                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 21 1997
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 KENNETH DEAN AUSTIN,

          Petitioner - Appellant,

 v.
                                                        No. 97-6029
                                                 (D.C. No. CIV-96-1470-R)
 HOWARD RAY, Warden, Jackie
                                                       (W.D. Okla.)
 Brannon Correctional Center and
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.


      Petitioner Kenneth Dean Austin (“Austin”) appeals the district court’s

denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Supp.

1997). Specifically, Austin claims that his retrial and conviction in Oklahoma



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
state court for Lewd Molestation, after a mistrial had been declared over Austin’s

objection, violated the Double Jeopardy Clause of the Fifth Amendment. Because

we believe that the mistrial was a “manifest necessity,” we affirm the district

court.



                                   BACKGROUND

         On August 8, 1995, Austin was convicted of Lewd Molestation of his 13-

year old stepdaughter in the District Court of Stephens County, Oklahoma. (Aplt.

App. at 20 -- Magistrate’s Recommendation -- Uncontroverted). See 21 Okla.

Stat. Ann. tit. 21, § 1123 (West Supp. 1997). Austin is currently serving a 5-year

sentence of imprisonment for that conviction. (App. 20) Austin’s conviction was

obtained after an earlier trial resulted in a mistrial.

         In the earlier trial, the State presented the testimony of the victim, Mandy

Austin (“Mandy”) concerning the sexual abuse she had endured. During his

cross-examination of Mandy, defense counsel elicited testimony concerning her

displeasure with certain restrictions Austin and the victim’s mother had placed on

her. (App. 22). Specifically, Mandy was upset that her television viewing and

telephone use were limited, that she was not allowed to see certain friends, and

that she was not allowed to wear makeup or the clothes she desired to wear. (App.

22). Defense counsel also elicited from Mandy a denial to the question of


                                           -2-
whether she had informed her friend Casey Groves that she had “figured a way to

get out of her parents’ house.” (App. 22 quoting Partial Trial Transcript, at 68).

      After the state rested, defense counsel presented Casey Groves for the

purpose of eliciting that Mandy had in fact informed Groves that “she had figured

a way to get out of her parents’ house.” (App. 23). The prosecutor objected in

advance to any testimony by Groves as to hearsay matters that went beyond

inconsistent statements by Mandy. (App. 23). Defense counsel assured the trial

judge that he would limit his questioning to the issue of Mandy’s inconsistent

statement. The trial judge ruled that he would allow Groves to testify “[i]f you

just leave it to that.” (App. 23, quoting transcript).

      During direct examination, Groves testified that Mandy had informed him

that she had figured a way to get out of her parents’ house. (App. 2-3 -- Partial

Trial Transcript). On cross-examination, the prosecutor asked Groves whether the

victim had said the same thing when she was staying in foster care with the

Alsobrooks in response to Grove’s request that she sneak out with him. 1 (App. 4).

Groves denied requesting that Mandy sneak out with him. (App. 4). During re-

direct examination, defense counsel questioned Groves with regard to certain




      1
        Mandy was placed in foster care with the Alsobrooks after reporting that
Austin had molested her. (App. 23).

                                          -3-
statements Mandy made to Groves while she was staying with the Alsobrooks

family.

      Q:     Did she tell you why she was unhappy at the Alsobrooks
             house?

      A:     She -- the same reasons that -- that she was unhappy at
             the Austin house. Said that they wouldn’t let her wear
             the makeup that she wanted to.

      Q:     Did she tell you --

      A:     Wear the clothes.

      Q:     -- specifically about Mr. Alsobrook?

      A:     She said that he was having sex with her.

(App. 4).

