             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                              June 2000 Session

                STATE OF TENNESSEE v. JERRY MICHAEL GREEN

                Interlocutory Appeal from the Criminal Court for Monroe County
                               No. 97-142   Carroll L. Ross, Judge



                                        No. E1999-01815-CCA-R9-RL
                                              October 23, 2000

The appellant, Jerry Michael Green, proceeded to trial in the Monroe County Criminal Court for
possession of more than .5 grams of cocaine with intent to deliver. Due to the State’s improper
cross-examination of defense witnesses, the trial court granted the appellant a mistrial. The appellant
made a motion in limine to preclude the State, on double jeopardy grounds, from retrying the
appellant on possession of cocaine with intent to deliver.1 The trial court denied the appellant’s
motion, but granted the appellant permission to appeal its decision. This court granted an
interlocutory appeal. In this interlocutory appeal, the appellant claims that double jeopardy bars a
retrial because the prosecutor goaded the appellant into requesting a mistrial. Upon review of the
record and the parties’ briefs, we affirm the judgment of the trial court.

 Tenn. R. App. P. 9(b) Interlocutory Appeal; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES, and JAMES
CURWOOD WITT, JR., JJ., joined.

William A. Buckley, Jr., Athens, Tennessee, for the appellant, Jerry Michael Green.

Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General, J.
Chalmers Thompson, Assistant District Attorney General, for the appellant, State of Tennessee.

                                            OPINION
                                     I. Factual Background
               On December 27, 1996, undercover police officer Randy Edwards was attempting
a drug buy in an establishment named Sammy O’s. Officer Edwards approached the appellant’s co-
defendant, Lloyd Walker, and inquired about purchasing cocaine. Walker then left Officer Edwards
and approached the appellant, who had just entered the building with his wife. Walker proceeded
back to Officer Edwards, and the officer paid Walker for the cocaine. Walker again approached the


         1
         The appellant made a total of three motions in limine after the mistrial. This court only granted the appellant
permission to appeal the second motion, which is the subject of this opinion.
appellant, and the two men proceeded to the parking lot. Officer Edwards observed the appellant
and Walker enter the appellant’s truck. Captain Sam Tackett, another member of the undercover
operation, was stationed in a white van in Sammy O’s parking lot. Captain Tackett witnessed the
exchange of an unidentified substance between the appellant and Walker while they were sitting in
the vehicle. The appellant and Walker reentered Sammy O’s. Walker approached Officer Edwards
and handed the officer a small bag containing 0.8 grams of cocaine. The appellant was later charged
with possession of more than 0.5 grams of cocaine with the intent to sell, or, in the alternative, with
the intent to deliver. The case proceeded to trial in the Monroe County Criminal Court.

                At the close of the State’s proof, the State elected to proceed solely on the grounds
of possession of cocaine with the intent to deliver. The appellant’s first witness, Rhonda Hardy,
claimed that she was in the appellant’s truck at the time of the exchange between the appellant and
Walker. Hardy stated that she was accompanying the appellant and her best friend, the appellant’s
wife, to Knoxville to purchase concert tickets. Hardy testified that the appellant had merely stopped
by Sammy O’s to pay Walker for work that had been done on the appellant’s home and that only
money was exchanged between the appellant and Walker. On cross-examination, the prosecutor
asked Hardy if she had ever seen Officer Edwards. She stated that she had not. The prosecutor then
attempted to impeach Hardy by asking if she had not twice sold marijuana to Officer Edwards. The
appellant objected and after a lengthy bench conference, the trial court sustained the objection. The
prosecution requested that the trial court give a curative instruction if it concluded that the questions
were improper. After much discussion, the appellant expressed doubt that the damage could be
cured and requested a mistrial. In exasperation, the prosecutor then told the trial court, “Then give
him a mistrial.” Instead, the trial court elected to give a curative instruction and directed the jury to
disregard the improper questioning and any inferences they may have drawn therefrom.

                The appellant testified in his own behalf. On cross-examination, the prosecutor asked
the appellant if he knew the whereabouts of his co-defendant. The appellant stated that he did not.
The prosecutor proceeded to question the appellant regarding the seizure of his truck by the police
after the offense. The appellant objected on relevancy grounds and the trial court sustained the
objection. The appellant again requested a mistrial and the trial court granted the request, over the
State’s objection, because of the effect of the cumulative errors.

