NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOHN ALLAN HOOVER, Appellant : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : : No WDA 2011 Appeal from the Order Entered December 22, 2011, In the Court of Common Pleas of Venango County, Criminal Division, at No. CP-61-CR BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J.: FILED: August 27, 2013 Appellant, John Allan Hoover, appeals from the order entered on December 22, 2011 that denied his motion to bar retrial on double jeopardy grounds. Appellant s motion to bar retrial followed a December 12, 2011 order granting a mistrial due to a remark made by Appellant s counsel in his opening statement to the jury. After careful review, we reverse the December 22, 2011 order and direct that Appellant be discharged. The relevant facts and procedural history of this matter were aptly set forth by the trial court as follows: Following a jury trial held on March 16 and 17, 2009, [Appellant] was convicted of Driving Under the Influence of Alcohol - Highest Rate, in violation of 75 Pa.C.S.A. 3802(c). [Appellant] was also convicted of Careless Driving, in violation of 75 Pa.C.S.A. 3714(a) and Driving on Roadway Laned for Traffic, in violation of 75 Pa.C.S.A. 3309(1), both of which are

2 summary offenses. Because this was [Appellant s] second DUIrelated offense within ten years, the instant conviction was a first-degree misdemeanor. [Appellant] was then sentenced on April 27, 2009, to serve ninety (90) days to twenty-four (24) months less one (1) day in jail, including a split probationary tail of thirty-six (36) months plus one (1) day, and pay fines associated with the summary offenses and related costs. On June 22, 2009, [Appellant] filed a Concise Statement of Matters Complained of [on] Appeal to which this Court responded in our 1925(a) opinion dated February 2, On March 7, 2011, the Superior Court filed its opinion in which it vacated the sentence imposed on April 27, 2009, and remanded for a new trial. A new trial was scheduled for December 12 and 13, On December 12, 2011, after opening statements by counsel from both sides, the Commonwealth objected to [Appellant s] opening statement. The Court after significant consideration, and a finding of manifest necessity ordered a mistrial by its Order of the same date. On December 21, 2011, [Appellant] filed its Motion for Absolute Discharge of Case for Double Jeopardy Violation, which this Court then denied by its Order dated December 22, On December 27, 2011, [Appellant] filed its Notice of Appeal. Trial Court Opinion, 5/16/12, at 1-2 (internal footnote omitted). On appeal, Appellant raises the following issue for this Court s consideration: Was there anything said or done, during [Appellant s] opening statement, that created a manifest necessity to declare a mistrial when such a declaration was objected to by [Appellant] and less drastic measures would have sufficed to remedy any alleged error? Appellant s Brief at 2 (full capitalization and internal quotation marks omitted). -2-

3 In Commonwealth v. Walker, 954 A.2d 1249 (Pa. Super. 2008) (en banc), this Court explained the standard of review we apply in cases denying a motion to dismiss on double jeopardy grounds following the declaration of a mistrial for manifest necessity. There, we stated that it is within the trial court s discretion to declare a mistrial sua sponte upon the showing of manifest necessity, and absent an abuse of that discretion, we will not disturb the court s decision. Id. at 1254 (citing Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa. Super. 2002)). When there is manifest necessity for the trial court to declare a mistrial sua sponte, neither the Fifth Amendment to the United States Constitution, nor Article I, 10 of the Pennsylvania Constitution will bar retrial. Id. (citing Kelly, 797 A.2d at 936) (additional citations omitted). 1 The reviewing court must consider all of the circumstances when passing upon the propriety of a declaration of mistrial by the trial court. Additionally, the trial court must consider if there are less drastic alternatives to a mistrial, and any doubt relative to the existence of manifest necessity should be resolved in favor of the defendant. Id., 954 A.2d at (citing Kelly, 797 A.2d at ) (citations omitted). This Court does not apply a mechanical formula in determining whether 1 Pennsylvania Rule of Criminal Procedure 605(B) provides: When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity. -3-

