         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      April 25, 2006 Session

            STATE OF TENNESSEE v. CAROLETTE STEPHENS
                       Appeal from the Criminal Court for Knox County
                          No. 75690 Mary Beth Leibowitz, Judge



                    No. E2005-01925-CCA-R9-CD - Filed October 13, 2006


The appellant, Carolette Stephens, was indicted on one count of second degree murder. During the
jury trial in May of 2005, the trial court sua sponte declared a mistrial over objection of both the
State and the appellant. The case was immediately rescheduled for trial. The appellant sought a
dismissal of the indictment, arguing that the retrial placed the appellant in double jeopardy. The trial
court denied the motion to dismiss the indictment, but permitted the appellant to seek an
interlocutory appeal. This Court granted the interlocutory appeal. On appeal, the appellant presents
the following issues: (1) whether the State provoked the trial court into granting a mistrial by
eliciting testimony regarding an unconstitutional search warrant that had been suppressed by the trial
court; (2) whether the trial court erred in granting a mistrial based on manifest necessity; and (3)
whether the appellant’s rights to protection against double jeopardy will be violated by a retrial for
second degree murder. Because the trial court improperly declared a mistrial without a manifest
necessity for doing so, the double jeopardy provisions of the federal and state constitutions prohibit
a retrial of the appellant on the charge that is the subject of this appeal. The judgment of the trial
court denying the appellant’s motion to dismiss is therefore reversed and the indictment dismissed.

       Tenn. R. App. P. 3; Judgment of the Circuit Court is Reversed and Dismissed

JERRY L. SMITH , J., delivered the opinion of the court, in which THOMAS T. WOODALL, J. joined and
JAMES CURWOOD WITT . JR., J., filed a separate concurring opinion.

Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Carolette Stephens.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General,
for the Appellee, State of Tennessee.
                                             OPINION

                                       Factual Background


         In October of 2002, the appellant was indicted by a Knox County Grand Jury with one count
of second degree murder. Subsequently, the appellant filed a motion to suppress all items seized as
a result of a search warrant issued for the appellant’s apartment. The trial court granted the motion
to suppress, “excluding from evidence in this case all items found inside the defendant’s residence
and seized during the search conducted by police pursuant to the warrant issued on July 12, 2002.”

        The trial of the matter began on May 2, 2005. At trial, Larry Boling, a security officer for
Fort Sanders Medical Center in downtown Knoxville, testified that at approximately 4:00 p.m. on
July 12, 2002, he noticed a disturbance at the ambulance doors. Mr. Boling witnessed a man being
brought in from outside. The man was slumped over in a wheelchair and was being assisted by a
nurse and the unidentified driver of a vehicle parked outside. The driver of the vehicle was later
identified as the appellant. Mr. Boling assisted in getting the patient to the treatment area, then
returned to the lobby to get more information from the driver of the vehicle. Upon his return, Mr.
Boling discovered that the driver and the vehicle were gone. Mr. Boling contacted the security
dispatcher to secure the videotape of the closed circuit television in the emergency drop-off area.
The police reviewed the videotape upon their arrival.

       Dr. Michael Deboer was one of the physician’s on duty in the emergency room at Fort
Sanders Medical Center on July 12, 2002. Dr. Deboer treated the victim, Orlando Durray Bennett,
who was pronounced dead after unsuccessful attempts at resuscitation.

       Freda Vinson, the victim’s aunt, testified that the appellant and the victim were dating at the
time of the victim’s death. Ms. Vinson stated that there were problems in the relationship that
surfaced after the appellant accused the victim of cheating on her with another woman. The
appellant told Ms. Vinson during a telephone conversation that she was going to kill the victim.

        Broderick Rogers was a friend of both the appellant and the victim. Mr. Rogers testified that
on July 12, 2002, he was in the Lonsdale Homes area of Knoxville on Texas Avenue, where the
appellant lived. Mr. Rogers walked by the appellant’s apartment and noticed someone’s foot
hanging out the door. Mr. Rogers ran to the door to see what was going on. When Mr. Rogers
opened the door, the victim fell onto him. Mr. Rogers stated that the victim had several holes in his
shirt and that his chest area was bloody.

