A divided Kansas Supreme Court ruled Friday that a man accused of rape and aggravated criminal sodomy against his 3-year-old granddaughter cannot be brought to trial a second time and must be freed.
The first trial of Rictor Bowman ended with a Saline County judge declaring a mistrial because the girl, now age 4, wouldn’t take the oath to be sworn in as a witness.
In a 4-3 split decision, the Supreme Court justices ruled the trial judge erred in declaring a mistrial and putting Bowman on trial a second time would violate his constitutional right against double jeopardy.
The case began with a report to Salina police by the girl’s mother. She was shopping with her daughter when “in the middle of a store, her daughter blurted out that Bowman had put his hands down the child’s pants. Reportedly, without prompting, the child then showed how Bowman had touched her,” the ruling said.
In an interview with a detective, “The child relayed information about sexual contact between her and Bowman, including more contact than the reported touching. Her statements and the remainder of the investigation led to Bowman being charged with rape and aggravated criminal sodomy.”
When the case went to trial, the young girl did not respond when asked to raise her hand and promise to tell the truth. As is common with molestation cases, she was scheduled to testify from a separate room where she couldn’t see the defendant and was accompanied by a “comfort person.”
The judge ruled that the state couldn’t prove its case for rape and sodomy without the girl’s testimony and declared a mistrial.
The Supreme Court ruled he couldn’t do that, because the prosecutor had already introduced hearsay evidence that the girl would have had to confirm under oath.
“The plain language of the mistrial statute . . . does not permit a mistrial to be declared over a defendant’s objection when the prosecutor chooses to open the State’s case with hearsay evidence; a proper defense objection to that evidence is overruled; and anticipated testimony from a child hearsay declarant fails to materialize because the child refuses to take the oath when called to the witness stand,” the ruling said.
“In this case, Bowman has successfully established that the district judge improperly declared a mistrial and that no exception to the statutory bar to a second trial applies,” the majority opinion said. “Bowman’s criminal case is dismissed, and Bowman must be released from any confinement arising out of it.
In dissent, Justice Marla Luckert wrote that she thinks a mistrial was the right action given the circumstances of the case.
“The State proceeded in conformity with Kansas law, the State moved to present the child’s testimony through closed circuit television . . . a competency hearing occurred, the judge allowed a comfort person, the State proceeded in good faith, the judge ruled based on indications the child would testify,” Luckert wrote. “I conclude the judge did not abuse his discretion in granting a mistrial here and the State met its burden in establishing that the mistrial was manifestly necessary. “
Her dissenting opinion was joined by Chief Justice Lawton Nuss and Justice Caleb Stegall.