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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DOUGLAS W. ARTEMIE, | ) |
| ) Court of Appeals No. A-9286 | |
| Petitioner, | ) Trial Court No. 3AN-03-1999 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Respondent. | ) No. 2104 - May 25, 2007 |
| ) | |
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Larry D.
Card, Judge.
Appearances: Allan Beiswenger, Anchorage, for
the Petitioner. Tamara E. de Lucia,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Douglas W. Artemie was tried on two counts of first-
degree sexual assault and one count of first-degree assault. The
jury could not agree on a verdict. On its first day of
deliberations, the jury sent two notes to Superior Court Judge
Larry D. Card telling him that it was deadlocked. Judge Card
responded to both notes by telling the jury to continue
deliberations.
On the second day of deliberations, the jurors listened
to a recording of trial testimony and then sent a note to Judge
Card saying that they were still deadlocked and did not believe
they would be able to reach a unanimous verdict. Artemie asked
Judge Card to instruct the jurors to continue their
deliberations. Judge Card denied the request. Instead, he
brought the jurors to the courtroom and asked them if they
understood the instructions and if additional instructions would
assist them. All of the jurors indicated that additional
instructions would not assist them, and Judge Card declared a
mistrial.
Two weeks later, Artemie moved for dismissal of the
case with prejudice, arguing that a retrial was barred by the
double jeopardy clause. Judge Card denied the motion, and
Artemie has petitioned us to review that decision. The question
is whether, under the circumstances of Artemies case, Judge Card
could reasonably conclude that there was manifest necessity for a
mistrial because there was no probability the jury would reach a
unanimous verdict. We hold that Judge Card could reasonably
reach this conclusion and, therefore, the double jeopardy clause
does not bar Artemies retrial.
Facts and proceedings
Artemie was charged with two counts of first-degree
sexual assault and one count of first-degree assault.1 At his
trial, the jury heard approximately seventeen hours of testimony
and three hours of argument over the course of six days.
The case essentially involved a dispute over the
identity of the assailant and the credibility of the witnesses.
N.J. testified that Artemie sexually assaulted her. In his
defense, Artemie admitted that he and N.J. had kissed earlier in
the night, but he claimed he left the apartment when he heard an
angry voicemail message left on N.J.s telephone answering machine
and thought a man with whom he did not get along was on his way
to the apartment. Artemie argued that the jury should not
believe N.J.s testimony because she was drunk it was undisputed
that she had a blood alcohol level of 0.311 percent an hour after
the assault and did not remember portions of the evening. And
Artemie contended that the assailant could have been N.J.s ex-
boyfriend or the man Artemie thought was on his way to the
apartment.
At the end of the trial, Judge Card instructed the
jury. Instruction Number 38 stated that the jurys verdict must
be unanimous. It further provided that the jurors should not
hesitate to reexamine their own views or change their opinions
but that they should not surrender their honest beliefs solely
because of the opinion of other jurors or to return a verdict.2
After instructing the jurors, Judge Card excused the jury for the
night.
The jury began deliberations at approximately 9:00 a.m.
on Friday, April 15. Just after noon, the jury foreperson wrote,
We are unable to reach a unanimous decision. What should we do?
A half-hour later, Judge Card responded, Please continue to
deliberate. If there are any additional instructions on the law
that you desire, or you desire the playback of any testimony
heard during the trial, please send me a note requesting your
desires. After an additional 30 minutes of deliberations, a
second juror wrote:
Sir, we started the day at 9 (not guilty) and
3 (guilty). We have been deadlocked at 10
(not guilty) and 2 (guilty) since around
10:00 a.m. We are all very adamant on our
current vote and do not feel any review of
the evidence/testimony will change any of our
minds. Your guidance is appreciated.
Judge Card responded an hour later: I have discussed the issue
with counsel, and in light of the fact that we all had a very
long day yesterday, I feel it best to recess deliberations for
the weekend, and you are to return on Monday morning to resume
your deliberations.
On Monday, the jurors came in at 9:00 a.m. and listened
to a recording of approximately six hours of testimony by N.J.
and Artemie. They did not take a lunch break. At 3:35 p.m., the
jury foreperson wrote, We are still unable to reach a [ ]
unanimous decision. We do not believe we will be able to reach a
unanimous decision.
At that point, the State argued that Judge Card should
declare a mistrial because it did not appear the jury would be
able to reach a unanimous decision. Artemie objected. He argued
that the jury had only been deliberating for three to four hours
and Judge Card should re-read Instruction Number 38 and tell the
jury to continue deliberating. Judge Card denied the request.
At approximately 4:30 p.m., Judge Card asked the jury
to return to the courtroom. He told the jury foreperson that he
had received her note that the jury was still unable to reach a
unanimous decision. He then asked the jurors whether they
understood the instructions and whether additional instructions
would assist them. The jurors indicated that they understood the
instructions and that additional instructions would not assist
them. Judge Card therefore found manifest necessity for a
mistrial. After Judge Card granted a mistrial, the jury
foreperson stated that the jury had a couple people go back and
forth but the final tally was eight (not guilty) to four
(guilty).
Approximately two weeks later, Artemie moved to dismiss
the case with prejudice that is, without an opportunity for the
State to retry him. He noted that the mistrial was declared over
his objection, and he argued that a retrial would violate his
right against double jeopardy. Judge Card denied the motion.
Artemie petitioned this court for review.
