Frank D. Kelly, s/k/a, etc. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
ELMER C. BENNEFIELD
v. Record No. 1062-94-4
COMMONWEALTH OF VIRGINIA OPINION BY
JUDGE CHARLES H. DUFF
FRANK D. KELLY, S/K/A FEBRUARY 27, 1996
FRANK DAMON KELLY, JR.
v. Record No. 2073-94-4
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Stephen F. Breenwald; Harvey H. Perritt, Jr.,
for appellant Bennefield.
William B. Moffitt; Joel Simberg (Moffitt,
Zwerling & Kemler, P.C., on brief), for
appellant Kelly.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on briefs), for appellee.
Elmer C. Bennefield and Frank D. Kelly were convicted of
murder, abduction, and use of a firearm in the commission of a
felony. On appeal, they contend that their retrial was barred by
the double jeopardy clauses of the United States and the Virginia
Constitutions. We disagree and affirm their convictions.
BACKGROUND
During the late hours of July 30, 1993, four high school
friends, Ryan Quinn, Jason McCree, Jacob Barnhart, and William
Crocker (the Crocker group), attempted to purchase marijuana from
Kelly, Bennefield and Rick Herring (the Kelly group). The
Crocker group gave the Kelly group one hundred fifty dollars, and
they followed the Kelly group by car to a restaurant. The Kelly
group travelled together in one car, and the Crocker group
followed in Crocker's car. The Kelly group joined with another
group (the Karim group) at the restaurant, and the Karim group,
in a third car, followed the Kelly and Crocker groups to a motel.
Someone in the Kelly group told the Crocker group that a man had
taken the drug purchase money and fled without delivering the
marijuana. On the pretext of finding the person who had taken
the money, the Crocker group followed the cars carrying the Kelly
and Karim groups to a deserted construction site. At the
construction site, members of the Kelly and Karim groups pointed
guns at the Crocker group members and ordered them to lie on the
ground. The Kelly and Karim group members shot three members of
the Crocker group, injuring Quinn and McCree and killing Crocker.
Barnhart fled, uninjured.
On February 28, 1994, Bennefield, Kelly and Herring were
jointly tried pursuant to Code § 19.2-262.1. On March 2, 1994,
during the prosecution's direct examination of Quinn, Bennefield
and Kelly (appellants) learned for the first time that Quinn had
received psychological counseling and possibly suffered from
post-traumatic stress disorder. Appellants also discovered for
the first time that Barnhart, who testified before Quinn, may
have been receiving counseling. Bennefield told the trial court
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that he did not want a mistrial, but Kelly moved for a mistrial.
The trial court recessed until March 8, 1994, to allow counsel to
review and investigate the newly learned information relating to
the Commonwealth's witnesses.
The trial court ordered the Commonwealth's attorney to
review his file, interview the witnesses, and give the defendants
any information remotely exculpatory.
When trial reconvened on March 8, 1994, counsel for Kelly
told the trial judge that, moments before the trial resumed, he
received from the Commonwealth a statement made by McCree that
differed from McCree's trial testimony. Bennefield then moved
for a mistrial. After hearing argument by counsel, the trial
judge declared a mistrial.
From April 27 through April 29, 1994, the trial judge
conducted a hearing and heard testimony relating to appellants'
motions to dismiss based on double jeopardy and whether the
Commonwealth intended to cause a mistrial. The trial judge
denied the motions, and levied a sanction against the prosecutor.
On July 12 and 13, 1994, appellants were retried and found
guilty.
STANDARD OF REVIEW
Whether a prosecutor intended to provoke or goad a defendant
into moving for a mistrial "is a question of fact for the trial
court to resolve." Robinson v. Commonwealth, 17 Va. App. 551,
555, 439 S.E.2d 622, 625, aff'd on reh'g en banc, 18 Va. App.
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814, 447 S.E.2d 542 (1994). On appeal, the trial court's finding
is accorded great deference. Id. at 555 n.4, 439 S.E.2d at 625
n.4.
APPELLANT'S FIFTH AMENDMENT CLAIM
The Double Jeopardy Clause of the Fifth
Amendment protects a criminal defendant from
repeated prosecutions [or multiple
punishments] for the same offense. As a part
of this protection against multiple
prosecutions, the Double Jeopardy Clause
affords a criminal defendant a "valued right
to have his trial completed by a particular
tribunal." The Double Jeopardy Clause,
however, 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. If the law
were otherwise, "the purpose of law to
protect society from those guilty of crimes
frequently would be frustrated by denying
courts power to put the defendant to trial
again."
Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982) (citations and
footnote omitted). See also Wade v. Hunter, 336 U.S. 684, 688-89
(1949) ("a defendant's valued right to have his trial completed
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by a particular tribunal must in some instances be subordinated
to the public's interest in fair trials designed to end in just
judgments").
Generally, "when a mistrial is declared at the defendant's
behest, he is not permitted to claim the protection of the double
jeopardy bar. However, when a defendant requests a mistrial
because of intentional prosecutorial misconduct, the double
jeopardy bar will apply." Kemph v. Commonwealth, 17 Va. App.
335, 341, 437 S.E.2d 210, 213 (1993) (citations omitted). In
other words, "the Commonwealth cannot use its own misconduct to
gain an advantage." Id. at 341, 437 S.E.2d at 213-14.
This exception is a narrow one and is applicable "'[o]nly
where the government conduct in question is intended to "goad"
the defendant into moving for a mistrial.'" Robinson, 17 Va.
App. at 553, 439 S.E.2d at 623 (quoting Kennedy, 456 U.S. at
676). "The [narrow] standard applied in Kennedy is that
prosecutorial conduct, even if viewed as harassment or
overreaching and sufficient to justify a mistrial, does not bar
retrial absent proof of intent on the part of the prosecutor to
subvert the protections afforded by the double jeopardy clause."
MacKenzie v. Commonwealth, 8 Va. App. 236, 240, 380 S.E.2d 173,
175 (1989) (citing Kennedy, 456 U.S. at 675-76) (emphasis added).
In Kennedy, the Supreme Court made it clear
that the exclusive focus should not be on the
fact of prosecutorial error or on the impact
of such error upon a defendant, but only on
the intent of the prosecutor in committing
the error. Accordingly, [the appellant], who
has the burden of proving that the second
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prosecution is barred by double jeopardy,
must produce sufficient evidence to allow the
court to infer "the existence or nonexistence
of intent from objective facts and
circumstances."
Robinson, 17 Va. App. at 553, 439 S.E.2d at 624 (quoting Kennedy,
456 U.S. at 675) (citation and footnotes omitted).
"In order to grant [appellant's] plea of double jeopardy,
the facts must warrant the conclusion that there was an
instigative intention to subvert the protections afforded by the
Double Jeopardy Clause." Robinson, 17 Va. App. at 555, 439
S.E.2d at 625.
From April 27 through April 29, 1994, the trial judge who
granted the mistrial heard evidence in order to determine whether
the prosecutor's conduct was intended to cause appellants to
request a mistrial. The prosecutor, Brownelle, testified that he
received notes, reports, and other investigative information from
the police, but that he failed to thoroughly read this
information. He admitted that he did not read supplemental
police reports and that some of the information was exculpatory,
namely, the inconsistent statements of witnesses. The prosecutor
also admitted that his last minute disclosures of certain
evidence were negligent. He unequivocally denied any intent to
cause a mistrial and insisted that the trial was proceeding
favorably.
Investigator Guckenberger testified that he was the lead
investigator in the case and that the case was complex and
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involved much paperwork and many reports. Guckenberger left the
city for eight weeks during the investigation in order to attend
a training school. Guckenberger said that through an "oversight"
on his part, he and Brownelle did not find the supplemental
police report containing McCree's inconsistent statement until
after the mistrial was granted. When the prosecutor saw the
report, he was "shocked" and told Guckenberger that they had to
give the report to the defendants. Guckenberger also indicated
that certain statements made at a hospital were made under
adverse conditions; therefore, he did not rely on them as much as
on the statements taken a few days later in calmer surroundings.
Guckenberger recorded the later statements on tape and had them
transcribed.
Investigator Cline testified that, after the mistrial was
granted, the prosecutor told him to review his police file. At
that time, Cline discovered a statement made by Quinn in the
hospital on the night of the crime. Cline thought he had given
it to the prosecutor. Cline kept a separate file of which
Guckenberger and Brownelle were unaware. On the day before the
April 28, 1994 hearing, Cline first realized he had a note
suggesting that Quinn visited a psychiatric facility.