                The appellant then filed three motions in limine, only one of which is pertinent to this
appeal. The appellant requested an order precluding the State from retrying the appellant, for the
offense of possession of cocaine with intent to deliver, due to double jeopardy. The trial court
denied the motion, but granted the appellant permission to appeal its decision. The appellant timely
applied to this court for permission to appeal this issue, which application was granted.

                                             II. Analysis
                The appellant argues that double jeopardy bars a retrial because the prosecutor goaded
the appellant into requesting a mistrial. This issue was first brought before the trial court as a motion
in limine and a hearing was held on September 27, 1999. The trial court denied the appellant’s



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motion in limine, finding that retrial of the appellant for possession of cocaine with intent to deliver
would not violate double jeopardy.

                In its discretion, the trial court must decide, based upon the circumstances of the case,
the issue of whether to allow retrial to proceed. State v. Smith, 810 S.W.2d 155, 157 (Tenn. Crim.
App. 1991). Additionally, the trial judge must balance the public’s right to a “fair and complete
adjudication” with the accused’s rights against harassment and oppression by successive trials, as
well as the accused’s right to the “protection of his constitutional rights.” Id. To this end, the trial
court’s discretion is to be reviewed by resolving any doubts in favor of the liberty of the citizen. Id.

                Furthermore, this court has found that “the trial judge’s findings on questions of fact
are to be given the weight of a jury’s verdict and are conclusive on appeal unless the appellate court
finds that the evidence preponderates against his judgment.” State v. Nixon, 669 S.W.2d 679, 682
(Tenn. Crim. App. 1983). Accordingly, this court does not have the authority to substitute its
judgment for the judgment of the trial court when it is supported by the evidence. State v. Bunch,
646 S.W.2d 158, 160 (Tenn. 1983). Moreover, the appellant bears the burden, on appeal, of
demonstrating to this court that the evidence preponderates against the trial court’s findings. Nixon,
669 S.W.2d at 682-683.

                The Fifth Amendment to the United States Constitution and Article I, Section 10 of
the Tennessee Constitution both provide that, for the same offense, no person shall be twice put in
jeopardy of life or limb.2 See also Whitwell v. State, 520 S.W.2d 338, 341(Tenn. 1975). While
generally there is a prohibition against multiple prosecutions for the same offense, there are limited
exceptions to the double jeopardy bar of retrial. The most common exception to the protection
against double jeopardy is when there is a “manifest necessity” for a mistrial to be declared in order
to serve the ends of public justice. State v. Anthony, 836 S.W.2d 600, 603 (Tenn. Crim. App. 1992).

                However, there is no need to show manifest necessity when the appellant actively
sought or consented to the mistrial. Id. When the appellant moves for a mistrial, he can be subjected
to retrial without implicating double jeopardy. See Nixon, 669 S.W.2d at 681. An appellant’s
motion for a mistrial is a “deliberate election on his part to forgo his valued right to have his guilt
or innocence determined before the first trier of fact.” Oregon v. Kennedy, 456 U.S. 667, 676, 102
S.Ct. 2083, 2089 (1982)(citing United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195 (1978)).
However, if the appellant was ‘goaded’ into requesting a mistrial, the appellant has not voluntarily
relinquished his right to proceed before the first jury, and the appellant may not be subjected to
retrial. See United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 1080 (1976); Smith, 810
S.W.2d at 157.




        2
          In Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062(1969), the Supreme Court held that, through
the Fourteenth Amendment, the Double Jeopardy Clause of the Fifth Amend ment to the U nited States C onstitution is
applicable to the States.

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                For double jeopardy to protect an appellant who requested a mistrial from being
subjected to retrial, the prosecution must intend for the appellant to make a motion for mistrial.
Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089 (emphasis added). As this court has stated, there are
certain situations that indicate whether or not a prosecutor is intending to ‘goad’ the appellant into
requesting a mistrial:
        When things are going well, the prosecutor will seldom want to provoke a mistrial.
        However, when the case is collapsing around the prosecutor because the witnesses
        are weaker than expected, adverse rulings have kept out important evidence, or key
        witnesses cannot be found or did not appear, the trial judge can infer the prosecutor’s
        intent and reach the conclusion that a mistrial was actually desired. The prosecutor’s
        explanation of his intent may be given some credence “in light of the minimum
        requirements expected of all lawyers.” However, ex post facto explanations by the
        prosecutor will be of minimal assistance to the trial judge in deciding the issue of
        intent to provoke a mistrial.
State v. Tucker, 728 S.W.2d 27, 31 (Tenn. Crim. App. 1986)(citations omitted). Moreover, the trial
court’s findings of fact on this issue will be entitled to the weight of a jury verdict. Id.(citing State
v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981).

