This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Tiffiny Fong Wong,
Hennepin County District Court
File No. 01044862
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jay M. Heffern, Minneapolis City Attorney, Scott R. L. Christenson, Lisa M. Godon, Assistant City Attorneys, 300 Metropolitan Centre, 333 South 7th Street, Minneapolis, MN 55402 (for appellant)
John P. Sheehy, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for respondent)
Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.
Appellant challenges the trial court’s declaration of a mistrial based on prosecutorial misconduct, arguing that the court (1) erred in concluding that the prosecutor’s conduct was intended to provoke a mistrial; (2) abused its discretion by declaring a mistrial based on prosecutorial misconduct when a substitute judge had previously declared a mistrial based on a deadlocked jury; and (3) erred in concluding that the substitute judge’s declaration of a mistrial was not based on manifest necessity. Because we conclude that (a) the trial court erred in concluding that the prosecutor engaged in misconduct that was intended to provoke a mistrial; (b) the substitute judge declared a mistrial based on a deadlocked jury; and (c) the substitute judge’s declaration of a mistrial was based on manifest necessity, we reverse and remand.
On April 10, 2001, 19-year-old Michael O’Keefe was working for the Minneapolis Police Department licensing division. Following directions from Sergeant Stuart Helmer, O’Keefe entered the Rainbow Chinese Restaurant in Minneapolis and sat down at the bar. O’Keefe ordered a beer from respondent Tiffany Wong, a Rainbow restaurant employee. Wong brought O’Keefe the beer and walked away without requesting verification of O’Keefe’s age. O’Keefe left the restaurant to report to Sergeant Helmer, who entered the restaurant and informed Wong that she had failed the compliance check. Wong admitted to selling the beer to O’Keefe without verifying his age.
Wong was charged with sale of liquor to a minor in violation of Minn. Stat. §§ 340A.503, subd. 2(1), .702(8) (2000). Prior to trial, Wong asserted the defense of entrapment. A jury trial was held on September 10-12, 2001. After deliberating about 20-25 minutes on September 12, the jurors sent a note to the trial court asking, “Can we consider the severity of the penalty or fine in our deliberations to find a verdict?” The court issued a written instruction that advised the jurors that they should not consider punishment in deciding their verdict. The jury retired for the night after deliberating for about an hour.
The jury resumed deliberations at 9:00 a.m. on September 13, 2001. Approximately one hour later, the jury sent a second note to the trial court, stating that they had not reached a unanimous decision and that they were at an impasse. In the discussion between the court and counsel, Wong’s counsel requested that the court give the jury his proposed curative instructions to clarify any misstatements of the law that may have been made during the prosecutor’s closing argument with respect to the state’s burden of proof on the defense of entrapment. The trial court denied Wong’s counsel’s request and instructed the jury to continue their deliberations.
That afternoon, the trial court left at 12:00 p.m. to attend a mandatory tour of the correctional facility in Red Wing. Both counsel had been previously advised of the court’s longstanding commitment. With the consent of both counsel, the trial court asked one of his judicial colleagues to take his place for the afternoon. At about 1:17 p.m., the jury sent a third note, indicating that they had continued to deliberate with the goal of reaching agreement, but that they had not reached a unanimous decision and that additional time would not make a difference. Wong’s counsel again requested that the jury be given curative instructions on the entrapment defense. In the course of the discussion between the substitute judge and counsel, the following exchange occurred:
The Court: “You are aware, [Prosecutor], that [Defense Counsel] and I practiced law together until — well, about 1985 to 1990. It was my impression that — I guess I didn’t ask [the judge] that specifically, but I did say in view — is it all right with the lawyers if I handle the verdict.”
Prosecutor: “Your Honor, I have no objection to your handling the verdict. If there is a matter of substantive law that needs to be addressed, I would object.”
The substitute judge denied Wong’s counsel’s request for a curative instruction, and instructed the jury to continue its deliberations.
Approximately 1 1/4 hours later, the jury sent a fourth note to the court. The note said:
Your Honor, we have written to the Court twice today, each time we’ve been confident we’re at an impasse. Everyone here firmly believes in their opinion. I’m the only hold out. I believe she should not be found guilty. To render a guilty verdict would violate my honest opinion. To render a not guilty verdict would violate the honest opinions of my fellow jurors. Is it the Court’s intent that I should change my honest opinion in order to reach a verdict?
