FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-15-1231]
HONORABLE JOANNA TAYLOR, JUDGE
Mylissia M. Blankenship, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, JUDGE
Ryan James Kirkland brings this interlocutory appeal after
the Washington County Circuit Court denied his motion to
dismiss his charges based on double-jeopardy grounds. On
appeal, appellant contends that the circuit court erred in
denying his motion to dismiss because the charges violate his
right to be free from double jeopardy as protected by the
United States and Arkansas Constitutions. We affirm.
was charged with three counts of rape and two counts of
sexual assault in the second degree. Appellant subsequently
filed a motion in limine to exclude his booking photograph
from being admitted into evidence at trial. He argued that
any probative value was substantially outweighed by the
danger of unfair prejudice to him. The State argued that the
photograph was relevant to show what appellant looked like at
the time of the abuse. The circuit court agreed with
appellant and stated that appellant appeared
"intimidating and scary" in the photograph and that
the prejudice of the photograph outweighed any probative
value. Therefore, the circuit court granted his motion after
trial commenced, and the State offered the testimony of
several witnesses, including the minor victim. A.D. testified
that appellant had moved into the home when she was
approximately six years old. When she was eight, appellant
began going into her bedroom in the middle of the night. A.D.
testified that appellant would masturbate in her bed beside
her and would ejaculate on her comforter. She further
testified in detail that appellant sexually abused her from
age eight to age sixteen, including vaginal penetration and
forcing her to perform oral sex on him. In addition to
A.D.'s testimony, testimony was offered that
appellant's DNA matched the semen found on A.D.'s
during the State's direct examination of its ninth
witness, the State's trial assistant plugged her cell
phone into the laptop that ran the projector that was
publishing a document to the jury. When the assistant plugged
in her cell phone, a group of photographs appeared briefly on
the screen, which included among them appellant's
excluded booking photograph. The jury was immediately
excused, and appellant requested a mistrial. During that
hearing on the motion for mistrial, lead counsel for the
State took responsibility for the mistake and explained that
his staff should have "had that [cell phone] off."
Over the State's objection, the circuit court granted the
motion for mistrial. The circuit court specifically stated
that it was making a finding that the publication was
"inadvertent" but that it was granting a mistrial
because the fact remained that the photograph had been viewed
by the jury.
March 10, 2017, appellant filed a motion to dismiss, alleging
that the Double Jeopardy Clause precluded a second trial. In
the accompanying brief, appellant argued that although one
cannot ordinarily avail himself or herself of double-jeopardy
protections when he or she requests a mistrial, there is an
exception "where the governmental conduct in question is
intended to 'goad' the defendant into moving for a
mistrial." Oregon v. Kennedy, 456 U.S. 667, 676
(1982). Appellant argued that the facts of this case were
"of such an egregious nature" that they rose to
"the level of intentional conduct." Alternatively,
appellant encouraged the circuit court to impose a
"reckless" standard and argued that the State's
conduct was reckless, necessitating dismissal. However,
appellant admitted that he was unable to find any case law
that supported imposing a recklessness standard.
State filed a response on April 17, 2017. It explained that
one of the trial assistants "accidently, inadvertently,
and unintentionally" caused a different window to
display on the projector screen for the courtroom to view. It
further argued that the trial record was devoid of any
intentional conduct on the part of the prosecutors
"and" or "or" their staff to
"goad" appellant into requesting a mistrial. The
State alleged that it had almost finished examining its ninth
out of eleven witnesses when the photograph was accidentally
published to the jury and that it had no intention of
"goading" appellant into requesting a mistrial.
Finally, the State argued that appellant's proposed
"recklessness" standard is contrary to law and
should be rejected.
circuit court denied the motion to dismiss for violation of
double jeopardy. In its order, filed on June 2, 2017, the
circuit court made the following pertinent findings:
3. That no evidence was presented in the Defendant's
brief to suggest that the State acted with a purpose of
goading the defendant into moving for a mistrial.
4. That the actions by the trial court assistant for the
State were inadvertent, accidental, and unintentional.
5. That the presence of the trial court assistant's
cellular phone in the courtroom was not a violation ...