        Mr. Rogers saw the appellant inside the apartment, kneeling in the floor, cleaning up blood.
The appellant did not explain what had happened inside the apartment. Mr. Rogers helped carry the
victim to a car so that he could be taken to the hospital. Mr. Rogers testified that he did not see
anyone else inside the apartment.


                                                 -2-
       Qwandell Vinson, the victim’s cousin, testified that he received a telephone call from the
appellant on July 12, 2002. According to Mr. Vinson, the appellant asked him to “come get” the
victim “before [she] kill[ed] him.” Mr. Vinson told the appellant not to do anything. During the
conversation, Mr. Vinson could hear the victim in the background asking Mr. Vinson to come get
him. When Mr. Vinson arrived at the apartment, it was surrounded by police cars.

        Larry Vineyard, a former investigator for the Knoxville Police Department, testified that he
was assigned to investigate the murder of the victim. Investigator Vineyard went to the emergency
room after being advised that the victim was transported to the hospital by an unidentified female
driver. After reviewing the security camera tape and being advised that the victim had died,
Investigator Vineyard went to the apartment on Texas Avenue where the victim had been living with
the appellant. When Investigator Vineyard arrived on the scene, he was informed by another officer
that there was what appeared to be blood on the front porch. Upon further inspection, Investigator
Vineyard also discovered what appeared to be blood on the back porch. During Investigator
Vineyard’s testimony, the following exchange occurred:

       COUNSEL FOR THE STATE: Okay. When you arrived there - - was [sic] there
       other personnel besides Investigator Bell there?

       INVESTIGATOR VINEYARD: There was a police officer. I don’t remember what
       his name was. But there was [sic] civilians standing around the location because the
       police were there.

       COUNSEL FOR THE STATE: How many people?

       INVESTIGATOR VINEYARD: Oh, there was [sic] probably ten or fifteen people
       probably standing in the general area of the front of the apartment complex.

       COUNSEL FOR THE STATE: Okay. Had the crime scene been secured or
       unsecured?

       INVESTIGATOR VINEYARD: It was secured. The area in front of the apartment had been
       secured and the back of that apartment.

       COUNSEL FOR THE STATE: Okay. And what did you find? Did you notice anything
       unusual? You said there was blood on the front porch. Did you notice anything usual [sic]
       about the front porch?

       INVESTIGATOR VINEYARD: Uh, nothing unusual that I - - that I can think of.

       COUNSEL FOR THE STATE: What did you and Investigator Jones do next?




                                                -3-
       INVESTIGATOR VINEYARD: We, uh, checked the area. We, uh, went - - had - - it was
       a situation where we asked for a search warrant to possibly go inside the location.

At that point, counsel for the appellant asked to approach the bench and, outside the hearing of the
jury, objected to Investigator Vineyard’s mention of the suppressed search warrant, but specifically
stated that he did not want a mistrial. The trial court excused the jury for a jury-out hearing on the
matter. During the hearing, the appellant moved for a dismissal of the indictment because “jeopardy
has attached” and the discussion of the search warrant was ruled “totally inadmissible in these
proceedings.” Counsel for the appellant sought a “flat out dismissal” rather than a mistrial.

       Counsel for the State asked the trial court to give a curative instruction, arguing that it was
an:

       [H]onest mistake. It was an open-ended question by me in reference. And of course,
       you Honor, and everybody in this courtroom knows I was going to the dumpster.
       That’s where I wanted to get. And he leaped over the dumpster and went to the - -
       and what he said Judge, as that - - that he asked for a search warrant for the
       possibility of getting in the house. There’s no prejudice. The only prejudice that
       could be had from that statement is this jury might think now that I found nothing in
       the house. That a search warrant was executed and nothing was found so - - which
       cuts against me, not for me.

