Issue: Did defense counsel’s question about potential sentence create manifest necessity for mistrial?
Facts: Defendant and two co-defendants were charged with several drug offenses. During cross-examination of co-defendant, defense counsel asked the potential sentence that the co-defendant/witness faced for a charge. The prosecutor objected to the question as inappropriate, and the trial court declared a mistrial for informing the jury about the penalty faced by the Defendant. Defense counsel asked to “make a record,” but this request was denied.
Appellate Decision: The intermediate court upheld the mistrial because the jury had been told about a possible sentence facing the Defendant, in violation of T.C.A. 40-35-201(b). The court “recognize[d] the importance of a Defendant’s fundamental right to cross-examine witnesses” but concluded that the question was posed only for an improper purpose. A concurring opinion observed that the statute does not prohibit comment on the sentence received by someone other than the defendant, and that harmless error was found in a similar case where the prosecutor had elicited the statement. However, the concurrence agreed with the result because the defense attorney failed to object to the mistrial.
Review Granted: January 15, 2014.
Prediction: Ben thinks the supreme court may reverse. It is impossible to fully cross-examine a co-defendant on bias without exploring the potential sentence faced. Any suggestion as to the defendant’s potential sentence can be remedied with a jury instruction that the potential sentences were not necessarily the same, which is true as a factual matter because of criminal history guidelines, enhancements, and other factors. Moreover, defense counsel hardly had a chance to object when the court declared a mistrial sua sponte before entertaining argument, and repeatedly rebuffed defense counsel’s efforts to even “make a record.” David believes the Court will reverse for the reasons Ben has stated. Moreover, the defendant’s attempt to “make a record” was thwarted by the judge and thus no meaningful objection could be tendered. Thus, double jeopardy will prevent a retrial.