Williams v. State

268 S.W.3d 868

371 Ark. 550

Antwain WILLIAMS v. STATE of Arkansas.

No. CR 07-457.

Supreme Court of Arkansas.

November 29, 2007.

Dunbar, Craytor & Morgan, LLP, by: Bart C. Craytor, Texarkana, TX, for appellant.

Dustin McDaniel, Att'y Gen., by: Leeann J. Irvin, Ass't Att'y Gen., for appellee.

ROBERT L. BROWN, Justice.

Appellant Antwain Williams brings this interlocutory appeal from the circuit court's denial of his motions to dismiss based on double jeopardy and based on the failure to provide a speedy trial as well as the circuit court's sua sponte declaration of a mistrial. We affirm the circuit court's order in part and dismiss in part.

On September 6, 2004, N.C., the alleged victim in this case, and her mother reported to local police in Texarkana that the appellant, Antwain Williams, had raped N.C. on the night of September 3, 2004. A warrant for Williams's arrest was issued, and Williams was arrested. On January 5, 2005, a criminal information was filed, charging Williams with one count of rape.

After several continuances, a trial date was set for August 21, 2006. On the day of the trial, voir dire was conducted by both parties, and a jury was selected but not sworn. The next day, the prosecutor became aware of a rape kit and clothing that had been taken from the victim after the rape. The rape kit had been stored in the Texarkana police evidence locker but had never been sent to the Arkansas State Crime Lab. Upon discovery, the evidence was immediately sent to the crime lab for testing, and the prosecutor moved for a continuance to wait for the results from the crime lab. Williams filed an objection to the State's motion for continuance, arguing that the State had not acted with diligence in discovering and testing the rape kit and that allowing a continuance after the selection of a jury would be substantially unjust to the defense. The circuit court granted the State's motion, and the case was continued.

On December 27, 2006, the circuit court ordered a mistrial sua sponte on the basis that the results from the crime lab had yet to be completed, that the jury's term of service was nearing an end, and that the trial could not be resumed and completed within the jury's term of service. The circuit court noted that the jury, though selected, had not been sworn under oath, and, therefore, double jeopardy had not yet attached.

On February 2, 2007, Williams filed a motion to dismiss for denial of a speedy trial, a motion to dismiss due to double jeopardy, and an objection to the circuit court's declaration of a mistrial. Williams asked that the charges against him be dismissed with prejudice, or, in the alternative, that the circuit court withdraw its declaration of a mistrial and reinstate the previously selected jurors. A hearing was held on Williams's motion, after which the circuit court orally denied his motions from the bench. The circuit court ruled that Williams's right to a speedy trial had not been violated, as only 320 days could be counted against the State; that because the jury had not been sworn, double jeopardy had not attached; and finally that its declaration of a mistrial was proper because there was implied consent on the part of Williams and also that a mistrial was necessary because the jury had reached the end of its term of service. Williams filed this interlocutory appeal and asserted that the circuit court's denial of his motions was error.¹

I. Double Jeopardy

Williams first claims that double jeopardy should attach in this case because the jury had been selected by both parties and the ministerial act of administering an oath to the jury does little to help protect his right to retain a chosen jury. He notes that he is not arguing that Arkansas Code Annotated § 5-1-112, which provides that double jeopardy attaches in a jury trial after the jury is sworn, is unconstitutional. Rather, he asserts that double jeopardy should attach when a mistrial is declared after the jury has been selected by both the prosecution and defense, notwithstanding § 5-1-112, as this section is independent of the constitutional protection against double jeopardy. Williams further urges that the mere withholding of the jury's oath should not govern whether double jeopardy attaches in a case, because such a standard does little to protect a defendant from the increased time and expense of his defense.

Williams goes further and contends that the State's continuance and the circuit court's subsequent declaration of a mistrial prejudiced his defense and violated his right to be tried by the selected jury. He states that a mistrial could have been prevented had the State acted diligently in having its evidence tested by the crime lab.

The State answers that Williams was not entitled to have his case tried by the selected jury and that his protection against double jeopardy was not violated. The State contends that § 5-1-112 governs this case and clearly provides that double jeopardy does not attach in a jury trial until after the jury is sworn. The State also maintains that Williams has misconstrued United States Supreme Court precedent to support his position and that because the jury was not sworn in this case, double jeopardy had not attached.

This court reviews a circuit court's denial of a motion to dismiss on double-jeopardy grounds de novo. See Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006). We have further said that "when the analysis presents itself as a mixed question of law and fact, the factual determinations made by the trial court are given due deference and are not reversed unless clearly erroneous." Id. at 320, 235 S.W.3d at 483. However, the ultimate decision by the circuit court that the defendant's protection against double jeopardy was not violated is reviewed de novo, with no deference given to the circuit court's determination. Id. A double-jeopardy claim may be raised by interlocutory appeal because if a defendant is illegally tried a second time, the right would have been forfeited. See Zawodniak v. State, 339 Ark. 66, 3 S.W.3d 292 (1999).

Both the Fifth Amendment to the United States Constitution and Article 2, § 8 of the Arkansas Constitution require that no person be twice put in jeopardy of life or liberty for the same offense. The Double Jeopardy Clause protects criminal defendants from: "(1)a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense." Hughes v. State, 347 Ark. 696, 702, 66 S.W.3d 645, 648 (2002). The General Assembly has codified the protection against double jeopardy as an affirmative defense to criminal prosecution. See Ark.Code Ann. § 5-1-112 (Repl.2006). The section relevant to the current case provides:

A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:

. . . .

(3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn or, if trial was before the court, after the first witness was sworn, unless the termination was justified by overruling necessity.

(Emphasis added.)

Williams's principal claim is that double jeopardy should have attached after the jury was selected but before the jury was sworn. We disagree. In addition to § 5-1-112, this court has held that "[d]ouble jeopardy attaches in a jury trial once the jury is sworn." Phillips v. State, 338 Ark. 209, 211, 992 S.W.2d 86, 88 (1999); see also Smith v. State, 307 Ark. 542, 545, 821 S.W.2d 774, 776 (1992) ("The law ... is very clear that jeopardy does not attach until the jury has been sworn."). For his proposition that he has a right to be tried by a particular tribunal, Williams cites this court to Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). His reliance on Crist, however, is misguided, as Williams simply quoted language in Crist out of context to support his argument. In Crist, 437 U.S. at 35, 98 S.Ct. 2156, the United States Supreme Court said:

Although it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach in a jury trial might have been open to argument before this Court's decision in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100. There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial when jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn.

(Internal citations omitted.) See also Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) ("In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn."). In the instant case, it is undisputed that the jury, though selected, was not sworn. According to this court's previous decisions, as well as those by the United States Supreme Court, double jeopardy did not attach, and the circuit court correctly denied Williams's motion to dismiss based on double-jeopardy grounds. This point has no merit.

II. Declaration of a Mistrial

Williams next contends that the circuit court erred in declaring a mistrial because no forceful and compelling circumstances existed to justify the dismissal of the jurors. He further maintains that reasonable diligence and care on the part of the State could have averted the circuit court's declaration of a mistrial. He urges, finally, that there was no implied consent on his part to the mistrial, and that if there was, it was because the State withheld the crime lab results and misled him.

The State's initial retort is that because the jury...