Tomlin v. State5/31/2002
y judge or prosecutor," United States v. Jorn, [400 U.S. 470,] 485, 91 S.Ct. [547,] 557[, 27 L.Ed.2d 543 (1971)], threatens the " arassment of an accused by successive prosecutions or the declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant. Downum v. United States, [372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100, 102 (1963)].' "424 U.S. at 611, 96 S.Ct.
At 1081, 47 L.Ed.2d at 276 (emphasis added). The gravamen of this principle is that the courts will not allow a prosecutor to circumvent the Double Jeopardy Clause by goading a defendant into nullifying a proceeding by seeking a mistrial, thus resulting in a new trial at a later date. Oregon v. Kennedy, [456 U.S. 667 (1982)], clarified the narrow test to be applied in determining whether a prosecutor's misconduct bars a defendant's retrial on double jeopardy principles:
"'Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on the 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.' "456 U.S. at 676, 102 S.Ct. at 2089, 72 L.Ed.2d at 424 (emphasis added).
"Although Tomlin relies solely on the Dinitz line of cases, this principle clearly does not support Tomlin's position. Likewise, the rule in Dinitz does not apply to the facts of this case -- either as presented by Tomlin, or as independently gleaned from the record. Tomlin contends only that the prosecutor's habitual misconduct was reckless and that it had the incidental effect of subjecting Tomlin to a Sisyphean crucible. On this point, we agree; however, we know of no double jeopardy principle that forbids successive trials resulting from clumsy prosecutions. See Morrison v. Missouri, 946 F.2d 1340, 1343 (8th Cir. 1991), cert. denied, 504 U.S. 959, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992) ('over-reaching, harassing, intentional and bad faith conduct' does not implicate double jeopardy unless 'the prosecutor's conduct was "intended to provoke the defendant into moving for a mistrial." [Oregon v.] Kennedy, 456 U.S. at 679, 102 S.Ct. at 2091[, 72 L.Ed.2d at 427]'). Tomlin has not alleged that the prosecutor intentionally invited reversal at Tomlin's previous trials, and we have reviewed the record and have found absolutely no facts to support such an allegation. We hold that the trial court's summary denial of Tomlin's motion was proper. Even if all of the factual allegations contained in Tomlin's motion were taken as true, Tomlin would not be entitled to relief." 695 So. 2d at 164-65, (footnote omitted). See also Spears v. State, 647 So. 2d 15 (Ala.Crim.App. 1994) (no double jeopardy bar to retrial when the prosecutor violated the trial court's "gag" order and several newspapers articles appeared in the local paper during the trial thereby causing the trial court to declare a mistrial); Robinson v. State, 405 So. 2d 1328, 1332 (Ala.Crim.App.), cert. denied, 405 So. 2d 1334 (Ala. 1981) ("no double jeopardy impediment to appellant's retrial on the basis of the prosecution's alleged knowing use of perjured testimony at the first trial").
Moreover, the State did not have the burden of proof here. In Spears, we addressed this identical issue and stated:
"Here, the appellant has simply failed to carry his burden of proof on this issue. '"Since a plea of former jeopardy sets up affirmative matter ..., the burden of proving this issue, from the start, is on the defendant...." 30 Am.Jur.2d Evidence § 1160 (1967).' Morris v. State, 465 So. 2d 1173, 1177 (Ala.Cr.App. 1984), reversed on other grounds, 465 So. 2d 1180 (Ala. 1985)." Sp
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