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STATE v. MUCK5/30/1997
urred during direct examination only minutes after the order in limine precluding mention of the breath test was entered. The order in limine was entered when the prosecutor revealed that his endorsed witness, Fiske, the records custodian for the Intoxilyzer 5000 instrument, was unavailable, preventing the
State from presenting the necessary foundation for admission of the breath test results. When the prosecutor later informed the court that Fiske was available, the order in limine was lifted. Although the prosecutor knew on the evening before the trial that Weed did not have his 1995 certification card, he did not share his knowledge with the court. He represented to the court that, with Fiske's availability, he now had the needed foundation evidence for the breath test. Had the judge known ahead of time of the State's foundation problems with Weed's certification, he undoubtedly would not have lifted the order in limine. Muck renewed the motion for mistrial after the State's foundation problems surfaced during the prosecutor's questioning of Weed on his certification. Weed had already testified about administering the breath test to Muck. Muck arguably was forced to move for mistrial at that point.
The State contends that the district court's dismissal of the DUI count was an abuse of discretion, pointing out that the prosecutor's conduct may have reflected a misunderstanding of the law, but not a blatant disregard of it, or intention to mislead the court or provoke a motion for mistrial. (The judge acknowledged the prosecutor's inexperience.)
Muck contends that the State's misconduct was intentionally misleading, in bad faith, and intended to produce a mistrial. Muck also argues that the district court did not grant his motion for mistrial, but instead declared a mistrial at the responsibility of the State. However, Muck never withdrew his motion for mistrial.
Muck cites State v. Clovis, 248 Kan. 313, 330, 807 P.2d 127 (1991) (district court's dismissal of two criminal counts as a K.S.A. 22-3212 discovery sanction against State for failure to disclose confidential informant affirmed); State v. Schilling, 238 Kan. 593, 601, 712 P.2d 1233 (1986) (K.S.A. 22-3212 discovery sanction order held to be in error) and State v. Winter, 238 Kan. 530, 712 P.2d 1228 (1986) (discovery sanction order of dismissal reversed) as cases involving prosecutorial misconduct resulting in dismissal. These discovery sanction cases are not controlling. This is not a discovery sanction case.
Muck also relies on two double jeopardy cases, United States v. Broderick, 425 F. Supp. 93 (S.D. Fla. 1977), and United States v.
Kessler, 530 F.2d 1246 (5th Cir. 1976), in which the court barred retrial after finding "prosecutorial overreaching" to be "gross negligence or intentional misconduct." Kessler and Broderick are pre-Kennedy cases. The Court in Kennedy pared down the type of prosecutorial overreaching that would preclude retrial when the defendant has moved for a mistrial based on intentional misconduct. The prosecutor "bad faith conduct" standard announced in Divans v. California, 434 U.S. 1303, 54 L.Ed.2d 14, 98 S.Ct. 1 (1977), cited by Muck, also must be considered as modified by Kennedy.
In State v. Clover, 924 S.W.2d 853, 857 (Mo. 1996), the Missouri Supreme Court held the trial court's granting of defendant's mistrial motion was not an abuse of discretion, but found error in the declaration of a mistrial with prejudice, absent a finding that the prosecutor intended to provoke the mistrial request. The trial court found that the prosecutor's actions had only the effect of provoking such request. We agree with the Clover rationale.
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