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Davis v. Brown, 87 N.Y.2d 626 (Mar. 28, 1996).





Before Petitioner's trial for robbery, the supreme court issued two pretrial rulings precluding the People from eliciting the complaining witness' prior identification of Petitioner while watching Court TV, and introducing any evidence of prior warrants issued against Petitioner. Despite the pretrial rulings, a prosecution witness mentioned that he had taped a show on channel 51, the local channel of Court TV. Petitioner moved for a mistrial, arguing that the testimony regarding Court TV was prejudicial. The judge reserved decision. The next day, the arresting officer, in contravention of the pretrial rulings, testified that a prior warrant had been issued against Petitioner. Petitioner again moved for a mistrial and this time asked that it be granted with prejudice. The judge announced that he was granting a mistrial but stated that he would decide later whether the mistrial would be with prejudice. Petitioner sought to withdraw his mistrial motion on the grounds that it was not granted with prejudice as requested. The court refused to allow Petitioner to withdraw his mistrial motion and discharged the jury.

Petitioner thereafter sought a writ of prohibition to prevent retrial. The appellate division denied Petitioner's application. The court concluded that although Petitioner moved for a mistrial with prejudice, he waited until after the court had ordered a mistrial without prejudice to inform the court that he did not want such a mistrial. The Court of Appeals reversed.



Whether a criminal defendant may specifically limit a mistrial motion to one for a mistrial with prejudice.


Yes. Judgment of the supreme court and appellate division reversed, without costs, and Petitioner's writ of prohibition granted.





1.Court's Reasoning

A. Prior state of the law in New York

Although this issue has not been addressed by earlier New York courts. Two distinct lines of cases may be seen as precursors to Davis. The first line follows the issue of a defendant's consent to a mistrial. The underlying purpose of the Double Jeopardy Clause of the Fifth Amendment is to protect criminal defendants from multiple prosecutions resulting in punishment for the same offense. Because a mistrial creates a situation where the criminal defendant can be tried again for the same offense, courts are reluctant to grant a mistrial without a defendant's consent. Indeed, the Court in United States v. Jorn, 400 U.S. 470 (1970), held that where a mistrial has been declared without a defendant's consent he is "deprived of his option to go to the first jury, and perhaps, end the dispute then and there with an acquittal." Jorn, 400 U.S. at 484.

When a defendant consents to a mistrial, a retrial is generally not barred. United States v. Scott, 437 U.S. 82, 93 (1978). The Court in Oregon v. Kennedy, 456 U.S. 673 (1982) acknowledged an exception to the general rule of retrial where there has been consent for a mistrial in cases of manifest necessity. Accordingly, New York Courts have required a defendant's consent to a mistrial in all situations except those where there has been a manifest necessity for the court's declaration. People v. Catten, 69 N.Y.2d 547, 554 (N.Y. 1987). Following the consent line of cases, the Second Circuit (United States v. Huang, 960 F.2d 1128, 1134 (2d Cir.1992)), held that there is no consent to a mistrial without prejudice where the defendants moved only for a mistrial with prejudice.

The second line of cases concerns the timing of the withdrawal of a mistrial motion. To allow a defendant to withdraw his mistrial application after it has been granted is a "matter committed to the discretion of the trial court." Catten, 69 N.Y.2d at 554. Additionally, a party may withdraw a motion not yet ruled upon. People v. McGrath, 202 N.Y. 445, 453 (N.Y. 1911), Catten, 69 N.Y.2d at 554.

B. Majority

The Double Jeopardy Clauses of the State and Federal Constitutions protect a defendant from being prosecuted more than once for the same offense. Pursuant to this prohibition, the court held that a defendant may limit a mistrial motion to one with prejudice where the motion is based on prosecutorial misconduct intended to provoke a mistrial.

Where the prosecution deliberately provokes a mistrial, retrial is barred. A contrary result would allow the prosecution to use intentional misconduct to obtain a new trial before a different jury. Accordingly, a defendant has the right, in the face of prosecutorial misconduct, to request a mistrial with prejudice. This result allows for a mistrial barring prosecution, but reserves the defendant's right to have the case decided by the original jury if the misconduct is not proven. Moreover, a defendant also has the right to withdraw or modify a motion for mistrial at any time before it is granted. Catten, 69 N.Y.2d at 555.

