Commonwealth v. Johnson, K., Aplt.

[J-65-2019] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 40 EAP 2018
:
Appellee : Appeal from the Order of Superior
: Court entered on 06/27/2018 at No.
: 927 EDA 2016 affirming the Order
v. : entered on 03/03/2016 in the Court
: of Common Pleas, Philadelphia
: County, Criminal Division, at No.
KAREEM JOHNSON, : CP-51-CR-1300424-2006.
:
Appellant : ARGUED: September 10, 2019
DISSENTING OPINION
JUSTICE MUNDY DECIDED: May 19, 2020
The majority extends the protections of our double jeopardy clause by holding that
“prosecutorial overreaching sufficient to invoke double jeopardy protections includes
misconduct which not only deprives the defendant of his right to a fair trial, but is
undertaken recklessly, that is, with a conscious disregard for a substantial risk that such
will be the result.” Majority Op. at 29. I disagree with the majority’s substantial expansion
of double jeopardy protections, effectively transforming the drastic remedy of barring
retrial into a common occurrence. In my view, such expansion is unwarranted when the
previous standard allowed for more uniform application, while sufficiently protecting a
defendant’s constitutional rights as well as society’s interest in holding offenders
accountable. I find our expansion of protections particularly unsettling in the instant case,
as it appears to punish prosecutorial errors more harshly than those of defense counsel.
While I agree Johnson’s conviction cannot stand in light of the mistakes that occurred at
trial, I would not find double jeopardy protections implicated, making the appropriate
remedy retrial. Accordingly, I respectfully dissent.
In Oregon v. Kennedy, 456 U.S. 667, 679 (1982), the United States Supreme Court
held that the double jeopardy clause of the federal constitution bars retrial in cases where
the prosecutor’s conduct “was intended to provoke the defendant into moving for a
mistrial.” Pennsylvania initially adopted this test in Commonwealth v. Simons, 522 A.2d
537, 540 (Pa. 1987), finding our state constitution’s double jeopardy provision
coextensive with the federal provision, only to later determine that our provision afforded
broader double jeopardy protection than its federal counterpart. In Commonwealth v.
Smith, 615 A.2d 321, 325 (Pa. 1992), this Court held that our state constitution bars retrial
on double jeopardy grounds “not only when prosecutorial misconduct is intended to
provoke the defendant into moving for a mistrial, but also when the conduct of the
prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial
of a fair trial.” We later clarified that the Smith standard also included intentional
prosecutorial misconduct “designed to harass the defendant through successive
prosecutions or otherwise deprive him of his constitutional rights.” Commonwealth v.
Martorano, 741 A.2d 1221, 1223 (Pa. 1999).1 Despite the Smith-Martorano standard
being broader than the Kennedy standard, both tests required findings of intentional
prosecutorial misconduct.
The majority extends the already expansive Smith-Martorano standard even
further by finding that reckless prosecutorial conduct is sufficient to bar retrial. Majority
Op. at 29. While the double jeopardy clause “affords a criminal defendant a ‘valued right
1 As the majority recognizes, this Court’s decision in Smith marked a “return[] to the
‘overreaching’ litmus that the United States Supreme Court had used prior to Kennedy.”
Majority Op. at 21 (citing Smith, 615 A.2d at 324 (quoting Commonwealth v. Starks, 416
A.2d 498, 500 (Pa. 1980)).
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to have his trial completed by a particular tribunal[,]’” it “does not offer a guarantee to the
defendant that the State will vindicate its societal interest in the enforcement of the
criminal laws in one proceeding.” Kennedy, 456 U.S. at 672 (additional citations omitted).
Accordingly, defendants who successfully appeal their convictions ordinarily receive new
trials. See e.g., United States v. Tateo, 377 U.S. 463, 465-66 (1964) (“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.”).
Considering “the compelling societal interest in prosecuting criminal defendants to
conclusion,” this Court views dismissal of charges as an extreme remedy reserved for the
most “blatant” prosecutorial misconduct. Commonwealth v. Shaffer, 712 A.2d 749, 752
(Pa. 1998). In my view, the most blatant prosecutorial misconduct should require some
finding of bad faith intentional misconduct, as opposed to the recklessness standard
adopted today. Indeed, this Court has explained:
Dismissal of criminal charges punishes not only the prosecutor . . . but also
the public at large, since the public has a reasonable expectation that those
who have been charged with crimes will be fairly prosecuted to the full
extent of the law. Thus, the sanction of dismissal of criminal charges should
be utilized only in the most blatant cases. Given the public policy goal of
protecting the public from criminal conduct, a trial court should consider
dismissal of charges where the actions of the Commonwealth are egregious
and where demonstrable prejudice will be suffered by the defendant if the
charges are not dismissed.
Id. at 752 (citing Commonwealth v. McElligott, 432 A.2d 587, 589 (Pa. 1981) (“The remedy
of discharge without a fair and complete fact-finding procedure is extreme and will not be
invoked absent bad faith prosecutorial misconduct.”) (additional citations omitted)).
Moreover, the majority’s standard is likely to invite more confusion than clarity.
