United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
Petitioner is incarcerated in the Kansas correctional system. This case is before the court upon petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
I. ISSUES BEFORE THE COURT
Petitioner was convicted of attempted first-degree murder and aggravated burglary. His first trial ended in a mistrial. The mistrial was requested by petitioner's trial counsel after the prosecutor introduced into evidence and played for the jury a recording of petitioner's interrogation which was not redacted in the manner ordered prior to trial. Petitioner's counsel asked that a second trial be barred on double jeopardy grounds. This request was denied. Petitioner was convicted at the conclusion of the second trial. In his application for a writ of habeas corpus, petitioner raises two issues: 1) that his rights against double jeopardy under Oregon v. Kennedy, 456 U.S. 667 (1982) were violated; and 2) that during closing argument at the second trial the prosecutor improperly urged the jury to consider petitioner's post-Miranda silence in violation of Doyle v. Ohio, 426 U.S. 610 (1976).
II. STATE TRIAL COURT PROCEEDINGS
A. Proceedings before the first trial
Prior to the first trial, petitioner moved to suppress a recording of petitioner's interview by the police on the basis of State v. Elnicki, 105 P.3d 1222 (Kan. 2005). In Elnicki, the Kansas Supreme Court held that it was error to admit into evidence a recording of an interview with a criminal defendant in which a police detective repeatedly denigrated the credibility of the defendant. Petitioner's trial counsel set forth in his motion the parts of the interview which he claimed should be redacted pursuant to the Elnicki case. The prosecutor agreed to redact those parts of the interview. The court ordered that the redactions be made. This occurred in July 2007. Late on a Friday, before the Monday start to petitioner's first trial in November 2007, the prosecutor supplied a copy of the redacted recording to petitioner's defense counsel. Petitioner's counsel asked if the Elnicki redactions had been made and the prosecutor responded affirmatively. Defense counsel, however, did not review the recording prior to it being played at trial.
B. First trial proceedings
During the first trial, Patrick Metsinger, the alleged victim in this matter, testified that he was ambushed and attacked by petitioner in the apartment where he was living at approximately 9:00 a.m. on September 13, 2006. He stated that his father leased the apartment and allowed Metsinger to stay there. Metsinger's father was not in the apartment every night, but he was there on the night before the incident in question in this case. About Labor Day 2006, a friend named Clayton Adams brought a woman named Nicole Golden to the apartment. She began staying at the apartment and she and Metsinger shared methamphetamine and sexual relations over a period of several days. According to Metsinger, around midnight or during the early morning hours of September 13, 2006, he grew tired of how Golden was acting and told Golden that she had to take her things and leave the apartment. She called someone to pick her up. Metsinger testified that around 9:00 a.m. he was awakened by his cell phones ringing. When he walked from his bedroom, he saw Golden in the hallway of his apartment. As he walked by her, he asked what she was doing there and immediately thereafter he was attacked by petitioner with a small ax and a machete. Metsinger testified that petitioner had been crouched in the kitchen hidden from his view and that petitioner wore a ski mask. They struggled for some time. Petitioner struck Metsinger's head with the ax. Metsinger was able to hit petitioner with a cast iron ladle which may have been a fireplace tool. During the fight Golden stabbed Metsinger with a knife. Petitioner's ski mask came off as the two men battled. Eventually, Metsinger was able to flee the apartment and receive help.
Metsinger told the jury that he was in custody at the time of the first trial. He also admitted to several criminal incidents in his past, including aggravated battery, forgery, theft, and disorderly conduct. He further admitted to being a methamphetamine addict and to selling methamphetamine on occasion.
Golden testified that she had been living with petitioner for months before she starting staying with Metsinger. She and petitioner also shared illegal drugs and sexual relations. She continued to see petitioner while she was staying with Metsinger, but she tried to conceal her relationship with Metsinger from petitioner. At some point in time on the day before the fight in this case, Golden and petitioner had a brief skirmish when petitioner attempted to prevent Golden from leaving a vehicle to walk to Metsinger's apartment.
Golden testified that she called petitioner to pick her up at a nearby supermarket when Metsinger kicked her out of the apartment. She testified that Metsinger had physically assaulted her when he told her to leave. According to Golden, when she told this to petitioner and as it became clear to petitioner that she and Metsinger had had a sexual relationship, petitioner talked about killing Metsinger. Golden testified that she and petitioner used cocaine and methamphetamine and then planned to go to Metsinger's apartment after his father had left to go to work. She said they entered the apartment when petitioner easily kicked in a back door which had previously been broken. She testified that their plan was to kill Metsinger. Petitioner was wearing a ski mask and hid in the kitchen area of the apartment while Golden yelled for petitioner. According to Golden, petitioner attacked Metsinger with a small ax when Metsinger walked into the living room area and toward the kitchen. Golden indicated that she participated in the attack somewhat halfheartedly.
Golden was in custody at the time of the first trial, serving a sentence after pleading guilty to aggravated burglary and aggravated battery in connection with the incident in this case. Her plea bargain and sentence were described to the jury as well as her criminal history and personal history. She described extensive drug use and stated that she and Metsinger had been awake and using methamphetamine for several days. She also described a drug sale she conducted while Metsinger was along on the night before the incident. She further mentioned shoplifting with Metsinger the same night. Additionally, Golden admitted to committing perjury in an earlier statement to law enforcement.
The prosecutor decided to play the redacted recording on the third day of trial. Prior to doing so, the prosecutor represented to the court that the recording had been redacted to take care of the Elnicki problems. Before the playing of the recording was completed, defense counsel objected that the agreed redactions had not been made. During a conference with the trial judge, the prosecutor said:
"[E]verything... redacted in this DVD was under my direction, whatever was taken out. Everything left in was my direction. My recollection to the Court's ruling was that all Elnicki was to be taken out, if I was going to play the... video, that I was to give [petitioner's trial counsel] a copy to review."
The prosecutor later said:
"When I was getting ready for trial, I was operating [with] the plan of making my redacted version[, ] giving it to verify and seeing if there are any objections. I tried to start that early. We had technical problems downstairs, which isn't anybody's fault but our own, and I didn't get that [done] until almost the close of the business day on Friday. As for the motion for mistrial, I agreed to redact everything that was [specified] in July... Although I would argue that what has come in is not in violation of Elnicki, ... I understand that we didn't have an opportunity to litigate that before because I agreed to take it out."
The trial judge determined that the prosecutor had agreed in July 2007 to redact portions of the recording which were not redacted when the recording was played in November 2007 at trial. He granted petitioner's motion for a mistrial.
C. Proceedings before the second trial
Prior to the second trial, petitioner filed a motion to dismiss arguing that a second trial would violate petitioner's rights against double jeopardy. The trial court conducted a hearing. The facts argued at the hearing were largely ...