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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CURT J. FRIEDMANN, | ) |
| ) Court of Appeals No. A-9750 | |
| Appellant, | ) Trial Court No. 3PA-05-043 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2135 December 21, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Because of a criminal defendants constitutional right
not to be placed in jeopardy a second time for the same offense,
our law forbids a trial judge from discharging a jury in the
middle of an uncompleted criminal trial unless (1) the defendant
consents to this action, or (2) there is a manifest necessity for
this action.1
Nevertheless, Alaska Criminal Rule 27(d)(3) suggests
that the mid-trial dismissal of a jury might be authorized on a
separate ground. Criminal Rule 27(d)(3) states that if one or
more jurors are unable to perform their duties or are
disqualified from performing their duties before the jury retires
to consider its verdict, the trial judge is authorized to
discharge the affected jurors and, if there are insufficient
alternate jurors to complete the panel, the jury may be
discharged and a new jury then or afterwards formed.
This appeal presents the question of whether a trial
judges authority to discharge a jury in the middle of a criminal
trial under Criminal Rule 27(d)(3) is governed by the
restrictions that the double jeopardy clause would normally place
on this action.
We conclude that the dismissal of a jury in the middle
of a criminal trial under Criminal Rule 27(d)(3) must be treated
as equivalent to a declaration of a mistrial for double jeopardy
purposes. Thus, even when a judge does not expressly label their
action a mistrial, a judges dismissal of the jury panel under the
authority of Criminal Rule 27(d)(3) will bar further prosecution
of the defendant unless the defendant consented to the judges
action, or unless there was a manifest necessity for the
dismissal of the jury.
In the present case, the superior court dismissed the
jury in the middle of trial, then invoked Criminal Rule 27(d)(3)
in an attempt to avoid the double jeopardy consequences of this
action. However, the record shows that the defendant consented
to the dismissal of the jury that, in fact, the defense attorney
counseled the trial judge to adopt this course of action. As a
consequence, there was no violation of the double jeopardy clause
when the superior court ordered that the defendant be brought to
trial a second time.
Underlying facts
Curt J. Friedmann, along with co-defendants
Stephen L. Hoyt and Thomas R. Saddler, was indicted on
several counts of controlled substance misconduct. The
State alleged that the three men were partners in the
manufacture and distribution of methamphetamine.
The three defendants cases were joined for
trial, and that trial began on August 23, 2005. On
that day, a jury was selected and sworn thus
triggering the protections of the double jeopardy
clause.2
The parties were supposed to deliver their
opening statements the following morning, August 24th.
But when the court reconvened, Saddlers attorney
announced that he had just become aware of a defect in
the States pre-trial discovery. The attorney explained
he had never received a laboratory report from the
State, or a notice of expert testimony.
Following this announcement, Hoyts attorney
also stated that he did not have a lab report or a
notice of expert testimony from the State.
Friedmanns attorney, on the other hand, told
the court that he had received the States lab report
and its notice of expert testimony.
Basically, a trial court can consider two
potential remedies when the State fails to make proper
pre-trial disclosure under Alaska Criminal Rule 16.
The normal remedy is to grant a continuance (i.e.,
delay the trial) to allow the defendant and their
attorney to re-evaluate the defense case in light of
the new information.3 But if the trial has already
started, and if the defendants preparation or
presentation of the case has been prejudiced by the
lack of this information, the trial court should
ordinarily grant a defendants request for a mistrial.4
A few Alaska cases mention a third potential
option: suppressing the non-disclosed evidence if the
defendant has suffered substantial prejudice, or if the
States failure to disclose the information was willful
(i.e., a knowing violation of its obligations under
Rule 16).5 However, the supreme courts decision in
Bostic v. State, 805 P.2d 344 (Alaska 1991), appears to
reject this remedy.