4 there was manifest necessity to declare a mistrial. Id. at 1255 (citing Kelly, 797 A.2d at 937) (citations omitted). In the case at bar, the mistrial was granted following a sidebar discussion concerning remarks made by Appellant s counsel during his opening statement to the jury. Counsel s statement is set forth below: [Appellant s Counsel]: One of the things that Dr. [Lalka, Appellant s defense expert 2 ] has relied upon is [Appellant s] history. He s taken that history on several occasions. He s reviewed it. And he s gonna tell you, [Appellant] is not a person, having spoken to [Appellant], having heard the history, capable of getting to a 4-0 [Blood Alcohol Concentration ( B.A.C. )]. So this garbage about tolerance goes right out the window. You know what the Commonwealth will not produce? One witness who interviewed my client. One witness who even asked to interview my client. One witness who even, as far as I know, reviewed his history. I don t know. But you cannot assume that there s tolerance there when there s not, because Dr. [Lalka] has talked to [Appellant]. He knows he doesn t drink liquor. He knows his occasional drinking habits. He knows these facts. And so he opines that it is not a 4-0. It s inconsistent. It s much closer to the legal limit is what Dr. [Lalka s] gonna tell ya. So any argument about tolerance is out the window because Dr. [Lalka] considered that. His testimony is about [Appellant]. His testimony is about [Appellant]. His opinions of how [Appellant] would react at a 4-0. N.T., 12/12/11, at 69 (emphasis added). The trial judge and counsel for both parties discussed the ramifications of counsel s statement. Id. at The trial judge s concern was that Appellant had the right to remain silent, the Commonwealth was prohibited from commenting on that silence, 2 In the Notes of Testimony, the Court Reporter referred to Dr. Louka. We point out that the expert s name is spelled Lalka and have corrected this error. -4-

5 and defense counsel s statement may have implied that the Commonwealth failed to investigate and speak to Appellant, while, in fact, Appellant was under no obligation to say anything. Id. at 86. The trial court concluded that there was no instruction that could cure defense counsel s reference to Appellant s post-arrest silence and sua sponte declared a mistrial. Id. at 138. In its opinion, the trial court explained its reasoning as follows: It is the well-settled belief of this Court that if it had informed the jury that defense counsel s opening statement and the theory of their defense were based upon a false representation made by counsel, it would have jeopardized the defendant s ability to receive a fair trial. Additionally, the Court, in giving a curative instruction to the jury, would, by necessity, be required to disclose the defendant exercised his constitutional right to remain silent. The Court would then have to give a curative instruction to the curative instruction. In the final analysis, the Court did not abuse, but properly exercised, its sound discretion declaring the mistrial, even without defendant s motion and over defendant s objection, due to manifest necessity. The Court believed the mistrial to be manifestly necessary given its inability to cure defense counsel s false statement without the Court itself committing reversible error and referencing defendant s silence, which is both impermissible and unconstitutional. The Court properly and extensively considered all the available options, yet found them to be deficient given the significant impact it would have on the defendant s ability to receive a fair trial. Furthermore, this Court felt the mistrial declaration actually worked to ensure the public ends of justice for it will afford the defendant the opportunity to have a jury hear his case untainted with impermissible inferences. Trial Court Opinion, at 5/16/12, (internal citations omitted). While the trial court provides a detailed analysis of its considerations and a -5-

6 thoughtful rationale for its finding of manifest necessity, we are constrained to disagree. Throughout its opinion, the trial court cites Commonwealth v. Diehl, 615 A.2d 690 (Pa. 1992) and Commonwealth v. Stewart, 317 A.2d 616 (Pa. 1974) as support for its conclusion. We conclude that those cases are distinguishable. In Diehl, during cross-examination of a defendant who was charged with sexually abusing his daughter, the defendant testified that the prosecutor was his former attorney and had advised him in a related domestic relations matter. In the case sub judice, [defendant] had testified that visitation with his daughter ceased after the time of the alleged rape in October of 1985 because his job, as a garage mechanic, precluded him from giving forty-eight hour notice as required by the custody order. It was the Commonwealth s position, however, that Appellant had discontinued visitation because of the [alleged rape of] his daughter. When the district attorney on cross-examination sought to impeach [the defendant s] testimony by confronting him with the fact that he was aware of his job schedule dilemma at the time he signed the custody order, the following exchange occurred which became the focus of the grounds for mistrial: Q. I mean, you agreed to this Court Order? Is that correct? A. Yes. You was my attorney. Q. I was? A. That s correct. -6-

