State v. Sheets

¶[24

Brown, J.

(dissenting) — During opening statements the defense surprised the State by suggesting T.M. was flirting with Ryan Young on the night previous to the crime. During Mr. Young’s cross-examination, defense counsel asked about why Mr. Young did not sleep in the same bed as T.M. Jayson Sheets suggests these questions were relevant to the victim’s intoxication, but her intoxication was an undisputed fact. The victim’s alleged sexual behavior with Mr. Young is foreclosed by the rape shield law. Placing the victim on trial promotes jury confusion and creates unfair prejudice.

f 25 Although the trial court was first inclined to provide a limiting instruction after the improper cross-examina*159tion, it ordered a recess to think about the issue. After returning to the bench, the court initially reasoned against a mistrial. Upon reconsideration, the court finally reasoned the jury “wouldn’t hear anything” if a limiting instruction was given and declared a mistrial. Report of Proceedings (RP) at 252. Unlike this court, the trial court is uniquely situated to judge the damage, after viewing the impact of incidents upon the jury.

¶26 A retrial is permitted when the mistrial is based on a “manifest necessity.” State v. Melton, 97 Wn. App. 327, 331, 983 P.2d 699 (1999). “The trial judge is ‘vested with broad discretionary power to determine whether a trial should be aborted prior to verdict.’ ” Id. at 331-32 (quoting State v. Eldridge, 17 Wn. App. 270, 276-77, 562 P.2d 276 (1977)). Under Melton, we review for “manifest necessity” based upon “(1) whether the court ‘act[ed] precipitately... [or] gave both defense counsel and the prosecutor full opportunity to explain their positions’; (2) whether it ‘accorded careful consideration to [the defendant’s] interest in having the trial concluded in a single proceeding’; and (3) whether it considered alternatives to declaring a mistrial.” Id. at 332 (alterations in original) (footnotes omitted) (quoting Arizona v. Washington, 434 U.S. 497, 515-16, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)).

¶27 The trial court properly applied the Melton factors. First, the court gave both defense counsel and the prosecutor an opportunity to explain their positions. Second, instead of ruling at the moment on the issue, the court called for a recess to research the issue. Third, the court initially considered giving a limiting instruction but concluded such instruction would not be of any use. This conclusion could have been in response to the State’s observation that once Mr. Young testified to T.M.’s flirtatious behavior, “a large number of pens hit the paper amongst the jury.” RP at 245. Our review standard is whether the court “considered alternatives” in determining whether there was an abuse of discretion. Melton, 97 Wn. App. at 332. The trial court considered a limiting instruction, but decided against it. *160Given this record, the judge acted within her broad discretion in declaring a mistrial. Accordingly, the trial court did not err.

¶28 Because the court reasonably found a manifest necessity existed, jeopardy did not terminate. Therefore, Mr. Sheets will not suffer double jeopardy by a retrial.

¶29 I would affirm. Therefore, I respectfully dissent.

Review denied at 156 Wn.2d 1014 (2006).