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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
| CORDELL C. TRITT, | ) |
| ) Court of Appeals No. A-9600 | |
| Petitioner, | ) Trial Court No. 4FA-05-3114 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Respondent. | ) No. 2139 January 4, 2008 |
| ) | |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Jane F. Kauvar and Mark I. Wood,
Judges.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Petitioner.
Tamara E. de Lucia, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the
Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Shortly after the parties completed opening statements
in Cordell Tritts jury trial, the trial court indicated that it
would offer the State the option of a mistrial because the court
believed that Tritts opening statement was unfair. The
prosecutor chose the courts option of a mistrial over Tritts
objection.
Tritt moved to dismiss the case on the ground that a
retrial would violate the double jeopardy clause. The superior
court denied the motion to dismiss. Tritt petitioned this court
for review, and we granted review. Because we conclude that
there was no manifest necessity for a mistrial, we reverse the
superior court and direct the superior court to dismiss the
charges against Tritt.
Facts and proceedings
On September 10, 2005, a pickup truck crashed into a
utility pole in Fairbanks. Witnesses saw three occupants emerge
from the truck, and later identified Tritt as the driver. The
police arrested Tritt for felony driving while under the
influence and driving while his license was cancelled, suspended,
or revoked. Throughout Tritts processing, Tritt maintained that
he was not the driver of the truck. Three days after the crash,
another occupant of the truck, Natalie Pitka, went to the police
and provided a written statement that she was the driver of the
truck when it crashed.
The next day, September 14, the State presented three
eyewitnesses to the events after the crash at grand jury, but did
not call Pitka. The grand jury charged Tritt with felony driving
while under the influence, and the State filed an information
charging driving while license cancelled, suspended, or revoked.
Before opening statements at Tritts jury trial, the
prosecutor moved the court for a protective order barring Tritt
from introducing hearsay statements Tritt made to the police that
he was not driving. Superior Court Judge pro tem Jane F. Kauvar
announced that the statements would be inadmissible unless Tritt
took the stand in his own defense. Tritts attorney indicated that
he understood.
During Tritts opening statement, Tritts attorney argued
that Tritt had consistently told police he had not been driving.
The State objected, and Judge Kauvar told Tritts attorney that he
must have evidence to support his claim. He replied that he did.
Tritts attorney emphasized this fact two more times before the
State objected and asked to be heard. Judge Kauvar responded that
the State could be heard after Tritts opening statement.
Tritts attorney told the jury that they would hear
testimony from Pitka. He explained that Pitka went to the police
three days after the accident and provided a written statement
that she, not Tritt, had been driving when the pickup crashed
into the utility pole. Tritts attorney continued:
And when this matter was presented to a
grand jury for purposes of charging, Ms.
Pitka wasnt presented as a witness in this
matter by the prosecutor handling the
presentment. The three witnesses at the
scene that the State chooses to believe were
presented.
The prosecutor objected, contending that Tritt was
arguing a pretrial motion issue that was improper to discuss in
front of the jury. The court sustained the States objection to
this comment. Tritts attorney then continued, [Y]ou are the
first jury, first body of decision-making citizens in this case,
who will hear about what Ms. Pitka had to say with reference to
what happened here.
Tritts attorney completed opening statement moments
later, and the court proceeded outside the jurys presence. Judge
Kauvar told Tritt that if he did not testify, there would be a
mistrial. Tritts attorney assured Judge Kauvar that Tritt would
take the stand.
The prosecutor thought that a jury instruction was
necessary to inform the jury that there was nothing improper in
the grand jury process. Judge Kauvar said that she thought the
opening statement started the trial on an unfair footing, and
indicated that she would give the jury a cautionary instruction
if the prosecutor did not want a mistrial.
The prosecutor informed the judge that it would
support a decision from the court to grant a mistrial, as long as
there was no bar to a retrial. The prosecutor maintained that the
jury has been irreparably tainted[.] Tritt opposed a mistrial
and pointed out the double jeopardy issue.
Judge Kauvar announced that, if the State wanted a
mistrial, she would grant it on the basis that the evidence that
was presented in opening statement ... was highly prejudicial.
Judge Kauvar concluded that the jury would be biased and an
instruction to the jury ineffective. She found manifest
necessity and declared a mistrial.
Tritt moved to dismiss the case on double jeopardy
grounds, claiming that manifest necessity did not exist and a
mistrial was unnecessary. The case was reassigned to Superior
Court Judge Mark I. Wood for consideration on the motion. After
the parties submitted briefs and participated in oral arguments,
Judge Wood issued a written decision denying Tritts motion. He
based his decision on the finding that manifest necessity existed
for mistrial because Tritts comments prejudiced the state to such
a degree that a cautionary instruction would not have cured the
bias. Tritt petitioned for review and this court granted the
petition.