7 By the District Attorney: please, Your Honor. May I see that exhibit, (The exhibit was handed to the District Attorney by the Court.) By the District Attorney: Take a look at Commonwealth s Exhibit No. 1, Mr. Diehl. Look at the second page down at the bottom. I want you to look where it says appearances, colon. A. Yeah, that was- Q. For the Plaintiff/Mother, Thomas S. Ling. A. I came in by myself. Q. For- A. I came in by myself. Because I came to your office and talked to you about this whole complete situation, and you told me, and you told my wife which was in your office at the time- By the District Attorney: May we approach the Bench-may we approach the Bench, Your Honor? By the Court: Mr. Diehl, just wait. (Side-Bar Conference.) By the District Attorney: I don t recall any of this. It may create a problem. I will continue on with the Cross Examination, but it didn t happen this way. N.T. pp Diehl, 615 A.2d at The Supreme Court in Diehl explained: At this juncture, the trial court recessed the proceedings and reconvened in chambers for approximately two hours to discuss the situation. The discussion focused on the district -7-

8 attorney s prior representation of Appellant and consideration of less drastic alternatives to declaration of a mistrial. When the trial was reconvened, the parties positions were placed on the record, out of the presence of the jury. The trial court then sua sponte declared a mistrial. The central issue for the jury to determine was the credibility of the Appellant s testimony versus that of his daughter s testimony. As a result of the exchange set forth above, the jury learned that the person who was seeking Appellant s conviction was the same person who, at least according to Appellant, had advised him with regard to the visitation order in question. This information prejudiced Appellant by implying to the jury that he was guilty of the crimes for why else would the person who had previously represented Appellant now be willing to prosecute him. The record clearly indicates the presence of manifest necessity so as to necessitate the declaration of a mistrial. Furthermore, the ends of public justice would have otherwise been defeated without the trial court s sua sponte declaration of a mistrial. The trial court was insuring that Appellant would receive a trial by a fair and impartial jury which would return a verdict based solely on evidence adduced at trial. This is an interest which is to be protected not only for defendants, but also for the public, which has a compelling interest in justice for all. Commonwealth v. Stewart, 456 Pa. at 453, 317 A.2d at 619. Diehl, 615 A.2d at 692. The Supreme Court concluded that because credibility was the lynchpin, the fact that the prosecutor, who had previously been the defendant s attorney, was now trying to convict him, irreconcilably tainted the proceedings. Id. In Stewart, after the jury was impaneled on a murder case, the trial judge learned that the victim s father was serving as a tipstaff and was attending the jurors. Stewart, 317 A.2d at 617. The trial judge informed -8-

9 the defendant and his counsel about the victim s father assisting the jurors and asked counsel if he wished to make a motion. Id. Counsel, after consultation with his client, advised the court that they would make no motion. Id. At this point, the trial court declared a mistrial sua sponte. Id. The defendant filed a habeas corpus petition arguing that a retrial would constitute double jeopardy. Id. The trial court denied the habeas corpus petition, and the defendant appealed. Id. Upon review, the Supreme Court concluded that retrial was not barred because the mistrial was a manifest necessity where the victim s father had been attending the jurors. Id. at 620. As can be gleaned from the foregoing, Diehl and Stewart were each unique situations where no instruction could possibly have cured the prejudice. Upon review, we conclude that this case is more akin to Commonwealth v. Pearson, 685 A.2d 551 (Pa. Super. 1996). In Pearson, this Court explained: We acknowledge that [i]t is a clear violation of the accused s constitutional right against self-incrimination to make a reference at trial to his silence while in police custody. Commonwealth v. Holloman, 424 Pa.Super. 73, 78, 621 A.2d 1046, 1048 (1993), quoting Commonwealth v. Gbur, 327 Pa.Super. 18, 23, 474 A.2d 1151, 1154 (1984). Not every such reference, however, requires a new trial, Commonwealth v. Mays, 361 Pa.Super. 554, 558, 523 A.2d 357, 359, appeal denied, 516 Pa. 613, 531 A.2d 780 (1987), for the trial court may promptly and adequately give a cautionary instruction to cure what might otherwise be a reversible error. Gbur, supra, at 24, 474 A.2d at To determine whether a cautionary -9-