The prosecutor again objected to having the substitute judge rule on substantive issues on two bases:
Prosecutor: “Your Honor, I have two objections to this Court ruling on motions that I would characterize as those involving substantive law. As I stated earlier, I do have a concern about the relationship between this Court and [Defense Counsel], but that is not the major concern here. The major concern is that this Court cannot hear the case. This Court has not heard the motions of the parties prior to now and it is for this reason that the Court is not in a position to rule on matters of substantive law in this case.
The prosecutor suggested that the court instruct the jurors to continue deliberating and to review the court’s instructions. Wong’s counsel moved for a mistrial based on prosecutorial misconduct because of the prosecutor’s unwillingness to permit the substitute judge to rule on a substantive issue or, in the alternative, for a curative instruction. The substitute judge explained to counsel that he was very concerned that any instruction he gave at that point would have a coercive effect on the holdout juror. The substitute judge declared a mistrial because the jury was deadlocked and excused the jurors. Wong’s counsel made a motion to have the case dismissed in the interests of justice, which the substitute judge denied. The substitute judge told the parties that they should see the assigning judge, but counsel agreed to meet before the trial court the following morning.
On September 14, 2001, the trial court heard arguments from counsel regarding how to proceed. The prosecutor argued that the substitute judge’s declaration of a mistrial was based on manifest necessity, given that the jury was deadlocked. As a result, she argued that double jeopardy did not apply and there should be a new trial. Wong’s counsel asserted that the substitute judge’s declaration of a mistrial was not based on manifest necessity and asked the trial court to declare a mistrial based on prosecutorial misconduct and to grant Wong’s motion for judgment of acquittal. The trial court orally concluded that the substitute judge’s declaration of a mistrial was not a manifest necessity and stated that, unlike the substitute judge, he would likely have given Wong’s curative instruction in response to a later note from the jury. The proceedings were stayed until the court issued its written order. The parties submitted proposed findings of fact and conclusions of law in October. On January 31, 2002, the trial court discussed settlement with the parties. When that effort was unsuccessful, the court requested additional briefing from both counsel. Eight months after trial, the court issued its written order granting Wong’s motion for mistrial based on prosecutorial misconduct, denying the state’s motion for a mistrial based on manifest necessity, and finding moot Wong’s motion for judgment of acquittal. This appeal follows.
D E C I S I O N
Prosecutors have a duty to ensure that a defendant receives a fair trial. State v. Henderson, 620 N.W.2d 688, 701-02 (Minn. 2001). A reviewing court considers the prosecutor’s conduct in the context of the entire trial, with a focus on the prosecutor’s actual intent, knowledge, and behavior. Id. at 702; State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). The usual remedy in cases of prosecutorial misconduct is a new trial; the question of whether a new trial should be granted is within the discretion of the trial court. See Henderson, 620 N.W.2d at 702 (stating that whether a new trial should be granted due to prosecutorial misconduct is within the discretion of the trial court); State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (same). The Double Jeopardy Clause only bars retrial where the prosecutor’s conduct is intended to provoke the defendant into requesting a mistrial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2089 (1982); State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985).
The state argues that the trial court erred in concluding that the prosecutor engaged in misconduct that was intended to provoke a mistrial. Generally, a trial court’s findings regarding intentional or willful prosecutorial misconduct will not be overturned unless they are clearly erroneous. Fuller, 374 N.W.2d at 726. Here, the trial court concluded that a series of actions taken by the prosecutor revealed a pattern of volitional acts that cumulatively constituted an intentional provocation of a mistrial request by Wong. We will address each of the trial court’s individual bases for granting a mistrial, as well as their cumulative effect.
First, the trial court concluded that the prosecutor engaged in misconduct that was intended to provoke a mistrial when Sergeant Helmer, a witness for the state, unexpectedly gave an answer on direct examination that violated the court’s in limine ruling. Generally, an unexpected objectionable response to a question from a prosecutor that was not intended to cause an objectionable response does not warrant a new trial. State v. Hagen, 361 N.W.2d 407, 413 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985).
