            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                      :
                                        :     ID No. 1005008059A
              v.                        :     In and For Kent County
                                        :
ISAIAH MCCOY,                           :
                                        :
              Defendant.                :


                             Submitted: November 21, 2016
                              Decided: December 14, 2016


                           Upon Consideration of Defendant’s
                                  Motion to Dismiss
                                      DENIED


                                       ORDER


Gregory R. Babowal, Esquire, and Stephen E. Smith, Esquire, Deputy Attorneys
General, Department of Justice, Dover, Delaware for the State of Delaware.

Herbert W. Mondros, Margolis Edelstein, Wilmington, Delaware and Pro Hac
Vice Michael Wiseman, Esquire, Philadelphia, Pennsylvania for Defendant.




Young, J.
State v. McCoy
ID No.: 1005008059A
December 14, 2016

                                          SUMMARY
      Defendant moves to dismiss the State’s case. He argues that this Court should
dismiss this case on Double Jeopardy grounds since the State, during its initial trial,
acted with the intent to goad Defendant into moving for a mistrial. He further argues
that, though this Court did not originally rule that there was a mistrial, the Delaware
Supreme Court reversed his prior conviction on grounds that this Court should have
ruled that there was a mistrial. Defendant then concludes that, since he is before this
Court for a second time as a result of the State’s misconduct, and since the State acted
with an intent to goad him into moving for a mistrial that should have been granted,
Double Jeopardy bars this retrial. Defendant has not shown that the State at his first
trial intended to goad him into moving for a mistrial. Therefore, Defendant’s motion
is DENIED.
                               FACTS AND PROCEDURES
      Defendant was indicted on eight charges on July 6, 2010. Those charges
included First Degree Murder intentionally causing the death of another person, First
Degree Murder recklessly causing the death of another person while engaged in the
commission of or the attempt to commit Robbery First Degree, Possession of a
Firearm During the Commission of a Felony (Murder First Degree), First Degree
Robbery, Possession of a Firearm During the Commission of a Felony (Robbery First
Degree), Second Degree Conspiracy, Motor Vehicle Theft.1 Defendant represented
himself at his trial on May 29, 2012. Having been convicted of Murder in the First


      1
          McCoy v. State, 112 A.3d 239, 244 (Del. Jan. 20, 2015).

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State v. McCoy
ID No.: 1005008059A
December 14, 2016

Degree, among other offenses, the penalty phase of Defendant’s trial started on July
3, 2012.2
        During Defendant’s trial, the veteran prosecutor engaged in conduct that led
to a reprimand from the trial court judge.3 The prosecutor, in front of the jury,
vouched for a witness, suggesting Defendant’s guilt.4 Defendant objected to this
conduct, but did not move for mistrial immediately after lodging his objection.
Further, in response to testimony by the Defendant that the State did not recount a
prior witness’ testimony correctly, the prosecutor noted “it is the jury’s recollection
that counts.”5 During cross examination of the Defendant the prosecutor said “you
had all night to think that up? . . . All night to think about how to respond and
rehabilitate your answers from yesterday, didn’t you?”6 The State repeatedly objected
to standby counsel’s involvement during trial.7 On another occasion, outside of the
jury’s presence, the prosecutor stated with respect to the Defendant “I don’t care. You




        2
            Id. at 244.
        3
            Id. at 265.
        4
         Id. at 258 (“Objection, Your Honor. Again, this witness has testified she didn’t even
know the guy. She hasn’t seen him. She didn’t talk to him. She obviously hasn’t spoken to the
defendant since he shot her boyfriend. How would she know anything about Deshaun White;
what he said to anybody”).
        5
            Id. at 263.
        6
            Id.
        7
            Id. at 263-64.

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State v. McCoy
ID No.: 1005008059A
December 14, 2016

can dress him up. He’s still a murderer.”8
        On June 25, 2012, when Defendant attempted to introduce evidence that the
trial judge ruled was hearsay after the trial judge’s ruling, the State did not move for
mistrial. It noted “that’s one of the most blatant disregards of the Court’s ruling I’ve
ever heard in the almost 25 years I have been at the Bar . . . . If the State tried to do
that [h]e’d be moving for mistrial, and quite frankly, if we weren’t five weeks into
this case, I would ask for a mistrial.”9
        After the guilt phase of the trial, the State threatened the safety of the
Defendant on July 5, 2012. He did so by noting that he would make sure that it was
public knowledge that Defendant “snitched” in this case, and that people in prison
would create problems for Defendant once they found out that he “snitched.”10
        Defendant did move for a mistrial at one point during trial.11 That motion was
denied. At the close of the State’s case, Defendant moved for acquittal, and the Court
reserved judgment.12 Ultimately, the jury found Defendant guilty of six charges,
including murder, as mentioned.13 Before the penalty phase of his trial, Defendant


