State v. Mays

In order to find a prosecutor engaged in prosecutorial misconduct, the requisite scienter must be shown; specifically, the facts must show the prosecutor intended to cause a mistrial or reversal, or was indifferent to the possibility.

Defendant was convicted delivery of marijuana for consideration, and possession of marijuana. Defendant contended that the trial court erred in denying his motion to dismiss on double jeopardy grounds, and that prosecutorial misconduct violated his constitutional right to compulsory process; essentially, Defendant maintained there had been a pattern of prosecutorial misconduct that amounted to intentional conduct. The trial court determined the prosecutor lacked the requisite scienter, based on a demeanor-based credibility determination. The Court found that the nature of the prosecutor’s misconduct, and her relative inexperience, were sufficient to support the trial court’s finding that the prosecutor lacked the requisite scienter. Specifically, the prosecutor neither intended, nor was indifferent to, the result of a mistrial or reversal. Accordingly, the trial court did not err in denying Defendant’s motion to dismiss. Affirmed.