      At this point, the State objected and moved for a mistrial. (App. 4). The

trial judge sustained the objection and directed the jury to disregard Groves’ last

statement. (App. 4). The judge delayed consideration of the motion for mistrial

until after he had an opportunity to conduct a hearing on that issue. After

hearing arguments concerning the State’s motion for a mistrial, the trial judge

ruled that a mistrial was required because of the prejudice caused by the

statement, and because of certain improper actions taken by counsel in the

presence of the jury. (App. 14). As the trial judge explained:

      Counsel for the Defendant has indicated that he has -- or had told the
      witness not to make any reference to the statement, and I have no
      reason to feel otherwise. My thought at the time however, and in

                                         -4-
      reviewing the question, the question appeared to be designed to elicit
      the response that was given. Now, I’m not saying that counsel for
      the Defendant did that intentionally, but if I were the witness and the
      question were asked of me, I think that that would be the -- the
      response that I would have given to the question. The -- one of the
      major points that we have here, and as counsel for the State is
      pointing out, we are now into a collateral matter that is a trial within
      a trial. The questioning of this particular witness was specifically
      restricted, I thought certainly by Order of the Court, but by
      agreement of defense counsel as well, to the possible inconsistent
      statement that had been set up, if you will, or predicated by defense
      counsel in his questioning of Mandy Austin, so that the statement’s
      existence came as a surprise to the -- to the Court as well as counsel
      for the State. Defense counsel of course knew of the statement and
      had told the witness to avoid repeating it. The State was not put on
      notice of the statement’s existence, and I’m not finding fault with the
      discovery response that’s filed by the Defendant, except the
      discovery response does, as the State has pointed out, indicate that
      Mr. Groves’ testimony was limited . . . to a relationship with the
      victim and really said nothing about any statements of the nature that
      we had present. I don’t feel that the door was opened for the
      statement being introduced, and I do think that there is evident
      prejudice caused by the statement.
              I want to point out one other matter that occurred during this
      period of time . . . and that was a confrontation between co-counsel
      for the Defendant and the State, unfortunately in the presence of the
      majority of the jury as they were exiting the courtroom. I don’t know
      what was said by the State’s representative, because whatever was
      said, was said in a voice that was quiet enough not to be overheard,
      but co-counsel for the Defendant used an expletive to the State’s
      attorney with enough vehemence and loud enough that it caused
      every jury member that I could see to turn and stare in response.
      That was highly unprofessional. I cannot think that it did anything
      certainly but prejudice the jury. At this particular point I don’t know
      if they are prejudiced for or against either particular side, but
      certainly it had an impact and one that should not have occurred. I’m
      going to go ahead and direct the mistrial in this matter.

(App. 12-14) (emphasis added).


                                        -5-
      At the second trial, Austin was convicted and sentenced to five years

imprisonment and a fine of $10,000.00. (App. 17 -- uncontroverted). This

judgment and sentence was affirmed by the Oklahoma Court of Appeals. (App.

17). Austin then filed for a writ of habeas corpus under 28 U.S.C. § 2254 (Supp.

1997) in the United States District Court for the Western District of Oklahoma on

the grounds that his retrial and conviction violated the Double Jeopardy Clause of

the Fifth Amendment. (App. 32). The district court refused to grant the writ and

now Austin appeals. We exercise jurisdiction under 28 U.S.C. § 1291 (1994) and

affirm the district court.



                                  DISCUSSION

      Under the recently amended 28 U.S.C. § 2254 (Supp. 1997), 2 we may grant

a habeas petition predicated on legal error only where the state adjudication of the

merits “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1) (Supp. 1997). In this case,




      2
       Because Austin filed his habeas petition in the district court on
February 3, 1997, we review Austin’s petition under 28 U.S.C. § 2254(d), as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (effective April 24,
1996). See Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997).

                                        -6-
Austin claims his retrial and conviction violated the Double Jeopardy Clause of

the Fifth Amendment, as interpreted by the Supreme Court.

      Under the Double Jeopardy Clause, a state is precluded from putting a

defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U.S.

784, 796 (1969). The Supreme Court has determined that when a mistrial has

been declared over the defendant’s objection, the Double Jeopardy Clause

precludes a retrial unless the earlier mistrial was compelled by “manifest

necessity.” United States v. Crotwell, 896 F.2d 437, 439 (10th Cir. 1990) (citing

Arizona v. Washington, 434 U.S. 497, 505 (1978); Illinois v. Somerville, 410

U.S. 458, 462-63 (1973)). In this case, Austin did not consent to the trial court’s

declaration of a mistrial, and thus the issue here is whether the mistrial was

justified by the requisite “manifest necessity.”

