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STATE v. MUCK5/30/1997
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When Muck's counsel accused the State of sabotaging the trial, the prosecutor responded: "Judge, I did not sabotage the trial, I was not intending to mislead anybody."
The district judge found the State's conduct misleading, stating:
"Well, it is misleading to Court and counsel, because you suggested to us when you recalled the witness that you had — that the only problem in foundation was the fact that Mr. Fiske was or was not going to be available. We've got other problems here with regard to foundation which you knew or should have known about." Although the district judge's statement on the record at the time of his ruling did not include a finding that the prosecutor's conduct was intentional, the journal entry provided:
"After hearing the evidence presented, the Court ruled that the jury was prejudiced by the admission of inadmissable testimony, which the State intentionally put into evidence, and is not correctable by instruction."
We acknowledge that the State intentionally put on testimony about the breath test while aware of its foundation problems; however, the district court did not make a finding that the State did so to intentionally provoke a mistrial.
Kennedy teaches:
"Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. . . . Only where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." 456 U.S. at 675-76.
We hold that the district court's findings are inadequate to permit judicial review of the double jeopardy issue under the Kennedy standard.
We remand for the purpose of having the district court make a supplemental finding of fact on the issue of whether or not the actions of the prosecutor prompting the mistrial motion were done with the intention of goading Muck into requesting a mistrial. For a similar remand disposition see State v. Rademacher, 433 N.W.2d 754, 757 (Iowa 1988).
The district judge's declaration of mistrial is supported by the record. We affirm the mistrial declaration. The case is remanded for the specific purpose stated herein. After making the directed finding, the district court shall enter the appropriate judgment.
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