The Bostic majority declared that, in cases
involving violations of the pre-trial discovery
provisions of Criminal Rule 16, [t]he injury to the non-
offending party is the same regardless of the intent of
the party violating Rule 16, since the [same] advantage
inures to the violating party regardless of whether the
violation was negligent or deliberate, whether done in
good faith or in bad faith.6 The majority then
described the remedy of mistrial as a tailored remedy
... which [both] allow[s] [the defendant] to
restructure his defense in light of the sudden
revelation of information which he was entitled to have
all along, and [allows] the state to put on relevant
evidence in its possession, should it deem the evidence
too important to proceed without it.7 And the two
dissenters in Bostic declared that a defendant had no
right to demand suppression of evidence if the sole
problem was a discovery violation, since [t]he only
right implicated ... is [the defendants] right to
notice in advance of trial.8
Returning to the facts of the present case,
Saddlers attorney asserted that he would need 90 days
to have the physical evidence re-tested, and (depending
on the results of the re-testing) to have a rebuttal
expert prepare a report. Because of this, Saddlers
attorney argued that continuance of the trial (with the
already-selected jury kept waiting for at least 90
days) would be impossible.
However, after explaining that a continuance
of the trial would be impossible, Saddlers attorney
then declared that he would not consent to a mistrial
and he threatened that, if the court declared a
mistrial without his consent, he would seek dismissal
of all the charges under the double jeopardy clause.
Therefore, according to Saddlers attorney, the only
available remedy was to suppress the States physical
evidence and/or to preclude the State from presenting
expert testimony to establish the chemical identity of
the physical evidence.
(It was obvious to everyone in the courtroom
including Judge Smith that suppression of the drugs
and/or the experts testimony would, in effect, require
the court to acquit the defendants.)
Up until this point, Friedmanns attorney the
only defense attorney who had received all of the
States pre-trial disclosure had contributed nothing of
substance to the discussion. However, after Saddlers
and Hoyts attorneys had stated their positions
regarding the pre-trial disclosure problem, Friedmanns
attorney informed Judge Smith that he ran into this
very issue some years ago in front of [Superior Court]
Judge [Eric] Sanders:
Friedmanns attorney: [It was] a
criminal case where ... the State did not
produce the [notice of] expert ... and the
lab report. [And] it was a cocaine
distribution case: clearly, the case was ...
going to [turn] primarily on [whether the
physical evidence] was cocaine or not
cocaine. [And it was] after the jury [was]
impaneled [and] jeopardy had attached.
I made ... the same type of motion [on
behalf of the defendant]. ... And the
remedy in that particular case ... was not
exclusion of the evidence. And because of
the fact that it was going to [require] ...
re-test[ing] and that type of thing, a
mistrial was declared by the court which
allowed the defense an opportunity to go have
the drugs re-tested, and to be able to figure
out where we [stood] after [the results] came
back.
So I guess [this] Courts options ... are
fairly clear. ... [I]ts either a
continuance, and the jury can come back, or
[its] exclusion ... . [But] I think, based
[on] the case law theres no willful, wanton
behavior on [the part] of the State. So I
think [that] the other option is a mistrial
... .
After a little more discussion, Friedmanns
attorney summed up his position as follows:
Friedmanns attorney: [The way] I look
at [it] is [that] the proper remedies here
would either be from my standpoint and from
my clients standpoint a continuance of the
trial to allow the [other] defense attorneys
to re-examine this evidence and look at it
with their expert[s], if thats what they ...
chose to do, or declare a mistrial in this
case. Thank you.
A little later that day, Judge
Smith held a hearing to investigate the
circumstances surrounding the States failure
to deliver the laboratory report and the
notice of expert witness to Saddlers attorney
and Hoyts attorney. Based on the information
elicited at this hearing, Judge Eric Smith
concluded the States failure was not willful.
At worst, the judge concluded, the
prosecutors office made an understandable
goof as to where to send the materials. And,
because there was no willful violation of
Rule 16, Judge Smith rejected suppression as
a remedy.
Judge Smith did, however, conclude
that Saddler and Hoyt were entitled to a
continuance so that they could re-test the
physical evidence. And, because it appeared
likely that the jury could not be preserved
through the course of a lengthy continuance,
Judge Smith concluded that he would probably
have to declare a mistrial in the interest of
justice.
