{ "id": 6136570, "name": "Randy JAYNES v. STATE of Arkansas", "name_abbreviation": "Jaynes v. State", "decision_date": "1999-03-17", "docket_number": "CA CR 98-852", "first_page": "43", "last_page": "48", "citations": [ { "type": "official", "cite": "66 Ark. App. 43" }, { "type": "parallel", "cite": "987 S.W.2d 751" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "259 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619141 ], "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "holding that a defendant's discussion of inadmissible plea-bargain discussions were prejudicial and warranted the granting of a mistrial" }, { "parenthetical": "holding that a defendant's discussion of inadmissible plea-bargain discussions were prejudicial and warranted the granting of a mistrial" } ], "opinion_index": 0, "case_paths": [ "/ark/259/0478-01" ] }, { "cite": "310 Ark. 575", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898949 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0575-01" ] }, { "cite": "289 Ark. 141", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875384 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0141-01" ] }, { "cite": "251 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633391 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/251/0223-01" ] }, { "cite": "16 Ark. 568", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725922 ], "year": 1855, "opinion_index": 0, "case_paths": [ "/ark/16/0568-01" ] }, { "cite": "304 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880967 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0381-01" ] }, { "cite": "237 Ark. 15", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737935 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "21", "parenthetical": "citing with approval 22 C.J.S. Criminal Law \u00a7 259" }, { "page": "147", "parenthetical": "citing with approval 22 C.J.S. Criminal Law \u00a7 259" } ], "opinion_index": 0, "case_paths": [ "/ark/237/0015-01" ] }, { "cite": "288 Ark. 162", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718271 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0162-01" ] }, { "cite": "434 U.S. 497", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185127 ], "year": 1978, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/us/434/0497-01" ] }, { "cite": "52 Ark. App. 244", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141341 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "247", "parenthetical": "citations omitted" }, { "page": "172", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark-app/52/0244-01" ] }, { "cite": "331 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604767 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0079-01" ] }, { "cite": "15 Ark. App. 269", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141914 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/15/0269-01" ] }, { "cite": "322 Ark. 553", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447538 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "overruled on other grounds" }, { "parenthetical": "overruled on other grounds" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0553-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-1-112", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1997, "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "43 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894449 ], "year": 1884, "opinion_index": 0, "case_paths": [ "/ark/43/0271-01" ] }, { "cite": "220 Ark. 755", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660005 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/ark/220/0755-01" ] } ], "analysis": { "cardinality": 693, "char_count": 11049, "ocr_confidence": 0.777, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17485015535654783 }, "sha256": "f4e4f4b5ab215077ff0b5ba725f7d23376ddab9126a616e95ababdb0d33e6697", "simhash": "1:d528a4253b2245d0", "word_count": 1805 }, "last_updated": "2023-07-14T22:49:30.040896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Jennings and Neal, JJ-, agree." ], "parties": [ "Randy JAYNES v. STATE of Arkansas" ], "opinions": [ { "text": "Andree Layton Roaf, Judge.\nRandy Jaynes appeals his conviction in a jury trial of first-degree sexual abuse, for which he received a three-year sentence in the Arkansas Department of Correction. On appeal he argues: 1) his second trial constituted double jeopardy because the trial court erred in granting the State\u2019s request for a mistrial during his defense counsel\u2019s opening statement in the first trial because there was no overruling necessity to do so; and 2) the trial court erred in preventing him from introducing evidence that would prove that the complaining witness had fabricated earlier incidents in order to attract attention. We agree that Jaynes\u2019s second trial constitutes double jeopardy, and reverse and dismiss.\nOn September 18, 1997, a jury was selected and sworn to try Jaynes in Sebastian County Circuit Court on a charge of first-degree sexual abuse arising from his alleged fondling of his fourteen-year-old daughter, A.J. The inappropriate touching allegedly took place at Jaynes\u2019s residence on July 6, 1996, as Jaynes swam in an eight-foot diameter \u201ckiddie pool\u201d with A.J. and her two young stepsiblings, ages five and three, and later that afternoon in a bathroom while A.J. was attempting to take a shower.