Discussion
Did Judge Card abuse his discretion in denying the
motion to dismiss?
A trial judge may discharge a jury before it reaches a
verdict whenever there is manifest necessity to do so.3 Manifest
necessity exists when there is no probability that a unanimous
verdict will be reached.4
In Koehler v. State,5 the Alaska Supreme Court applied
the standards of the American Bar Association (ABA) Project on
Standards Relating to Trial by Jury to determine whether there
was a probability the jurors would reach a unanimous verdict:
[W]hether there exists a probability of
agreement should be determined by (1)
questioning the jurors as to their inability
to agree without any attempt on the trial
judges part to ascertain how the jurors stand
on the question of innocence or guilt and (2)
considering the length of the deliberations,
the length of the trial, and the nature or
complexity of the case. ... In exercising
its discretion the trial court need not make
express findings pertaining to its decision
to discharge the jury. However, the record
must clearly support the trial courts
implicit finding of no prospect of
agreement.[6]
Here, Judge Card told the jurors that he had received their note
declaring that they were deadlocked. He asked the
jurors to confirm that they understood the instructions
and to tell him if they thought additional instructions
would assist them. Although he did not directly ask
the jurors if they were unable to agree on a verdict,
Judge Card had just received his third note from the
jury stating that the jury was deadlocked. Artemie
did not ask Judge Card to individually poll the jury,
and on appeal he has not challenged Judge Cards
questioning of the jurors.
In deciding whether to grant a mistrial, a trial judge
must consider the length of the deliberations, the
length of the trial, and the nature or complexity of
the case.7 As the Ninth Circuit has noted:
There is no minimum amount of time which a
jury must spend in deliberations before a
mistrial can be declared. This factor is one
which is best left to the determination of
the trial judge who was most aware of the
circumstances of the trial.[8]
In this case, the jury listened to approximately seventeen hours
of testimony and three hours of argument over the
course of six days. The jury then spent approximately
six hours listening to playbacks of testimony and at
least three and up to six and one-half hours
deliberating.9
In Koehler, the court noted that, according to an ABA
study, juries often take longer than this to reach a
verdict in a trial of this duration.10 However,
Artemies case primarily hinged on the credibility of
witnesses particularly the credibility of Artemie and
the alleged victim, N.J. If some jurors were firm in
their belief of N.J.s version of events and other
jurors were firm in their belief of Artemies version,
even after listening to a playback of their testimony,
there was little to debate. Moreover, Judge Card did
not declare a mistrial until the jury reported its
inability to reach a verdict for the third time.
We agree with the Second Circuit that [r]equiring a
jury to continue deliberations despite genuine and
irreconcilable disagreement more often than not defeats
the ends of public justice; not only will such
compulsion needlessly waste valuable judicial
resources, it may coerce erroneous verdicts.11 Judge
Card did not abuse his discretion in finding there was
no probability of the jury reaching a verdict and,
therefore, in declaring a mistrial.
Mistrial occasioned by the jurys inability to reach a
verdict is a classic example of a case in which retrial
is permitted even though the first jury was discharged
without the defendants consent.12 Accordingly, Artemies
retrial will not violate his right against twice being
placed in jeopardy, and Judge Card did not err in
denying Artemies motion to dismiss.
Conclusion
Judge Card did not abuse his discretion in finding
manifest necessity for a mistrial. The decision of the
trial court is AFFIRMED.
_______________________________
1 AS 11.41.410(a)(1) and AS 11.41.200(a)(1), respectively.
2 The entire instruction read as follows:
A verdict must represent the considered judgment of
each juror. In order to return a verdict, it is
necessary that each juror agree thereto. Your verdict
must be unanimous. It is your duty as jurors to consult
with one another and to deliberate with a view to
reaching an agreement, if you can do so without
violence to individual judgment. Each of you must
decide the case for yourself, but do so only after
impartial consideration of the evidence with your
fellow jurors. In the course of your deliberations, do
not hesitate to re-examine your own views and change
your opinion if convinced it is erroneous, but do not
surrender your honest belief as to the weight of the
evidence solely because of the opinion of your fellow
jurors or for the mere purpose of returning a verdict.
You are not parsons, you are judges, judges of the
facts. Your sole interest is to ascertain a truth from
the evidence in the case.
3 Lewis v. State, 452 P.2d 892, 895-96 (Alaska 1969).
4 Koehler v. State, 519 P.2d 442, 448 (Alaska 1974).
5 519 P.2d 442.
6 Id. at 449.
7 Id.
8 Arnold v. McCarthy, 566 F.2d 1377, 1387 (9th Cir. 1978).
9 On Friday, the jury deliberated for about three to five
hours depending on whether it continued deliberations
while waiting for responses to its questions. On
Monday, the jury listened to about six hours of
testimony and then deliberated for somewhere between
five minutes and one and a half hours depending on the
length of the playbacks and whether the jury continued
deliberating while waiting for a response to its note
that it was deadlocked.
10 Koehler, 519 P.2d at 449 (citing ABA Project on Standards
Relating to Trial by Jury (1968) at 156-57 and H.
Kalven & H. Zeisel, The American Jury at 454-63
(1966)).
11 United States v. Goldstein, 479 F.2d 1061, 1068 (2d Cir.
1973). See also United States v. See, 505 F.2d 845,
851 (9th Cir. 1974).
12 Lewis, 452 P.2d at 894.
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