       After hearing the arguments of counsel, the trial court determined the following:

       In this case what’s been said is, “We applied for a search warrant.” Now, at this
       point I have no way of telling the jury, “Well, now you want to disregard everything
       that you might think about a search warrant.” Obviously, that leads the jury to
       believe that something happened in that house or that there was something that didn’t
       come out or that nothing was found, i.e., that somebody hid it, as [counsel for the
       appellant] suggests.

       [I] don’t want to grant a dismissal in this case. I don’t want to grant a judgment of
       acquittal. I don’t think either is the appropriate remedy. I think that the remedy is
       a mistrial. But I will say that one of the reasons why I think this is a difficult
       situation is that this is not a strong State’s case at this point.

       I’ve heard no more, but as I understand the proof, this - - the case with regard to
       second degree murder is weak. I don’t know what would happen if we kept on going
       and we got a [m]otion for judgment of acquittal. But I don’t think we can even get
       there.

       [I] don’t want the jury to sit around. And they’ll do it too. They’ll speculate about
       what that meant about that search. They’re probably already doing that. So I’m


                                                 -4-
        going to grant a motion for mistrial, and I’m going to let you all argue at the Court
        of Criminal Appeals what that means to the future of this case.

        A mistrial [sua] sponte is what I’m granting. [I]t’s not a motion. I’m granting a
        mistrial.

The trial court further clarified its findings as follows:

        The comment about the search warrant will - - will - - I can’t even think of a way to
        unring that bell with the jury, to explain to the jury to disregard the concept of a
        search warrant, whether or not there was a search or not to speculate about a search
        warrant in such a way that would not be prejudicial to [the appellant].

I think, therefore, that creates a manifest necessity [to] declare a mistrial.

        Subsequently, the appellant filed a motion to dismiss the indictment and prevent retrial based
on double jeopardy. On July 15, 2005, the trial court held a hearing on the motion to dismiss. The
trial court ultimately denied the motion to dismiss, and entered an order granting the appellant’s
motion to seek an interlocutory appeal. This Court granted the application for interlocutory appeal
on September 16, 2005. On appeal, the appellant argues that the State provoked the trial court to
grant a mistrial by eliciting improper testimony from a witness, that the trial court improperly granted
a mistrial, and that a retrial of the appellant is barred by double jeopardy.

                                               Analysis

         On appeal, the appellant argues that the trial court erred in denying her motion to dismiss the
indictment based on double jeopardy. Specifically, the appellant argues that the State provoked the
trial court to grant a mistrial sua sponte after eliciting improper testimony about a suppressed search
warrant from a State witness and that retrial of the appellant on the charge of second degree murder
is barred by double jeopardy. In other words, the appellant argues that the State provoked the trial
court to grant a mistrial. The State contends that the trial court properly ruled that there was a
manifest necessity for a mistrial.

         The double jeopardy clause of the Fifth Amendment to the United States Constitution
provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or
limb . . . .” Article 1, section 10 of the Tennessee Constitution contains a similar provision. As our
supreme court has noted many times, the three fundamental principles underlying double jeopardy
provide protections against: (1) a second prosecution after an acquittal; (2) a second prosecution after
conviction; and (3) multiple punishments for the same offense. State v. Denton, 938 S.W.2d 373,
378 (Tenn. 1996); see also North Carolina v. Pearce, 395 U.S. 711 (1969), overruled in part by
Alabama v. Smith, 490 U.S. 794 (1989).




                                                  -5-
        Where the trial is terminated over the objection of the defendant, as is the case herein, the
test for lifting the double jeopardy bar to a second trial is the “manifest necessity” standard first
enunciated by Justice Story’s opinion for the Court in United States v. Perez, 22 U.S. 579 (1824),
and adopted in Tennessee in Mahala v. State, 18 Tenn. 532, 536 (1837). Although Perez dealt with
the most common form of “manifest necessity,” the declaration of a mistrial following a jury’s
inability to reach a verdict, the principle stated therein applies generally.

