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Kesler v. State

The trial court properly denied the defendant's plea in bar, as the evidence supported its finding that the state did not intend to goad the defendant into moving for a mistrial.

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Kevin Kesler and his co-defendant were indicted for trafficking in cocaine and possession of hydrocodone, a controlled substance. Before trial, the court granted Kesler’s motion in limine to exclude hearsay evidence identifying Kesler as a suspect, specifically ruling that the investigating officers could not testify that they told the confidential informant to call “Kevin.” But the second witness did so anyway, and the trial court granted Kesler’s motion for a mistrial. Kesler then filed a plea in bar, arguing that the State essentially goaded him into moving for a mistrial and therefore could not retry him. The trial court denied the motion, and for the reasons that follow, we affirm.

The primary purpose of the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where, at the initial trial, the prosecution failed to introduce sufficient evidence to sustain a conviction. Retrial generally is not prohibited where reversal is due to trial error rather then the sufficiency of the evidence. Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to “goad” the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial.

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