This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Alicia Smith,



Filed August 15, 2006


Randall, Judge


Hennepin County District Court

File No. CR-04065427


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487(for respondent)


Jill Clark, 2005 Aquila Avenue North, Golden Valley, MN 55427; and


Jill M. Waite, 2856 Humboldt Avenue South, Suite 3, Minneapolis, MN 55408 (for appellant)


            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from the district court’s denial of her motion to dismiss a charge of felony obstruction of legal process, appellant argues that the charge is barred by double jeopardy.  Because the first trial terminated as a result of manifest necessity, we conclude that double jeopardy does not bar retrial, and we affirm.


In September 2004, Alicia Smith ran to a police car while yelling for help.  She attempted to enter the police car, and a police officer began struggling with her.  During this struggle, her head was forced through the rear window.  The state charged her with fourth-degree assault on a police officer and felony obstruction of legal process.

            In April 2005, the district court held a jury trial, and the jury retired for deliberations.  On the first day of deliberations, 11 members of the jury sent the court a note, indicating that they “had one intransigent person [who] will not consider any other view [and who is] not making any sense.”  The note also indicated that the 11 jurors did not believe that the intransigent juror was rational.  Two hours later, the same 11 jury members sent the court two additional notes.  The first note stated that “[o]ne juror indicated after only one hour of deliberation this morning he felt a hung jury possibility.  He has not made any sense to the other 11 jurors.”  The second note indicated that the 11 jurors believed that “the one juror is biased and prejudiced towards the police, [is] unwilling to listen to the other 11, [and] continues to talk in circles.”  The note also stated, “We believe if we spend 5 more days we will not convince this one person.”  The parties and court discussed the possibility of a mistrial, but agreed to have the jury continue deliberations the following day. 

            On the second day of deliberations, the parties discussed the possibility of permitting a verdict by 11 jurors.  The court acknowledged a number of possible resolutions.  It stated that it could remove the intransigent juror or substitute him with another juror, but it declined to pursue either option.  Referring to a previous suggestion to reread the jury instructions related to unanimity, the court indicated that the jury had a copy of the instructions, that the court had told the jury to refer to the instructions, and that it did not wish to interrupt the deliberations to reread the instructions.  It also stated on the record that it would not, “at this point, grant a mistrial sua sponte or over the defendant’s objection.”  The court, however, acknowledged that a mistrial was highly likely.

            Later that day, the court received a note from 11 members of the jury in which they stated that they had reached a unanimous verdict on the assault charge, but were deadlocked on the felony-obstruction charge.  The note further stated that “[d]eliberation on the charge of obstruction is deadlocked,” that they had made “no progress for 11 hours,” that “there’s no hope” of ever reaching a unanimous decision, and that “[f]urther deliberations will be futile.”  The parties and court again discussed possible options for resolving the situation, including a non-unanimous verdict, continued deliberations, or a mistrial.  The court gave appellant the option of stipulating to an 11-juror verdict.  Appellant refused.  The parties agreed, however, to accept a partial verdict on the assault charge, and the jury found Smith not guilty on the assault charge.  The court then verified that the jury did not believe they could reach a unanimous verdict and discharged the jury without consulting either party.  The court stated on the record that it had considered the available options, but had concluded that continued deliberations were futile.

            The state recharged Smith with felony obstruction of legal process, and Smith moved for dismissal based on double jeopardy.  The court heard oral arguments on the motion in August 2005.  During the August hearing, Smith asserted that the court erred by declaring a mistrial and by failing to explicitly state that it was declaring a mistrial and that double jeopardy barred the state from recharging Smith.  The court denied the motion to dismiss and stated on the record that it had considered all available options when it granted the mistrial.  Smith appeals from the district court’s denial of her motion to dismiss and its decision to grant a mistrial.  The state moved for dismissal of the appeal.  This court denied the state’s motion to dismiss the appeal and stated that, regardless of how the district court labeled its discharge of the jury, the district court “effectively declared a mistrial.” 


The United States and Minnesota constitutions prohibit placing a person twice in jeopardy for the same offense.  U.S. Const. amend. V; Minn. Const. art. I, § 7.  Jeopardy generally attached when the jury is impaneled and sworn.  State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974).  When the court declares a mistrial, however, the “conclusion that jeopardy attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.”  State v. Long, 562 N.W.2d 292, 296 (Minn. 1997) (quotations omitted).

            A district court has discretion to grant a mistrial and may order a mistrial on its own motion.  State v. Washington, 693 N.W.2d 195, 205 n.3 (Minn. 2005).  We review a district court’s decision to grant a mistrial for abuse of discretion and accord the “highest degree of respect” to the district court’s decision to grant a mistrial.  Long, 562 N.W.2d at 296 (quotations omitted).  The court’s discretion should nonetheless be exercised with caution and should only serve the ends of public justice.  Id.

            When a defendant requests a mistrial and the request was not prompted by any misconduct by the state, double jeopardy does not bar a second trial.  State v. Olson, 609 N.W.2d 293, 299 (Minn. App. 2000), review denied (Minn. July 25, 2000).  When a district court terminates a trial before the jury reaches a verdict and without a defendant’s consent, however, double jeopardy bars a retrial unless the court terminated the first trial for a manifest necessity.  State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985), review denied (Minn. Apr. 19, 2005).

            Under the manifest-necessity standard, a mistrial is appropriate when a high degree of necessity exists.  Long, 562 N.W.2d at 296.  Before granting a mistrial, the court should consider less drastic alternatives and consider the defendant’s interest in resolving the case in one trial.  Id.  “The prototypical example of manifest necessity is a deadlocked jury.”  State v. Yeboah, 691 N.W.2d 87, 91 (Minn. App. 2005), review denied (Minn. Apr. 19, 2005).

