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Jan. 28, 2026 Get Citation Alerts Download PDF Add Note

State v. Kierin M. Dennis

Supreme Court of South Carolina

• Citations: None known

• Docket Number: 2024-002019

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (7.5K)

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Syllabus

The Court reverses the court of appeals' decision, finding Respondent was not entitled to a new, second immunity hearing under the Protection of Persons and Property Act following a mistrial. The Court also finds the circuit court did not abuse its discretion in denying Respondent immunity under the Protection of Persons and Property Act. The Court remands this case back to the court of appeals for consideration of Respondent's remaining issues on appeal.

Combined Opinion

THE STATE OF SOUTH CAROLINA
In The Supreme Court

The State, Petitioner,

v.

Kierin Marcellus Dennis, Respondent.

Appellate Case No. 2024-002019

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Lexington County
Eugene C. Griffith Jr., Circuit Court Judge

Opinion No. 28314
Heard September 24, 2025 – Filed January 28, 2026

REVERSED AND REMANDED

Attorney General Alan McCrory Wilson, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown, and Senior
Assistant Attorney General J. Anthony Mabry, all of
Columbia, for Petitioner.

Senior Appellate Defender Lara Mary Caudy, of
Columbia, for Respondent.

CHIEF JUSTICE KITTREDGE: In this appeal, Respondent Kierin Marcellus
Dennis asks the Court to consider whether a criminal defendant is entitled to a
second immunity hearing under the Protection of Persons and Property Act 1 (the
Act) following a mistrial. In answering that question, the court of appeals held that
Dennis was entitled to a new immunity hearing under the Act. As we will explain,
there is no second immunity hearing following a mistrial, and accordingly, the court
of appeals' decision is reversed.

The Act confers immunity from prosecution upon those lawfully justified in using
deadly force, with such immunity being determined through a pre-trial immunity
hearing. If immunity is denied, the State's prosecution may proceed. Because an
immunity hearing functions as an independent proceeding, we find the grant of a
mistrial does not entitle a criminal defendant to a second immunity hearing under
the Act. Rather, mistrials entitle defendants to a new trial. The new trial necessarily
requires the trial court to revisit evidentiary rulings and other matters that have a
direct nexus to the trial itself. An immunity hearing under the Act, however, in no
way determines the admission of evidence at trial, nor does it impact the factfinder's
determination of whether the State has established the defendant's guilt beyond a
reasonable doubt. Because the court of appeals found a second immunity hearing
was required in Dennis's case, we reverse and remand this case to the court of appeals
for further consideration of the remaining issues on appeal which the court of appeals
declined to address in its initial decision.

I.

A.

The State indicted Dennis for murder for the stabbing death of Da'Von Capers (the
victim) during a chaotic encounter between fans of two rival high schools following
a basketball game. Dennis claimed he stabbed the victim in self-defense, and
therefore, he was entitled to immunity from prosecution.

At the pre-trial immunity hearing, the State's witnesses testified that following the
basketball game, Dennis encouraged fans of the rival school to meet him at a local
fast-food restaurant because he "had something" for them. Dennis and his friends
went to the restaurant, as did several rival fans, including the victim. This initial
interaction was largely uneventful, as the rival fans only mildly taunted Dennis's
group as they ordered their food.

1
S.C. Code Ann §§ 16-11-410 to -450 (2015).
The situation changed, however, as the rival groups exited to the restaurant's parking
lot, apparently preparing to leave. As Dennis's group began driving away, one of his
friends (the other driver), who had driven separately, rolled down his window, threw
a pile of change at the group of rival fans, and yelled, "[T]his is all y'all are worth."
The rival fans rushed to collect the coins while the other driver edged towards the
exit. Witnesses claim that Dennis then drove aggressively towards the group
collecting the coins, nearly striking three of them. After Dennis stopped his vehicle,
several rival fans (including the victim) surrounded his driver's side window but did
not touch the vehicle or reach inside. Dennis yelled, "[B]ack up or I'll hurt you," and
"[Y]ou don't want what I got." Seeing Dennis surrounded, the other driver grabbed
a metal pipe and exited his own vehicle, starting towards the crowd. Based on some
of the testimony at the hearing, before the other driver arrived, Dennis retrieved a
knife from inside his own vehicle, reached his hand outside the car, and stabbed the
victim in the chest before driving away.

