finding no abuse of discretion in overruling defendant’s motion for mistrial when a police officer testified regarding witness identification of the defendant in a lineup, because defense counsel’s objection was promptly sustained and the jury was instructed to disregard the statement
How later courts described this case
- finding no abuse of discretion in overruling defendant’s motion for mistrial when a police officer testified regarding witness identification of the defendant in a lineup, because defense counsel’s objection was promptly sustained and the jury was instructed to disregard the statement
Written by the judges who cited it.
The opinion
DONNELLY, Judge,
concurring.
Few would contend that the position of the United States Supreme Court, reference the National Double Jeopardy Clause, is presently coherent. See Westen and Dru-bel, Toward a General Theory of Double Jeopardy; 1978 The Supreme Court Review 81 (Chicago: The Univ. of Chicago Press, 1979).
In this circumstance, the attempt of the majority in Sours v. State, 603 S.W.2d 592 (Mo. banc 1980) to follow the twists and turns of the United States Supreme Court in this area of the law is almost masochistic. In North Carolina v. Butler, 441 U.S. 369, 376 , 99 S.Ct. 1755, 1759 , 60 L.Ed.2d 286 (1979) the Court stated that it will “accept whatever construction of a state constitution is placed upon it by the highest court of the State.”
First, I would disentangle and hold:
(1) That Mo.Const. art. I, § 19 proscribes a second prosecution for the same offense after acquittal.
*780 (2) That to cause a person to be twice prosecuted for the same offense after conviction is to deprive that person of due process of law. Mo.Const. art. I, § 10.
(3) That to cause a person to be twice punished for the same offense is to deprive that person of due process of law. Mo. Const, art. I, § 10.
Second, I would implement (1) and (2), supra, by applying Mr. Justice Brennan’s “same transaction” test and require “the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U.S. 436, 453, 454 , 90 S.Ct. 1189, 1199 , 25 L.Ed.2d 469 (1970). (Brennan, J., concurring). See also ALI, Model Penal Code, Proposed Official Draft §§ 1.07, 1.08, 1.09 (1962).
Third, I would implement (3), supra, by proscribing punishment in excess of what the Missouri General Assembly intended.
I concur under the compulsion of Sours, supra.