        8
            Id. at 265.
        9
            Trial Transcript, State v. McCoy, 2012 WL 5552033 (Del. Super. June 25, 2012).
        10
             Favata, 119 A.3d at 1287-88.
        11
           The Defendant’s only motion for mistrial was made on June 5, 2012. Defendant felt a
tape should have been admitted into evidence and moved for a mistrial when the trial court judge
refused to do so.
        12
             McCoy, 112 A.3d at 248.
        13
             Id. at 244.

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State v. McCoy
ID No.: 1005008059A
December 14, 2016

moved for a new trial and an acquittal on four grounds: 1) that there was no physical
evidence linking him to the crimes for which he was convicted; 2) that the State’s
case rested solely on the testimony of two witnesses; 3) that the testimony of those
two witnesses was hearsay; and 4) that the testimony of those two witnesses was
contradicted by other evidence in the case.14 The Court denied those motions.15
      Defendant appealed the verdict to the Delaware Supreme Court. On January 20,
2015, that Court reversed and remanded this Court’s decision, because the State
improperly vouched for its position16 and the trial judge improperly interfered with
Defendant’s peremptory challenges during jury selection.17
                                      DISCUSSION
      The Double Jeopardy provisions of the federal and state constitutions do not
prevent retrying Defendant. The Fifth Amendment to the United States Constitution
reads: “no person shall be . . . subject for the same offense to be twice put in jeopardy
of life or limb.”18 Likewise, the Delaware Constitution reads “no person shall be for
the same offense twice put in jeopardy of life or limb.” 1 9 Courts interpret the United




      14
           Id. at 249.
      15
           Id.
      16
           Id. at 262.
      17
           Id. at 257-58.
      18
           U.S. Const. Amend. V.
      19
           Del. Const. Art. I. § 8.

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State v. McCoy
ID No.: 1005008059A
December 14, 2016

States and Delaware double jeopardy provisions identically.20 Under both
constitutions, if a defendant moves for a mistrial, and the Court grants that mistrial
motion, then the defendant is subject to a retrial unless the court or a prosecutor
intended to goad defendant into making the motion.21 Delaware law is silent as to
whether this same rule applies when the trial court erroneously fails to grant a mistrial
motion that a prosecutor intended to goad a defendant into making.
I. Oregon v. Kennedy Invokes Double Jeopardy Where the Prosecutor Intends
to Goad Defendant
      The Double Jeopardy Clause provides, in part, that there should be no
difference between the way courts treat acquittals or, on the other hand, reversals for
insufficient evidence. Generally, the Double Jeopardy Clause does not apply to cases
reversed on appeal. Disallowing retrials would negatively impact a defendant’s appeal
rights, by discouraging reversals, and would infringe too much upon society’s interest
in addressing one who may be found guilty after a fair trial.22 One situation in which
the Double Jeopardy Clause does bar the retrial of a defendant who successfully
appeals a conviction is where the reversal is based upon the insufficiency of the
evidence presented to the trial court.23 In Burks v. United States, the Court noted that
a reversal for insufficiency of evidence is the same as an acquittal, in that it means



      20
           Bailey v. State, 521 A.2d 1069, 1075 (Del. Mar. 3, 1987).
      21
           Oregon v. Kennedy, 456 U.S. 667, 676 (May 24, 1982).
      22
           United States v. Tateo, 377 U.S. 463, 466 (June 8, 1964).
      23
           Burks v. United States, 437 U.S. 1, 15-18.

