In 1982, the Supreme Court of the United States ruled that the Double Jeopardy Clause of the Fifth Amendment protects defendants from repeated prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 672 (1982). When a mistrial is granted over the objection of a defendant, the test to determine if this double jeopardy protection applies is whether the mistrial was a “manifest necessity.” Id. If the defendant, on the other hand, moves for a mistrial, the “manifest necessity” standard typically does not apply. Id. One exception to that scenario is when the state’s conduct during the trial is intended to incite the defendant into moving for a mistrial. Id.
In McClendon v. State, McClendon’s jury trial on the charge of rape was scheduled for its second trial after his original conviction was reversed and remanded by the Arkansas Court of Appeals due to the finding that the trial court had erred by not letting certain evidence in at the first trial. McClendon v. State, 2017 Ark. App. 295, at 1-2.
Prior to the second trial beginning, counsel for defense requested that all witnesses be directed not to refer to or in any way mention McClendon’s first jury trial because to do so would prejudice the jury. The State indicated on the record that this would not be a problem. Id. at 2.
During the second trial, two witnesses were called to testify regarding statements they heard the victim say in the hallway of the courthouse after she testified at the first trial. Id. The first witness testified that she overheard the victim tell two women that she “did it” and that she “got up there” and said “everything you told me to say…. I lied.” Id. The second witness testified that she heard the victim say, she “did it” and “I lied.” Id.
When the State began its cross-examination of the second witness, the prosecutor asked, “[s]o back in 2011 when y’all were here, y’all were here in connection to a case in another courtroom, right?” Id. After the second witness answered in the affirmative, the prosecutor then stated, “[a]nd that was a trial as well.” McClendon v. State, 2017 Ark. App. 295, at 2.
At that point, counsel for defense moved for a mistrial arguing that the State’s comment inferred that a previous trial in this case had taken place. Id. at 2-3. The State objected to the court granting the motion, explaining that the comment could imply the State was simply referring to the trial that was currently taking place. Id. at 3.
The trial court ultimately granted the mistrial, and a third jury trial was scheduled. Id. Prior to the third jury trial, McClendon filed a motion to dismiss based on double jeopardy pursuant to the rights afforded to all defendants in Oregon v. Kennedy. Id. At the hearing on the motion to dismiss, the prosecutor who made the statement that caused the mistrial testified that after the mistrial was granted he remained at the courthouse with the victim’s mother. Id. at 4. He further testified that during that encounter, in which he and another prosecutor were visiting with the victim’s mother, it was decided that a DNA swab should be taken from the victim. McClendon v. State, 2017 Ark. App. 295, at 4. According to the prosecutor, a DNA swab had not been previously taken due to the victim residing in Illinois. Id. He explained that he did not feel a prior need to establish forensically that the underwear, which had McClendon’s DNA on it and was previously taken from the victim’s home, belonged to the victim. Id.
A detective for the Little Rock Police Department testified that she received a call from the prosecutor requesting that she meet him and the victim at the prosecutor’s office on the same day the mistrial was granted so that a DNA swab could be taken. Id.
McClendon argued that the State had provoked him to move for a mistrial so that it could obtain a DNA sample from the victim. Id. at 6. He asserted that the State realized the damage the testimony of the two witnesses had done to the victim’s credibility and wanted to try and secure a conviction by attempting to obtain DNA evidence. Id. McClendon’s motion to dismiss was denied by the trial court after the hearing, and based upon that ruling, he filed an interlocutory appeal. McClendon v. State, 2017 Ark. App. 295, at 6.
The Arkansas Court of Appeals agreed with the trial court that the State had not provoked the counsel for defense in moving for a mistrial. Id. The Appellate Court held that it was apparent the State did not want the mistrial granted and that it was only after the mistrial was granted that the State decided to obtain the victim’s DNA.