E-Filed Document Mar 13 2018 10:46:46 2015-CT-01467-SCT Pages: 6 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI KEITH FRISTON PETITIONER v. No. 2015-KA-1467 STATE OF MISSISSIPPI APPELLEE PETITION FOR WRIT OF CERTIORARI COMES NOW the petitioner, Keith Friston, Pursuant to Rules 17(a)(1), (2), and (3)(ii), Mississippi Rules of Appellate Procedure, and files this Petition for Writ of Certiorari and respectfully requests that this Court grant the relief requested and review the decision of the Court of Appeals of the State of Mississippi entered in this cause and in support of this petition states unto the Court the following: I. Friston was convicted of one count of aggravated driving under the influence and one count of leaving the scene of an accident. He was sentenced to a total of twenty-five years in the custody of the Mississippi Department of Corrections. II. Appeal of the conviction and sentence was timely perfected in this Court, and the case was assigned to the Court of Appeals. On August 8, 2017, the Court of Appeals rendered its opinion in the matter and affirmed the judgment and sentence of the trial court. III. 1
On August 22, 2017, Friston filed a Motion for Rehearing with the Court of Appeals, and the same was denied by order entered on February 13, 2018, approximately a year and a half after the Motion for Rehearing was filed. IV. Review is appropriate in this case because the opinion of the Court of Appeals conflicts with published opinions of this Court. Specifically, the Court of Appeals s opinion overlooks this Court s opinion in Gibson v. State, 503 So. 2d 230 (Miss. 1987), which holds that a forensic pathologist is not necessary in a case involving a death. In doing so, the Court of Appeals sanctions the violation of Friston s right to be free from double jeopardy. ARGUMENT Issue: The trial court improperly granted the State s motion for a mistrial, despite the fact that such a mistrial was not manifestly necessary. Accordingly, Friston s subsequent retrial violates the prohibition against double jeopardy. In Friston s initial trial, one of the State s witnesses, a forensic pathologist, was unable to testify due to illness. The State made a motion for mistrial, Friston objected, and the trial court granted the motion. The record contains no attempt by the State to continue the proceedings, obtain a coroner, or otherwise find a solution to the absence of its witness. In Issue I, the Court of Appeals erred when it found that the mistrial in Friston s first trial was manifestly necessary, and therefore did not violate his constitutional right against double jeopardy. (Op. 16-19). 2
The Court of Appeals s analysis focused not on what was necessary for the State to make its case, but rather what made the State s case easier. And, in doing so, improperly analyzed the facts of this case. [T]he double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage[.] Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969). Both the federal and the state constitutions protect criminal defendants from being placed twice in jeopardy for the same offense. U.S. Const. amend. V; Miss. Const. art. 3, 22 (1890). The protection begins the moment the trial jury is selected and sworn to try the case. Jones v. State, 398 So. 2d 1312, 1314 (Miss. 1981). In order to avoid a double jeopardy bar following a State-requested mistrial, it must be shown that there was a manifest necessity for granting the motion, but with a degree of discretion given the court in determining whether that necessity exists. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083 (1982). The facts of this case clearly show that the State s request for a mistrial was not manifestly necessary. A forensic pathologist was not necessary for the State to prove its case. There were numerous ways the State could have attempted to prove cause of death in this case. The Court of Appeals has found that a coroner s testimony was sufficient to convict a defendant of aggravated DUI. Hudspeth v. State, 28 So. 3d 600, 605 (Miss. Ct. App. 2009). In its opinion in this case, however, the Court of Appeals misplaced the proper focus: [T]here is no indication that the coroner was available to testify on such short notice. (Op. 18). The Court of Appeals s opinion ignores that the record fails to show that the State even tried to access any of the numerous options 3
available to it. The concern should be with preserving Friston s constitutional rights, not providing possible excuses for the State s failure to pursue alternatives to a mistrial. To that end, this Court has held that: The law does not require an autopsy or medical evidence to establish [cause of] death. These facts are ordinarily proved by witnesses who saw the deceased after his death and who testified that the deceased was dead. The criminal agency or cause of death is usually shown by witnesses who saw the homicide, or by circumstances sufficient to establish the crime to the exclusion of every other reasonable hypothesis. Gibson v. State, 503 So. 2d 230, 232 33 (Miss. 1987) (quoting King v. State, 251 Miss. 161, 176, 168 So. 2d 637, 643 (1964)). The Court of Appeals s opinion fails to even address this Court s opinion in Gibson. Instead, it merely asserts that Dr. Barnhart s testimony was necessary, despite the fact that Gibson clearly holds otherwise. The Court of Appeals s opinion in this case creates two incongruous positions. A forensic pathologist is not necessary in order to convict someone of a homicide crime. See Id.; Hudspeth, 28 So. 3d 600. However, if the State wants to call a pathologist, that testimony is manifestly necessary and trumps double jeopardy protections. This incongruity cannot stand. Because Dr. Barnhart s testimony was not necessary for the State s case, a mistrial should not have been granted and Friston s subsequent retrial violated his double jeopardy rights. 4
WHEREFORE, PREMISES CONSIDERED, Friston prays that this Court will issue a Writ of Certiorari, review and reverse the decision of the Court of Appeals, and remand this case to the trial court for further proceedings. By /s/ Justin T. Cook Justin T. Cook Justin T. Cook Miss. Bar No. 102622 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Post Office Box 3510 Jackson, MS 39207 T: (601) 576-4290 F: (601) 576-4205 jcook@ospd.ms.gov ATTORNEY FOR KEITH FRISTON 5
CERTIFICATE OF SERVICE I, Justin T. Cook, counsel for Keith Friston, hereby certify that I have this day filed by means of the electronic case filing system the foregoing Petition for Writ of Certiorari, pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to all ECF participants in this cause is made including: Lisa L. Blount Assistant Attorney General Post Office Box 220 Jackson, MS 39205 This, the 13th day of March, 2018 /s/ Justin T. Cook Justin T. Cook, Miss Bar #102622 Justin T. Cook Miss. Bar No. 102622 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Post Office Box 3510 Jackson, MS 39207 T: (601) 576-4290 F: (601) 576-4205 jcook@ospd.ms.gov Attorney for the Petitioner 6