            Appellant asserts that the district court abused its discretion by declaring a mistrial and advances four arguments to support her position that double jeopardy bars a second trial on the felony-obstruction charge.  She first asserts that the district court abused its discretion by granting a mistrial on its own motion when she opposed a mistrial.  But the district court has discretion to order a mistrial on its own motion when manifest necessity exists.  See, e.g., Washington, 693 N.W.2d at 205 n.3 (stating that district court may declare mistrial on own initiative and over defendant’s objection); Long, 562 N.W.2d at 297 (concluding that district court did not abuse its discretion by declaring mistrial on own motion when defendant indicated preference to continue trial).

She next argues that manifest necessity did not justify the district court’s decision.  We conclude the district court did not abuse its discretion by granting a mistrial.  The jury was deadlocked and incapable of reaching a unanimous verdict.  The jury communicated its concern that it could not reach a unanimous verdict throughout its two-day deliberations.  The jury members offered several reasons to explain why they believed that continued deliberations were futile.  Specifically, the jury identified the perceived irrationality, bias, and intransigence of one juror.  The jury explained that, even if it had “five days to deliberate,” it had no hope of reaching a verdict.  At one point, the jury indicated that it had made no progress for 11 hours.  Given the continued insistence of the jury that it could not reach a unanimous verdict on the felony-obstruction charge, the district court reasonably believed the jury was deadlocked.  See Yeboah, 691 N.W.2d at 91 (stating that district court’s reasonable belief that jury cannot reach unanimous verdict is “classic reason for a mistrial”).

Appellant then contends that the district court abused its discretion by determining that manifest necessity warranted a mistrial because the court failed to consider less drastic alternatives.  This contention is unsupported by the record.  The judge discussed several options with both parties.  The court offered both sides the option of accepting a non-unanimous verdict.  Appellant refused to agree to this option.  The court also considered dismissing the intransigent juror or replacing him with a new juror, but did not pursue this option because, concededly, the new juror, at this point, would have no connection to all the previous private jury deliberations.  The court contemplated reinstructing the jury on the requirement of a unanimous verdict, but decided not to interrupt deliberations because the court had already given the jury a written copy of the instructions.  There is nothing in the record to show any indication by the jury that they were confused about the jury instructions. 

The court’s repeated requests to the jury to continue to deliberate; its decision to accept a partial verdict on the assault charge; and its offer to the parties to accept a 11-juror vote on the obstruction charge demonstrate its efforts to pursue other options before declaring a mistrial.  The district court exercised sound and rational judgment.

Finally, appellant argues that the district court did not “label” its discharge of the jury as a mistrial, and that somehow deprived her of the opportunity to object or argue that manifest necessity did not support the decision.  This argument lacks merit for several reasons.  The court informed the jury that it was “discharged from further jury service.”  The context of the district court’s discharge demonstrates that the only
inference is that the district court was declaring a mistrial.  At the hearing on the motion to dismiss, appellant conceded that she could not think of any implication of the district court’s discharge of the jury other than a mistrial.  The parties and the district court had previously discussed the possibility of a mistrial and everyone knew the jury was deadlocked.  In these circumstances, appellant cannot reasonably assert that she was unaware that the discharge of the jury was a declaration of a mistrial.  As stated, a district court can grant a mistrial over a defendant’s objection.  The applicable standard is whether manifest necessity justified a mistrial.

Finally, appellant’s arguments about “being confused” as to whether there was ever a mistrial, and claiming not to be sure about what happened, are somewhat disingenuous.  Appellant benefited from a prior order of this court dated October 18, 2005 (nothing in the record indicates appellant petitioned for certiorari to the Minnesota Supreme Court on the appealable order), wherein respondent, the State of Minnesota, filed a motion to dismiss appellant’s appeal from a district court order denying her motion to dismiss the charge on the grounds of double jeopardy.  The state argued that, generally, criminal defendants have no right to appeal until after a final judgment of conviction has been entered.  Our court found in appellant’s favor based on a rule allowing a defendant to appeal “an order denying a motion to dismiss a complaint following a mistrial where the issue is whether retrial would violate double jeopardy.”  Minn. R. Crim. P. 28.02, subd. 2(2)3.

Essentially, appellant moved to dismiss her remaining charge on double jeopardy grounds and when the district court denied that motion and appellant came to this court for relief, the prosecutor argued that appellant was appealing from a nonappealable interlocutory order of the district court.  We found in appellant’s favor and ruled that,

“The district court by discharging the jury on that basis effectively declared a mistrial.  And appellant’s right of appeal should not turn on how the district court described, or failed to describe, its own action.  See State, City of St. Cloud v. Voight, 388 N.W.2d 790, 791 (Minn. App. 1986) (holding district court’s use of term “with prejudice” did not make nonappealable order appealable).”


Our court acknowledged that the district court did not formally use the word “mistrial,” but we found the record was clear that the jury had deadlocked on one count and we stated that a hung jury is the “prototypical example” of the “manifest necessity” required for a mistrial.  State v. Soyke, 585 N.W.2d 418, 420 (Minn. App. 1998) (quoting Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 2087 (1982)).

The record is clear that for a year appellant had a ruling from this court that she was the subject of a mistrial.  That ruling preserved her right to appeal, and have her case heard on the merits. 

On the merits, the trial record is clear that the district court declared a mistrial.  Appellant was not prejudiced by the district court’s failure to use the magic word “mistrial,” as we preserved her right to appeal.

The district court properly concluded that the jury was deadlocked and incapable of reaching a unanimous verdict.  The option of a less than unanimous verdict was rejected by appellant.

The circumstances of this case fit the classic profile of “manifest necessity.”  Double jeopardy does not bar another trial if the state chooses to preserve the remaining felony-obstruction charge.