Two attorneys testified and opined about the impact that the
undisclosed or late-disclosed evidence could have had and whether
such disclosure would prompt them to request a mistrial.
After hearing three days of testimony, and, based on "the
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objective facts and circumstances," the trial court found, that
the prosecutor "did not intend to provoke a mistrial. I'll say
that beyond any reasonable doubt."
I also find looking at the facts objectively
that -- and I'll say that this hearing has
not really been about discovery or
exculpatory evidence. It's not really about
did these Defendants get a fair shake as a
result of Brownelle's actions, because
clearly they didn't. They got a bad deal as
a result of it. . . . What's the objective
evidence as far as [Prosecutor] Brownelle is
concerned? I think it probably shows -- I
don't know whether it's laziness, whether
it's procrastination, certainly negligence.
I would say certainly gross negligence. I'll
go further and say as a finding it shows near
total indifference at least to Court
Orders . . . .
. . . Now, I find for the first time
during this hearing that he didn't even look
at the files sometimes. He used words in his
testimony that he glanced at the file or he
perused the file. I mean, the Commonwealth
has the absolute duty to study the file to
comply with the Court Orders.
I would say the objective evidence shows
probably an intent to stonewall. Instead of
giving -- if something's questionable -- I
said this during the case. If something's
questionable, I feel like it's the
Commonwealth's duty to give that to the
Defendant. Now, Brownelle obviously took the
position that if it was questionable to
withhold or at least give it to them at the
least advantageous time for them.
And I make all of these findings here on
this record for whatever somebody else may
want to do with it. But I cannot find and do
not find that he did these things in order to
provoke a mistrial. I think the objective
evidence is to the contrary and so I find.
After making its findings, the trial court imposed a $6,700
sanction against the prosecutor for violating the court's orders
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relating to discovery and exculpatory evidence. The record
before us confirms the appropriateness of such severe sanctions.
Whether a prosecutor "intended to 'goad' the defendant into
moving for a mistrial" requires an assessment of the "objective
facts and circumstances of the case." Kennedy, 456 U.S. at
675-76. Here, the prosecutor successfully moved for a joint
trial of three co-defendants pursuant to Code § 19.2-262.1.
Numerous police officers investigated the case, collected
evidence, and submitted reports. The crime involved five
co-defendants plus two additional suspects and four victims.
We find it significant that the trial judge who conducted
the hearing on the double jeopardy issue was the same judge who
presided at appellants' first trial. For that reason, he was
better able to determine how the prosecution's case was
progressing, and whether the prosecutor had any motivation or
desire to cause a mistrial so as to gain a more favorable
position at a new trial. See Robinson, 17 Va. App. at 555, 439
S.E.2d at 624-25 (noting that by having original trial judge hear
double jeopardy argument better enabled judge to properly
consider strength of Commonwealth's case at first trial and
determine issues of credibility). The conduct underpinning
appellants' complaints, the prosecutor's failure to comply with
discovery orders and to timely furnish exculpatory evidence,
began before the start of trial and continued throughout the
trial. The consistency of his conduct, predating the trial and
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continuing after it began, belies an assumption that he suddenly,
during trial, manifested an "instigative intention to subvert the
protections afforded by the Double Jeopardy Clause." Id.
In finding that the prosecutor did not intend to provoke a
mistrial, the trial judge, positioned as he was, could rely on
"the prosecutor's representations about his intent, the
prosecutor's credibility as a witness and the strength of the
Commonwealth's evidence at the first trial." Id. at 554, 439
S.E.2d at 624.
The prosecutor's testimony indicated, for example, that he
did not believe some of the undisclosed information was
exculpatory. He also failed to credit as reliable certain
inconsistent statements made by the victims on the night of the
crimes, which were made under stressful and chaotic hospital
conditions. Some of the statements were misplaced by the police
and, apparently, were not timely provided to the prosecution.
The prosecutor became aware of Quinn's psychological counseling
only during his direct examination of Quinn at the first trial;
the information was in Quinn's victim impact statement prepared
for sentencing of a juvenile co-defendant, Leon Peden, and the
prosecutor had not read it. Peden's sentencing had not occurred
at the time of the February 28, 1994 trial.
