Fulton v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,253

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEVEN KEITH FULTON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed April 13, 2018.
Affirmed.

Paul M. Dent, of Kansas City, for appellant.

Kayla L. Roehler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and POWELL, JJ.

POWELL, J.: Steven Keith Fulton appeals the district court's denial of his K.S.A.
2017 Supp. 60-1501 petition, alleging that a retrial following a mistrial due to a hung jury
will violate his rights against double jeopardy. Specifically, he argues the district court
lacked the manifest necessity to declare a mistrial and that prosecutorial error bars a
retrial. We disagree and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

In April 2016, Fulton was brought to trial on the charge of aggravated indecent
liberties with a child in violation of K.S.A. 2012 Supp. 21-5506(b), an off-grid felony,
against his stepdaughter. On the second day of trial, following closing arguments, the jury
began deliberations around 3:35 p.m. The district court stated the bailiff would check on
the jury around 4:15 p.m. At some point after that—it is unclear what time—the presiding
juror informed the district court that the jury was ready to go home, and the district court
ordered a recess. The jury agreed to begin deliberations the next morning at 9 a.m.

The next day, the district court briefly instructed the jury before sending it back
into deliberations but did not state on the record the time that the jury began deliberating.
Later that morning, the presiding juror informed the district court that the jury was unable
to reach a decision. With counsel and the defendant present, the district court asked, and
the presiding juror denied, that a break, such as a longer lunch, would help the jury reach
a verdict. The district court stated that although the jury had not deliberated for days, it
appeared the jurors had given the case serious consideration; the district court then
excused the jurors and declared a mistrial. Neither counsel objected to the mistrial, but
Fulton's counsel asked and the district court responded that the jury was deadlocked at a
six-six vote.

In January 2017, Fulton moved the district court to discharge his criminal case
because the retrial would violate his double jeopardy rights; in April, the district court
denied his motion. In June 2017, Fulton filed his present pro se petition for a writ of
habeas corpus, alleging that he was being wrongfully confined while awaiting his retrial.
Specifically, Fulton asserted that no exception under K.S.A. 2017 Supp. 21-5110(a)
applied to him and that a retrial would violate his double jeopardy rights because the
district court did not give the jury enough time to deliberate and the prosecutor had
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committed error. Fulton complained that the jury deliberated only four hours. After a
hearing, the district court denied the petition.

Fulton timely appeals the denial of his habeas corpus petition. Fulton's retrial has
been stayed by the district court pending the resolution of this appeal.

WILL A RETRIAL VIOLATE FULTON'S RIGHTS AGAINST DOUBLE JEOPARDY?

Fulton argues the district court erroneously denied his habeas corpus petition,
which alleges that a retrial on his charge of aggravated indecent liberties will violate his
rights against double jeopardy. Specifically, Fulton argues the district court abused its
discretion in declaring a mistrial due to a hung jury and two prosecutorial errors in the
first trial bar a retrial.

To state a claim for relief under K.S.A. 2017 Supp. 60-1501, a petition must allege

"shocking and intolerable conduct or continuing mistreatment of a constitutional stature.
Summary dismissal is appropriate if, on the face of the petition, it can be established that
petitioner is not entitled to relief, or if, from undisputed facts, or from uncontrovertible
facts, such as those recited in a court record, it appears, as a matter of law, no cause for
granting a writ exists. An appellate court reviews a summary dismissal de novo.
[Citations omitted.]" Johnson v. State, 289 Kan. 642, 648-49, 215 P.3d 575 (2009).

Our Supreme Court has declared that "a writ of habeas corpus is an appropriate
method for challenging a trial court's pretrial denial of a claim of double jeopardy." In re
Habeas Corpus Petition of Hoang, 245 Kan. 560, 562, 781 P.2d 731 (1989), cert. denied
494 U.S. 1070 (1990). Whether a retrial is barred due to double jeopardy is a question of
law subject to unlimited review. State v. Morton, 283 Kan. 464, 468, 153 P.3d 532
(2007).

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A. Did the district court abuse its discretion in declaring a mistrial?

Both the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and § 10 of the Kansas Constitution Bill of Rights protect defendants from
multiple prosecutions for the same offense. State v. Phillips, 299 Kan. 479, 491-92, 325
P.3d 1095 (2014). "'As a part of this protection against multiple prosecutions, the Double
Jeopardy Clause affords a criminal defendant a "valued right to have his trial completed
by a particular tribunal."' Kennedy, 456 U.S. at 671-72." State v. Miller, 293 Kan. 535,
544-45, 264 P.3d 461 (2011). "[A] qualified mistrial exception to the prohibition has
been developed to protect the public interest in the punishment of crime. There are
differing standards for lifting the double jeopardy bar to a second trial depending on
whether or not the proceedings were terminated over the defendant's objection." State v.
Wittsell, 275 Kan. 442, 446, 66 P.3d 831 (2003).

Generally speaking, when a criminal defendant seeks a mistrial, double jeopardy
does not bar a retrial. See Morton, 283 Kan. at 470. However, in Oregon v. Kennedy, 456
U.S. 667, 689, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982) (Stevens, J., concurring), the
United States Supreme Court recognized an exception for "egregious prosecutorial
misconduct" designed to goad a defendant into sacrificing his or her choice to live with
the outcome from the first jury.

