ISAAC C. COOPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Isaac Cooper appealed his conviction for drug charges, arguing that retrial after a mistrial violated double jeopardy protections. The Florida appellate court affirmed the conviction, holding that because the defendant requested the mistrial (rather than the prosecution or court declaring it sua sponte), double jeopardy did not bar retrial even though the mistrial resulted from prosecutorial error.
Double jeopardy does not bar retrial where the defendant requests the mistrial, even if the mistrial results from prosecutorial error, provided the prosecutor did not intentionally provoke the mistrial. The court found the record supported that the misstatement was unintentional error. Additionally, the credibility of the officer's identification presented a jury question that was properly resolved by the jury against the defendant.
[1] A defendant's request for a mistrial generally waives double jeopardy protection against reprosecution, even if the mistrial was necessitated by prosecutorial error, unle…
[2] A trial court's finding that a witness's misstatement was inadvertent and not intentionally elicited supports the conclusion that double jeopardy does not bar reprosecuti…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Where a trial court declares a mistrial sua sponte or at the request of the prosecution, the mistrial must be the result of "manifest necessity" for the defendant to be subject to retrial.”
Establishes the different standards for mistrials depending on who requests them and sets up the distinction crucial to the case.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCooper was arrested for selling crack cocaine to an undercover officer in two separate transactions occurring within 20-30 minutes of each other. Prio…
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ORFINGER, M., Senior Judge.
Appellant appeals from a judgment of conviction on drug charges, arguing that trial of these charges was barred on double jeopardy grounds. We disagree and affirm.
Appellant was arrested for sale of crack cocaine to an undercover officer (the first buy). He was also charged with another sale of crack cocaine which took place within 20 or 30 minutes of the first buy, and which was the subject of a separate information (the second buy). Prior to trial on the first buy, the court granted a defense motion in limine precluding any testimony about the second buy or arrest.
During the undercover officer’s testimony, the prosecutor announced to the court during a bench conference that the officer had inadvertently referred to the second buy, not the first, in identifying the appellant as the seller, stating: “ I told the officer which one we were going on, and I think its just a mistake with the two buys within like half an hour of each other.” Defense counsel objected and moved for a mistrial on the ground that the jury had been tainted. Finding that the officer’s testimony was inadvertent and the result of a mistake, the court granted the mistrial. Over double jeopardy objections, appellant was retried and convicted. This appeal follows.
Where a trial court declares a mistrial sua sponte or at the request of the prosecution, the mistrial must be the result of “manifest necessity” for the defendant to be subject to retrial. Thomason v. State, 620 So. 2d 1234, 1237 (Fla.1993). However, where a defendant requests a mistrial, the general rule is that the manifest necessity standard is inapplicable and double jeopardy is not a bar to reprosecution, even where the motion is necessitated by prosecutorial error, United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), provided that the prosecutor’s actions giving rise to the motion are not done intentionally so as to provoke the defendant into requesting a mistrial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982); Thomason, 620 So. 2d at 1237; State v. Butler, 528 So. 2d 1344, 1345 (Fla. 2d DCA 1988); Duncan v. State, 525 So. 2d 938, 940-41 (Fla. 3d DCA 1988). Here, the record supports the trial judge’s finding that while the misstatement was error, the testimony was not intentionally elicited, thus not preventing a retrial here on double jeopardy grounds.
We find no merit in appellant’s further argument that a judgment of acquittal should have been granted because of faulty identification of appellant. The state correctly argues that this point was not preserved for appeal because the motion below was based only on the allegation that the state had failed to prove a prima facie case of delivery of cocaine. See Archer v. State, 613 So. 2d 446 (Fla.1993) (for J.O.A. argument to be reserved, specific legal ground supporting the motion must be made to the trial court). Nonetheless, the credibility of the officer’s identification of defendant presented a jury question, which the jury resolved against appellant.
AFFIRMED.
COBB and PETERSON, JJ., concur.
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State v. Vidal Santiago, 928 So. 2d 480 (Fla. 5th DCA 2006)…AWSON, JJ., and FALVEY, C., Associate Judge, concur. . It should be apparent that a witness's inappropriate testimony, not responsive to the question posed, does not evidence an intent by the prosecutor to provoke a mistrial. E.g., Cooper v. State, 716 So. 2d 823 (Fla. 5th DCA 1998). However, we find the prosecutor’s responses to the trial court's inquiry troubling. First, the prosecutor stated that even though he did not intend to elicit the barred testimony, the pre-trial ruling on the motion in limine was…
Authorities Cited
- United States v. Jorn, 400 U.S. 470 (U.S. 1971)
- Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982)
- Archer v. State, 613 So. 2d 446 (Fla. 1993)
- Thomason v. State, 620 So. 2d 1234 (Fla. 1993)
- Dole Duncan v. State, 525 So. 2d 938 (Fla. 3d DCA 1988)
- Smith v. State, 528 So. 2d 1344 (Fla. 2d DCA 1988)
- State v. Butler, 528 So. 2d 1344 (Fla. 2d DCA 1988)