This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Neil Charles Foster (K4-98-857),


Hope Ranae Wilson (K6-98-858),


Filed June 1, 1999


Kalitowski, Judge

Kandiyohi County District Court

File No. K498857

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Boyd Beccue, Kandiyohi County Attorney, C. J. Crowell, First Assistant County Attorney, Jeffery S. Thompson, Assistant County Attorney, 316 Southeast 4th Street, Willmar, MN 56201 (for appellant)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for respondents)

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Harten, Judge.



Appellant State of Minnesota contends the district court erred by determining the constitutional prohibition against double jeopardy bars a retrial of respondents. We affirm.


The United States and Minnesota Constitutions prohibit placing a person in jeopardy more than one time for the same offense. U.S. Const. amend. V; Minn. Const. art. 1, § 7. Jeopardy attaches when a jury is impaneled and sworn. State v. Long, 562 N.W.2d 292, 295-96 (Minn. 1997). But when a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached only begins the inquiry as to whether the Double Jeopardy Clause bars retrial. Illinois v. Somerville, 410 U.S. 458, 467, 93 S. Ct. 106, 1066 (1973).

A court may declare a mistrial not barring retrial if the court, taking all the circumstances into consideration, determines that "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." Long, 562 N.W.2d at 296 (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)). A high degree of necessity--not absolute necessity--must exist before a mistrial is appropriate. Id. In determining whether a mistrial was manifestly necessary, the reviewing court considers whether the court adequately assessed less drastic alternatives and whether the court carefully considered the defendant's interest in having the trial concluded in a single proceeding. Id. It is a "flexible standard" that "seeks fairness to the defendant, the government, and the public interest alike." Id. (quoting United States v. Givens, 88 F.3d 608, 613 (8th Cir. 1996)). A trial court's decision to declare a mistrial is reviewed under an abuse of discretion standard. Id.

Here, respondents went to trial on robbery, burglary, and related charges. Before closing arguments, the court proposed jury instructions to the attorneys. Although respondents objected to the instructions, the court submitted them to the jury as proposed and both sides made closing arguments, relying on and making reference to the instructions. After a recess, during which the court met with the attorneys to again discuss the jury instructions, the court determined the instructions were improper. Despite respondents' objection, the court concluded the interests of justice required that a mistrial be declared. A second trial was scheduled and respondents made a motion to dismiss the case on the basis of double jeopardy, arguing that because there was no manifest necessity to declare the mistrial they could not be tried a second time.

The district court reviewed respondents' motion to dismiss and concluded it had erred in declaring the mistrial. Specifically, the court found it "did not adequately take into consideration the strong constitutional presumption against trying a [d]efendant a second time for any offense." The court also stated that its review of the alternatives to a mistrial was "quite limited" and that the alternatives were dismissed "summarily" without great explanation. The district court granted respondents' motion to dismiss, concluding that double jeopardy bars their retrial.

Appellant contends the district court did not abuse its discretion in granting a mistrial and erred in granting respondents' motion to dismiss because the court improperly applied hindsight in reviewing its decision to grant a mistrial. We disagree.

In determining whether manifest necessity requires a mistrial over the objection of the defendant, a court must consider both the reasonable alternatives to a mistrial and the importance of the defendant's constitutional right to face only one trial for the same offense. See Long, 562 N.W.2d at 297 (finding the judge did not abuse its discretion because it "considered less drastic alternatives to mistrial and concluded that the ends of public justice would not be served unless a mistrial was declared"); Arizona v. Washington, 434 U.S. 497, 515-16, 98 S. Ct. 824, 835 (1978) (concluding the trial judge acted "responsibly and deliberately" by showing concern for the double jeopardy consequences and giving both attorneys full opportunity to explain their positions); United States v. Dixon, 913 F.2d 1305, 1313 (8th Cir. 1990) (concluding that manifest necessity did not support a mistrial because the court did not consider alternatives or consult the attorneys); Malinovsky v. Court of Common Pleas, 7 F.3d 1263, 1271 (6th Cir. 1993) (concluding that manifest necessity did not support a mistrial because the trial judge did not consider alternatives to a mistrial).

Here, the record supports the district court's subsequent determination that, in granting the mistrial, the court did not adequately apply the required factors. The record also supports the district court's conclusion that fairness to the defendant, the government, and the public interest did not necessitate that a mistrial be declared. See Long, 562 N.W.2d at 296. Because the district court did not adequately address the rights of the defendants and the alternatives to a mistrial, and because fairness did not require a finding of manifest necessity, we agree with the district court's subsequent conclusion that it abused its discretion in declaring a mistrial. Therefore, we affirm the district court's determination that double jeopardy bars a second trial of respondents for the same offenses.