      Whether a “manifest necessity” exists for a mistrial is a difficult question,

but we are not without guidance in our present inquiry. The Supreme Court has

explained that there is a “spectrum of trial problems which may warrant a mistrial

and which vary in their amenability to appellate scrutiny . . . .” Arizona v.

Washington, 434 U.S. 497, 510 (1978). At one end of the spectrum “are cases in

which a prosecutor requests a mistrial in order to buttress weaknesses in his

evidence.” Id. at 507. In these cases, and in ones where “there is reason to

believe that the prosecutor is using the superior resources of the State to harass or


                                         -7-
to achieve a tactical advantage over the accused,” we apply the “strictest

scrutiny.” Id. at 508. On the other end of the spectrum are cases in which “the

mistrial [is] premised upon the trial judge’s belief that the jury is unable to reach

a verdict . . .” Id. at 509. In these situations, we “allow[] the trial judge to

exercise broad discretion in deciding whether or not ‘manifest necessity’ justifies

a discharge of the jury.” Id.

      In this case, the trial judge ordered a mistrial because of the potential

prejudicial nature of certain testimony and of certain attorney conduct, and there

is no suggestion that the mistrial was the result of any strategic conduct on the

part of the State. The Supreme Court has explained that “along the spectrum of

trial problems which may warrant a mistrial,” a mistrial premised on prejudicial

remarks “falls in an area where the trial judge’s determination is entitled to

special respect.” Id. at 510. This is because the trial judge

      has seen and heard the jurors during their voir dire examination. He
      is the judge most familiar with the evidence and the background of
      the case on trial. He has listened to the tone of the argument as it
      was delivered and has observed the apparent reaction of the jurors.
      In short, he is far more conversant with the factors relevant to the
      determination than any reviewing court can possibly be.

Id. at 513-14 (internal quotation omitted). Thus, we “accord the highest degree of

respect to the trial judge’s evaluation of the likelihood that the impartiality of one

or more jurors may have been affected by [an] improper comment.” Id. at 511.



                                          -8-
      Nonetheless, our review of the trial court is not nonexistent. In

determining whether a trial court has properly granted a mistrial, we “have an

obligation to satisfy [our]selves that . . . the trial judge exercised ‘sound

discretion’ in declaring a mistrial.” Id. at 514. Thus, where a “trial judge acts

irrationally or irresponsibly, his action cannot be condoned.” Id. (internal

citations and quote marks omitted).

      In this case, we believe the trial judge exercised sound discretion in

declaring a mistrial. We agree with Austin that a mistrial would not have been

warranted if the only disruption of the trial was the eruption of the defense

counsel in the presence of the jury. See Glover v. McMackin, 950 F.2d 1236,

1242 (6th Cir. 1991) (a “virtual shouting match among counsel and the bench . . .

is in itself insufficient to merit a mistrial”) (internal quotation omitted).

However, in this case, there was also the elicitation of testimony concerning the

victim’s past sexual history. It is well recognized that testimony concerning a sex

crime victim’s past sexual behavior involves the risk of unfair prejudice to the

State, and it is in part for this reason that several states, including Oklahoma,

have passed rape shield laws restricting the use of such testimony. See Okla. St.

tit. 12, § 2412, Legislative History, as reprinted in 1 Leo H. Whinery, Oklahoma

Evidence, § 2412, at 85 (1994). See also Abdi v. Georgia, 744 F.2d 1500, 1504

(11th Cir. 1984) (noting that “[t]he clear policy of [Georgia’s rape] shield law . . .


