IN COURT OF APPEALS
Filed July 12, 2005
Toussaint, Chief Judge
Ramsey County District Court
File No. K1-02-2487
Steven V. Russett, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN 553102 (for respondent)
Considered and decided by Toussaint, Chief Judge, Hudson, Judge, and Dietzen, Judge.
S Y L L A B U S
The Double Jeopardy Clause bars reinstatement of counts that the trial court has dismissed during trial regardless of whether the dismissal was based on a legal determination, if the dismissal ruling was not conditional and the trial proceeded before the court reconsidered the ruling.
O P I N I O N
TOUSSAINT, Chief Judge
This appeal from a conviction of second-degree assault has been remanded from the United States Supreme Court for reconsideration in light of Smith v. Massachusetts, 125 S. Ct. 1129 (2005). Because we conclude that the reinstatement of four of the assault counts following a midtrial dismissal ruling violated appellant John Vang’s protection against double jeopardy, we reverse.
John Vang was involved in a “road rage” incident that occurred on the east side
None of the passengers in the Blazer told police that they saw someone in the Honda with a gun. One of the passengers was a four-year-old child who was asleep at the time.
The state filed an amended complaint charging appellant with four counts of second-degree assault committed against the passengers, along with the original count charging the appellant with second-degree assault on the driver.
After the state rested in its case-in-chief, defense counsel made a motion outside the presence of the jury to dismiss the four counts involving the passengers or to direct a verdict on those counts. Counsel also moved to dismiss the entire complaint on the ground that the evidence was insufficient to tie appellant to the gun. That motion was denied. But the trial court granted the motion to dismiss the counts against the passengers. The court stated:
I think reason and common sense would dictate that people being assaulted would have to perceive some kind of threat of fear or bodily harm. I believe the testimony was at least the four-year-old child was asleep and the testimony of the other four occupants in the vehicle is that they did not see a gun.
The prosecutor objected to this ruling, pointing to the testimony that had been presented at trial. But the court, noting the state had to prove the elements beyond a reasonable doubt, reasserted its dismissal of the four counts.
The trial court then conducted an
on-the-record inquiry of appellant, establishing that his decision to testify
at trial was voluntary. After the jury returned,
appellant testified, and the defense rested.
After the jury was excused, there was a brief discussion concerning the
jury instructions. The prosecutor then
cited to the court State v. Hough,
585 N.W.2d 393 (
On appeal, this court rejected appellant’s
double-jeopardy argument that the midtrial dismissal barred a later, midtrial
reinstatement of the four additional assault counts. State
v. Vang, No. A03-1242, 2004 WL 1726229 (Minn. App. Aug. 3, 2004), review denied (
In February 2005, the United
States Supreme Court issued an opinion addressing this same issue. Smith
I S S U E S
1. Did appellant waive his double-jeopardy claim?
2. Did reinstatement of the four assault counts following the midtrial dismissal ruling violate appellant’s protection against double jeopardy?
A N A L Y S I S
The state argues that appellant
waived his double-jeopardy claim by failing to raise it in the district court. This court noted in its first opinion in this
appeal that appellant had not raised the double-jeopardy issue in the district
court, but chose to address it in the interests of justice. State
v. Vang, No. A03-1242, 2004 WL 1726229, at *2 (
is a discretionary rule. See State v. Pinkerton, 628 N.W.2d 159,
161-62 (Minn. App. 2001) (noting court may deviate from rule of waiver in
interests of justice if neither party is unfairly surprised), review denied (
court concluded in its first opinion that Vang’s motion to dismiss was based
“solely on a legal claim” and did not involve “resolution of any facts.” 2004 WL 1726229, at *3. Because the reinstatement, based also on a
“legal conclusion,” occurred during the same trial and did not require a second
trial, this court concluded that “Vang’s right to be protected from double
jeopardy was not violated.”
The Supreme Court’s opinion in Smith requires stricter scrutiny
of a midtrial dismissal than this court afforded in its first opinion. First, the asserted grounds for the
dismissal, even if solely legal in nature, are not determinative. “[W]hat matters is that . . . the judge
‘evaluated the evidence and determined that it was legally insufficient to
sustain a conviction’.” Smith,
125 S. Ct. at 1135 (quoting United States v. Martin Linen Supply Co.,
Second, Smith requires that this court analyze the finality of the midtrial dismissal ruling without the presumption that a dismissal ruling, if rescinded before the end of trial, is not final. The Court in Smith stated its basic holding as follows:
If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence.
The Court also implied a third exception: double jeopardy would not be
violated if the dismissal ruling was reconsidered before the trial proceeded,
particularly to the defense’s presentation of its case. 125
None of the exceptions to the Smith rule of finality applies
here. First, the trial court did not
indicate its dismissal of the four added “passenger” assault counts was
tentative or conditional in any way.
Second, there appears to be no
state attempts to distinguish Smith by
noting that the trial court here did not dismiss the counts for lack of proof
of an element of the offense and by arguing that the ruling was really a legal
determination rather than a finding of insufficient evidence. But the state’s first argument goes to the
merits of the midtrial ruling, which under Smith
have no significance. The
Smith rejects the state’s second
argument as well. The Court noted that
the state court’s determination that the midtrial ruling was “a legal rather than
factual determination” was not binding on it.
Thus, there is no basis for distinguishing Smith, which requires reversal of the conviction on the four earlier-dismissed counts of assault against the passengers.
D E C I S I O N
The Double Jeopardy Clause barred the reinstatement of the four counts of assault committed against the passengers that had earlier been dismissed by the trial court, and the convictions on those counts must be reversed.
 The prosecutor’s immediate response to the ruling, pointing to the testimony at trial, indicates that the dismissal was perceived as a judgment of acquittal. Although the state later provided a legal citation to State v. Hough, there was no significant legal argument at the time of the ruling.