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State v. McCoy
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that there was so little proof regarding the State’s case that the case should have never
gone to the jury.24 It concluded that if, in the instance of an acquittal by a jury, the
Court cannot retry the defendant, there is no reason why society’s interests would be
such that a court could retry a defendant after a reversal on appeal for lack of
sufficient evidence.25
        Mistrials declared under Kennedy’s “intent to goad standard” resemble
acquittals and reversals of verdicts due to a lack of evidence. If, under the Kennedy
analysis, a prosecutor intends to goad a defendant into a motion for a mistrial, it is
implied that the evidence before the jury is insufficient to avoid acquittal. This
assertion is supported by the court in United States v. Wallach. In Wallach, the
Second Circuit Court of Appeals held that the Double Jeopardy Clause barred retrial
in instances of “prosecutorial misconduct done in order to prevent an acquittal the
prosecutor believed at the time was likely to occur in the absence of his
misconduct.”26 In reaching this conclusion, the court stated that “the prosecutor who
acts with the intention of goading the defendant into making a mistrial motion
presumably does so because he believes that completion of the trial will likely result
in an acquittal.”27 This similarity is further demonstrated by the fact that a court may

        24
             Id.
        25
            Id. Another way to state the rational for this exception is that while society maintains a
high interest in ensuring the guilty are punished in situations where a court reverses a verdict due
to trial error, this interest is overtaken by the defendant’s interest in fair adjudication in situations
where an appellate court reverses a verdict because of a lack of evidence. Id.
        26
             United States v. Wallach, 979 F.2d 912, 916 (2nd Cir. Nov. 9, 1992).
        27
             Id.

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State v. McCoy
ID No.: 1005008059A
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consider how the trial is going in determining whether a prosecutor intended to goad
a defendant into moving for a mistrial.28 If a prosecutor was likely to win a case, then
he has no reason to cause a mistrial intentionally.29 On the other hand, if a prosecutor
is likely to lose a case, then it is more likely that the prosecutor intended to cause a
mistrial with his misconduct.30 Since actions done with an intent to goad, acquittals,
and reversals due to lack of evidence are effectively comparable, they should all be
treated similarly under the Double Jeopardy Clause.
       Though some courts have disagreed,31 other courts have taken steps toward
applying the Double Jeopardy Clause to appeals for misconduct similar to reversals
on appeal due to insufficient evidence and acquittals. As noted above, the Second
Circuit Court of Appeals has taken that position in Wallach.32 In State v. Colton, the



       28
            United States v. Hagege, 437 F.3d 943, 953 (9th Cir. Feb. 22, 2006).
       29
            Id.
       30
            Id.
       31
           See Beringer v. Sheahan, 934 F.2d 110, 112-13 (7th Cir. May 31, 1991) (holding that
defendant must make a motion for mistrial in order to avoid retrial under Double Jeopardy
Clause due to prosecutorial misconduct, because if a defendant has not moved for a mistrial then
he has succeeded in maintaining control over trial). However, with an issue of double jeopardy
doctrine, courts should not confuse choice and control. United States v. Dinitz, 424 U.S. 600,
608-09 (Mar. 8, 1976). Nevertheless, Beringer uses the verbs to choose and to control
interchangeably. Beringer, 934 F.2d at 112-13. A defendant will always have the choice over
whether to file a mistrial motion. Kennedy focuses on remedying a loss of control inherent in
situations where the prosecutor intends to goad defendant into a mistrial motion. Simply because
a defendant chooses to take his chances with the jury does not mean that control has not already
been all but lost.
       32
            Wallach, 979 F.2d at 916.

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State v. McCoy
ID No.: 1005008059A
December 14, 2016

Connecticut Supreme Court followed the Second Circuit’s lead in extending Wallach
to Connecticut state law.33 Additionally, Connecticut and Rhode Island have
interpreted the Double Jeopardy Clause of the United States Constitution to bar
retrials in instances where the trial court erroneously decided not to grant a
defendant’s motion for mistrial for prosecutorial misconduct intended to goad the
defendant into moving for a mistrial.34
       Assuming for these purposes the latter view, the issue would then turn on the
existence of prosecutorial misconduct intending to goad the defendant into moving
for a mistrial.
II.    The Prosecutor in this Case Did Not Intend to Goad the Defendant into
       Moving for a Mistrial
       The State’s first argument against barring retrial is that the only prosecutorial
misconduct this court should consider, in determining whether there was an intent to
goad, is that for which the defendant could obtain a reversal in the first instance. In
other words, in this case, this Court should consider only that misconduct done in
front of a jury, and for which the Delaware Supreme Court reversed the initial
decision. On that basis, the State asserts that the conduct does not rise to the level of
misconduct, which the Supreme Court of the United States determined constituted an
intent to goad in Kennedy. The State’s second argument against barring retrial is that
the original prosecutor did not intend to goad the Defendant into moving for a


       33
            State v. Colton, 663 A.2d 339, 346 (Conn. Aug. 8, 1995).
       34
         State v. Butler, 810 A.2d 791, 795 n. 5 (Conn. Dec. 17, 2002); State v. Diaz, 521 A.2d
129, 131-33 (R.I. Feb. 24 1987).