Judge Smith summoned the jurors to
the courtroom and asked if any of them would
be unavailable to attend the trial if it was
postponed by 45 days. Five jurors raised
their hands. Based on these five jurors
responses, and without questioning the jurors
further, Judge Smith declared a mistrial and
discharged the jury.
About five weeks later, on
September 28th, Hoyts attorney filed a motion
to dismiss all of the charges, based on the
assertion that a second trial would violate
the double jeopardy clause. One week later,
Friedmanns attorney filed a short pleading
indicating that he joined this motion to
dismiss the charges.
After considering this motion to
dismiss, Judge Smith concluded (in
retrospect) that he had failed to conduct a
sufficient inquiry to establish that the five
jurors would actually have been unavailable
if the trial had been continued for 45 days.
Thus, Judge Smith concluded, the record
failed to demonstrate that it was manifestly
necessary to declare a mistrial.
However, Judge Smith also concluded
that it had not been necessary for him to
declare a mistrial when he dismissed the
jury. Instead, Judge Smith decided that his
dismissal of the jury was independently
authorized by Criminal Rule 27(d)(3). As we
explained earlier in this opinion, Rule
27(d)(3) authorizes a trial judge to
discharge a jury and to form a new one
(either then or later) if, during the trial,
one or more jurors are found to be
disqualified or otherwise unable to perform
their duties, and if there are insufficient
alternate jurors to complete the panel.
Judge Smith concluded that the
situation he confronted in Friedmanns,
Saddlers, and Hoyts case was the same
situation described in Rule 27(d)(3) and
that, consequently, Rule 27(d)(3) provided
independent authority for discharging the
jury, even though the record failed to
establish a manifest necessity for this
action.
In accord with this view of
matters, Judge Smith retroactively rescinded
his declaration of a mistrial and instead
declared that the jury had been discharged
under the authority of Criminal Rule
27(d)(3). He then calendared a second trial
for the three defendants.
After Judge Smith issued this
decision, Friedmann entered a Cooksey plea,
reserving his right to appeal Judge Smiths
ruling that a second trial was not barred by
the double jeopardy clause.9
Dismissal of a jury under Criminal Rule 27(d)(3) is the
equivalent of a declaration of mistrial for purposes of
the guarantee against double jeopardy
When a criminal defendant is tried by jury,
jeopardy attaches once the jury is sworn.10 This rule
is the linchpin [of] all double jeopardy
jurisprudence.11
And once jeopardy attaches, a defendant is
entitled to have their case decided by the original
jury empaneled and sworn to try the case (including any
duly selected alternates). The defendant can
relinquish this right by requesting or consenting to a
mistrial. But otherwise, the double jeopardy clause
protects the defendant from a renewed trial in front of
a different jury unless the record establishes that
there was a manifest necessity for stopping the initial
trial short of a verdict.12
Because a defendants right to have their case
decided by the originally empaneled jury is a crucial
aspect of the constitutional protection against double
jeopardy,13 the dismissal of that jury always has
constitutional consequences. This remains true even if
the jury is dismissed under the authority of Alaska
Criminal Rule 27(d)(3) that is, even when one might
arguably describe the defendants renewed trial as a
continuation of the original trial, but with a new
jury.
The Sixth Circuit faced a similar issue in
Watkins v. Kassulke, 90 F.3d 138 (6th Cir. 1996), a
case in which the trial judge dismissed two jurors in
the middle of a criminal trial and replaced them with
other members of the original group of potential
jurors, even though these other potential jurors had
not been designated as alternate jurors and had, in
fact, already been dismissed.14 Although the trial
judge did not expressly declare a mistrial when he
replaced the two jurors, the Sixth Circuit held that
the trial judges action triggered the defendants rights
under the double jeopardy clause:
[Even though] the trial court did not
formally declare a mistrial, we agree with
the parties that what occurred in Watkinss
trial should be treated as a mistrial for
purposes of analyzing the double jeopardy
question. The original jury did not hear the
case through to a verdict, and this fact is
the defining characteristic of a mistrial.