Dennis's witnesses presented a different version of events. They claimed that after
the other driver threw the money at the crowd, several rival fans surrounded the other
driver's vehicle as if to attack him. Dennis, believing the other driver needed his
help, drove towards the other driver's vehicle to try to disperse the crowd. Rather
than disperse, the crowd surrounded Dennis's vehicle and began reaching inside.
Dennis claimed he grabbed a knife from the center console, reached across his body,
and stabbed the victim, who was partially inside Dennis's vehicle. Dennis then fled
the parking lot with his friends and later buried the weapon in his backyard.

At the close of the immunity hearing, the circuit court (Judge Russo) issued an order
denying Dennis immunity from prosecution and allowed the case to proceed to trial.
In particular, Judge Russo found Dennis failed to prove by a preponderance of the
evidence that: (1) the victim had or was in the process of unlawfully and forcefully
entering Dennis's vehicle; (2) Dennis knew or had reason to believe the victim had
unlawfully and forcefully entered his vehicle or that such entry and unlawful act was
about to occur; and (3) Dennis was without fault in bringing on the difficulty.2

2
As discussed in more detail below, at an immunity hearing, the trial court serves as
the factfinder. The burden of proof is on the accused at the immunity hearing to
establish his entitlement to self-defense by a preponderance of the evidence. See
State v. Andrews, 427 S.C. 178, 181, 830 S.E.2d 12, 13 (2019) (per curiam). At trial,
the burden shifts to the State to disprove the elements of self-defense beyond a
reasonable doubt. See State v. Dickey, 394 S.C. 491, 499, 716 S.E.2d 97, 101 (2011).
In support of his ruling, Judge Russo made extensive factual findings. For instance,
Judge Russo noted that although one witness "standing a few dozen feet" away from
the stabbing testified to seeing what appeared to be several rival fans reaching inside
Dennis's vehicle, several other witnesses testified that no rival fan ever struck or
reached inside Dennis's vehicle before the stabbing. Judge Russo further
emphasized the fact that forensic analysts found no fingerprints other than Dennis's
inside the vehicle. Further, Judge Russo noted that Dennis drove aggressively
towards the crowd of rival fans "at an accelerated rate of speed" and "with a weapon
at his side." Finally, Judge Russo stated that, although Dennis testified that he could
not leave the parking lot once he pulled next to the crowd of rival fans, video from
the scene showed multiple cars driving past Dennis and exiting the parking lot
without difficulty.

B.

At Dennis's ensuing trial, self-defense was the central issue. The jury was unable to
reach a unanimous verdict, and the trial court declared a mistrial. When the State
sought to retry Dennis for murder, he in turn sought a second immunity hearing,
arguing the mistrial entitled him to a new immunity hearing under the Act. Dennis
alternatively argued that, even if the mistrial did not entitle him to a new immunity
hearing, he should still receive a second immunity hearing to introduce new evidence
that was presented during the first trial which could support his immunity claim.
The State disagreed, arguing Judge Russo's order denying Dennis immunity was
final and remained binding even after the mistrial.

Out of an abundance of caution, the circuit court (Judge Hood) delayed ruling on
Dennis's request for a new hearing and permitted him to introduce all his "new"
evidence. After considering this new evidence, as well as the transcripts from Judge
Russo's immunity hearing and Dennis's first trial, Judge Hood denied Dennis's
request to conduct a new immunity hearing and issued an order again denying him
immunity under the Act. Dennis proceeded to a second trial, where the jury
convicted him of murder.

C.

Dennis appealed his conviction to the court of appeals, arguing, in relevant part, that
(1) Judge Hood erred in failing to conduct a new immunity hearing after his mistrial;
and (2) Judge Russo abused his discretion in denying Dennis immunity under the
Act. 3 The court of appeals reversed, holding Judge Hood improperly denied
Dennis's request for a new hearing under the Act. State v. Dennis, 444 S.C. 353, 907
S.E.2d 142 (Ct. App. 2024). The court reasoned that a mistrial effectively nullifies
the entire trial, including any rulings decided at or before trial. As a result, the court
concluded that Judge Hood should have conducted a new immunity hearing
following the mistrial rather than rely on the factual and legal findings made by
Judge Russo. In finding this issue dispositive, the court of appeals made no holding
regarding the propriety of the merits of Judge Russo's order denying Dennis
immunity under the Act.

