This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,





Andrew Franklin,




Filed July 31, 2007


Halbrooks, Judge



Ramsey County District Court

File No. K5-05-1244



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


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102  (for respondent)


John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Wright, 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 order denying appellant’s motion to dismiss, appellant argues that, although he did not object to the district court’s sua sponte declaration of a mistrial after problems arose with two jurors, he did not waive the double-jeopardy argument and no manifest necessity supports mistrial.  We affirm.


            Appellant Andrew Franklin was charged with first-degree controlled-substance crime of possession with intent to sell ten or more grams of cocaine under Minn. Stat. § 152.021, subd. 1(1) (2004), and endangerment of a child under Minn. Stat. § 609.378, subd. 1(b)(2) (2004).  During voir dire, prospective jurors took an oath to “truthfully answer all questions about your qualifications to serve as a juror” and were instructed that it was their duty to bring to the district court’s attention anything that might affect the prospective juror’s ability “to be a fair and neutral juror, whether or not we ask a specific question about it.”  After the district court introduced appellant to the prospective jurors, the district court asked the panel as a whole, “Do you know or are you familiar with the defendant?”  No one responded affirmatively. 

            The district court also asked, “Does anyone have any serious time problems, other than personal issues, that would cause extreme hardship if you were to serve on this jury?”  No one indicated a problem.  But one prospective juror, K.K., responded to the question, “Can anyone think of anything at all that would interfere with their ability to be fair and neutral?” by indicating that her self-employment commitments would make a trial longer than a week “a hardship on my income to not be working.”  Because the district court stated that the trial was not expected to last that long, that comment did not result in K.K.’s removal from the panel.  Given the nature of the charges, prospective jurors were also asked about their own use of cocaine.  T.C. and K.K. both responded that they had, in the past, used cocaine.  Both sides passed the jury for cause, and 12 jurors and one alternate were seated.

On the first day of jury selection, the state moved for sequestration of the jury.  While the district court advised counsel that the jury would be told to bring items to stay overnight with them, the likelihood of sequestration was not mentioned to prospective jurors during voir dire.  The jurors first heard about it after the panel had been sworn in and the district court had given the jury its preliminary instructions.

On the first day of trial, following opening statements and the completed testimony of the state’s first witness, the district court called a recess.  The district court then advised counsel that two juror-related issues had arisen.

Juror T.C. alerted the district court’s clerk after trial commenced that he realized that he might know the defendant or his family, and juror K.K. indicated that her schedule did not allow her to be sequestered.  The district court and counsel questioned the two jurors individually, outside of the presence of the other jurors. 

            T.C. explained that although he did not recognize appellant, he had worked ten years ago at a St. Paul recreation center where he had known a teenager with the same name as appellant “pretty well.”  T.C. had also known the young man’s siblings and mother, had given the young man rides home, and had been inside the family’s home.  Based on that relationship, T.C. stated that “It would be kind of tough to be a neutral.”  Appellant subsequently confirmed through his counsel that the person T.C. had known was his 18-year-old son.  Responding to counsels’ questions regarding whether or not the acquaintance with appellant’s son would affect his ability to be fair and impartial, T.C. stated that it would be a “lot tougher,” but that would not affect his “overall view of the case.”  T.C. also stated that he had mentioned to K.K. the fact that he might know the defendant. 

            K.K., when questioned, stated that she had a pet-sitting business that required her to work in the evening and that she would have mentioned it during voir dire had she known that the jury would be sequestered.  In addition, K.K. advised the district court and counsel that she had mentioned T.C.’s circumstances to “a number of” other jurors because they were wondering why T.C. had been called back into the courtroom. 

            The district court and counsel then discussed the options.  The state moved to strike T.C. for cause and to withdraw its request for sequestration.  After a ten-minute recess, appellant’s counsel stated that he did not object to removing T.C. from the jury but opposed K.K.’s removal and would not agree to the state’s suggestion to withdraw sequestration.  The district court sua sponte granted a mistrial based on jury nullification.  In support of its ruling, the district court stated that it had concluded that

1) Juror [T.C.] testified falsely when he failed to disclose during voir dire that he was familiar with the [appellant’s] immediate family; 2) there had been improper discussion among the jurors prior to jury deliberations thus nullifying the remainder of the jury; and 3) given the [appellant’s] failure to waive sequestration and the hardship sequestration would cause Juror [K.K.], a mistrial was likely anyway.


The district court then asked counsel whether either party objected to the ruling.  Appellant did not object.  The prosecutor objected on the ground that other remedial efforts were available.  The district court then dismissed the jury. 