Watkins, 90 F.3d at 141.
We have examined the Court Rules
Attorneys historical file on Alaska Criminal
Rule 27(d), and it contains no discussion of
this double jeopardy issue. But even in the
unlikely event that our supreme court
intended Rule 27(d) to supersede the double
jeopardy clause, and to abrogate the
constitutional protections that normally
attend the mid-trial dismissal of a jury in a
criminal case, we could not lawfully enforce
that supposed intention.
As the Supreme Court of the
Territory of New Mexico noted almost a
century ago, It is ... not within the power
of the Legislature to take away from the
citizens the constitutional guarantee of
immunity from [a] second jeopardy. United
States v. Aurandt, 107 P. 1064, 1067 (N.M.
1910). This same principle limits the
actions of our supreme court when it acts in
its legislative capacity, promulgating rules
of procedure. See Etheredge v. Bradley, 502
P.2d 146 (Alaska 1972) (holding that the
former Alaska civil rule governing pre-
judgement attachments violated the due
process clauses of both the state and the
federal Constitutions).
Moreover, in the absence of clear
legislative history to the contrary, we are
to interpret Criminal Rule 27(d) so that it
is in harmony with the double jeopardy
clause.15 Interpreting the rule in this
fashion, we conclude that Criminal Rule 27(d)
simply describes the various options that a
trial judge may consider when one or more
jurors are unable to complete their service
and there are insufficient alternates to
replace them.
One of these options the option
described in subsection (d)(3) is to dismiss
the entire panel and start again. But the
fact that this option is listed in the rule
does not absolve the trial judge from
complying with the mandate of the double
jeopardy clause. The trial judge must honor
the defendants right to have the originally
empaneled jury decide the case unless the
defendant consents to the dismissal of the
jury, or unless it is manifestly necessary to
begin again.
Of course, when the situation
described in Rule 27(d)(3) occurs in a
criminal trial jurors unable to serve, and
insufficient alternates to take their place
there will generally be a manifest necessity
for declaring a mistrial (unless the parties
stipulate under Criminal Rule 23(b) to have
the case decided by a smaller jury). But
this fact simply bolsters our conclusion that
the dismissal of a jury under Rule 27(d)(3)
is, constitutionally speaking, the
declaration of a mistrial.
Friedmann consented to this mistrial
As explained in the preceding section, the
double jeopardy clause does not bar a retrial if the
trial judge declares a mistrial in response to the
defendants request, or if the defendant affirmatively
consents to the mistrial. That is what happened here.
As we have already described, the trial of
Friedmann and his two co-defendants came to an end
after the lawyers for the two co-defendants informed
the court that they did not have the States complete
pre-trial disclosure. Friedmanns attorney was not in
this position; he had received all of the disclosure
materials. Thus, when Friedmanns attorney entered the
discussion about what should be done, he was in some
sense commenting from the sidelines.
(Potentially, Friedmanns attorney could have
asked to have Friedmanns case severed from his co-
defendants cases, so that Friedmann could proceed with
the already-commenced trial, even though the co-
defendants cases were going to be delayed. However,
Friedmanns attorney never requested this relief nor
even mentioned this possibility.)
As we have already explained, when Friedmanns
attorney joined the discussion, he informed Judge Smith
that he (the attorney) had been involved in an earlier
case raising this very issue a criminal case where ...
the State did not produce the [notice of] expert ...
and the lab report, and where this discovery violation
came to light after the jury [was] impaneled [and]
jeopardy had attached. The attorney then spoke
favorably of the fact that the other trial judge had
handled this problem by declaring a mistrial:
[B]ecause of the fact that [the situation] was going to
[require] ... re-test[ing] [of the evidence] and that
type of thing, a mistrial was declared by the court
which allowed the defense an opportunity to go have the
drugs re-tested, and to be able to figure out where we
[stood] after [the results] came back.