Before trial, the trial court granted Wong’s motion in limine to exclude any evidence relating to prior incidents or allegations of selling alcohol to minors at the restaurant and told the prosecutor to instruct her witnesses accordingly. There is no dispute that the prosecutor instructed her witnesses in accordance with the court’s order. But during the prosecutor’s direct examination of Sergeant Helmer, the following exchange occurred:
Prosecutor: All right. And what happened when you entered the business?
Sergeant Helmer: I entered the business, and Officer DuPaul was already there. I believe he explained that this was an alcohol compliance check that they had just failed. I identified myself to Ms. Wong and told her my name was Sergeant Helmer with the license division. I explained the alcohol compliance checks. I explained that she had failed the alcohol compliance check.
We had been there in the past. She knew what it was. In fact, she mentioned that she had trained per — or her staff or her employees, and the reason she told me that she didn’t check for an ID was that it was very busy that day.
(Emphasis added.) Wong’s counsel objected to the answer because it was an improper reference to prior police activities at the Rainbow restaurant in violation of the motion-in-limine ruling. After a discussion at the bench, the court sustained Wong’s objection and struck Sergeant Helmer’s last five responses.
While it was within the trial court’s discretion to sustain Wong’s objection and to strike the officer’s previous responses, it is difficult to characterize this exchange as prosecutorial misconduct. The prosecutor heeded the trial court’s pretrial admonition to instruct the state’s witnesses not to refer to any past police activity at the Rainbow restaurant. Furthermore, the question asked by the prosecutor was clearly an introductory, proper question that was not phrased in a way that was likely to elicit an objectionable response. While the officer’s answer was nonresponsive and went beyond the scope of the question that was asked, the officer’s objectionable answer does not demonstrate prosecutorial misconduct of any type, let alone prosecutorial misconduct intended to provoke a mistrial.
Second, the trial court concluded that the prosecutor engaged in misconduct that was intended to provoke a mistrial when she referred to sentencing during her closing argument and then made a second reference to sentencing after the court sustained Wong’s counsel’s objection to her argument. Generally, either party may make statements of well-established legal principles during closing argument. State v. Ellis, 271 Minn. 345, 368, 136 N.W.2d 384, 399 (1965). It is within the trial court’s discretion to determine the propriety of a prosecutor’s final argument. State v. Fossen, 282 N.W.2d 496, 503 (Minn. 1979).
In the context of discussing respondent’s character in her closing argument, the prosecutor stated:
The second issue I’d like to talk about that’s been raised by the testimony in this case is the issue of character, and you saw Ms. Wong testify on the stand as did the rest of us in this courtroom. She appears to be a very nice person. This is not in dispute either. The State is not saying that she’s a bad person. The State has charged her with a crime because she committed a crime. Whether she’s a nice person or not, whether you like her as a person or not, those are not issues that you consider. What you consider is what the law is and whether she obeyed the law in this instance. You’re fact-finders. It’s not your job to decide do I like this person or do I not. The State doesn’t look at that issue when it charges crimes. As fact-finders you should not either.
During her rebuttal argument, the prosecutor stated:
There is no dispute that Ms. Wong is a nice person, as I said before. No dispute. You saw her, you can judge her credibility for yourselves. That’s not the issue for you to decide. You are jurors and you are fact-finders. You decide do the facts support this crime or do they not. Whether you like Ms. Wong is not relevant to this crime.
* * * *
I’d also like to talk just very briefly about the province of the jury. As I said, the jurors’ province is to find the facts in the case. It’s the judge’s role to apply the law and to make a determination about what happens as a result of whatever verdict you come back with. Punishment is in the hands of the judge. Sentencing is the judge’s province.
Wong’s counsel objected, and the parties had a bench discussion off the record. The prosecutor argued that she had mentioned sentencing in response to Wong’s counsel’s statement in his closing that Wong had been charged with a gross misdemeanor. The trial court had previously sustained the prosecutor’s objection to that argument.
