By John Lyon
Arkansas News Bureau

LITTLE ROCK — The constitutional prohibition against double jeopardy protects a Jefferson County man from being tried on a capital murder charge after a previous attempt to try him ended in a mistrial, the man’s attorney argued Thursday before the state Supreme Court.

An attorney for the state told the court the double jeopardy clause does not apply in the case of Glen Homer Shelton Jr., who ran over Melonie Hughes with a farm tractor near Pine Bluff on May 5, 2007.

The state’s highest court heard oral arguments Thursday in Shelton’s appeal of a Jefferson County circuit judge’s ruling denying his claim that taking his case to trial again would place him in double jeopardy.

Jefferson County Circuit Judge Robert Wyatt Jr. declared a mistrial in February 2008 after Shelton’s public defender, Tim Bunch, said in his opening statement that Shelton accidentally ran over Hughes. Chief Deputy Prosecutor Kyle Hunter argued at the time that Bunch’s statement contradicted the defense’s stated strategy, that Shelton killed Hughes in self-defense.

Bunch said in his opening statement that Hughes approached Shelton on the farm where he was working, and the two got into an argument. He said Hughes fired a gun at Shelton several times, and Shelton got onto a tractor and chased Hughes off the property before losing control of the tractor and striking Hughes.

Hunter said in his opening statement the tractor traveled more than 600 feet from the spot where it had been parked before striking Hughes in the middle of U.S. 425 south of Pine Bluff.

A .22 caliber revolver and seven expended cartridges were found near Hughes’ body.

Little Rock attorney Thomas Sullivan, who is handling Shelton’s appeal, told the Supreme Court Thursday that it was the prosecutor, not Shelton’s trial lawyer, who first mentioned the accident theory to the jury.

Sullivan said Hunter, who gave his opening statement first, told jurors they would hear that Shelton gave authorities several different explanations for the incident, including a claim that he accidentally ran over Hughes.

Sullivan argued that the prosecutor wanted a mistrial because he realized a capital murder conviction was unattainable.

“This is the most egregious overcharging I’ve ever seen in a capital context,” he said.

Deborah Gore, an attorney with the state attorney general’s office, said that because the judge believed the defense’s strategy was based on a claim of self-defense, he allowed Bunch to tell jurors that Hughes had drugs in her system at the time of the incident and had attacked Shelton with a knife in 2004.

The judge would not have allowed the “muddying of the victim” if he had known the defense planned to claim that Hughes’ death was an accident, Gore said.

“He (Bunch) misrepresented to the judge what his defense would be,” she said, adding that Bunch’s opening statement unfairly prejudiced the jury.

Justice Donald Corbin asked Gore who first put the notion of an accident into the jury’s minds. Gore acknowledged that it was the prosecutor who first mention the accident theory.

“You have broached the subject first, and we have case law after case law that says once you open it up, they can respond to it,” Corbin said.

Gore said the judge never ruled that the accident theory could not be mentioned, but if Bunch wanted to use the theory as a defense, he was obliged to say so before the trial.

The Supreme Court did not immediately issue a ruling.

Sullivan told reporters Shelton has been in jail for two years awaiting trial. He said that if Shelton had been convicted of manslaughter — a more appropriate charge than capital murder, according to Sullivan — he likely would have been released from prison after about two years.