We granted a writ of certiorari to review the court of appeals' decision.

II.

The State argues the court of appeals erred in concluding the mistrial entitled Dennis
to a new immunity hearing under the Act. We agree.

A mistrial is appropriate where, as here, a jury is deadlocked and unable to reach a
unanimous verdict. See State v. Robinson, 360 S.C. 187, 193, 600 S.E.2d 100, 103
(Ct. App. 2004). Once granted, a mistrial effectively places parties in the same
position as if no trial had occurred at all. See Grooms v. Zander, 246 S.C. 512, 514,
144 S.E.2d 909, 910 (1965) (explaining the rulings of a trial judge in a proceeding
ending in mistrial do not become a binding adjudication on the parties as the mistrial
"leaves the cause pending in the circuit court"); see also, e.g., State v. Woods, 382
S.C. 153, 158, 676 S.E.2d 128, 131 (2009) ("A court ruling as to admissibility and
competency of testimony during a trial which is later declared a mistrial results in
no binding adjudication of the rights of the parties." (cleaned up) (quoting Keels v.
Powell, 213 S.C. 570, 572, 50 S.E.2d 704, 705 (1948))).

This Court has repeatedly emphasized that, when a mistrial is granted, the parties
must relitigate any prior rulings or matters inextricably linked to the trial itself. See
Floyd v. Page, 124 S.C. 400, 402, 117 S.E. 409, 409 (1923) (noting a mistrial leaves

3
Dennis additionally argued the trial court erred in admitting both an aerial
photograph of the restaurant and a model car door of his Ford Explorer at the second
trial. The court of appeals did not address these two issues after finding Dennis's
mistrial issue dispositive. See Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not
address remaining issues on appeal when its determination of a prior issue is
dispositive).
the parties in the same position as if no trial existed at all, with "[t]he rulings of the
trial judge in the court below having eventuated in no binding adjudication of the
rights of the parties"). This includes, for instance, motions to suppress evidence,
motions to change venue, and anything similarly related to how the parties may or
may not conduct themselves at trial. See State v. Smith, 336 S.C. 39, 43–44, 518
S.E.2d 294, 296–97 (Ct. App. 1999) (holding a trial judge could not rely on
evidentiary rulings from a prior mistrial and, therefore, had to conduct a new in-
camera hearing on an in-court identification at the defendant's subsequent trial); see
also Grooms, 246 S.C. at 515, 144 S.E.2d at 910 ("The motion for a directed verdict
could not be granted after the termination of the trial for the obvious reason that there
was no jury to which an instruction for the defendant could have been given.
Therefore, the request the defendant's rights under the motion be preserved was
nugatory.").

This is not say, however, that every ruling issued before a defendant's trial must be
relitigated after a mistrial. On the contrary, a circuit court may issue rulings before
trial that bear no connection to and have no effect on the trial itself. See Enoree
Baptist Church v. Fletcher, 287 S.C. 602, 603–04, 340 S.E.2d 546, 547 (1986)
(holding that, after a mistrial, the trial judge did not have the authority to overrule
the prior judge's ruling permitting the plaintiff to proceed on an amended complaint
before trial). These types of rulings survive a mistrial and remain binding on the
parties even after the trial process starts again. See id. ("The effect of [the trial
court's] order was to reverse the earlier substantive order [permitting the amended
complaint], clearly an impermissible act." (internal footnote omitted)).

The dispute here lies with whether a decision regarding immunity under the Act falls
within the former camp of rulings, which must be relitigated after a mistrial, or the
latter camp of rulings, which survive a mistrial and remain binding on the parties.
We find an immunity ruling falls squarely within the latter camp and remains
binding on the parties even after a mistrial is declared.

