{ "id": 243422, "name": "Tommy PHILLIPS v. STATE of Arkansas", "name_abbreviation": "Phillips v. State", "decision_date": "1999-06-17", "docket_number": "CR 99-94", "first_page": "209", "last_page": "214", "citations": [ { "type": "official", "cite": "338 Ark. 209" }, { "type": "parallel", "cite": "992 S.W.2d 86" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "149 Ark. 546", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721318 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/ark/149/0546-01" ] }, { "cite": "76 Ark. 295", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501106 ], "weight": 2, "year": 1905, "opinion_index": 0, "case_paths": [ "/ark/76/0295-01" ] }, { "cite": "287 Ark. 212", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876591 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0212-01" ] }, { "cite": "319 Ark. 323", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453625 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0323-01" ] }, { "cite": "43 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894449 ], "year": 1884, "opinion_index": 0, "case_paths": [ "/ark/43/0271-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-1-112", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "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": "336 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51205 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0345-01" ] }, { "cite": "331 Ark. 28", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604790 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0028-01" ] }, { "cite": "324 Ark. 310", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159948 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0310-01" ] }, { "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" ] } ], "analysis": { "cardinality": 564, "char_count": 9077, "ocr_confidence": 0.723, "pagerank": { "raw": 1.307685797372317e-07, "percentile": 0.6237075983966632 }, "sha256": "43703085e5dd6c945ff0a8ec562dc6d246013a4672a7967a5c04f2cd3cee8894", "simhash": "1:93bcea1f3006979f", "word_count": 1522 }, "last_updated": "2023-07-14T15:43:54.470477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Tommy PHILLIPS v. STATE of Arkansas" ], "opinions": [ { "text": "Lavenski R. Smith, Justice.\nAppellant, Tommy Phillips, appeals the order of the Pulaski County Circuit Court denying his motion to dismiss. Phillips contends the court\u2019s order violated his Fifth Amendment right against double jeopardy. We disagree and affirm.\nPhillips, along with Cochise Miles, was charged with capital murder and two counts of aggravated robbery. The State alleged Phillips fatally shot Van Dean Clause during a robbery of the Freight Damaged Grocery Store in Little Rock. Carr Stalnaker, who was delivering chips to the store, witnessed the crime. The perpetrators robbed Stalnaker at gunpoint but, fearing for his life, Stalnaker fled the scene after Clause was shot. Stalnaker later identified appellant as Clause\u2019s assailant during a line-up at a Little Rock police station.\nPhillips\u2019s jury trial began on February 3, 1998, and proceeded normally until the sixth day, when just prior to closing arguments, attorney Bill Brown notified the court that as an officer of the court he had something he felt he must say regarding the proceedings. Based upon what he had read in the newspaper, Brown asserted that the court needed to be apprised of statements Brown believed could have been made by Carr Stalnaker during Cochise Miles\u2019s line-up identification. Brown represented Miles at the time. Specifically, Brown stated he believed he overheard Stalnaker say, \u201cI don\u2019t know why I\u2019m here. I didn\u2019t see anything.\u201d Phillips\u2019s counsel and the deputy prosecutor acknowledged that Brown\u2019s observation had been placed in the case file and was known by defense counsel prior to trial.\nAfter Brown\u2019s examination outside the presence of the jury, Phillips\u2019s counsel moved the court to permit him to reopen the case and permit Brown\u2019s examination as a defense witness. Following a brief recess, the court announced that, on its own motion, it was declaring a mistrial. Neither counsel objected. The court scheduled a new trial to commence on August 24, 1998. On July 28, 1998, Phillips filed a motion to dismiss, alleging that the court\u2019s sua sponte mistrial ruling triggered double jeopardy protection, and a subsequent trial would be unconstitutional under federal and state constitutional provisions.\nStandard of Review\nThe decision to order a mistrial and retry a criminal defendant lies within the sound discretion of the trial judge, and will be upheld absent an abuse of discretion. Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991). The trial court should resort to a mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996).\nDouble Jeopardy\nDouble jeopardy attaches in a jury trial once the jury is sworn. Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998); Hale v. State, 336 Ark. 345, 985 S.W.2d 303 (1999). We have held that a manifestly incorrect trial court decision to grant a mistrial will bar subsequent prosecution. Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). The safeguard against being \u201csubject for the same offense to be twice put in jeopardy of life and limb\u201d is guaranteed by the Fifth Amendment to the U.S. Constitution and by Article 2, \u00a7 8, of the Arkansas Constitution. To further secure this right, our legislature has codified it as an affirmative defense to criminal prosecution. The relevant statute, Ark. Code Ann. \u00a7 5-1-112, provides in pertinent part:\n[Affirmative defense \u2014 Former prosecution for same offense.]