            Appellant subsequently moved to dismiss based on double jeopardy because other remedial efforts were available, including a cautionary instruction to jurors and investigation of alternative arrangements that K.K. could have made to have maintained her evening commitment to her clients.  The district court denied appellant’s motion.  This appeal follows.


            This court reviews a district court’s decision to declare a mistrial for an abuse of discretion.  State v. McDonald, 298 Minn. 449, 453-54, 215 N.W.2d 607, 609-10 (1974).  This standard recognizes that the district court is “best situated to decide whether . . . the ends of substantial justice cannot be attained without discontinuing the trial.”  State v. Long, 562 N.W.2d 292, 296 (Minn. 1997) (quotation omitted), habeas corpus granted by Long v. Humphrey, 184 F.3d 758 (8th Cir. 1999).  But the application of the constitutional protection against double jeopardy is reviewed de novo.  State v. Gouleed, 720 N.W.2d 794, 800 (Minn. 2006).

            Both the federal and Minnesota constitutions prohibit a criminal defendant from being placed twice in jeopardy.  U.S. Const. amend. V (stating “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”); Minn. Const. art. I, § 7 (stating “no person shall be put twice in jeopardy of punishment for the same offense”).  Due to the identical text of the federal and Minnesota provisions, interpretations of federal protection against double jeopardy are “inherently persuasive.”  State v. Fuller, 374 N.W.2d 722, 727 (Minn. 1985).  The Fifth Amendment guarantee against double jeopardy is applicable to the states through the Fourteenth Amendment.  Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969).  Therefore, federal decisions are controlling.  McDonald, 298 Minn. at 452 n.2, 215 N.W.2d at 608 n.2.  Double jeopardy attaches when a jury is impaneled and sworn.  Id. at 451-52, 215 N.W.2d at 608-09.

            A district court properly grants a mistrial when it “declines to continue a trial after an error has occurred that will undoubtedly subject a verdict of conviction, if one is reached, to reversal.”  Gouleed, 720 N.W.2d at 802 (citing Illinois v. Somerville, 410 U.S. 458, 464, 93 S. Ct. 1066, 1070 (1973)). 

A juror may be challenged for cause by either party . . . [for] [t]he existence of a state of mind on the part of the juror, in reference to . . . either party, which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.


Minn. R. Crim. P. 26.02, subd. 5(1)1.  A jury trial for a felony charge requires 12 jurors, Minn. Const. art. I, § 6, unless the parties agree to waive the requirement, Minn. R. Crim. P. 26.01, subd. 1(4). 

            If the defendant consents to the mistrial, the defendant is deemed to have waived a double-jeopardy claim.  State v. White, 369 N.W.2d 301, 304 (Minn. App. 1985) (citing United States v. Dinitz, 424 U.S. 600, 608, 96 S. Ct. 1075, 1080 (1976)), review denied (Minn. Aug. 20, 1985).  But if the defendant fails to consent to the mistrial, the mistrial may be affirmed only for “manifest necessity for the act, or the ends of public justice would otherwise be defeated.”  McDonald, 298 Minn. at 453, 215 N.W.2d at 609 (quotation omitted).


            Appellant argues that the district court never gave him the opportunity to voice his opposition to the mistrial, thus preserving his double-jeopardy claim.  “The defendant’s consent to a mistrial need not be express but may be implied from the totality of the circumstances.  While a failure to object to a mistrial may not, in and of itself, constitute consent, it is a factor to be considered.”  White, 369 N.W.2d at 304 (citations omitted).  Additional circumstances include the opportunity to object and the opportunity to confer with counsel, preferably during a short recess to inform defendant of the implications of agreeing to a mistrial.  State v. Olson, 609 N.W.2d 293, 300, 301-02 (Minn. App. 2000), review denied (Minn. July 25, 2000).

            Here, appellant had warning of the problem that could lead to a mistrial.  Before the district court brought T.C. and K.K. in individually, appellant and counsel conferred.  This break allowed appellant’s counsel to confirm with appellant that the young man whom T.C. had known was appellant’s son.  After the district court and counsel questioned T.C. and K.K. and had conferred about the options outside the presence of all the jurors, appellant’s counsel “ask[ed] for at least a couple of minutes to, again, confer with [appellant].  These are important decisions.  I want to make sure he understands . . . what the potentials are and what, at least, his view is . . . on what he might want to see happen.”  The prosecutor agreed, and the district court granted “a ten-minute recess to allow you to speak to” appellant.  Thus, appellant had a second opportunity to discuss strategy with counsel after the prosecutor had proposed striking T.C. and withdrawing the sequestration motion. 

