LITTLE ROCK — The state Court of Appeals dismissed Wednesday a charge of third-degree battery against Adam Everetts, ruling that he cannot be tried again because that would violate his constitutional protection against double jeopardy.
Everetts was being tried in front of a jury in Crawford County Circuit Court on a charge of battery involving his 12-year old daughter when the circuit judge declared a mistrial against the wishes of the defense.
In the appeal, Everetts contended that when a mistrial occurs under that set of circumstances, the legal doctrine known as double jeopardy can be invoked unless the mistrial is justified by “overruling necessity.” The appeals court agreed.
Double jeopardy is when a person is put on trial a second time for an offense of which he has already been acquitted. Double jeopardy is prohibited by the Fifth Amendment of the U.S. Constitution as well as Article 2, Section 8 of the Arkansas Constitution.
Everetts’ daughter alleged that while she was visiting him for a weekend, he hit and kicked her, threw her to the ground, grabbed her by thehair and threw her against a wall, according to the appeals court’s ruling.
Everetts contended that he had spanked his daughter but was not physically abusive.
Police responding to a 911 call from a neighbor arrested Everetts. The child’s mother took the girl to a Department of Human Services office where she was interviewed two days after the incident.
The Department of Human Services conducted an investigation and took no action in the case.
Circuit Judge Gary Cottrell ruled that Debbie Pippin, a Department of Human Services county supervisor, could testify about the facts from the investigation, any inconsistent statements by the child, and the fact that the Human Services Department took no action. But the judge ruled that she could not express an opinion about whether Everetts abused his daughter. That decision was to be left to the jury.
But when asked by Everetts’ attorney what the findings were regarding injuries, Pippin replied that the investigator “unsubstantiated the investigation.” The state objected, and the judge told the jury to not consider that answer.
In the judge’s chambers, the state moved for a mistrial, and the judge agreed, saying that the witness “went out of her way to bring up unsubstantiated findings, which was wholly and completely outside the parameters ... wholly and completely against my order.”
The defense disagreed, saying that the statement “just came out” and that the mistake could be fixed.
The appeals court ruled that the state did not meet the “heavy burden” of proving that there was an “overruling necessity” for a mistrial.
“A mistrial is an extreme remedy that should only be granted when the error is beyond repair and cannot be corrected,” Judge John B. Robbins wrote in the court’s opinion.
And in this case, the appeals court determined that the witness did not tell the jury what conclusion to reach and that the judge’s instructions to the jury resolved any potential problem.
“There was no forceful or compelling emergency nor was the jury exposed to matters outside the courtroom,” Robbins wrote.
At the Court of Appeals, the case is CACR 11-186, Adam Everetts v. State of Arkansas.
Arkansas, Pages 10 on 10/27/2011