Petitioner clearly limited his motion for a mistrial to one with prejudice, due to prosecutorial misconduct. Because the court did not grant defendant's mistrial motion with prejudice and discharged the empaneled jury, it erred by eliminating Petitioner's choice of a retrial before the original jury, the court erroneously gave the prosecution a second chance at winning before a new one. The trial court made Petitioner vulnerable to double jeopardy, and his retrial is therefore barred.

3. Survey of the Law in Other Jurisdictions

Davis recognizes that when a defendant requests a mistrial, the protection against double jeopardy will not bar a retrial unless the prosecution (or the court) has deliberately provoked a mistrial. See, e.g., Oregon v. Kennedy, 456 U.S. 667 (1982); United States v. Dinitz, 424 U.S. 600 (1976). Withdrawal of a motion for mistrial is permitted because the right belongs to the defendant and the prosecution can show no prejudice. By allowing the case to proceed, and considering the withdrawn motion as a waiver of double jeopardy (with respect to the incident in question), the court allows a defendant to make the choice the Double Jeopardy Clause entails. Consequently, a defendant is allowed to decide whether to proceed with the current jury or to seek a retrial under a different one. Cardenas v. Superior Court, 363 P.2d 889 (Cal. 1961); see also Commonwealth v. Robson, 337 A.2d 573 (Pa.), cert. denied,423 U.S. 934 (1975).

The Second Circuit has recognized that a defendant may withdraw a motion for mistrial once granted and proceed with trial. In United States v. Estremera, 531 F.2d 1103 (2d Cir.), cert. denied, 425 U.S. 979 (1976). In Estremera, the defendant moved for mistrial following the government's summation. The court granted the motion. Shortly thereafter, the defendant withdrew the motion. The court presented the case to the jury. This sequence of events surpasses that in Davis because Estremera tried to undo the jury's conviction by arguing double jeopardy, after getting the exact relief he requested.

4. Unanswered Questions

Whether this decision will affect the standard for finding intentional prosecutorial misconduct remains unclear. Judges may be more reluctant to grant defendants' motions for mistrial when the evidence of prosecutorial willfulness is questionable, precisely because of the double jeopardy concerns resolved here.

5. Implications

This decision will encourage motions for mistrial in the face of alleged improper prosecutorial conduct. The court expressly noted that criminal defendants could amend their motions at any time before a ruling from the trial court. As a result, defendants can amend to dismiss for prejudice, based both on the facts and the evolving intangibles in the courtroom.

The Court of Appeals has signaled its willingness to limit the exercise of judicial discretion in the trial courts. When prosecutorial misconduct is alleged, the trial court must now either dismiss with prejudice or deny the defendant's motion in its entirety. Little room is left for the trial judge's discretion. Implicit is a requirement that the trial court must make a finding of fact as to the degree of the prosecutor's alleged misconduct.

Davis sends a strong cautionary note to prosecutors. Normally, defendants' motions to dismiss attain double jeopardy status only upon willful prosecutorial misconduct. See Oregon v. Kennedy, 456 U.S. 667 (1982). The Supreme Court, in Kennedy, observed that prosecutorial misconduct was a question of fact for the trial judge to determine. Finding misconduct sufficient for double jeopardy to attach requires more than "harassment or overreaching." Instead, it requires "intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Id. at 676. The prosecutor must "'goad' the defendant into moving for a mistrial." Id.

In Davis, the Court of Appeals inferred that the prosecutors engaged in willful misconduct, despite the trial court's finding that "there was no intent upon the People to provoke the defendant in moving for a mistrial." The court's reasoning was founded on the defendant's motion papers, which requested mistrial only if it "included a finding that the prosecutor's actions had been intentionally designed to provoke a mistrial." A minimal basis existed for finding prosecutorial misconduct, so the Court of Appeals appeared to find it by virtue of the motion being granted by the trial court. It is unclear whether the Court's holding represents a willingness to examine the finding of fact on appeal, or a lack of tolerance for possible prejudice of the defendant's double jeopardy rights.

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