       [T]he law has invested Courts of justice with the authority to discharge a jury from
       giving any verdict, whenever, in their opinion, taking all the circumstances into
       consideration, there is a manifest necessity for the act, or the ends of public justice
       would otherwise be defeated. They are to exercise a sound discretion on the subject;
       and it is impossible to define all the circumstances, which would render it proper to
       interfere. To be sure, the power ought to be used with the greater caution, under
       urgent circumstances, and for very plain and obvious causes; and, in capital cases
       especially, Courts should be extremely careful how they interfere with any of the
       chances of life, in favor of the prisoner. But, after all, they have the right to order the
       discharge; and the security which the public have for the faithful, sound, and
       conscientious exercise of this discretion, rests, in this, as in other cases, upon the
       responsibility of the Judges, under their oaths of office.

Perez, 22 U.S. at 580. The doctrine of “manifest necessity” safeguards the accused’s right to have
his trial completed by a particular tribunal, while at the same time preserving “the public’s interest
in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 (1949); Arizona
v. Washington, 434 U.S. 497, 505 (1978); Etter v. State, 205 S.W.2d 1, 3 (1947).

        The purpose of a mistrial is to correct the damage done to the judicial process when some
event has occurred which would preclude an impartial verdict. See Arnold v. State, 563 S.W.2d 792,
794 (Tenn. Crim. App. 1977). The decision whether to grant a mistrial is within the trial court’s
discretion and will not be disturbed absent an abuse of that discretion. State v. Millbrooks, 819
S.W.2d 441, 443 (Tenn. Crim. App. 1991). For this reason, an appellate court’s review should
provide considerable deference to the trial court’s ruling in determining whether an occurrence or
event at trial has so prejudiced the defendant or the State as to preclude a fair and impartial verdict.
State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). However, as noted, if the trial
court does grant a mistrial over the objection of the defendant without a “manifest necessity” for
doing so, double jeopardy concerns will prohibit a retrial of the defendant.

        In determining whether there is a “manifest necessity” for a mistrial, “‘no abstract formula
should be mechanically applied and all circumstances should be taken into account.’” State v.
Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (citation omitted). Only when there is “no feasible
alternative to halting the proceedings” can a manifest necessity be shown. State v. Knight, 616
S.W.2d 593, 596 (Tenn. 1981).




                                                  -6-
        Again, the issue of whether a retrial shall be allowed must be decided on the circumstances
of each case and is within the discretion of the trial judge. The trial judge must weigh the rights of
the public to a fair and complete adjudication against the constitutional right of the accused not to
be harassed, oppressed by successive trials, or otherwise denied the protection of his constitutional
rights. The exercise of this discretion by the trial judge is reviewed by resolving any doubts in favor
of the liberty of the citizen. State v. Eva Jean Brown, No. 1167, 1988 WL 136600 (Tenn. Crim.
App., at Knoxville, Dec. 20, 1988), perm. app. denied (Tenn. 1989). Further, the prosecution must
demonstrate the manifest necessity for and lack of feasible alternatives to the mistrial, even though
it was granted sua sponte, if the defendant is to be again tried. Id.

        In the case herein, the trial court declared a mistrial sua sponte after Investigator Vineyard
interjected improper testimony about the suppressed search warrant. Although Tennessee courts do
not apply any exacting standard for determining when a mistrial is necessary after a witness has
injected improper testimony, this Court has considered: (1) whether the improper testimony resulted
from questioning by the State, rather than having been a gratuitous declaration; (2) the relative
strength or weakness of the State’s proof; and (3) whether the trial court promptly gave a curative
instruction.1 See State v. Demetrius Holmes, No. E2000-02263-CCA-R3-CD, 2001 WL 1538517,
at *1-4 (Tenn. Crim. App., at Knoxville, Nov. 30, 2001); State v. William Dotson, No. 03C01-9803-
CC-00105, 1999 WL 357327, at *4 (Tenn. Crim. App., at Knoxville, June 4, 1999). This analytical
framework is helpful in the case at bar.