\nJaynes\u2019s defense was that no sexual abuse took place. Recognizing that the entire case depended on AJ.\u2019s testimony, prior to trial Jaynes had moved to introduce evidence of a specific incident involving A.J. that he believed would tend to prove that she made up stories to get attention. The incident in question occurred on May 9, 1996, when A.J. was admitted to St. Edwards Mercy Medical Center after she had complained to her mother that she had accidentally ingested half a cup of Clorox bleach. Both A.J.\u2019s mother and the treating medical personnel doubted that A.J. had actually swallowed any bleach. The trial court ruled that it was a collateral matter and limited Jaynes to asking about the incident on cross-examination.\nIn opening statement, Jaynes\u2019s defense attorney attempted to describe A.J. as a person who had a propensity for making unfounded allegations. She first related that when A.J. was in the fifth or sixth grade, she told a school counselor that her stepfather had beaten her. The State objected, arguing that the information about A.J.\u2019s story telling was inadmissible character evidence and therefore could not be alluded to in opening statement. The trial judge ruled that A.J., who had testified about the incident in a preliminary hearing, could be asked about it on cross-examination. The State refused the trial court\u2019s offer of an admonition, and the trial resumed.\nJaynes\u2019s defense counsel then brought up the Clorox incident. The State objected and asked for a mistrial, which was granted. The trial judge stated on the record that he was not finding that Jaynes\u2019s attorney had acted in bad faith, and the State expressly agreed.\nOn November 21, 1997, Jaynes moved to dismiss the charge on double jeopardy grounds. The trial court denied the motion, and the case was retried before a jury two weeks later. In response to the State\u2019s motion in limine seeking to limit the defense\u2019s opening statement, the court precluded the defense from referring to specific incidents of conduct, but allowed a statement to the effect that A.J. was seeking attention. A.J. subsequently testified on cross-examination that she had accused her stepfather of beating her and that DHS had investigated the allegation. She also testified that she had ingested Clorox and had received emergency medical attention when she told her mother that she had done so.\nJaynes first argues that there was no overruling necessity to declare a mistrial in his first trial and to discharge the jury impaneled to hear the case, because his defense counsel\u2019s opening statement was made in good faith, the remarks and observations were not inflammatory, the trial judge considered no less-drastic alternatives, and any prejudice from his counsel\u2019s remarks was slight and speculative at best. Accordingly, the second trial constituted double jeopardy because there was no overruling necessity for the mistrial, as required by Arkansas law. He further contends that the mistrial was declared simply because his trial counsel referred to \u201cmanifestly true evidence\u201d that would actually be forthcoming in the case and told the jury that the prosecuting witness was trying to get attention, a declaration that the trial court specifically allowed in the second trial. Citing Wooten v. State, 220 Ark. 755, 249 S.W.2d 968 (1952), he asserts that if the evidence is ultimately admissible at trial, there is no error or prejudice in allowing reference to it in opening statement.\nJaynes argues further that under Arkansas law, the power of the State or the trial court to declare a mistrial, and require the defendant to stand in jeopardy at a second trial, could not extend beyond cases where it was \u201cimpossible\u201d to proceed to judgment in the first case. This standard, referred to as \u201coverruling necessity,\u201d is both a case law and statutory formulation. See, respectively, Whitemore v. State, 43 Ark. 271 (1884), and Ark. Code Ann. \u00a7 5-1-112(3) (Repl. 1997). Citing Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995)(overruled on other grounds), Jaynes argues that a mistrial must be denied and only a cautionary instruction given unless the contentious remark is \u201cpatently inflammatory\u201d or when the remark is so prejudicial that justice cannot be served by continuing the trial, Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985), or where the matter is \u201cbeyond repair\u201d by any lesser measures. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). He contends that the trial judge\u2019s ruling was infirm because he did not even consider less drastic alternatives.\nFinally, Jaynes asserts that by moving for and receiving a mistrial, the State garnered a significant strategic advantage by learning his theory of the case. He contends that there was no indication that in the first trial, the State was prepared to counter his defense, whereas for the second trial, the State had developed a highly effective closing argument that effectively turned the defense on him.