As noted at the outset, an immunity hearing functions as an independent proceeding
designed to determine only whether a defendant is entitled to immunity from
prosecution. See State v. Duncan, 392 S.C. 404, 410, 709 S.E.2d 662, 665 (2011).
In that respect, there is nothing decided at an immunity hearing that will later dictate
how the parties may or may not conduct themselves at trial. For instance, if
immunity is denied, a defendant can freely present or abandon his or her self-defense
claim at trial without limitation. See State v. Cervantes-Pavon, 426 S.C. 442, 451,
827 S.E.2d 564, 569 (2019) ("Of course, at the conclusion of any given hearing, if
the circuit court determines the movant has not met his burden of proof as to
immunity, the case will go trial, and the issue of self-defense may—depending upon
the evidence presented at trial—be presented to the trial jury."). Further, the Act in
no way precludes the parties from altering the arguments or evidence presented at
the immunity hearing to better fit the strategies adopted at trial. Cf. Council v. State,
380 S.C. 159, 175, 670 S.E.2d 356, 364 (2008) (emphasizing that, in the context of
death penalty cases, it is not inconsistent for trial counsel to argue during the guilt
phase of trial that the defendant was not the actual perpetrator of the crime but then
present mitigating evidence during the penalty phase of trial). If anything, the
evidence presented at trial will often part company with the evidence previously
presented at the immunity hearing. 4 The incongruence between the evidence
presented at the immunity hearing versus the trial further aligns with the fact that
immunity hearings are held months, if not years before, a defendant's trial, often in
front of circuit court judges who may not ultimately preside over the defendant's
trial.5

These characteristics are especially borne out when compared to those of other
rulings tied to the conduct at trial, like, for instance, a ruling on the admission of
evidence. A pre-trial ruling on the admission or suppression of evidence necessarily
implicates a mechanic of trial: how the parties can or cannot present evidence. An
immunity ruling, however, does not share that distinction. When the circuit court
denies immunity under the Act, the parties are still left in the same position regarding
how they can conduct themselves or present their case at trial. Indeed, no evidence
has been conclusively excluded or admitted; no argument has been foreclosed or
permitted; and the defendant may, if he chooses to, present the same self-defense
claim he did at the immunity hearing, or he may not. Simply put, we find an
immunity hearing is unaffected by a subsequent deadlocked jury resulting in a
mistrial. 6

4
For example, defense counsel may not call a witness to testify at the immunity
hearing that he may otherwise later call during trial, or vice versa. Another
illustration of this occurs when a defendant elects to testify at the immunity hearing
but not at trial, or vice versa.
5
We find this distinction especially relevant here. The first immunity hearing
occurred before Judge Russo in November 2014, but Dennis's first trial did not
commence until October 2016—nearly two years later. Relatedly, Dennis presented
his claims for immunity before Judge Russo (for the first hearing) and Judge Hood
(for the second hearing), neither of whom presided over either of Dennis's trials.
6
It is true, of course, that because immunity hearings are held months or years before
Accordingly, we hold the court of appeals erred in finding Dennis was entitled to a
second immunity hearing under the Act. 7

III.

We next turn to the propriety of the merits of Judge Russo's denial of immunity at
Dennis's first (and only) immunity hearing.

"Circuit courts utilize pretrial hearings to determine whether a defendant is entitled
to immunity under the Act, employing a preponderance of the evidence standard."
Cervantes-Pavon, 426 S.C. at 449, 827 S.E.2d at 567 (citation omitted). "This Court,
in turn, reviews an immunity determination for an abuse of discretion." State v.
McCarty, 437 S.C. 355, 365, 878 S.E.2d 902, 908 (2022) (citation omitted). A
circuit court abuses its discretion when its ruling "is based on an error of law or,
when grounded in factual conclusions, is without evidentiary support." Id. (quoting
State v. Jones, 416 S.C. 283, 290, 786 S.E.2d 132, 136 (2016)).

To obtain immunity under the Act, a defendant must establish by a preponderance
of the evidence that his use of deadly force was justified. Duncan, 392 S.C. at 411,
709 S.E.2d at 665. To do so, the defendant must establish the four elements of self-
defense: (1) he was "without fault in bringing on the difficulty," (2) he "actually
believed he was in imminent danger of losing his life or sustaining serious bodily
injury;" (3) "a reasonably prudent [person] of ordinary firmness and courage would
have entertained the same belief;" and (4) he "had no other probable means of
avoiding the danger" other than to act as he did. State v. Glenn, 429 S.C. 108, 116,
838 S.E.2d 491, 495 (2019) (quoting Dickey, 394 S.C. at 499, 716 S.E.2d at 101);
see also State v. Scott, 424 S.C. 463, 468–69, 819 S.E.2d 116, 118 (2018) ("There