After the bench discussion that resulted in the court’s sustaining Wong’s counsel’s objection, the prosecutor continued her rebuttal argument by beginning:
I’ll only say this: It is the jury’s role to consider the facts. Beyond that — but beyond that, any questions are in the hands of the Court.
Following closing arguments, the trial court made a record that the prosecutor had improperly argued sentencing during her rebuttal argument, but held that there was no suitable remedy and that it was not a mistrial-type comment. In its later written order concluding that there was prosecutorial misconduct, the trial court found that (1) the prosecutor improperly argued sentencing to the jury by attempting to suggest to the jury that Wong was a nice person, but that they could find her guilty because the judge would give her a light sentence; (2) the prosecutor improperly continued to argue sentencing after the court instructed her to stop; and (3) the court’s concern about this issue was borne out by the jury’s first note, which asked whether or not they could consider the judge’s sentence in reaching a verdict.
While the trial court has discretion in determining the propriety of a prosecutor’s closing argument, on this record, we conclude that the prosecutor’s statements were proper. See State v. Chambers, 589 N.W.2d 466, 474 (Minn. 1999) (stating that “[i]t has long been the rule in Minnesota that sentencing is not a proper consideration for the jury.”); State v. Ford, 539 N.W.2d 214, 228 (Minn. 1995) (holding that it was not prosecutorial misconduct for the prosecutor to argue during his closing argument that the defendant should be held accountable); see also Ellis, 271 Minn. at 368, 136 N.W.2d at 399 (stating that during closing arguments, either party may make statements of well-established legal principles). The record does not support Wong’s argument that the prosecutor, by conceding that Wong was a nice person, was assuring the jury that the judge would give her a light sentence. Wong’s counsel raised the element of Wong’s character. The prosecutor was permitted, therefore, to briefly address character in her argument. Any reference to the court’s role in sentencing was not only brief but also not consecutively stated. As a result, we conclude that the court’s finding is clearly erroneous because it is not supported by the record.
Nevertheless, after Wong’s counsel’s objection during the prosecutor’s rebuttal argument and the court’s instruction to abandon the sentencing argument, the prosecutor was obliged to move on in accordance with the court’s instructions. The prosecutor’s further reference to the roles of the judge and jury after the court’s instruction to immediately abandon such an argument was improper. See State v. Gulbrandsen, 238 Minn. 508, 515, 57 N.W.2d 419, 424 (1953) (stating that a prosecutor committed misconduct by continuing in a line of questioning after the defense objected to the line of questioning and the objection was sustained by the court). But the prosecutor’s improper argument made after Wong’s objection was sustained was harmless and did not unfairly prejudice Wong. While the prosecutor may have improperly continued her argument after the court sustained the objection, there is no evidence in the record demonstrating that the prosecutor’s conduct was intended to provoke a mistrial.
The trial court concluded that misconduct that was intended to provoke a mistrial occurred in the prosecutor’s closing argument when she suggested that Wong had the burden to prove entrapment. Misstatements of the burden of proof to a jury by a prosecutor are highly improper and generally constitute prosecutorial misconduct. State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).
The Minnesota Supreme Court has held that once the state has met its burden of proving every element of a crime beyond a reasonable doubt, the state may, consistent with due process, impose upon a defendant the burden of proving by a preponderance of the evidence that the defendant’s conduct should be excused because of mitigating circumstances. State v. Hage, 595 N.W.2d 200, 204-05 (Minn. 1999). But a defendant cannot be required to bear the burden of persuasion for a defense when such a requirement would result in the defendant having to disprove or negate an element of the crime charged. Id. at 205 (stating that “[r]equiring a defendant to bear this burden would violate due process by impermissibly shifting to the defendant the burden of disproving the existence of an element of the crime charged.”). Accordingly, the supreme court explained:
[I]f the mitigating circumstance or issue disproves or negates an element of the crime charged, the greatest burden a state may impose upon a defendant is that of shouldering the burden of production. In such cases, a defendant must make a prima facie showing that the proffered defense is an issue in the case, with the burden then shifting back to the state to prove beyond a reasonable doubt the lack of the defense.
