may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Gerald Archie Parent,
Filed August 17, 1999
Cook County District Court
File No. K2-96-174
Mike Hatch, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)
John S. Lind, 920 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Thoreen, Judge.
Appellant challenges an order denying his motion to dismiss the criminal complaint following a mistrial. Appellant argues that the Minnesota Constitution's Double Jeopardy Clause bars his retrial. Respondent asserts that this court does not have subject matter jurisdiction to review this case because appellant has appealed from a nonappealable order. We affirm.
Before his retrial was scheduled, Parent moved to dismiss the complaint, asserting that retrial was barred by the Double Jeopardy Clause of the Minnesota and United States Constitutions. The district court denied this motion and scheduled a second trial. Parent now appeals from the district court's order denying his motion.
A district court's order denying a motion to dismiss a criminal complaint after a mistrial "is a pretrial order from which [defendant] has no right of appeal." State v. Soyke, 585 N.W.2d 418, 420 (Minn. App. 1998) (citations omitted); see also State v. Murphy, 537 N.W.2d 492, 495 (Minn. App. 1995) (concluding defendant has no right of appeal from pretrial order denying motion to dismiss on double jeopardy grounds). Before a final judgment is entered, a defendant has an appeal of right only from an order refusing or imposing conditions of release or, in felony and gross misdemeanor cases, from (1) an order granting a new trial when the defendant claims the trial court should have entered a final judgment in the defendant's favor or (2) an order, not on the defendant's motion, finding the defendant incompetent to stand trial. Minn. R. Crim. P. 28.02, subd. 2(2).
Parent's statement of the case asserts that this court has jurisdiction to review the order he challenges under Minn. R. Crim. P. 28.02, subd. 2(2)1, which states that a defendant may appeal from "an order granting a new trial when the defendant claims that the trial court should have entered a final judgment in the defendant's favor." Parent is not, however, appealing from an order granting a new trial. Instead, Parent is appealing from an order denying his motion to dismiss the complaint. Further, Parent has not made any claim that the district court should have entered judgment in his favor. A mistrial was granted at Parent's request. Therefore, Parent cannot now assert that this exception applies.
Although Parent does not have an appeal of right from the district court's order, the record here is fully developed and both parties have fully briefed the double jeopardy issue. Therefore, we will extend discretionary review. See Soyke, 585 N.W.2d at 420 (extending discretionary review over appeal from order denying motion to dismiss charges on double jeopardy grounds after noting record fully developed and issue fully briefed).
"The appellate court reviews de novo the constitutional issue of double jeopardy." State v. Watley, 541 N.W.2d 345, 347 (Minn. App. 1995) (citations omitted), review denied (Minn. Feb. 27, 1996).
The U.S. Supreme Court has enunciated the following rule to determine whether the U.S. Constitution's Double Jeopardy Clause bars retrial after a mistrial granted at a defendant's request:
Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.
Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2089 (1982).
Parent asserts that this court should reject the standard articulated in Kennedy, and adopt a different standard in interpreting the Minnesota Constitution's Double Jeopardy Clause. Parent points out that in State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985), the supreme court left open the possibility for Minnesota to adopt a different double jeopardy standard. Parent suggests that this court should adopt the double jeopardy standard applied in New Mexico and Texas and asserts that retrial after a mistrial should constitute double jeopardy
when a defendant moves for a mistrial because of prosecutorial misconduct if the prosecutor's conduct unfairly prejudiced the defendant and it cannot be cured by means short of a mistrial, and the prosecutor's actions were in willful or conscious disregard of a resulting mistrial.
See State v. Breit, 930 P.2d 792, 803 (N.M. 1996) (holding New Mexico Constitution's Double Jeopardy Clause bars retrial if "official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal"); Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996) (holding Texas Constitution's Double Jeopardy Clause bars retrial both when prosecutor intended to induce a mistrial motion and when prosecutor "consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request"). Parent asserts that under the standard he proposes, double jeopardy would bar his retrial. In the alternative, Parent argues that the district court erred when it concluded that the prosecutor's conduct did not rise to the level of goading under the Kennedy standard.
As Parent recognizes, in Fuller, the supreme court left open the possibility that the Double Jeopardy Clause in the Minnesota Constitution could be read more broadly than the U.S. Supreme Court has interpreted the U.S. Constitution's Double Jeopardy Clause. The Minnesota Supreme Court declined to adopt a different standard in Fuller, however, and stated that "the defendant in this case is clearly not entitled to relief under any reasonable alternative to the rule recognized by the United States Supreme Court in Kennedy." Fuller, 374 N.W.2d at 727.
This is not an appropriate case in which to determine whether the Double Jeopardy Clause under the Minnesota Constitution should be construed more broadly than the U.S. Constitution's Double Jeopardy Clause. The district court here specifically found that the prosecutor was negligent and that the prosecutor did not intentionally goad Parent into moving for a mistrial. This court and the supreme court have previously determined that, under any reasonable interpretation of Minnesota's Double Jeopardy Clause, mere negligence by the prosecutor is not enough to bar retrial after a mistrial is granted at the defendant's request. See Fuller, 374 N.W.2d at 727 (determining prosecutor may have been negligent but under any reasonable alternative to Kennedy standard, double jeopardy did not bar retrial); State v. Schroepfer, 416 N.W.2d 491, 493 (Minn. App. 1987) (concluding where district court found prosecutor merely negligent and finding was supported by record, double jeopardy did not bar retrial).
Additionally, the record supports the district court's findings that the prosecutor merely acted negligently and did not intentionally goad Parent into seeking a mistrial. See Schroepfer, 416 N.W.2d at 493 (stating findings must be upheld if not clearly erroneous). In denying Parent's motion to dismiss the charges, the district court accurately observed that the prosecutor argued against each of Parent's motions for a mistrial and sought less drastic measures such as the exclusion of improperly disclosed evidence. As the district court further noted, the majority of the prosecutor's misconduct in this case occurred outside of the jury's presence. Additionally, the majority of the prosecutor's actions leading to this mistrial occurred before the trial commenced. The prosecutor failed to fully disclose all of its notes from witness interviews and conducted an unrecorded interview with the alleged victim before trial. It is improbable that these decisions, which were made before the trial, were intended to entice the defendant into moving for a mistrial.
Thus, because the district court did not make clearly erroneous findings when it determined that the prosecutor acted only negligently and determined that the prosecutor did not intentionally provoke Parent to move for a mistrial, pursuant to both Kennedy and Fuller, double jeopardy does not bar Parent's retrial.
The district court's decision to deny Parent's motion to dismiss was, therefore, well within the court's discretion, and we will defer to that decision.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Notably, even the standard proposed by Parent requires "willful or conscious disregard," and negligence would not fulfill that standard. See Black's Law Dictionary 1032 (6th ed. 1990) (defining "negligence" and stating it includes "inadvertence, thoughtlessness, [and] inattention" rather than willfulness).