Although a handful of states have parted ways with the holding in Kennedy in favor of a
broader approach, many more states have remained loyal to the Kennedy standard due
[J-65-2019] [MO: Saylor, C.J.] - 3
to its clear boundaries and proper balancing of interests.2 Some states have also
highlighted the dangers associated with standards that bar retrial for less culpable
instances of prosecutorial misconduct. For example, Texas initially adopted a double
jeopardy standard under its state constitution similar to that announced today, only to
return to the Kennedy standard when that standard proved unworkable in practice. See
Bauder v. State, 921 S.W.2d 696, 699 (Tex. Ct. Crim. App. 1996) (holding retrial barred
by double jeopardy “not only when 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 objectionable event for which he was responsible
would require a mistrial at the defendant’s request”), overruled by Ex Parte Lewis, 219
S.W.3d 335, 337 (Tex. Ct. Crim. App. 2007) (overruling Bauder and adopting Kennedy
standard). Moreover, while California ultimately adopted a standard broader than that in
Kennedy, it cautioned that some states’ expansive tests, including Pennsylvania’s Smith-
Martorano test, “blur” the line between prejudicial prosecutorial misconduct violating the
due process right to a fair trial warranting mistrial or reversal, and the “exceptional form
of prosecutorial misconduct” warranting reversal and barring retrial. People v. Batts, 68
P.3d 357, 377 (Cal. 2003). Considering Pennsylvania already afforded broader
protections than Kennedy, I see no basis to expand our standard even further.
Here, the majority’s expansion of double jeopardy protections also sends a
message that unintentional prosecutorial errors warrant harsher treatment than
comparable errors by defense counsel. There is no question that Johnson’s conviction
2See e.g., State v. Bell, 322 N.W.2d 93, 94 (Iowa 1982); Stamps v. Commonwealth, 648
S.W.2d 868, 869 (Ky. 1983); State v. Chapman, 496 A.2d 297, 300 (Me. 1985); State v.
Duhamel, 512 A.2d 420, 422 (N.H. 1986); State v. Diaz, 521 A.2d 129, 133 (R.I. 1987);
State v. White, 369 S.E.2d 813, 815 (N.C. 1988); Harris v. People, 888 P.2d 259, 266 n.4
(Colo. 1995); State v. Williams, 988 P.2d 722, 727 (Kan. 1999); State v. Michael, 875
A.2d 510, 534-35 (Conn. 2005); Ex Parte Lewis, 219 S.W.3d 335, 337 (Tex. Ct. Crim.
App. 2007).
[J-65-2019] [MO: Saylor, C.J.] - 4
warranted reversal. Instantly, Johnson’s post-conviction counsel obtained a forensic
report indicating that two baseball caps with separate property receipt numbers had been
collected and processed as evidence in connection with the case. The red baseball cap
contained Johnson’s DNA, while the black baseball cap contained the victim’s DNA. At
trial, however, both the prosecutor and defense counsel proceeded under the false
assumption that a single red baseball cap containing both Johnson and the victim’s DNA
existed. Upon learning of this mistake, the Commonwealth agreed to a new trial. Johnson
then filed a supplemental discovery motion, prompting a lengthy hearing during which the
PCRA court permitted post-conviction counsel to develop evidence supporting a motion
to bar retrial on double jeopardy grounds under the state constitution. Several trial
witnesses, as well as the prosecuting attorney, were called to testify at the hearing. At
the close of testimony, the court concluded that although the prosecutor committed a
“gross series of unimaginable mistakes,” those mistakes did not rise to the level of “bad
faith intentional conduct that would permit a judge to bar further prosecution[.]” N.T.,
3/3/16, at 40-41. In reaching this conclusion, the court admonished not only the
prosecutor’s carelessness, but also that of defense counsel, explaining: “It’s absolutely
intolerable from the point of view of the Commonwealth’s work on the case. It’s absolutely
intolerable from the point of view of the defense representation in this case.” Id. at 36.
In light of these facts, the appropriate remedy is retrial. The prejudice suffered by
Johnson is equally attributable to the ineffective assistance of defense counsel, who
likewise failed to appreciate the existence of two baseball caps, despite having access to
the same discovery as the Commonwealth. Had Johnson proceeded under a theory of
ineffective assistance of counsel, the only means of relief would have been a new trial.
Instead, post-conviction counsel strategically proceeded under a theory of prosecutorial
misconduct in hopes of obtaining the extraordinary remedy of barring retrial. The
[J-65-2019] [MO: Saylor, C.J.] - 5
majority’s holding rewards this gamesmanship. While the majority denies that its holding
is “primarily intended to penalize prosecutorial error[,]” its decision to assign no
accountability to defense counsel belies that assertion. Majority Op. at 28.
Finally, even accepting the majority’s newly imposed double jeopardy standard,
instead of remanding the case to allow the PCRA court to make factual findings
concerning whether the prosecutor acted “recklessly” or with a “conscious disregard for
a substantial risk” in a manner that deprived Johnson of the right to a fair trial, the majority
applies the test itself. See Majority Op. at 30-32. In doing so, the majority focuses on the
court’s use of the words “unimaginable mistakes” as being “strongly suggestive of a
reckless disregard for consequences and for the very real possibility of harm stemming
from the lack of thoroughness in preparing for a first-degree murder trial.” Majority Op. at
31-32. I find it improper to engage in a post-hoc attempt to re-characterize the court’s
findings in a manner consistent with today’s decision where its description of events
hinged upon our well-established case law at the time of its decision.
For these reasons, I respectfully dissent.
Justice Baer joins this dissenting opinion.
[J-65-2019] [MO: Saylor, C.J.] - 6