Id. (citations omitted). Thus, whether a defendant may be required to bear the burden of persuasion for a defense is contingent on whether bearing that burden will require the defendant to disprove or negate an element of the crime charged. Id. at 205-06 (stating that the determination of whether a defendant may bear the burden of persuasion should focus on the elements of the crime charged, not the nature of the defense).
Wong was charged with violating Minn. Stat. § 340A.503, subd. 2(1) (2000), which states that “[i]t is unlawful for any person: (1) to sell, barter, furnish, or give alcoholic beverages to a person under 21 years of age; * * * .” Wong asserted the defense of entrapment. Under Minnesota law, the test for entrapment has two steps. State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985). First, the defendant must raise the defense by showing that the government induced the commission of the crime. Id. Second, once the defendant has shown inducement, in order to obtain a conviction, the state must prove beyond a reasonable doubt that the defendant had a predisposition to commit the crime. Id.
A thorough review of this record reveals that the procedural application of the law of entrapment was argued extensively by counsel from the beginning to the end of trial. The prosecutor stressed that the jury must find that the police used coercion, persuasion, deceitful representations, or inducement to lure the defendant to commit the crime. During her closing argument, the prosecutor stated:
There is nothing, nothing that is coercive about sitting down at the bar. There is no persuasion involved. Ms. Wong testified that he didn’t persuade her or coerce her in this instance. He just asked for a beer. That is something that is essential for the defendant to show. He must show this coercion before you even get into these issues about what is Ms. Wong’s character, what is she like as a person? Was she a criminal, essentially is what you’re being asked to consider. Those issues are not issues that you need to be concerned about.
Wong’s counsel also argued the issue of inducement during closing arguments:
Now, I know that [the prosecutor] is going to stand up and say, well, where’s the — you know, what kind of inducement, what kind of — did he do? That’s only one factor here. Inducement means to lead into. It means to pull into. And even though the — [the prosecutor], I anticipate, is going to try to stand up and say, well, we didn’t — we didn’t do anything to do that. Even in their own reports and in her own description of Mr. O’Keefe and in Mr. O’Keefe’s own words, they kept calling him a decoy. And what does that mean, except there’s that element of misrepresentation, misleading.
On rebuttal, the prosecutor argued:
Now, [defense counsel] quoted the instruction on entrapment, as did I, and I would just emphasize for you again that this instruction has — there’s two paragraphs, when you look at it. The first paragraph talks about criminal intent originating with the defendant and that the defense must show that by coercion, persuasion, deceitful representation or inducement the defendant was lured into committing the act. As I argued in my closing statement, this “and” is very important here. You must find that there was inducement in order to find that entrapment even applies at all. So think about what happened here. Was there inducement? Was there any trickiness that — that is so — that — that rises to the level of coercion, persuasion, or inducement?
The prosecutor argued further:
The effort to confuse the case by saying that this is an issue of entrapment or that entrapment applies here is a confusing tactic. You need to consider whether or not it’s been shown that in this case there was an inducement on the part of the government, that the government did something that amounted to inducing, coercing, or pressuring Ms. Wong to do this act. What happened here was that Mr. O’Keefe went into the restaurant and asked for beer. That is not suspicious. That does not meet the level of inducement or coercion. And it’s not difficult to check what his age was, not difficult in the least.
[Defense counsel] asked in his closing argument in challenge to me, was Fong Wong predisposed to sell alcohol to a minor? My answer to that question is, that is not relevant. Why? Because the first issue that you must consider is was she induced into doing that. Did Mr. O’Keefe force her to do that? No. What did she tell you? She was busy. That’s why she didn’t do it. It’s very straightforward.
Following closing arguments, the trial court ruled that the instructions to the jury would be sufficient to remedy any misstatements of the law made during closing arguments. In its May 2002 written order, the trial court found, as a matter of law, that Wong had met the burden of production needed to raise the defense of entrapment and have an entrapment instruction given to the jury. The trial court held that because Wong had made a prima facie showing, the burden of proving beyond a reasonable doubt the lack of the entrapment defense was entirely on the state, and the prosecutor’s statements regarding entrapment during her closing argument amounted to an improper attempt to shift the burden of persuasion to Wong.