Discussion
Why we conclude there was no manifest necessity for a
mistrial
Jeopardy attaches when the jury is sworn.1 Once
jeopardy attaches, the trial may not be stopped short of a
verdict unless the defendant consents or there is manifest
necessity for a mistrial.2 Because of the double jeopardy
implications of ending a trial short of a verdict, this court has
cautioned trial courts that a mistrial should be declared without
a defendants consent only in very extraordinary and striking
circumstances.3
We review a trial courts decision on a motion for a
mistrial for abuse of discretion.4 We reverse the trial court
only when, after reviewing the whole record, we are left with a
definite and firm conviction that the trial court erred in its
ruling.5
Tritts attorney gave an opening statement that was
keyed to an instruction given by Judge Kauvar just before the
parties opening statements that it is not uncommon for two honest
people to witness the same event and hear or see things somewhat
differently. The attorney stated that the evidence would show
that the visual perspective of the States witnesses could explain
their identification of Tritt as the driver. He said the police
did not credit Tritts denials and tried to gain admissions from
Tritt. He summarized Pitkas expected testimony: she had been
driving, was herself worried about legal trouble the day of the
offense, but went to the police three days after the crash and
gave a written statement accepting responsibility as the driver.
The attorney pointed out that, at the grand jury, the State
presented three witnesses from the scene that it chooses to
believe.
Judge Kauvar (and later, Judge Wood) apparently
believed that a mistrial was required because the defense
attorney had essentially accused a prosecutor of acting in bad
faith by willfully withholding exculpatory evidence from the
grand jury.6 But the defense attorney did not explicitly accuse
the prosecutor of any grand jury impropriety. The defense
attorney simply noted that the prosecutor had presented three
inculpatory witnesses who the authorities believed to be
credible, that the prosecutor had not chosen to present Pitkas
contrary testimony, and that the twelve members of the petit jury
would be the first group to hear both sides of the case.
Anyone familiar with Alaska grand jury practice would
understand that the defense attorney was merely describing
typical grand jury procedure. Under Alaska law, the prosecutor
is normally not obliged to present the defense case to the grand
jury,7 and the trial is the time when the defendant has the
opportunity to present a competing view of the episode being
litigated.
Judge Kauvar may have feared that the trial jurors
would misunderstand the defense attorneys remarks and infer that
the prosecutor had acted in bad faith by suppressing exculpatory
evidence at grand jury. But the judge could have cured this
problem by giving an explanatory instruction to the jurors
informing them: (1) that the purpose of grand jury is simply to
decide whether there is good reason to require a person to stand
trial; (2) that the prosecutor is normally not required to
present the defense case to the grand jury; (3) that there was
nothing improper about the prosecutors decision not to call Pitka
to testify at the grand jury in Tritts case; and (4) that it was
indeed the trial jurys obligation to now hear both sides of the
case and then decide whether the State had proved Tritts guilt
beyond a reasonable doubt.
Because the problem could have been cured in this
manner, there was no manifest necessity for a mistrial. Because
there was no manifest necessity for declaring a mistrial, and
because the mistrial was declared over Tritts objection, the
double jeopardy clause bars the State from trying Tritt again on
these charges.
We take this opportunity to again urge trial judges to
be cautious, and to carefully consider all of the alternatives
before declaring a mistrial without the defendants consent.
As this case demonstrates, a declaration of a mistrial
can have grave consequences. Here, the State will be denied the
opportunity to establish Tritts guilt of felony driving while
under the influence. However, the framers of our constitutions
(both state and federal) believed that our society would be
subjected to greater evils if the government had the power to
bring a defendant to trial repeatedly on the same criminal
charge.
Conclusion
The superior courts ruling is REVERSED. Because any
attempt to try Tritt again on these charges would violate his
rights under the double jeopardy clause, we direct the superior
court to dismiss the charges against Tritt.
_______________________________
1 March v. State, 859 P.2d 714, 717 (Alaska App. 1993).
2 Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct. 824,
830, 54 L. Ed. 2d 717 (1978); Browning v. State, 707 P.2d 266,
268 (Alaska App. 1985).
3 Browning, 707 P.2d at 268 (quoting Lewis v. State, 452
P.2d 892, 896 (Alaska 1969)). See also Cook v. State, 36 P.3d
710, 729 (Alaska App. 2001); Riney v. State, 935 P.2d 828, 838-39
(Alaska App. 1997); Nelson v. State, 874 P.2d 298, 308 (Alaska
App. 1994); March, 859 P.2d at 717.
4 Walker v. State, 652 P.2d 88, 92 (Alaska 1982) (citing
Amidon v. State, 565 P.2d 1248, 1261 (Alaska 1977)).
5 Hamilton v. State, 59 P.3d 760, 769 (Alaska App. 2002)
(citing Keogh v. W.R. Grasle, Inc., 816 P.2d 1343, 1349 n.11
(Alaska 1991)).
6 See Frink v. State, 597 P.2d 154, 165-66 (Alaska 1979).
7 Id. at 166.
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