                 Furthermore, although the “incompetence, thoughtlessness or excitability” of the
prosecutor may lead to a mistrial, these factors do not indicate the prosecutor’s intent to repeatedly
subject the appellant to jeopardy. Id. at 30. Accordingly, if the reason for mistrial was due to the
excitability or thoughtlessness of the prosecutor, a retrial of the appellant is not barred. Id.

                The appellant argues that the prosecutor’s case against him was collapsing when the
prosecutor began the improper questioning of the appellant’s witnesses which ultimately resulted
in the mistrial being granted. The appellant claims that the State’s witnesses were weaker than
expected and a key witness, Lloyd Walker, the appellant’s co-defendant, could not be found.
However, the prosecutor maintained, at the hearing on the motion in limine, that his actions were
based on his frustration with untruthful witnesses.

               Moreover, regardless of the problems faced by the prosecution, the State was able to
withstand the appellant’s motion for judgment of acquittal, demonstrating that the State’s case
against the appellant was still viable. The State had ample circumstantial evidence to establish that
the appellant gave the cocaine to Lloyd Walker. Furthermore, the State could demonstrate that
Rhonda Hardy, the best friend of the appellant’s wife, was a biased witness.

               The trial court found that the prosecution did not deliberately act to goad the appellant
into requesting a mistrial. Although the trial court thought that the prosecutor’s questions may have
gone beyond permissible bounds, the prosecutor nevertheless had legitimate, tactical reasons for
asking those questions. Id. at 30.

              Moreover, it is clear from the record that the appellant actively pursued a mistrial on
two occasions. First, after the prosecution asked Ms. Hardy if she had ever met undercover drug


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agent Officer Evans, the appellant moved for a mistrial on the basis of improper questioning that
would inflame the jury against the appellant. The State argued against a mistrial, claiming that if
there had been error, it could be remedied by a curative instruction to the jury. After a lengthy debate
on the issue, the prosecutor in frustration declared, “Then grant him a mistrial.”3 Instead, the trial
court decided to give a curative instruction and directed the jury to disregard the question and any
inferences they may have drawn from the question.

               Second, the appellant again moved for a mistrial after the prosecution questioned the
appellant about the seizure of his truck after he was charged with possession of cocaine with intent
to deliver. The trial court agreed to grant the mistrial because of the effect of the cumulative errors
on the jury.

               In conclusion, the record indicates that the prosecutor was in an excited state of mind
when he remarked, “Then grant him a mistrial.” The appellant even repeatedly concedes that the
prosecutor was agitated and excited.4 The prosecutor was still frustrated with the court’s rulings
when he asked the appellant about his truck being seized by the police. Moreover, the prosecutor
repeatedly opposed the appellant’s requests for a mistrial, requesting curative instructions instead.
The trial court nonetheless granted the appellant’s motion for mistrial, despite the prosecution’s
objections. We agree with the trial court that there is no evidence in the record to indicate that the
prosecutor was attempting to goad the appellant into moving for a mistrial.

                                           III. Conclusion
                   Based upon the foregoing, we affirm the judgment of the trial court.




         3
           It is this declaration by the prose cution that the ap pellant repe atedly refers to a s proof of the State’s desire to
have a mistrial granted. However, the appellant overlooks the fact that the appellant initially requested the mistrial and
the prosec utor’s outbu rst was in direct re sponse to th e appellan t’s lengthy argum ent for a mistrial.

          4
           In the appellan t’s Motion in Limine rega rding this issue he states, “the [pro secutor], in a state of anger and
frustration, actually offered the Court to grant the [appellant’s] request for mistrial.” Likewise, the appellant, at the
hearing for the motio n in limine, rema rked that the p rosecutor was “in a state of frustration” and was “a little bit flustered
to say the least.” Again, in the appellant’s brief he states, “the prosecutor’s frustration became evident when he told the
court: “Th en give him a m istrial.”

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      ___________________________________
      NORMA McGEE OGLE, JUDGE




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