Friedmanns attorney then summarized his
position:
Friedmanns attorney: [The way] I look
at [it] is [that] the proper remedies here
would either be from my standpoint and from
my clients standpoint a continuance of the
trial to allow the [other] defense attorneys
to re-examine this evidence and look at it
with their expert[s], if thats what they ...
chose to do, or declare a mistrial in this
case. Thank you.
Friedmanns attorney did not express a
preference for one remedy over the other.
But he clearly proposed that Judge Smith
pursue one or the other of these courses.
This record shows that Friedmanns
attorney actively urged Judge Smith to
consider declaring a mistrial, and that the
attorney spoke approvingly of the fact that
another judge had pursued this same course in
an earlier, similar case. The attorneys
statements constituted a request for, or at
least a consent to, the declaration of a
mistrial. Thus, there was no violation of the
double jeopardy clause when Judge Smith
declared a mistrial and then ordered
Friedmann to stand trial a second time.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Koehler v. State, 519 P.2d 442, 448 (Alaska 1974); Nelson v.
State, 874 P.2d 298, 308 (Alaska App. 1994); March v. State, 859
P.2d 714, 717 (Alaska App. 1993); Staael v. State, 697 P.2d 1050,
1053 (Alaska App. 1985).
2 Soundara v. State, 107 P.3d 290, 296 (Alaska App. 2005);
March v. State, 859 P.2d 714, 717 (Alaska App. 1993).
3 See Bostic v. State, 805 P.2d 344, 348 (Alaska 1991);
Williams v. State, 600 P.2d 741, 742 n. 3 (Alaska 1979);
Stevens v. State, 582 P.2d 621, 624 n. 9 (Alaska 1978); Des
Jardins v. State, 551 P.2d 181, 187 (Alaska 1976).
4 See Bostic, 805 P.2d at 348.
5 See Bostic, 805 P.2d at 348; Longley v. State, 776 P.2d 339,
343 (Alaska App. 1989).
6 Bostic, 805 P.2d at 347.
7 Id. at 348.
8 Id. at 350 (Rabinowitz, J., and Matthews, C.J., dissenting).
9See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974)
(allowing a defendant to plead no contest to a criminal
charge but still preserve the right to pursue a
dispositive claim on appeal).
10Crist v. Bretz, 437 U.S. 28, 38; 98 S.Ct. 2156, 2162; 57
L.Ed.2d 24 (1978); United States v. Sammaripa, 55 F.3d 433,
434 (9th Cir. 1995); Soundara v. State, 107 P.3d 290, 296
(Alaska App. 2005); March v. State, 859 P.2d 714, 717
(Alaska App. 1993).
11Crist v. Bretz, 437 U.S. at 38, 98 S.Ct. at 2162.
12United States v. Dinitz, 424 U.S. 600, 606-07; 96 S.Ct.
1075, 1078-79; 47 L.Ed.2d 267 (1976); Watkins v. Kassulke,
90 F.3d 138, 141 (6th Cir. 1996); Wayne R. LaFave, Jerold H.
Israel, and Nancy J. King, Criminal Procedure (2nd ed.
1999), 25.1(g), Vol. 5, pp. 647-48.
13See Arizona v. Washington, 434 U.S. 497, 503-04; 98 S.Ct.
824, 829; 54 L.Ed.2d 717 (1978); Crist v. Bretz , 437 U.S.
at 38, 98 S.Ct. at 2162; United States v. Jorn, 400 U.S.
470, 484; 91 S.Ct. 547, 557; 27 L.Ed.2d 543 (1971); Wade v.
Hunter, 336 U.S. 684, 689; 69 S.Ct. 834, 837 (1949); United
States v. Pavloyianis, 996 F.2d 1467, 1472 (2nd Cir. 1993);
Koehler v. State, 519 P.2d 442, 447 (Alaska 1974).
14Watkins, 90 F.3d at 139-140.
15 See Reutter v. State, 886 P.2d 1298, 1306 (Alaska App.
1994); State v. R.H., 683 P.2d 269, 282 (Alaska App.
1984); Parker v. State, 667 P.2d 1272, 1274 (Alaska
App. 1983).
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