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State v. Sullivan5/26/2000
Carroll H. Sullivan, the defendant in a criminal case, petitions for a writ of mandamus directing the Court of Criminal Appeals to vacate its writ of mandamus directing the Mobile Circuit Court to vacate its order dismissing the indictment against Sullivan on the basis of double jeopardy.
I.
This case has a complicated history, which we will briefly recount in order to accurately characterize the issues and the procedural posture of this case. A related case, Ex parte Zimlich, [Ms. CR-98- 1612, June 10, 1999] __ So. 2d __ (Ala. Crim. App. 1999), set aside by State v. Zimlich, [Ms. 1981536, May 5, 2000] __ So. 2d __ (Ala. 2000), provides the initial factual history of the current proceedings. We will paraphrase the pertinent facts found in Zimlich and then further explain how this case found its way to this Court.
In 1993, a female patient died during surgery. Her family filed a medical-malpractice action, which was tried in the Mobile Circuit Court in 1995. Wayne Zimlich, a nurse anesthetist who had attended the operation, testified at that trial. He later admitted that his testimony was false. Zimlich claimed that he was coerced into giving false testimony by the insurance company, his doctor-employer, and the defense attorney for the insurance company. Sullivan defended Zimlich in the malpractice litigation in which Zimlich allegedly perjured himself. Following charges that Sullivan had suborned Zimlich's allegedly perjured testimony, a Mobile County grand jury indicted Sullivan for first-degree perjury, pursuant to ยง 13A-10-101, Ala. Code 1975, in October 1998, based on the testimony of Zimlich at the grand jury proceedings. The State procured Zimlich's cooperation by promising him that in his case it would make a favorable recommendation to the sentencing judge. Sullivan's trial was set for March 1, 1999.
One month before the beginning of the trial, Zimlich began to equivocate as to whether he would testify in Sullivan's trial. His attorney informed the prosecutor that Zimlich would invoke his Fifth Amendment privilege unless the State offered him a better deal. The materials before us give no indication that a deal was ever struck, but three weeks before the start of the trial Zimlich affirmed that he would testify against Sullivan. The prosecutor never again spoke with Zimlich regarding his court appearance, so he proceeded with his case under the apparent assumption that Zimlich would not equivocate again.
Sullivan's trial began on the scheduled day. On that day, a jury was empaneled and sworn, and the attorneys delivered their opening arguments. The court then recessed for the evening. On the following morning, the trial continued. The State called Zimlich as its first witness. After a lengthy discussion with the trial court, Zimlich invoked his Fifth Amendment privilege to remain silent. The trial court granted the State's motion for a mistrial, over Sullivan's objection. Sullivan immediately moved to dismiss the charge on the basis that a retrial would violate principles of double jeopardy. The trial court granted his motion, holding that jeopardy had attached when the jury was empaneled and sworn and that a second trial would be barred by the Constitution.
The State, invoking Rule 15.7, Ala. R. Crim. P., appealed the ruling to the Court of Criminal Appeals. That court held that Rule 15.7 did not permit an appeal of this nature; it advised the State that its only remedy had to be by mandamus. State v. Sullivan, [Ms. CR-98-1195, July 2, 1999] __ So. 2d __ (Ala. Crim. App. 1999).
Pursuant to that court's recommendation, the State petitioned that court for a writ of mandamus directing the trial court to vacate its or
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