\nA former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:\n(3) The former prosecution w\u00e1s 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.)\nFrom the language of the statute, as well as our double jeopardy cases, it is clear that once the jury is sworn, a criminal defendant cannot be tried on the same charge again unless he consented to the trial\u2019s termination or it was justified by overruling necessity.\nWe have long held that a defendant\u2019s consent to the termination of the trial can be either express or implied. If the defendant\u2019s consent is evident, demonstration of an overruling necessity is not required in order to avoid the affirmative defense of double jeopardy. Whitmore v. State, 43 Ark. 271 (1884). We have found implied consent in circumstances where the mistrial is declared for the benefit of the defendant and the defendant does not object. Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995); Woods v. State, 287 Ark. 212, 697 S.W.2d 890 (1985); Burnett v. State, 76 Ark. 295 (1905). In Woods, supra, a statement had not been provided to the defense in a timely fashion. The trial court granted continuance, and subsequently ordered a mistrial. On appeal, we held the mistrial was for Woods\u2019s benefit and that implied consent existed. The court also noted the statute and quoted the Commentary to that section which provides:\nExpress consent occurs when the defendant moves to terminate the trial or agrees to termination on motion of the court or the state. The Model Penal Code declined to take a stand on whether mere failure to object to termination constitutes implied consent. Fortunately, the Arkansas Supreme Court has addressed the issue, developing what the Commission felt was a workable definition of implied consent. See, Franklin v. State, 149 Ark. 546 (1921); Burnett v. State, 76 Ark. 295 (1905). Consent is implied if the defendant fails to object to termination and the termination is for the benefit of the defendant. If the termination is for the benefit of the state, mere failure to object does not constitute consent.\u201d Woods at 214.\nIn the instant case, Phillips requested to be allowed to reopen his case to protect his interests. The court, based on its view of the case, decided that mistrial was the best alternative to protect Phillips\u2019s interest and so ordered. Just after the dismissal of the jury, the following colloquy occurred:\nProsecutor: Your Honor, I didn\u2019t hear a motion for a mistrial.\nThe Court: The court did that on its own. Let me explain this very carefully. The State of Arkansas is seeking the death penalty in this case. - The court is going to take its own steps to make sure that justice is carried out. If there are persons who are switching testimony or statements, those have to be reviewed and a jury should hear those all the way through. . . . TR 175-176.\nAdditionally, at the August 7, 1998 hearing on Phillips\u2019s motion to dismiss on grounds of double jeopardy, the court further stated in conversation with defense counsel:\nThe Court: Well, Mr. McClean, to be quite specific in this case you acknowledge to the Court, if I\u2019m not mistaken, that you had made a mistake\u2014\nMr. McClean: That\u2019s correct:\nThe Court: \u2014 in not subpoenaing Bill Brown. You said that you had gone through the State\u2019s files, you had looked in there and you had neglected for whatever reason to subpoena Mr. Brown. You asked for a remedy that would have required that after closing arguments had been made that we reopen this case \u2014 and put on the testimony of Mr. Brown. Now, I think that would have been highly prejudicial to your client to handle that that way. That\u2019s the Court\u2019s opinion of that. The man is facing a capital murder charge where he could get the death penalty. . . To me the stakes were too high for your client for you not to ask for a mistrial in the first place. In the interest of justice and what this Court considers to be orderly and given the Court\u2019s impressions about how a capital murder case should be handled, that\u2019s just a bit too awkward to submit something like that to the jury.\nSo, under the rule as the prosecutor has cited and as the Court looked at right away, there was no objection on your part. So there\u2019s implied consent. That is the first ruling of this Court, that there was implied consent, even though it was sua sponte. The Court can order a mistrial sua sponte. And the second thing is that, even if that isn\u2019t considered implied consent, there is in this particular instance, certainly where a person is facing the possible remedy \u2014 penalty of the death penalty, that the termination of this case was justified by overriding necessity. TR 618-619.\nThus, there is no question that the court ordered a mistrial for the appellant\u2019s benefit. It is also clear appellant did not object. We, therefore, agree with the trial court and hold that implied consent exists and that appellant has not been subjected to double jeopardy.\nAffirmed.\nArk. Code Ann. \u00a7 5-1-112 was formerly codified as Ark. Stat. Ann. \u00a7 41-106.", "type": "majority", "author": "Lavenski R. Smith, Justice." } ], "attorneys": [ "William A. McLean, for appellant.", "Mark Pryor, Att\u2019y Gen., by: David R. Raupp, Senior Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Tommy PHILLIPS v. STATE of Arkansas\nCR. 99-94\n992 S.W.2d 86\nSupreme Court of Arkansas\nOpinion delivered June 17, 1999\nWilliam A. McLean, for appellant.\nMark Pryor, Att\u2019y Gen., by: David R. Raupp, Senior Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0209-01", "first_page_order": 237, "last_page_order": 242 }