            Thus, appellant had several opportunities to object to a mistrial.  Appellant did not do so.  Based on Olson, we therefore conclude that appellant’s failure to object to the district court’s ruling, after twice conferring with counsel, constituted consent to the ruling.  As a result, appellant’s claim that a new trial is barred by double jeopardy is misplaced.  Nonetheless, we will also discuss the merits of appellant’s manifest-necessity argument.


            Appellant argues that manifest necessity is absent because the district court had less extreme alternatives available to remedy the potential injustice but failed to consider them.  Manifest necessity is “[a] high degree of necessity—not absolute necessity. . . .”  Long, 562 N.W.2d at 296 (citing Arizona v. Washington, 434 U.S. 497, 506, 98 S. Ct. 824, 830 (1978)).  Review of manifest necessity includes whether the district court adequately assessed less drastic alternatives and gave “careful consideration to [the defendant’s] interest in having the trial concluded in a single proceeding.”  Id. (alteration in original) (quoting Washington, 434 U.S. at 516, 98 S. Ct. at 835).  The process is fact-intensive without any “mechanical formula,” and “virtually all of the cases turn on the particular facts and thus escape meaningful categorization.”  Gouleed, 720 N.W.2d at 800 (quoting Somerville, 410 U.S. at 464, 93 S. Ct. at 1070).

            A district court acts within its discretion when it engages in a “thoughtful and thorough review” of the less drastic alternatives and the defendant’s interest in having the issue decided in one trial.  Long, 562 N.W.2d at 297-98 (demonstrating this conclusion by discussing the extensive trial record and detailed written decision).  The existence of a “range of available and viable alternatives to mistrial” demonstrates that mistrial is not supported by the “high degree of necessity contemplated by the manifest necessity standard.”  Long, 184 F.3d at 761.  A willingness to encourage deliberation in recesses and in chambers demonstrates a valid consideration of alternatives.  Gouleed, 720 N.W.2d at 802.  Furthermore, the prohibition against double jeopardy protects against intrusive government prosecutions.  Id. at 802-03 (finding the absence of “anything in the record to suggest that the state took any action to precipitate the mistrial” does not “serve the principles rooted in the double-jeopardy doctrine”).  Thus, a district court acts within its discretion when the mistrial decision “was not taken to harass defendant or to afford the prosecution a more favorable opportunity to convict [defendant], but instead was taken as a necessary precaution in the interests of preserving the impartiality of the jury.”  McDonald, 298 Minn. at 455, 215 N.W.2d at 610. 

            Here, a mistrial may have been avoided had appellant consented to the prosecutor’s willingness to withdraw the sequestration motion.  By eliminating sequestration, K.K. would not have experienced a severe hardship in her jury duty.  But appellant advised the district court that he not only objected to removing sequestration but also objected to removing K.K. from the panel. 

            While appellant now argues that the parties could have stipulated to an 11-member jury under Minn. R. Crim. P. 26.01, subd. 1(4), that argument is belied by his unwillingness to strike K.K. at the time.  Similarly, appellant now argues that “it was within the power of the court to adjust the timing of the start of deliberations to early in the day” or to agree to allow K.K. to be dismissed from the jury in the evening.  But to the extent that either was a viable alternative, appellant did not make either request to the district court.  The district court also considered the alternative of giving the jury a curative instruction to address the potential of prejudice arising out of K.K.’s statements to the other jurors.  But the district court stated that it

considered the nature and the source of the prejudicial communications, the number of jurors exposed to this influence, the weight of the evidence properly before the jury, and the likelihood that curative measures would not be effective in reducing the prejudice.  Thus, the Court stated it had “no choice but to declare a mistrial.”  In the judge’s view, it would be like trying to “unring a bell.”


            The district court’s sua sponte grant of mistrial avoided the futility of continuing proceedings that the district court was concerned would likely be reversed for irregularity.  In the district court’s written findings, it enumerated the irregularities:

The Court concluded that: 1) Juror [T.C.] testified falsely when he failed to disclose during voir dire that he was familiar with [appellant’s] immediate family; 2) there had been improper discussion among the jurors prior to jury deliberations thus nullifying the remainder of the jury; and 3) given [appellant’s] failure to waive sequestration and the hardship sequestration would cause [K.K.], a mistrial was likely anyway.


The detailed written findings in the record demonstrate the thoroughness of the district court’s decision-making process.

            Because the district court thoughtfully considered appellant’s rights and the alternatives that might preserve the impartiality of the jury before determining that the only viable alternative was mistrial, we conclude that the mistrial resulted from manifest necessity.  Therefore, the district court acted within its discretion when it sua sponte ordered a mistrial and properly applied the law when it denied appellant’s motion to dismiss the new charges based on double jeopardy.