the actual trial, new evidence may be discovered in the interim, and the new evidence
could support or contradict the circuit court's prior ruling on immunity. While new
evidence undoubtedly will affect the parties' strategic decisions and ability to present
their cases at trial, it does not alter—or otherwise entitle the defendant to question—
the finality of the circuit court's prior ruling on immunity. We say this without
disturbing our prior holding that an order denying immunity under the Act is not
immediately appealable under S.C. Code Ann. § 14-3-330 (1) (2017). See State v.
Isaac, 405 S.C. 177, 183, 747 S.E.2d 677, 679 (2013).
7
While unnecessary to our resolution of this case, we additionally note Dennis
effectively received a second immunity hearing before Judge Hood.
are four elements that must be established to justify the use of deadly force as self-
defense[, and the defendant] bears the burden of proving these elements by the
preponderance of the evidence [in an immunity hearing]." (citations omitted)). If
the defendant has failed to satisfy the second or fourth elements above, "the court
should then determine whether section 16-11-440(A) or (C) [of the Act] is
applicable." Glenn, 429 S.C. at 118, 838 S.E.2d at 496.

Section 16-11-440 of the Act provides, in relevant part:

(A) A person is presumed to have a reasonable fear of imminent peril
of death or great bodily injury to himself or another person when
using deadly force that is intended or likely to cause death or great
bodily injury to another person if the person:

(1) against whom the deadly force is used is in the process of
unlawfully and forcefully entering, or has unlawfully and
forcibly entered a dwelling, residence, or occupied vehicle, or if
he removes or is attempting to remove another person against his
will from the dwelling, residence, or occupied vehicle; and

(2) who uses deadly force knows or has reason to believe that an
unlawful and forcible entry or unlawful and forcible act is
occurring or has occurred.

....

(C) A person who is not engaged in an unlawful activity and who is
attacked in another place where he has a right to be . . . has no duty
to retreat and has the right to stand his ground and meet force with
force, including deadly force, if he reasonably believes it is
necessary to prevent death or great bodily to injury to himself . . . .

(Emphasis added).

Here, although there is conflicting evidence presented as to what exactly occurred
during the altercation at the restaurant, the record contains sufficient evidence to
support Judge Russo's factual findings, which in turn supports the denial of
immunity under subsections (A) and (C) of section 16-11-440. For example,
multiple witnesses testified that Dennis invited the victim and his friends to the
restaurant to settle any hard feelings after the game. These witnesses further stated
that Dennis aggressively drove his vehicle towards a group of rival fans before he
began shouting at the crowd, warning them—more than once—that they "don't want
what [he] got." Likewise, multiple witnesses testified that Dennis reached his hand
outside the car window to stab the victim. These same witnesses also noted that the
victim never reached inside the vehicle before the stabbing. Indeed, the forensic
analysts did not recover any fingerprints inside the vehicle besides Dennis's. Finally,
although Dennis claimed he could not leave the scene because the rival fans had
surrounded his vehicle, various witnesses and surveillance videos indicated that
multiple vehicles safely drove past Dennis's vehicle as he sat stationary in his own
car.

Viewed together, because there is evidence to support Judge Russo's finding that
Dennis did not establish the elements of self-defense by a preponderance of the
evidence, Judge Russo did not abuse his discretion in denying Dennis immunity
under the Act.

IV.

In sum, we hold the court of appeals erred in finding Dennis was entitled to an
entirely new, second immunity hearing under the Act following the mistrial. We
further hold that, on the merits, Judge Russo did not abuse his discretion in denying
Dennis immunity under the Act. We therefore reverse the court of appeals' decision
and remand the case to the court of appeals to decide the two remaining issues on
appeal.

REVERSED AND REMANDED.