\nThe Arkansas Constitution provides that \u201cno person, for the same offense, shall be twice put in jeopardy of life or liberty [.]\u201d Ark. Const. art. 2, \u00a7 8. This prohibition against a second prosecution for the same offense is further discussed in the statute: \u201cA former prosecution is an affirmative defense to a subsequent prosecution for the same offense [when] ... (3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn . . . unless the termination was justified by overruling necessity.\u201d Ark. Code Ann. \u00a7 5-1-112 (Repl. 1997). This means that once the jury is sworn, \u201cjeopardy has attached . . . [and] the constitutional right against double jeopardy may be invoked except in cases of \u2018overruling necessity.\u2019\u201d Green v. State, 52 Ark. App. 244, 247, 917 S.W.2d 171, 172 (1996)(citations omitted). Moreover, this statement comports with the federal standard of \u201cmanifest necessity\u201d as articulated in Arizona v. Washington, 434 U.S. 497, 505 (1978):\n[I]n view of the importance of the [defendant\u2019s valued right to have his trial completed by a particular tribunal], and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate \u201cmanifest necessity\u2019\u2019 for any mistrial declared over the objection of the defendant.\n(Emphasis added.)\nArkansas appellate courts have recognized the difficulty of categorizing cases involving claims of double jeopardy and the resulting inadequacy of expounding any standard formula for guidance. See Jones v. State, 288 Ark. 162, 702 S.W.2d 799 (1986). Consequently, each case must turn largely on its own facts. Id. As was said by the supreme court in Cody & Muse v. State, 237 Ark. 15, 21, 371 S.W.2d 143, 147 (1963)(citing with approval 22 C.J.S. Criminal Law \u00a7 259):\nThe manifest necessity permitting the discharge of a jury without rendering a verdict and without justifying a plea of double jeopardy may arise from various causes or circumstances; but the circumstances must be forceful and compelling, and must be in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care.\nA trial court\u2019s finding of overriding necessity has been has been upheld where the prosecutor failed to return to the trial after a lunch break due to suffering a mental breakdown, Green v. State, supra; a jury was unable to reach a verdict, Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991); a juror became ill, Atkins v. State, 16 Ark. 568 (1855); a material witness for the State became ill, Jones v. State, supra; and the defense counsel was found to be intoxicated, Franklin & Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971).\nThe decision to grant a mistrial and retry a criminal defendant rests within the sound discretion of the trial judge and will be upheld absent an abuse of discretion. Shaw v. State, supra. However, a manifestly incorrect decision to grant a mistrial will bar subsequent prosecution. Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). We hold that in this instance, Jaynes\u2019s second trial constituted double jeopardy, and therefore, this case should be reversed and dismissed.\nThe purportedly inflammatory comment made in opening statement that prompted the mistrial was the following assertion by Jaynes\u2019s trial counsel:\nIn May of 1996, [A.J.] claims she ingested one-half cup of Clorox in her mother\u2019s home and went to the emergency room. This happened less than sixty days prior to the date that she made these allegations. [A.J.] was trying to get her mother or someone\u2019s attention.\nJaynes correctly notes that the factual component of this statement, the ingestion of the Clorox, was clearly admissible evidence that he believed would be elicited on cross-examination. The conclusion that the incident was an attempt by A.J. to get attention was nothing more than a reasonable inference. A party is not entitled to a mistrial based on an opening statement outlining the admissible testimony of a witness. Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). Cf. Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976)(holding that a defendant\u2019s discussion of inadmissible plea-bargain discussions were prejudicial and warranted the granting of a mistrial).\nBecause we reverse and dismiss on this point, we need not reach Jaynes\u2019s second argument.\nReversed and dismissed.\nJennings and Neal, JJ-, agree.", "type": "majority", "author": "Andree Layton Roaf, Judge." } ], "attorneys": [ "Smith, Maurrds, Cohen & Redd, PLC, by: Matthew Horan, for appellant.", "Winston Bryant, Att\u2019y Gen., by: O. Milton Fine II, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Randy JAYNES v. STATE of Arkansas\nCA CR 98-852\n987 S.W.2d 751\nCourt of Appeals of Arkansas Division IV\nOpinion delivered March 17, 1999\nSmith, Maurrds, Cohen & Redd, PLC, by: Matthew Horan, for appellant.\nWinston Bryant, Att\u2019y Gen., by: O. Milton Fine II, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0043-01", "first_page_order": 69, "last_page_order": 74 }