        Looking to the above non-exclusive factors and applying them to the case herein, we initially
note that there is nothing in the record that indicates that the prosecutor intentionally elicited
Investigator Vineyard’s statement that the police sought a search warrant for the appellant’s
apartment. In fact, it appears from the record that the prosecutor did not expect Investigator
Vineyard to refer to the search warrant. Indeed, the prosecutor merely asked Investigator Vineyard
the next step in his investigation, making no hints whatsoever at the search warrant or the fruits of
the search. Moreover, the statement made by Investigator Vineyard was an isolated mention of the
search warrant and was immediately halted.

        Second, we disagree with the trial court’s comments as to the weakness of the State’s case
at the point the trial was stopped. To the contrary, we determine that the evidence presented up to
the point of the mistrial of the appellant’s guilt was more than adequate to withstand a motion for
judgment of acquittal. According to the victim’s aunt, the victim and the appellant were having
problems in their personal relationship. Ms. Vinson testified that the appellant told her she was
going to kill the victim. Broderick Rogers found the victim at the appellant’s apartment he saw a
foot hanging out of the door. When Mr. Rogers opened the door, the victim fell out onto Mr.
Rogers. At the time, the victim had several holes in his shirt, and his chest area was bloody. Mr.


         1
           These factors are non-exclusive and may not be pertinent in every case. W illiam Dotson, 1999 W L 357327,
at *4; see State v. Mounce, 859 S.W .2d 319, 322 (Tenn. 1993) (holding that determination of propriety of mistrial is not
subject to mechanistic determination and should be made on the facts of each individual case).



                                                          -7-
Rogers saw the appellant in the apartment cleaning up blood. The appellant said nothing to Mr.
Rogers. Mr. Rogers helped to place the victim in a car. At some point on the day of the incident,
Qwandell Vinson testified that he received a telephone call from the appellant during which the
appellant stated that she was going to kill the victim. When Mr. Vinson arrived at the appellant’s
apartment, it was surrounded by police cars. The appellant was seen and identified as the driver of
the vehicle who brought the victim to the hospital and immediately left the scene. While the
soundness of the State’s case rested on the credibility of the State’s witnesses, there was ample
evidence presented at the point to of the mistrial to sustain a conviction. Moreover, the trial court
declared a mistrial prior to the conclusion of the State’s proof. Lastly, the trial court chose not to
give a curative instruction, instead determining that a manifest necessity existed for a mistrial
because a curative instruction could not be crafted that would provide the necessary relief to the
appellant.

         Looking at the factors as applicable to this case, we conclude that the trial court erroneously
determined that manifest necessity required a mistrial. The opportunity for an impartial verdict was
not lost when the investigator made an isolated reference to the suppressed search warrant. See
Williams, 929 S.W.2d at 388. The prosecutor did not intentionally elicit the improper testimony and
the trial court could have quickly issued a curative instruction to the jury to disregard mention of the
search warrant. Further, the investigator did not speak of the fruits of the search, but rather that he
“asked” for a search warrant for the appellant’s residence. As the assistant district attorney noted
at trial with no mention of any evidence that the referenced warrant revealed, in our opinion, it is
likely the jury would have concluded that no evidence was found. Moreover, the appellant explicitly
opposed the grant of a mistrial. In light of these circumstances, it would violate the federal and state
constitutional provisions prohibiting double jeopardy for the appellant to be tried again.
Accordingly, we reverse the judgment of the trial court and dismiss the indictment.

                                             Conclusion

       For the foregoing reasons, the trial court’s judgment denying the motion to dismiss on double
jeopardy grounds is reversed and the indictment for second degree murder is dismissed.




                                               ______________________________
                                               JERRY L. SMITH, JUDGE




                                                  -8-
