finds that the trial judge's failure to declare a mistrial does not preclude petitioner's double jeopardy claim based on intentional prosecutorial misconduct.
Nevertheless, the trial judge's failure to order a mistrial is probative on the issue of whether intentional prosecutorial misconduct actually took place. The trial judge in this case was well aware of the difficulties experienced in securing Harvey Webb to testify and knew of the defense counsel's charge that the prosecution had concealed Webb from the defense. The trial judge had also listened to all the testimony and could evaluate how damaging Webb's testimony was to the State's case. Most importantly, the trial judge actually witnessed the State's cross-examination of Webb. All of these circumstances placed the trial judge in an excellent position to determine whether the prosecutor had the intention to provoke a mistrial with his cross-examination of Webb. The trial judge, by failing to declare a mistrial, implicitly determined that the prosecution did not have any such intent. This implicit determination, especially when considered in light of the petitioner's failure to move for a mistrial based on the cross-examination of Webb, militates strongly in favor of a finding that the prosecution did not intend to cause a mistrial. See United States v. Curtis, 683 F.2d 769, 777 (3rd Cir.) ("In view of the failure of both the defense counsel and the trial judge to recognize immediately the need for a mistrial, it is difficult to credit the premise that the prosecutor could not have committed such conduct without knowing and intending that a mistrial would result."), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 512, 103 S. Ct. 379 (1982).
Another factor strongly supporting a finding that the prosecution did not intend to cause a mistrial is the strength of the State's case. See United States v. Weeks, 870 F.2d 267, 269 (5th Cir.), cert. denied, 493 U.S. 827, 107 L. Ed. 2d 57, 110 S. Ct. 92 (1989). As more fully detailed in the FACTS section of this opinion, the evidence of petitioner's guilt in this case was overwhelming. John Brender, a disinterested party who lived in the vicinity of the murder, testified that shortly after the shooting took place he saw petitioner exit the passenger side of a maroon Camaro with a rifle. A police officer testified that he stopped petitioner in the area of the murder shortly after the shooting occurred. Petitioner and Kenny both gave incriminating statements to law enforcement officials after their arrests, and their co-conspirator, Galason, testified against them. Galason's description of the events surrounding the murder substantially coincided with the statements given by petitioner and Kenny, and Galason's story was further supported by the physical evidence. A case with this type of incriminating evidence is hardly one in which it behooves the prosecutor to try to get a mistrial.
Armed with such a strong case, there is simply no rational explanation for the prosecutor's cross-examination of Webb. The prosecutor clearly should have known that his examination was wholly improper and, if he had thought about it, he would have realized that such conduct would result in a mistrial or reversal. However, this court finds that the prosecutor did not stop to think through the consequences of his actions, much less commit them with the hope of obtaining a mistrial. After reviewing the record in this case, this court agrees with Judge Schreier that the prosecutor's conduct was the result of emotional, heated animus between the prosecutor and Webb and the prosecution and the defense.
Throughout the trial, fiery exchanges occurred between the prosecution and the defense attorneys. At several points during the trial, the trial judge was apparently at a loss to control the outbursts of attorneys for both the prosecution and the defense. In attempt to preserve some decorum, the judge frequently ordered the attorneys to sit down and admonished them about speaking out of turn or improperly arguing amongst themselves instead of addressing the court. This emotional tension came to a head during the cross-examination of Harvey Webb. One exchange is particularly representative of the emotional, somewhat chaotic atmosphere which pervaded the trial at the time of the cross-examination of Webb. In the middle of the prosecution's cross-examination of Webb, the judge called a side bar, at which time he stated:
I should like to remind counsel, number one, that this is a courtroom. This is a very serious proceeding. It is entitled to all of the dignity that we can afford or that we can give as professionals . . . [and] the Court intends to enforce the duties upon the attorneys to keep the quietude of this place and the professionalism that you should, of course, by coming into this court exhibit. Now, there have been some turbulent exchanges here. . . . I excused the jury from the room for the purposes of settling it down a little bit. If you have objections at this time you will take them up with the Court one by one. You will be seated except for the person that is speaking or addressing the Court.
Trial transcript at 1519. After this admonishment, Kenny's attorney expressed objections to what he perceived were "harassment" "innuendo" and "smear" tactics used by the prosecution on cross-examination. When the judge asked the prosecutor for his response to those objections, the prosecutor replied, "[Webb] started it. I didn't start it." Trial transcript at 1521. Clearly, these are not the words of a prosecutor planning to intentionally secure a mistrial. These words are the childish response of a prosecutor who has simply allowed his emotions to get the best of him.
In no way does this court condone the actions of the prosecutor in this case; in fact, this court finds the prosecutor's conduct quite disturbing, and certainly deserving of reversal. Under Kennedy, however, petitioner cannot prevail unless he demonstrates that the prosecution committed misconduct with the intent to cause a mistrial. Based on the record in this case, this court cannot make such a finding.
For the foregoing reasons, the court finds ample evidence in the record to support Judge Schreier's factual determination that the state prosecutors in petitioner's 1983 murder trial did not commit misconduct with the intent to cause a mistrial. Accordingly, the petition for habeas corpus is denied.
IT IS SO ORDERED.
Dated: May 7, 1990