                                          -9-
reflects the judgment of Georgia lawmakers that such evidence is unusually

prejudicial”); Graves v. Garraghty, 618 F. Supp. 1348, 1355 (E.D. Va. 1985)

(noting that the “legislative reason[s]” for the enactment of Virginia’s Rape

Shield Statute were to avoid prejudice to the Commonwealth’s right to a fair trial

and to encourage victims to prosecute rape cases). Accord Donald A. Dripps,

Relevant But Prejudicial Exculpatory Evidence: Rationality versus Jury Trial and

the Right to Put on a Defense, 69 S. Cal. L. Rev. 1389, 1411 (1996) (explaining

that “rape shield laws are based for the most part on the marginal relevance and

high potential for prejudice of evidence of prior sexual activity by rape victims”).

      It is, of course, impossible for us to determine how Austin’s first jury

reacted to Groves’ testimony concerning Mandy’s past sexual behavior, and thus

we cannot say with certainty that the State was prejudiced by that testimony.

However, as we explained above, it is precisely for this reason that we must defer

to the trial judge in this case. See Abdi, 744 F.2d at 1504 (holding that the

Double Jeopardy Clause did not bar the second trial of a rape defendant where the

earlier mistrial was predicated on the violation of the rape shield statute); Graves,

618 F. Supp. at 1355-56 (same). The trial judge in this case

      has seen and heard the jurors during their voir dire examination. He
      is the judge most familiar with the evidence and the background of
      the case on trial. He has . . . observed the apparent reaction of the
      jurors. In short, he is far more conversant with the factors relevant
      to the determination than any reviewing court can possibly be.


                                        - 10 -
Arizona, 434 U.S. at 514.

      Austin relies on United States v. Crotwell, 896 F.2d 437 (10th Cir. 1990),

for the proposition that prejudicial remarks do not constitute a manifest necessity

for a mistrial, but this reliance is misplaced. In Crotwell, the trial court had

declared a mistrial where the defendant was arguably prejudiced by a co-

defendant’s reference to the defendant’s criminal history. Id. at 438. We held

that the mistrial was not a manifest necessity after determining that the trial court

“apparently denied [the defendant’s] severance request and granted the mistrial

solely on the basis of his concern for judicial economy, and not on the basis of

any perceived prejudicial effect on [the defendant] of continuing the trial.” Id. at

440. In this case, the trial judge relied upon the perceived prejudicial effect of

Groves’ testimony, and thus Crotwell is inapposite. See United States v. Bauman,

887 F.2d 546, 551-52 (5th Cir. 1989) (holding that the Double Jeopardy Clause

did not bar a second trial where the trial court declared a mistrial instead of

granting a severance after finding the potential for incurable prejudice on the part

of the original panel); Wilson v. Patton, 541 F. Supp. 818, 821 (E.D. Pa. 1982)

(holding that the Double Jeopardy Clause did not bar a second trial where the trial

court declared a mistrial in the first trial because a witness had indirectly referred

to the defendant’s criminal history), aff’d, 722 F.2d 736 (3d Cir. 1983).




                                         - 11 -
         Finally, we believe the trial judge did not act “irrationally or irresponsibly”

in granting the State’s Motion for a Mistrial in this case. See Arizona, 434 U.S.

at 514. The trial judge conducted a hearing before granting the State’s motion, at

which time the judge heard arguments from both parties as to the propriety of the

State’s motion. Although conducting a hearing may not be necessary in all cases,

see Abdi, 744 F.2d at 1504, the Supreme Court has noted that a trial judge’s

decision to hold a hearing before declaring a mistrial indicates that the “trial

judge acted responsibly and deliberately, and accorded careful consideration to

[the Defendant’s] interest in having the trial concluded in a single proceeding.”

Arizona, 434 U.S. at 516. We agree, and believe that the trial judge in this case

exercised sound discretion in declaring a mistrial.



                                     CONCLUSION

         For the reasons stated above, we AFFIRM the district court’s denial of

Austin’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Supp.

1997).

         The mandate shall issue forthwith.

                                          ENTERED FOR THE COURT


                                          David M. Ebel
                                          Circuit Judge


                                           - 12 -
