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Tomlin v. State5/31/2002
20 So. 2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993).'
"While the failure to object will not preclude this Court from reviewing an issue in this case, it will weigh against any claim of prejudice [Tomlin] makes on appeal. Dill v. State, 600 So. 2d 343 (Ala.Crim.App. 1991), aff'd, 600 So. 2d 372 (Ala. 1992), cert. denied, 507 U.S. 924 (1993)."
Guilt-Phase Issues
I.
Tomlin argues that the trial court erred in denying his motion seeking to bar his further prosecution because, he said, it violated the Double Jeopardy Clause. Specifically, Tomlin argues that the prosecutor at both his 1978 and his 1993 trials committed such egregious misconduct that his convictions were reversed; therefore, he argues, because the prosecutor's conduct resulted in the prior reversals, any subsequent prosecution is barred based on United States v. Jorn, 400 U.S. 470 (1971), and United States v. Dinitz, 424 U.S. 600 (1976). Tomlin also argues that, once he raised the double jeopardy claim, the burden shifted to the State to prove that any subsequent prosecution was not barred based on the prosecutor's prior misconduct.
When arguing this issue at a pretrial motion hearing, the following occurred:
"[Defense counsel]: Basically, after a case has been reversed because of prosecutorial misconduct on a number of occasions, there comes a time when a case is a violation of double jeopardy. As I mentioned a number of times, the case was reversed in 1988 because of prosecutorial misconduct on the part of Don Valeska, comments on silence and comments on validity of the evidence. Those comments were so bad that the Court held them to be plain error on the second petition for rehearing.
"The case was also reversed in 1991 for prosecutorial misconduct based on, again, a comment on silence and comment on the co-defendant being on death row and sentenced to death. There has been prosecutorial misconduct involved in the presentation of evidence that should have been excluded from the grand jury in 1993, and there also have been a panoply of improper comments to the media which are documented in Defendant's Exhibit Number One to the Court including comments to the Mobile paper that this is an absolute joke on the people of this state, as well as comments to the effect that the death penalty is too good for Tomlin.
"So when you put all these together, Your Honor, you have a situation of repeated acts of misconduct that give rise to a double jeopardy claim under cases like United States v. Dinitz, which is at 424 U.S. 600 in 1976, and United States v. [Jorn]. And basically the double jeopardy clause in the United States Constitution, and this is equally applicable to the States, is violated where, 'bad faith conduct by judge or prosecutor threatens the (inaudible) by successive prosecutions and declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict the Defendant.'
"After a while, Your Honor, prosecution is barred by double jeopardy."
This issue has been previously addressed by this Court in the opinion on appeal from Tomlin's third trial and conviction. In that opinion we stated:
"The principle of double jeopardy that [most] closely resembles Tomlin's argument is set out in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), as follows:
"'The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where "bad-faith conduct b
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Alabama DUI Attorneys
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