The other double jeopardy rule applicable is the manifest necessity rule. "The
long-established test applie[s] where the first trial was terminated over the objection of
the defendant [and provides that] [r]etrial is constitutionally permissible only where a
high degree of necessity supports the mistrial." (Emphasis added.) Wittsell, 275 Kan. at
446. However, in the typical instance, "'a retrial following a "hung jury" does not violate
the Double Jeopardy Clause.' Richardson v. United States, 468 U.S. 317, 324[, 104 S. Ct.
3081, 82 L. Ed. 2d 242] (1984)." Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.
Ct. 732, 154 L. Ed. 2d 588 (2003). Likewise, our Supreme Court has stated that
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"[s]ince 1824, . . . 'a failure of the jury to agree on a verdict [is] an instance of "manifest
necessity" which permit[s] a trial judge to terminate the first trial and retry the defendant
[without violating the Double Jeopardy Clause], because "the ends of public justice
would otherwise be defeated."' [Citations omitted.]" Phillips, 299 Kan. at 492.

Fulton's principal argument is that the district court erred in declaring a mistrial
due to a hung jury and, because of this error, any retrial would be a violation of the
Double Jeopardy Clause. Specifically, he argues the district judge did not have the
manifest necessity to declare a mistrial because the district court did not (1) adequately
determine if there was no reasonable probability that the jury would agree on a verdict
and (2) require the jury to deliberate for a satisfactory amount of time.

A district court's decision to declare a mistrial "is a matter entrusted to the trial
court's discretion, and the decision will not be set aside on appeal unless abuse of
discretion is clearly shown." State v. Graham, 277 Kan. 121, 132, 83 P.3d 143 (2004). A
district court abuses its discretion when no reasonable person would take the view
adopted by the court or the court based its decision on an error of law or fact. State v.
Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

On appeal, both parties ask us to address the merits of Fulton's argument—
whether the district court's declaration of a mistrial was, in fact, a manifest necessity. But
there is a problem. At trial, Fulton did not object to the district court's declaration of a
mistrial; therefore, the manifest necessity standard is inapplicable. See Graham, 277 Kan.
at 133. Accordingly, Fulton's failure to object to the mistrial bars our consideration of
whether the mistrial was justified by manifest necessity.

B. Does prosecutorial error bar a mistrial?

Next, Fulton asserts a retrial will violate his rights against double jeopardy based
on two prosecutorial errors committed in his first trial. Fulton's argument appears to be an
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attempt to claim that prosecutorial error forced him to seek a mistrial. However, at trial,
Fulton neither objected to the mistrial, nor did Fulton seek a mistrial based upon any
alleged prosecutorial error. Nevertheless, our Supreme Court has decreed that in
instances where the defendant merely consents to a mistrial by failing to object, "double
jeopardy is not implicated unless the prosecutorial conduct giving rise to the mistrial was
intended to 'goad' the defendant to move for a mistrial. Retrial is constitutionally
permissible where the governmental conduct was not intended to provoke the defendant
into seeking a mistrial." Wittsell, 275 Kan. 442, Syl. ¶ 3.

Generally, the error must amount to "something more than misconduct, even
intentional and reversible misconduct, in order to bar retrial. It requires that the
prosecutor intended to provoke a mistrial, to goad a defendant into sacrificing his or her
choice to live with the outcome from the first jury." Morton, 283 Kan. at 471. "Where the
prosecutor seeks to force the defendant into the choice, the choice is not freely made, and
the prosecution has subverted the defendant's rights protected by the Double Jeopardy
Clause of the Constitution." State v. Cady, 254 Kan. 393, 400, 867 P.2d 270 (1994).

Fulton first claims the prosecutor gave a personal opinion in closing argument.
The prosecutor stated at the beginning of closing arguments: "I believe the State has
proven the case beyond a reasonable doubt." It is true that "[a] prosecutor may not
express a personal opinion on the defendant's guilt . . . . But a prosecutor may comment
on the weakness of a defense or make a directional statement encouraging the jury to
examine evidence of guilt." State v. Fisher, 304 Kan. 242, 252, 373 P.3d 781 (2016).
Other than the alleged statement—which occurred at the start of the prosecutor's closing
argument—the prosecutor requested that the jury review the evidence, make its own
witness credibility determinations, and advised the jury that the counsel's statements were
not considered evidence when deciding the case. Accordingly, the prosecutor's one
comment during closing is certainly not an egregious prosecutorial error that would bar a
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retrial, and Fulton makes no showing how such a comment could have provoked him into
requesting a mistrial.

Next, Fulton alleges that the prosecutor intentionally provoked the forensic
interviewer, Cheryl Smith, into giving improper opinion testimony:

"Q. [by the State:] And you said that she had indicated at the beginning she—she
would only have to talk about it once?

"A. [by Smith:] Yes.

"Q. And what, if anything, did that indicate to you, that statement?

"A. That she was nervous and scared and that she did not want to talk about what
had happened to her.

"Q. And did that seem odd to you?

"A. No. That's—that actually is pretty common among children—in my
experience among children who have been sexually abused because a lot of children
never disclose so it is hard to talk about.

"[Defense Counsel]: I object to that conclusion and I object to the narrative form
of that response. That's going beyond the question.

"THE COURT: It probably did go beyond the—you're right, it did go beyond the
question and it will be struck.

"[Defense Counsel]: I appreciate that, Judge, and I would ask for a continuing
objection along the line of what this indicates."

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Based on the transcript of the proceedings, we find that the State did not
intentionally question the witness in order to provoke Fulton into requesting a mistrial.
First, the witness' answer went outside the scope of the prosecutor's question, and, upon
Fulton's objection, the district court struck the answer from the record. Additionally,
outside the presence of the jury, the district court told the State not to question Smith in a
manner that may elicit her personal opinion on whether the victim's behavior was
consistent with sexual abuse victims. The State explained that the question was designed
to provide evidence concerning why the victim did not immediately disclose the alleged
abuse. After the district court advised the State not to pursue that line of questioning, the
State remained within the parameters outlined by the district court and consistent with its
proffer. Thus, we find that the State did not intend to elicit improper opinion testimony
by the witness in order to provoke Fulton into requesting a mistrial.

Affirmed.