DUI Appeal - Double Jeopardy Bars Retrial, Says North Dakota

In Day v. Judge Bruce Haskell, --- N.W.2d ----, 2011 WL 2505052 (N.D.), 2011 ND 125, the defendant sought a writ from the Supreme Court of North Dakota to bar a judge from forcing the defendant to be retried. The facts of the case are unusual:
"In April 2010, Day was charged by complaint with driving under the influence of alcohol. A jury trial was held in February 2011. After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.

"The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.

"On March 10, 2011, Day moved to dismiss the complaint, arguing a second trial was prohibited under Fifth Amendment double jeopardy principles. In April 2011, the trial court, another judge presiding, denied Day's motion to dismiss, finding a mistrial was reasonably necessary."


As stated in the opinion:

"‘The general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn, and in a non-jury trial when the court begins to hear evidence.’ “ Linghor, 2004 ND 224, ¶ 20, 690 N .W.2d 201 (quoting State v. Berger, 235 N.W.2d 254, 257 (N.D.1975)). Here, jeopardy attached when the jury was empaneled and sworn.

"However, the Double Jeopardy Clause does not prohibit retrial in every case where the first trial has terminated after jeopardy attached but before a verdict is rendered. Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201. Whether a defendant may be retried depends on whether a mistrial was properly granted. State v. Voigt, 2007 ND 100, ¶ 12, 734 N.W.2d 787. The basic controlling principles in determining whether a mistrial was properly granted are manifest necessity and the ends of public justice. Id. In United States v. Perez, 22 U.S. 579, 580 (1824), a landmark case construing the Double Jeopardy Clause, the United States Supreme Court said:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office."

Concluding, the court stated:
"In this case, the attorneys were briefly afforded an opportunity to be heard on the issue. However, the trial court failed to consider other alternatives before granting the State's motion for a mistrial and the decision was not made after sufficient reflection. The trial court allowed the attorneys to question the bailiff at Day's attorney's request, but in response, the trial court said, “frankly, any conversation would be grounds for a mistrial. So I'm not—I'll allow you to make your record, I don't think that it's going to be particularly helpful.” The issue was raised shortly before 10:49 a.m., and the trial court granted a mistrial at approximately 10:56 a.m. The trial court did not make any findings about juror bias or prejudice. Day's attorney requested a curative instruction, but the trial court failed to consider the request and granted a mistrial. The record indicates the trial court believed a mistrial would be required if there was any conversation between the defendant and the jury. A mistrial is not automatically required when the jury is exposed to improper communication; rather, the court must consider the circumstances of each case and determine if there is a manifest necessity for a mistrial. See United States v. Melius, 123 F.3d 1134, 1138–39 (8th Cir.1997) (the trial court's decision to grant a mistrial when there is a claim of possible juror bias is entitled to deference but the court's decision is not beyond review and the court must act responsibly and deliberately considering the defendant's interests). The trial court's decision to terminate a criminal proceeding after jeopardy has attached should not be taken lightly. Linghor, 2004 ND 224, ¶ 22, 690 N.W.2d 201. In this case, the trial court did not consider any alternatives and the decision was made quickly and without sufficient reflection. The trial court did not engage in the “scrupulous exercise of judicial discretion” required before making its decision.

"Under the facts and circumstances of this case, we conclude granting a mistrial was not manifestly necessary and retrial is constitutionally barred."


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