FEW, JAMES, HILL and VERDIN, JJ., concur. FEW, J., concurring in a
separate opinion. JAMES, J., concurring in a separate opinion in which HILL,
J., concurs.
JUSTICE FEW: I concur with the majority opinion, particularly the decision to not
address the issue Justice James raises in his opinion. However, because Justice
James raises the issue and writes that "the defendant would be entitled to a second
immunity hearing under certain circumstances," I am persuaded to state that I
respectfully disagree with Justice James. As the majority explains in detail, "an
immunity hearing is unaffected by a subsequent deadlocked jury resulting in a
mistrial." It necessarily follows from this reasoning that the trial court's ruling on a
request for immunity under the Protection of Persons and Property Act is a final
ruling. A final ruling may not be reconsidered except as provided by law.
There is no provision of law that permits a second immunity hearing after a final
ruling has been entered in the initial hearing. First, the opportunity to request
immunity on the basis provided in the Act arises only under the Act—there is no
common-law basis for such immunity—and the Act makes no provision for a second
hearing. For this Court to provide the hearing Justice James contemplates, we would
be effectively amending the Act—which we obviously may not do. Second, the only
provision of law which permits the consideration of after-discovered evidence under
any circumstance is Rule 29(b) of the South Carolina Rules of Criminal Procedure,
which clearly does not apply to this situation. We may not amend Rule 29(b) without
submitting the proposed amendment to the General Assembly pursuant to article V,
section 4A of the South Carolina Constitution. We have no authority to otherwise
"adopt the . . . standard" Justice James proposes.
My position is consistent with the basic concept of "immunity," which is that when
immunity is provided, criminal proceedings must stop; immunity is a legal bar to
further prosecution, particularly a trial. It is counterintuitive for a court to entertain
a request to bar criminal proceedings from proceeding to trial after a trial has already
been conducted. Thus, even if this Court had the authority to do what Justice James
proposes, we should not do it.
When new evidence comes to light after a mistrial and before a retrial, as here, the
defendant is free to present that evidence to the jury during the retrial, but a circuit
court is not free to conduct a second immunity hearing.
JUSTICE JAMES: I agree with the majority but write separately to note my
position that in the event of a mistrial, the defendant should be entitled to a second
immunity hearing under certain circumstances. If, prior to the next trial convened
after the mistrial, new evidence is discovered that is relevant to the immunity issue,
the defendant's request for a new immunity hearing should be granted.

I would adopt the following standard: (1) the evidence was discovered after the
mistrial; (2) the evidence could not have been, by the exercise of due diligence,
discovered prior to the first immunity hearing; (3) the evidence is material and
relevant to the immunity issue; and (4) the evidence is not merely cumulative or
impeaching. The trial court would consider these factors and determine whether the
defendant is entitled to a new immunity hearing.
I will address two points Justice Few raises in his concurring opinion. First, he writes
that there is no provision of law permitting a second immunity hearing or allowing
us to adopt the standard I propose. However, in State v. Duncan, we put some meat
on the bones of the Protection of Persons and Property Act where none existed. 392
S.C. 404, 709 S.E.2d 662 (2011). In Duncan, we recognized that the Act does not
set forth a burden of proof to be applied by the circuit court in an immunity hearing,
nor does the statute set forth who—the defendant or the State—has the burden of
proof. We filled in those gaps by holding that the defendant has the burden of
establishing entitlement to immunity by the preponderance of the evidence. Id. at
411, 709 S.E.2d at 665. I believe our authority to adopt the standard I propose is no
less than was our authority in Duncan to adopt the preponderance of the evidence
standard.

Second, Justice Few maintains that "when immunity is provided, criminal
proceedings must stop; immunity is a legal bar to further prosecution, particularly a
trial. It is counterintuitive for a court to entertain a request to bar criminal
proceedings from proceeding to trial after a trial has already been conducted."
(emphasis Justice Few's). Of course, I agree that when immunity is sought, criminal
proceedings must stop and cannot resume unless immunity is denied; however, I
disagree that it is counterintuitive for a court to entertain another request for
immunity after a mistrial. In subsection 16-11-420(B) of the Act, the General
Assembly found "that it is proper for law-abiding citizens to protect themselves, their
families, and others from intruders and attackers without fear of prosecution or civil
action for acting in defense of themselves and others." In subsection 16-11-420(E),
the General Assembly found that "no person or victim of crime should be required
to surrender his personal safety to a criminal, nor should a person or victim be
required to needlessly retreat in the face of intrusion or attack." A citizen's right to
immunity is much too important to die at the door of a mistrial. And, to repeat
Justice Few's statement, "immunity is a legal bar to further prosecution." After a
mistrial, "further prosecution" is squarely in play in the form of a second trial. The
standard I propose would honor the legislative intent behind the Act.
Here, there was no new evidence satisfying the standard I propose. Therefore, I
concur with the well-reasoned majority opinion.
HILL, J., concurs.