BEFORE DAN LEE, PRATHER AND SULLIVAN.
DAN LEE, PRESIDING JUSTICE, FOR THE COURT:
Steve Mitchell was indicted by the Grand Jury of Jackson County, Mississippi, in October of 1985 for fondling five-year-old Shannon Bosarge on or about May 15, 1984. The case was originally tried on May 13, 1986, but that trial ended in mistrial. The case was tried again on June 3, 1986, where a jury found him guilty as charged. He was sentenced to five years in the Mississippi Department of Corrections, with a recommendation that Mitchell be enrolled in the RID program at Parchman, and also with a recommendation that after his release he continue psychiatric and psychological counselling. From this conviction and sentence Mitchell appeals. We reverse and remand.
On or about May 15, 1984, five-year-old Shannon Bosarge came home from playing across the street at the Mitchell's house. She told her babysitter, Kathy Rylant, that Steve Mitchell, the father of her seven-year-old friend Jason, had placed his private parts on her back and that he occasionally walked around and sat around in front of the children with his genitals exposed. Kathy testified at trial that she related this conversation to Shannon's mother, Anita Bosarge.
Anita Bosarge testified that after Kathy related Shannon's conversation to her she asked Shannon what was going on with Steve Mitchell. Shannon related the same story to her. Anita
remembered the date being on or about May 15, 1984. In June of 1984, the Bosarges moved because, according to Anita, she did not want her children around Steve Mitchell.
Shannon Bosarge testified at trial, being at the time eight years old. She stated that she went over to Mr. Steve's one day to play and pick up her little brother. She was wearing a sundress. Mr. Steve put his private part on her back. She turned around and saw it, and got up to retrieve her little brother and run home. She stated that she was in kindergarten at the time, but kindergarten may have been out for the summer. On cross-examination, Shannon could not say in what room the incident happened, or whether or not anyone else was in the room with her when it happened. She also could not remember what Mr. Steve was wearing that day, and she did not know if Cindy Mitchell, Steve's wife, was home or not.
In his defense, Steve Mitchell called his wife Cindy. She testified that the Bosarge children were not allowed to play in their home after May 1, 1984, because the Mitchells were involved in renovation and reconstruction of the house. She continued that Shannon could not be trusted in the house because one day in late April Shannon had gone around flipping switches in the house such that the breakers went out. On that day, Cindy ordered Shannon from the house and told her not to return. As Shannon was leaving the yard, she tripped over a string that had been put out to outline the foundation of the addition to their house. The reason Cindy knew that Shannon had not been back to the house after May 1 was because they poured concrete on May 1. Cindy stated that she called Anita Bosarge a year later and asked about the rumors between Steve and Shannon. She claimed Anita told her the girls did not remember anything about it because they hadn't made a big deal of it. On cross-examination Cindy testified that she had made a statement to another neighbor, Kenny Fuller, in August of 1985, that she would seek professional help for Steve if they could afford it. She also stated that she had not told Anita or Kathy, the babysitter, that Shannon was not to come back over because she was messing with switches in the house. She also stated that she had never seen Steve do anything like this in her presence.
The defense also called Jason Mitchell, the seven-year-old son of the defendant. Jason testified that Shannon came over to their house to play. He never saw his father take out his penis or rub it on Shannon. However, on cross-examination, Jason stated that he was not always in the same room with Shannon when she came over to play.
Steve Mitchell testified in his own defense that he had never touched Shannon or exposed himself to her. He also
testified that the Bosarge children were in and out of the house, sometimes in and out of the bathroom without knocking.
The Court Erred by Forcing the Appellant
to Twice Jeopardize His Freedom When a
Second Trial was Had After the First Trial
Ended in a Mistrial, Which Histrial Had to be Declared as a Result of the State's Intentional Error.
Under his first assignment of error, Mitchell argues that he was unconstitutionally exposed to double jeopardy. His first trial ended in mistrial because the state's first witness, Kathy Rylant, became confused and began talking about an incident which happened between Mitchell and Shannon's older sister, Candace, on or about the same day that Shannon reported her incident with Mitchell to Kathy. Kathy's testimony at the first trial is as follows:
All right, after the kids came home and told me what had happened that day, it wasn't Shannon, it was Candy and her friend. I was over at the house watching them and they went over there to play with Jason. They came back home telling me that he would walk around the house . . .
After several objections by the defendant, and after several attempts by the district attorney to straighten up Kathy's testimony before the jury, defense counsel requested to voir dire Kathy to determine if she was competent to testify as to date, time, and place the incident with Shannon occurred, without resorting to hearsay. During the voir dire, the trial judge stated that it was clear to him that the state was having problems establishing a date of the incident as to Shannon. After the voir dire, the trial judge called the jury back and the district attorney tried again to elicit testimony from Kathy as to the time and date the incident occurred with Shannon. Again, Kathy referred to" they, "being Shannon's older sister and a cousin. Kathy could not, or did not, say for certain whether or not Shannon was fondled on May 15 when the other two girls came home and reported an incident involving them and Mitchell. After another set of objections, the defendant moved for a mistrial. The trial judge first overruled the motion, but then took a recess and reconsidered; he then declared a mistrial.
Mitchell urges that the state deliberately elicited testimony from Kathy after the voir dire in order to force the defendant to move for a mistrial.
In the recent case of Watts v. State, 492 So.2d 1281 (Miss. 1986), this Court reiterated the principle that" every time a trial aborts or does not end with a final judgment "does not necessarily mean that the prohibition against double jeopardy applies. Id. at 1284. If the mistrial is granted on the court's own motion or upon the state's motion, a second trial is barred unless there was manifest necessity for the mistrial. Jones v. State, 398 So.2d 1312, 1315 (Miss. 1981). However, even if the state does not move for a mistrial," the involvement of the state is relevant in determining whether a second trial is barred. "Watts 492 So.2d at 1284; Carter v. State, 402 So.2d 817, 821-22 (Miss. 1981). In this case, Mitchell moved for the mistrial and the record does not indicate that the state opposed the motion. In Carter, 402 So.2d at 821, this Court, citing Divans v. California, 434 U.S. 1303, 98 S. Ct. 1, 54 L.Ed.2d 14 (1977), stated:
In order to elevate an order granting a mistrial in a criminal case at the request of the defendant to one which could form the basis of the claim of double jeopardy, it must be shown not only that there was error, which is the common predicate to all such orders, but that such error was committed by the prosecution or by the court for the purpose of forcing the defendant to move for the mistrial.
A careful reading of the record shows that the mistrial was granted here because the state's witness continued to refer to incidents relating to Shannon's older sister and cousin. The district attorney and the court tried several times to direct Kathy's testimony toward the incident involving Shannon, and not to speak about" they "or" the kids. "The district attorney at one point told the judge that Kathy was confused about what she could and could not testify about in this trial.
It was clearly improper for this witness to talk about other incidents involving this defendant and other children. However, the state certainly did not elicit such testimony, and tried several times to channel the witness's thinking toward Shannon only; however, the attempts failed, and the trial court did the only sensible thing under the circumstances by granting a mistrial. The error was not deliberate on the state's part, ...