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State v. McCoy
ID No.: 1005008059A
December 14, 2016

mistrial, even if this Court considers all of the conduct. The State’s second argument
succeeds because, after inferring the existence or nonexistence of intent from
objective facts and circumstances, this Court finds that the original prosecutor did not
intend to goad Defendant into moving for a mistrial.
      A.     This Court May Consider Misconduct for which the Initial Case
             Could Not Be or Was Not Reversed
      In applying Kennedy, courts have considered misconduct for which a defendant
would likely not get a mistrial or reversal on appeal in the first instance. They have
also considered conduct for which the decision to grant a mistrial motion or reverse
a verdict was not made. Thus, this court may consider misconduct for which the
initial case could not be or was not reversed.
      Courts have considered misconduct for which a defendant would likely not get
a mistrial or reversal on appeal in the first instance. In Butler v. State a trial Court
held a conference without a court reporter after the parties had been assured that the
conference was only about scheduling; but nevertheless put pressure on the parties
to resolve the case by a plea during that conference, gave the parties a sporadic trial
schedule after finding out that there would be no plea, gave the jury additional voir
dire that included more than just scheduling concerns, did the voir dire without the
parties’ consent, excused a juror only because he had hearing issues, told the parties
in an off record meeting that so many jurors would be excused that there would no
longer be any alternates, raised the possibility of a mistrial off of the record,
threatened that jeopardy would attach if there were a mistrial, and suggested again




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State v. McCoy
ID No.: 1005008059A
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that the case should be pled.35 The defendant moved for a mistrial that was granted.36
The Court held that retrial was barred by the Double Jeopardy Clause since the trial
judge intended to goad defendant into moving for a mistrial.37 It reasoned that, in
total, all of the trial judge’s conduct, including that conduct which did not take place
in front of jurors, and that conduct that on its own would likely not cause a mistrial,
could support an inference that the judge intended to goad the defendant into moving
for a mistrial.38
       In deciding whether a prosecutor intended to goad a defendant into moving for
a mistrial, Courts can also consider conduct for which the decision to grant a mistrial
motion or reverse a verdict was not made. In Commonwealth v. Smith, while declining
to bar retrial under the federal Double Jeopardy Clause but barring retrial under the
state Double Jeopardy Clause, the Pennsylvania Supreme Court considered evidence
of prosecutorial misconduct during the original trial, that arose years after the
defendant’s appeal reversed the original verdict.39
       As the cases above indicate, courts have considered misconduct for which a
mistrial or reversal could not have been or was not granted in applying the Kennedy
analysis. Thus, this Court will consider misconduct for which a mistrial or reversal


       35
            Butler v. State, 95 A.3d 21, 38 (Del. June 24, 2014).
       36
            Id. at 31.
       37
            Id. at 37.
       38
            Id.
       39
            Commonwealth v. Smith, 615 A.2d 321, 322-23 (Pa. Sept. 18, 1992).

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State v. McCoy
ID No.: 1005008059A
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could not have been and/or was not granted.
       B.        The Prosecutor in this Case Did Not Intend to Goad Defendant into
                 Moving for a Mistrial
       In determining whether the prosecutor acted with an intent to goad the
defendant into moving for mistrial, courts must make a finding of fact by inferring the
existence or nonexistence of intent from objective facts and circumstances.40 Some
of the factors that other courts have used in determining whether a prosecutor
intended to goad a defendant into moving for mistrial include whether there was no
sequence of overreaching prior to the misconduct,41 whether the prosecutor or judge
resisted and was surprised by the mistrial motion,42 whether the case was going well
for the prosecutor at the time of the misconduct,43 and the prosecutor’s level of
experience.44 “Only a high-handed wrong intentionally directed against a defendant’s
constitutional right will trigger his right not to be twice put in jeopardy for the same
offense.”45 Despite the sequence of overreaching prior to the misconduct and
prosecutor’s experience in this case, the prosecutor cannot be considered to have