The trial court erred as a matter of law in concluding that Wong did not bear the burden of persuasion on the inducement element of Wong’s entrapment defense. Wong was charged with selling alcohol to a minor in violation of Minn. Stat. § 340A.503, subd. 2(1), which states that it is unlawful for any person to sell alcoholic beverages to a person under 21 years of age. Whether or not Wong had the burden of persuasion on the inducement element depends on whether bearing that burden would require Wong to disprove or negate an element of the charged crime. See Hage, 595 N.W.2d at 205 (stating that “whether a criminal defendant may be required to shoulder the burden of persuasion for a defense is contingent upon whether shouldering that burden requires the defendant to disprove or negate an element of the crime charged.”). Placing the burden of persuasion by a preponderance of the evidence on Wong with respect to the element of inducement in this case, would not have resulted in Wong having to disprove or negate any element of the crime of selling alcohol to a minor. Therefore, the prosecutor did not improperly shift the burden of persuasion to Wong by her statements in closing argument.
While we conclude that the prosecutor did not improperly shift the burden of persuasion to Wong, even if the prosecutor’s closing argument had impermissibly shifted the burden of persuasion, there is simply no evidence in the record demonstrating that the prosecutor’s conduct was intended to provoke a mistrial.
D. Substitute Judge
Finally, the trial court concluded that the prosecutor engaged in misconduct that was intended to provoke a mistrial when she objected to having the substitute judge rule on substantive issues when she had previously agreed to him as a substitute judge in the trial court’s absence. There is no record of the discussion between the trial court and counsel as to the scope of the substitute judge’s role. The parties’ recollection of the off-the-record agreement indicates that Wong’s counsel disclosed that he and the substitute judge had practiced law together before the judge was appointed to the bench and that with that understanding, the prosecutor agreed to the substitute judge. But it appears to be undisputed that there was no specific discussion of how matters would be handled if the substitute judge did not just take the jury’s verdict, but, instead, was faced with the need to make legal rulings.
The substitute judge stepped in on the afternoon of September 13, 2001. By that time, the jury had been deliberating for a total of about four hours and had sent two communications to the trial court — one question and one statement that they had not reached unanimity and were at an impasse. In response, the trial court instructed the jury to continue to deliberate but declined to give the jury Wong’s counsel’s proposed curative instruction on the entrapment burden-shifting issue. Roughly one hour after the substitute judge took over, the jury sent a third note, again indicating that they were deadlocked. Wong’s counsel made another motion for a curative instruction, still had a motion for judgment of acquittal outstanding, and eventually made a motion for dismissal based on prosecutorial misconduct.
When the need for the substitute judge to do more than take the verdict became apparent, Wong’s counsel stated on the record that he and the substitute judge had practiced law together in the past and that the prosecutor had previously agreed to the substitute judge. The prosecutor objected and said that she only agreed to allow the substitute judge to handle the verdict and did not agree to have him rule on substantive issues. The prosecutor stated two bases for her objection — the past professional relationship between the substitute judge and Wong’s attorney, but, more importantly, the fact that the substitute judge lacked familiarity with the trial proceedings and the trial court had denied Wong’s motion for curative instructions only a few hours earlier. Wong’s counsel argued that the prosecutor had agreed to the substitute judge, and, in doing so, she agreed to allow the substitute judge to rule on substantive issues. He further argued that the prosecutor was objecting to the substitute judge making substantive decisions because it was likely that the substitute judge would rule against her on the merits of the issues, not because of the judge’s relationship with him.
The substitute judge stated that he was not comfortable ruling on Wong’s substantive motions because of the prosecutor’s objection based on his prior professional relationship with Wong’s counsel and because he was not familiar with the proceedings. The substitute judge further stated that, even if the prosecutor had not objected, he would not have been able to properly decide the substantive motions because of his lack of familiarity with the case. In the end, the substitute judge declared a mistrial because the jury was deadlocked, thus, in effect, denying Wong’s substantive motions.