The trial judge believed the prosecutor's testimony that he
did not thoroughly read the files or conscientiously follow
discovery orders directing him to search and reveal discoverable
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information. Because the prosecutor failed to read some reports,
the trial judge characterized the prosecutor's conduct as
"laziness," "procrastination," "gross negligence," and "total
indifference." He found an "intent to stonewall," in that the
prosecutor either refused to view certain evidence as exculpatory
or waited until the last moment to disclose it. However, the
trial judge unequivocally found no intent "to provoke a
mistrial."
As we have consistently held in our prior opinions,
prosecutorial conduct, even if viewed as
[harassing] or overreaching and sufficient to
justify a mistrial, does not bar retrial absent
proof of intent on the part of the prosecutor to
subvert the protection afforded by the double
jeopardy clause.
Kemph, 17 Va. App. at 341, 437 S.E.2d at 214 (alteration in
original) (quoting MacKenzie, 8 Va. App. at 240, 380 S.E.2d at
175). See also Robinson, 17 Va. App. at 555, 439 S.E.2d at 625
("Without the requisite intent, . . . gross prosecutorial
misconduct will not satisfy the exception set forth in Kennedy").
Based on the appropriate standard of review, giving due
deference to the trial court's findings of fact, and based on the
objective facts and circumstances before the trial court, we
conclude that the trial court's findings are supported by
credible evidence. Therefore, the trial court's finding that
there was no intent to provoke a mistrial is not clearly
erroneous. Accordingly, under the standard expressed in Oregon
v. Kennedy, appellants' retrial did not violate the Double
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Jeopardy Clause of the Fifth Amendment of the United States
Constitution.
APPELLANTS' STATE CONSTITUTIONAL CLAIM
Appellants' second argument is that the prosecutor's
egregious conduct was not the type of conduct contemplated under
Oregon v. Kennedy, and that a more stringent analysis should be
applied. In support of this argument, appellants cite Justice
Stevens' concurring opinion in Kennedy, in which Stevens
unsuccessfully argued for a broader "overreaching" standard.
456 U.S. at 681-93. Appellants offer no majority or plurality
opinions from the Supreme Court providing an alternative
applicable standard. In support of their position, appellants
cite cases from state courts that have expanded the Kennedy
standard under their respective state constitutions. This
argument also relates to appellants' third argument, namely, that
the Double Jeopardy Clause contained in Article I, section 8 of
the Virginia Constitution provides greater protection than that
afforded under the federal Constitution, as announced in Kennedy.
Therefore, we consider arguments two and three together.
In Kemph v. Commonwealth, this Court held that, by applying
the Kennedy analysis to double jeopardy claims, as we did in
MacKenzie, the protections against double jeopardy afforded under
the United States Constitution are identical with those embodied
in Article I, section 8 of Virginia's Constitution:
Kemph asserts for the first time on appeal
that the double jeopardy clause of the
Virginia constitution protects him from
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retrial even if the United States
Constitution does not. This claim is barred
by Rule 5A:18; nonetheless, as this Court has
ruled that resolution of such a double
jeopardy claim is controlled by Oregon v.
Kennedy, MacKenzie, 8 Va. App. at 239, 380
S.E.2d at 175, his argument lacks merit.
Kemph, 17 Va. App. at 343 n.1, 437 S.E.2d at 215 n.1.
Our courts have consistently held that the protections
afforded under the Virginia Constitution are co-extensive with
those in the United States Constitution. Peterson v.
Commonwealth, 5 Va. App. 389, 394, 363 S.E.2d 440, 443 (1987)
(stating that the double jeopardy clauses of the Federal
Constitution and the Virginia Constitution "basically afford[] a
defendant" the same three protections). See also Lowe v.
Commonwealth, 230 Va. 346, 348 n.1, 337 S.E.2d 273, 274 n.1
(1985); Walton v. City of Roanoke, 204 Va. 678, 682, 133 S.E.2d
315, 318 (1963); Flanary v. Commonwealth, 113 Va. 775, 779, 75
S.E. 289, 291 (1912); Farmer v. Commonwealth, 12 Va. App. 337,
340, 404 S.E.2d 371, 372 (1991) (en banc); I. A. Howard,
Commentaries on the Constitution of Virginia 182 (1974). Neither
the facts of this case nor our prior decisions support an
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extension of the protections afforded under our Constitution
beyond those contained in the federal Constitution.
Affirmed.
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