10 instruction can cure a reference to the accused s silence, courts must consider 1) the nature of the reference to the defendant s silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction. Id. If the reference to the accused s silence is of a nature that would seriously compromise the jury s objectivity and is likely to deprive the accused of a fair trial, curative instructions are inadequate and a new trial is required. Id. Here, the prosecutor called Detective David Whiteman to testify regarding inculpatory statements that Pearson made following his arrest. Detective Whiteman testified that after Pearson was provided with his Miranda warnings, Pearson admitted that the drugs recovered from Fordham s residence belonged to him and that Fordham had no connection to the drugs. N.T., September 8, 1994, at 69. According to the detective, Pearson then stated: I sell drugs. I sell crack. I just started to sell it. Id. Later, the following exchange occurred: Q. [By the prosecutor:] Did [Pearson] indicate for how long he had been selling crack cocaine? A. [By Detective Whiteman:] When I attempted to ask him that he didn t want to answer any more questions. Id. at 74. At that point, defense counsel moved for a mistrial, a conference was held at sidebar, and the jury was ushered out of the courtroom. Id. at 75. The prosecutor indicated that he neither intentionally elicited the statement nor expected the detective to respond as he did. Id. He thought instead that the detective would testify that Pearson stated that he had been selling drugs for a couple of months. Id. The trial court concluded that any damage done by the detective s remark could be cured, and the court instructed the jurors upon their return as follows: At the conclusion of the last session the police officer s response to a question was that at one point the Defendant did not want to answer any more questions. Once a person-any citizen of this country has been arrested they have an absolute right to -10-

11 remain silent. That is a right that is founded upon our Constitution. When you re arrested you don t have to say anything and that right is so important that a jury or a judge may not consider a person s silence any evidence of guilt. The fact that the Defendant decided to no longer answer any questions is absolutely no evidence against him and you may not consider any inference or any adverse inference from the fact that at some point he decided or chose not to answer any more questions. Again, that is the most basic right that we all enjoy founded upon our Constitution so perhaps the best thing to do would be to disregard the statement or disregard the last response by the officer. Id. at Pearson, 685 A.2d at 554. Upon review, this Court decided that the trial court s instruction cured the revelation concerning the defendant s silence and concluded that the trial court did not abuse its discretion in denying the motion for a mistrial. Id. at 555. After careful review in the instant case, we conclude that there was no manifest necessity to declare a mistrial as there were options the trial court could have employed to cure the errant remark made by defense counsel. As can be seen from Pearson, the trial court had wide latitude to fashion a number of cautionary instructions. 3 Alternatively, and as Appellant points out, the trial court could have informed the jury that Appellant s counsel misspoke in his opening statement concerning the Commonwealth s attempt, 3 While it is well settled that the prosecution may not highlight or comment upon a criminal defendant s decision to remain silent following his arrest, a prompt and adequate instruction by the trial court can cure such an error. Commonwealth v. Rivera, 828 A.2d 1094, 1102 (Pa. Super. 2003). -11-

12 or lack of an attempt, to discuss Appellant s drinking history. Appellant s Brief at According to Appellant, he was referring to a complete social and lifetime drinking history and to witnesses who could discuss tolerance to alcohol. Id. For these reasons, we are constrained to conclude that the trial court abused its discretion in declaring a mistrial. Because there was no manifest necessity there can be no retrial, as a retrial would constitute double jeopardy in violation of the Fifth Amendment to the United States Constitution and Article I, 10 of the Pennsylvania Constitution. Kelly, 797 A.2d at 942. Accordingly, we are compelled to reverse the trial court s order and direct Appellant be discharged. Id. at 943. Order reversed. Case remanded with directions that Appellant be discharged. Jurisdiction relinquished. Judgment Entered. Deputy Prothonotary Date: 8/27/