Here, the trial court instructed the jury and deliberations began without any motion citing prosecutorial misconduct. When the jury reported that it was deadlocked, Wong’s counsel inferred that the deadlock must have been the result of the jury’s confusion over the jury instructions and the alleged misstatements of law made by the prosecutor during her closing argument. If the substitute judge had thought it appropriate, he could have simply overruled the prosecutor’s objection and taken whatever action he deemed appropriate, including dismissing the jury for the day and instructing them to return the following morning when the trial court would have been back. Instead, the substitute judge found that giving a curative instruction would not be appropriate and stated that, regardless of the prosecutor’s objection, he did not have the requisite familiarity with the case to properly rule on Wong’s substantive motions. On this record, we are unable to conclude that the prosecutor engaged in misconduct intended to provoke a mistrial by objecting to having the substitute judge rule on Wong’s substantive motions.
E. Cumulative Effect
The trial court found that, taken as a whole, the prosecutor’s conduct demonstrated misconduct that was intended to provoke a mistrial. While we note the trial court’s careful approach to reach a conclusion of this magnitude, we disagree with the court. If there were any instances of prosecutorial misconduct, they, at most, warrant granting Wong a new trial. Because we do not find evidence in the record that the prosecutor engaged in misconduct that was intended to provoke a mistrial, we conclude that the trial court erred in declaring a mistrial based on prosecutorial misconduct. We reverse the trial court’s declaration of a mistrial and remand to the trial court for further proceedings.
Having determined that the trial court erred in declaring a mistrial based on prosecutorial misconduct, we next address the procedural status of this case on remand. The trial court found in its written order that the substitute judge declared a mistrial on September 13, 2001, but that he left the determination of the cause of the mistrial for the trial court to decide on September 14, 2001. The court also found in its May 2002 order that the substitute judge specifically stated on September 13, 2001, that he was not declaring a mistrial based on a deadlocked jury. We find no evidence in the record to support these findings and we conclude that they are clearly erroneous.
Contrary to the trial court’s written findings, the record shows that the substitute judge declared a mistrial on September 13, 2001, based on a deadlocked jury. A deadlocked jury is the “prototypical example” of manifest necessity. State v. Soyke, 585 N.W.2d 418, 420 (Minn. App. 1998) (quotation omitted). Therefore, we conclude that the substitute judge’s declaration of a mistrial on September 13, 2001 was based on manifest necessity and that he was within his discretion in declaring the mistrial. Because the substitute judge’s declaration of a mistrial was based on manifest necessity, double jeopardy protection does not attach and a new trial is not barred. On remand, this case stands as it would following a mistrial based on manifest necessity.
Reversed and remanded.
 We also note that the officer’s answer only suggested that the police had been at the Rainbow restaurant in the past and that respondent was familiar with compliance checks and did not imply that there had been past incidents or allegations of selling alcohol to minors. Thus, while the answer violated the court’s ruling, the prejudice to respondent was likely minimal. Nevertheless, it was within the trial court’s discretion to sustain respondent’s objection and strike the officer’s previous five answers.
 The bench discussion among the parties and the judge after Wong’s objection to the prosecutor’s alleged sentencing argument was held off the record, thus there is no record of exactly what was said or how the prosecutor was instructed to proceed by the court. But the court’s written order states that the prosecutor was instructed to immediately abandon her sentencing argument, and the discussions on the record between the parties after closing arguments are consistent with the language in the order.
 Wong wanted curative instructions given to the jury to remedy any misstatements of the law made by the prosecutor during her closing argument and to clarify the instructions that were originally given to the jury.
 In its written order, the court found that both parties had indicated that a mistrial was in order before the substitute judge declared a mistrial. But the record indicates that only respondent made a motion for a mistrial based on prosecutorial misconduct before the substitute judge declared the mistrial, and that respondent’s motion was the only motion for a mistrial before the court.
 The substitute judge tried to contact the trial court, but the court could not be reached inside the correctional facility.
 While we can all speculate about what juries are thinking and the discussions that occur behind closed jury room doors, no one knows for certain what is said and thought behind those doors except for the jurors. It would be inappropriate for courts to make decisions based on speculation regarding what jurors may be thinking or why a jury may be deadlocked. Wong’s inferences as to what was going on behind the closed jury room doors were mere speculation and were unsupported by any evidence in the record.
 We note that it would be a rare case where it would be appropriate for a trial court to give curative instructions to a deadlocked jury.