosed by the State. The State responded
that they had provided the name of the SANE nurse as a witness and that they had given
appellant the relevant documents regarding her examination. The court denied the motion
for mistrial, finding that the State had provided the information.
Defense counsel continued his cross-examination of Ms. Shock and again moved for
a mistrial based on the State’s failure to disclose that the prosecutor had represented Ms.
Shock years earlier in a civil action when the prosecutor was in private practice. The circuit
court denied the motion and continued with the proceedings.
During a subsequent break in Ms. Shock’s testimony, the prosecutor told the court
that she had asked the SANE nurse during the break to confirm the number of pages
contained in the medical records. The prosecutor discovered that there were numerous
pages, including lab results, that had not been provided to defense counsel. Appellant moved
for a mistrial, which the State conceded had merit, and the court granted it.
On March 20, 2019, prior to appellant’s second trial, he filed a motion to dismiss on
double-jeopardy grounds under the federal and state constitutions, arguing that the State’s
failure to turn over inculpatory and exculpatory information was a Brady2 violation,
constituted prosecutorial misconduct, and was disclosed during trial to provoke a mistrial
and avoid an acquittal. Therefore, he argued, under the United States Supreme Court’s
2 Brady v. Maryland, 373 U.S. 83 (1963) (holding suppression by the prosecution of requested evidence favorable to an accused violates due process when the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of prosecution).
3 opinion in Kennedy, double jeopardy attached to bar re-prosecution. The circuit court
denied appellant’s motion, specifically finding no bad faith on behalf of the State and no
attempt by the prosecutor to “goad” appellant into requesting a mistrial. This appeal is from
that denial.
A double-jeopardy claim may be raised by interlocutory appeal because if a defendant
is illegally tried a second time, the right is forfeited. Zawodniak v. State, 339 Ark. 66, 68, 3
S.W.3d 292, 293 (1999). We review a circuit court’s denial of a motion to dismiss on
double-jeopardy grounds de novo. Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006).
When the analysis presents itself as a mixed question of law and fact, we give the factual
determinations made by the circuit court due deference and will not reverse them unless
clearly erroneous. Id. at 320, 235 S.W.3d at 483. 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.” Green v.
State, 2011 Ark. 92, at 4, 380 S.W.3d 368, 371.
The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant
from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606
(1976). The Double Jeopardy Clause, however, does not offer the defendant a guarantee
that the State will vindicate its societal interest in the enforcement of the criminal laws in
one proceeding. Kennedy, 456 U.S. at 672. It protects criminal defendants from (1) a second
prosecution for the same offense after acquittal, (2) a second prosecution for the same offense
after conviction, and (3) multiple punishments for the same offense. Wilcox v. State, 342
Ark. 388, 39 S.W.3d 434 (2000) (citing North Carolina v. Pearce, 395 U.S. 711 (1969)).
4 There is also a narrow exception to the rule that the Double Jeopardy Clause will not bar
retrial when a defendant moves for a mistrial “where the governmental conduct in question
is intended to ‘goad’ a defendant into moving for a mistrial.” Kennedy, 456 U.S. at 676. The
examination of the prosecutor’s intent calls for the circuit court to make a finding of fact by
inferring the existence or nonexistence of intent from objective facts and circumstances.
McClendon v. State, 2017 Ark. App. 295, at 6, 523 S.W.3d 374, 377; Jackson v. State, 322
Ark. 710, 911 S.W.2d 578 (1995).
Appellant first argues that the circuit court erred in denying his motion to dismiss
because the State’s repeated discovery and Brady violations were intended to provoke a
mistrial. He points to his repeated attempts to obtain a mistrial for the State’s failure to
disclose before trial (1) the existence of a sexual-assault medical exam of the victim; (2) that
the victim and appellant had been alone together; and (3) the prosecutor’s previous
representation of Ms. Shock in a civil matter. The circuit court reviewed the issues and
found that the prosecutor had not intentionally attempted to “goad” appellant into
requesting a mistrial.
We cannot say that the circuit court’s finding is clearly erroneous, and on de novo
review, we affirm its denial of appellant’s motion to dismiss. Appellant moved multiple times
for mistrial before it was ultimately granted by the court. The State responded to each
motion, refuting appellant’s arguments and denying that a mistrial was warranted, suggesting
that the State specifically did not want the case to end in a mistrial. It was not until the
prosecutor questioned the SANE nurse during a break in Ms. Shock’s testimony that the
State discovered multiple pages from the medical examination had not been provided to
5 appellant during discovery. At appellant’s renewal of his motion for mistrial, the prosecutor
agreed that it should be granted although it made her “physically ill.” We cannot say the
circuit court’s finding that the prosecutor did not intentionally goad appellant into moving
for a mistrial is clearly erroneous.
Further, although the State does not concede that the failure to provide the evidence
amounted to a Brady violation,3 our supreme court has held that the law is well settled that
the remedy for a Brady violation is a new trial, which appellant is receiving in this case.
Green, 2011 Ark. 92, at 11, 380 S.W.3d at 375. Prosecutorial misconduct, even intentional
and reversible misconduct, does not preclude retrial of the case. Id. To invoke the double-
jeopardy bar, a defendant must show that the misconduct was motivated not by a desire to
obtain a conviction but by a desire to provoke the defendant into moving for a mistrial. Id.
(quoting State v. Williams, 988 P.2d 722, 728 (Kan. 1999)). Appellant has failed to make
that showing here.
Finally, appellant asks us to consider expanding double-jeopardy considerations
under the Arkansas Constitution to include a more objective, broader standard involving
prosecutorial-misconduct allegations. Our supreme court has declined to extend the holding
of Kennedy beyond those instances in which the prosecution has intentionally provoked a
mistrial. Green, supra; Jackson, supra. We must follow the precedent set by the supreme court
3 There are three elements of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Williams v. State, 2017 Ark. 313, at 3, 530 S.W.3d 844, 846. We express no opinion whether the violations in this case met this standard.
6 and are powerless to overrule its decisions. Rice v. Ragsdale, 104 Ark. App. 364, 368, 292
S.W.3d 856, 860 (2009).
Accordingly, we affirm the circuit court’s decision denying appellant’s motion to
Affirmed.
VIRDEN and KLAPPENBACH, JJ., agree.
Benca & Johnston, by: Patrick J. Benca, for appellant.
Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.