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STATE v. MUCK5/30/1997
so." This reasoning weighs against the State. Under Rohr, the State should have known the necessity for the 1995 card. Having known about the missing certification card the evening before trial, the State should have obtained a replacement certification, or if that was not possible, brought the problem to the court's attention before voir dire. The district court could have granted the State a short recess to attempt to obtain the needed certification, as the State suggests. However, the State never requested a recess.
K.S.A. 22-3423 governs mistrials. The district judge appears to have based his mistrial ruling on K.S.A. 22-3423(1)(c), although he did not reference it. Under K.S.A. 22-3423(2), after a mistrial is ordered, the case is to be retained on the docket for trial or other proceedings as may be proper. However, jeopardy had already attached here because the jury had been sworn, and the mistrial occurred during the testimony of the State's first witness. K.S.A. 21-3108(1)(c) bars further prosecution after jeopardy attaches if the former prosecution was terminated without defendant's consent (subject to certain exceptions not applicable here). " f the prosecutor's misconduct was intentional and substantially prejudiced the defendant's right to a fair trial, double jeopardy would prohibit a new trial." State v. McClanahan, 259 Kan. 86, 101, 910 P.2d 193 (1996).
When a defendant's counsel moves for a mistrial, it is generally presumed that the defendant consented to the mistrial, and double jeopardy would not preclude another trial. State v. Smith,
16 Kan. App. 2d 478, 480, 825 P.2d 541 (1992). See United States v. Jorn, 400 U.S. 470, 485, 27 L.Ed.2d 543, 91 S.Ct. 547 (1971).
However, within the narrow circumstances described in Oregon v. Kennedy, 456 U.S. 667, 72 L.Ed.2d 416, 102 S.Ct. 2083 (1982), prosecutorial misconduct can preclude further prosecution, even though the defendant requested the mistrial.
In McClanahan, 259 Kan. 86, in affirming the district court's denial of McClanahan's motion for mistrial based on prosecutorial misconduct, we mentioned K.S.A. 21-3108(1)(c) and the Kennedy test, but determined that the prosecutorial misconduct was harmless error. Citing State v. Cady, 254 Kan. 393, Syl. 4, 867 P.2d 270 (1994), we articulated the Kennedy test as follows:
" defendant should be allowed to freely choose whether to request a mistrial and forego the right to have the matter decided by the first trier of fact. Where the prosecutor seeks to force the defendant into a choice, the choice is not freely made and the prosecutor has subverted the defendant's rights protected by the Double Jeopardy Clause of the Constitution. Here, if the defendant was forced into requesting a mistrial by the prosecutor's intentional misconduct, retrial would be barred by K.S.A. 21-3108(1)(c) and by the Double Jeopardy Clause of the Kansas and United States Constitutions." McClanahan, 259 Kan. at 102. Kennedy requires intent by the prosecutor to provoke the defendant into moving for a mistrial. A prosecutor's misconduct could be intentional (probably to obtain a conviction), but not intended to provoke a defendant's motion for mistrial.
Although the district judge did not mention double jeopardy in his ruling or refer to K.S.A. 21-3108(1)(c), he did find that Muck had been prejudiced and the State's conduct was intentional. We must examine the record to see if it supports a mistrial declaration based on intentional prosecutorial misconduct under the Kennedy test.
Muck first moved for a mistrial after Weed mentioned "chemical testing." Weed's reference appears to have been unintentional, although it occ
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