       40
            Kennedy, 456 U.S. at 675.
       41
         Id. at 680 (Powell, J., concurring); Bailey, 521 A.2d at 1079; State v. Long, 1992 WL
207258, at *2-4 (Del. Super. July 23, 1992).
       42
         Kennedy, 456 U.S. at 680 (Powell, J., concurring); Earnest v. Dorsey, 87 F.3d 1123,
1130 (10th Cir. June 26, 1996); Sullins v. State, 930 A.2d 911, 916 (Del. July 23, 2007).
       43
         Hagege, 437 F.3d at 953; United States v. Rodriguez, 229 Fed. Appx. 547, 548 (Apr.
24, 2007); Long, 1992 WL 207258, at *6.
       44
            Rodriguez, 229 Fed. Appx. at 549; Long, 1992 WL 207258, at *3.
       45
            Sullins, 930 A.2d at 916.

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State v. McCoy
ID No.: 1005008059A
December 14, 2016

intended to goad the defendant into moving for a mistrial. Initially, he argued against
a mistrial, and further some of the conduct that the defendant includes in his motion
to dismiss occurred during the guilt phase of the trial, after the prosecutor had already
obtained a conviction.
      In instances where there is a sequence of overreaching prior to misconduct,
Delaware courts will still rule that the prosecutor did not intend to goad the defendant
into moving for mistrial in situations where the prosecutor argues against mistrial and
appears surprised that the defendant moves for mistrial. For example, in Sullins v.
State, without a prior Flowers hearing, the prosecutor asked a witness “whether he
worked with an individual or an informant.” 4 6 After the defendant moved for a
mistrial, the court cautioned the prosecutor not to ask questions that would cause the
witness to discuss what an informant told him.47 On redirect, the prosecutor asked the
witness to describe his role in what happened on a date.48 The witness discussed his
informant and information that the informant gave him.49 The defendant moved for
mistrial again, and the court denied the motion.50 After the defendant then asked for
a Flowers hearing and the court erroneously denied it, the court granted defendant’s
motion for mistrial, because defendant did not have an opportunity to have a Flowers


      46
           Id. at 913.
      47
           Id.
      48
           Id.
      49
           Id.
      50
           Id.

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State v. McCoy
ID No.: 1005008059A
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hearing prior to the trial.51 When the defendant moved to dismiss the prosecution’s
attempt to retry the case, the court held that the Double Jeopardy Clause did not bar
the State from retrying the case, since the prosecutor seemed surprised and argued
against the mistrial motion.52
       As in Sullins, in this case there was a sequence of overreaching prior to the
misconduct. While the prosecutor in Sullins ignored his obligations under Flowers,
the prosecutor in this case bolstered witnesses, repeatedly made inappropriate
comments to the Defendant, and in one instance threatened the Defendant’s safety.
       There is an additional factor arguably indicating that the prosecutor intended
to goad the defendant into moving for a mistrial, which is not present in Sullins.
While the Sullins opinion does not mention the prosecutor’s experience, in this case
the prosecutor had 24 years of experience. This indicates that the prosecutor should
have had some idea that his conduct could lead to a mistrial.
       However, similar to Sullins, the Defendant in this case fought against mistrial.
While in Sullins, the prosecutor fought against the mistrial motion filed in response
to his own misconduct, in this case, as fully stated in the Facts and Procedures before
footnote 2, the prosecutor noted a desire not to have a mistrial after misconduct on
the part of Defendant.
       Additionally, during the penalty phase of the trial which started on July 3,
2012, the prosecutor, two days into that phase, informed the Defendant that he would


       51
            Id. at 913-14.
       52
            Id. at 916.

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State v. McCoy
ID No.: 1005008059A
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make sure that it was public knowledge that Defendant “snitched” in this case, and
that people in prison would pose problems for Defendant once it became known that
he “snitched.” Though this conduct is inexcusable, based on its timing post-
conviction, it would have made no sense for the prosecutor to engage in an intention
to provoke a mistrial.
      Though, as the Supreme Court noted this was a close case, the prosecutor
cannot be said to have intended to goad the defendant into moving for a mistrial.
Again, he argued against a mistrial, and some of the conduct that the defendant
included in his Motion to Dismiss occurred during the penalty phase of the trial, after
the prosecutor had already obtained a guilty verdict. This result is especially the case
when this Court considers the high standard to which conduct must reach in order to
trigger double jeopardy protection.
                                      CONCLUSION
      For the foregoing reasons, Defendant’s Motion to Dismiss is DENIED.
      IT IS SO ORDERED.
                                             /s/ Robert B. Young
                                                        J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution




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