This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-155

State of Minnesota,
Respondent,

vs.

Jose Guadalupe Arevalo,
Appellant.

Filed December 14, 1999
Reversed
Halbrooks, Judge

Brown County District Court
File No. K4-98-0148

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

James R. Olson, Brown County Attorney, 519 Center Street, PO Box 428, New Ulm, MN 56073 (for respondent)

Michael J. Michalski, Michalski Law Office, 923 West St. Germain, PO Box 393, St. Cloud, MN 56302-0393 (for appellant)

 

 

Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant Jose Guadelupe Arevalo appeals from the trial courtís denial of his motion for new trial and petition for postconviction relief. Specifically, he contends (1) the court committed procedural errors in its handling of his motion for a new trial and petition for postconviction relief, (2) the court erred in granting a mistrial and his retrial with respect to the Brown County charges was, therefore, barred by the prohibition against double jeopardy, and (3) the court erred in denying his claim of ineffective assistance of counsel. Because we conclude there was no manifest necessity for the mistrial and Arevaloís retrial on the Brown County charges was, therefore, barred by the Fifth Amendment prohibition against double jeopardy, we reverse the trial courtís order.

FACTS

Arevalo was charged in Brown County with the sale of a controlled substance in violation of Minn. Stat. ß 152.022, subd. 1(1) (Supp. 1997), and in Nicollet County with the sale of a controlled substance in violation of Minn. Stat. ß 152.021, subd. 1(1) (Supp. 1997). Arevalo was subsequently tried by a jury on the Brown County complaint.

After the defense rested, but before the court asked the prosecutor if he had rebuttal witnesses, the court gave the jury a 15-minute break. The court then asked the jurors to discuss whether they wanted to keep going that day or resume the next morning. The bailiff then gave the judge a note from the jury stating:

We the jury have a few questions. One, are we the jury able to hear the translation of the tapes, tapings of 2-10-98 and 3-5-98? Two, we have decided to wait? [sic]

The prosecutor told the court that he would play the tapes as part of his rebuttal case. The court so advised the jurors of that information, instructed them not to discuss the case with anyone, and asked them to report back the next morning.

The following day began with a chambers discussion. Arevalo was not present during the discussion, but his counsel was. The court noted:

We have another question from a juror. I donít know if itís a question from the jury as a group or as a juror. Itís phrased in the first person asking if Enrique Coronaís girlfriend was present either or both times the * * * deals took place.

The court then noted that Arevaloís counsel had expressed concern about a newspaper article published in that morningís newspaper that discussed Arevaloís case. The court suggested polling the jury regarding the article and asked Arevaloís counsel how he wanted to proceed if the jury had read the article. Arevaloís counsel responded, "I think itís entirely possible that I might ask for a mistrial." The prosecutor then asked the court to declare a mistrial, and the following colloquy occurred:

Prosecutor: In light of the question yesterday and the question today, itís obvious that the jury is already beginning the process of deliberations which theyíre not supposed to do. Iím not certain that we can cure that. Iím concerned based upon my experience in asking jurors questions relative to the newspaper that you get a negative response anyway. I think it would just be fair to the defendant and fair to the state that we declare a mistrial and reset it for trial.

The Court: [Defense counsel]?

Defense Counsel: I have not consulted with my client on this issue, so Iím not prepared to answer right now.

The Court: Yeah, Iím not sure either. Iím concerned that the jury has asked these questions and Iím not sure how they came up * * * .

Prosecutor: Iím also concerned * * * this is the first time in trying cases for 20 years that Iíve had questions from the jury before deliberations.

The Court: Me, too.

Prosecutor: And Iím concerned what that means relative to what theyíre talking about, what that means, what theyíre talking about with the bailiffs, * * * . Itís obvious that theyíre considering ó or somebodyís considering ó evidence that hasnít even been presented.

The Court: Correct. Iím going to declare a mistrial.

The court then addressed the jury stating:

Counsel and defendant are present as is the jury. Ladies and gentlemen, this morning we got another question from the jury. We had one question last night. It has now become apparent that the jury has begun to deliberate about this case despite the instructions that you were not to discuss this case among yourselves or deliberate until you heard all the evidence and that you were to decide this case on the evidence presented to you. It has become apparent that the jury is speculating about what the evidence should be or evidence that has not been presented; and therefore, because of the danger of the trial being prejudiced by that, Iíve granted the prosecutorís motion for a mistrial.

Following the mistrial, the court scheduled a second trial and, on the stateís motion, consolidated the controlled substance charges from Nicollet and Brown Counties into a single count. Following the second trial, the jury rendered a verdict of guilty.

The trial court subsequently heard Arevaloís motion for a new trial and a petition for postconviction relief and denied them. This appeal followed.

D E C I S I O N

Arevalo argues that the trial court violated the constitutional prohibition against double jeopardy by failing to consider less drastic alternatives to a mistrial and failing to recognize his right to have his trial completed by a particular tribunal.

The Double Jeopardy Clauses of the constitutions of the United States and Minnesota protect criminal defendants from multiple prosecutions for the same offense. U.S. Const. amend. V; Minn. Const. art. I, ß 7. Jeopardy attaches when a jury is impaneled and sworn. State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974). The protection afforded by the Double Jeopardy Clause, however, varies depending on whether "there has been a final resolution of the merits of the charges against the accused." U.S. v. Dixon, 913 F.2d 1305, 1310 (8th Cir. 1990). Thus, when a trial court declares a mistrial over the objection of the defendant or without his consent, double jeopardy bars a retrial unless there is "manifest necessity" for the mistrial. Gori v. United States, 367 U.S. 364, 368, 81 S. Ct. 1523, 1526 (1961); Long v. Humphrey, 184 F.3d 758, 759 (8th Cir. 1999) (citations omitted).

Manifest necessity is a "high degree" of necessity. Arizona v. Washington, 434 U.S. 497, 506, 98 S. Ct. 824, 831 (1978). Whether the requisite "high degree" has been reached varies depending upon the circumstances of each case. Id. at 507, 98 S. Ct. at 831.

[T]he strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.

At the other extreme is the mistrial premised upon the trial judgeís belief that the jury is unable to reach a verdict * * * [.] * * * 

[I]n this situation there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not "manifest necessity" justifies a discharge of the jury.

Id. at 508-09, 98 S. Ct. at 832 (footnotes omitted). The manifest-necessity standard is "a flexible standard which seeks fairness to the defendant, the government, and the public interest alike." United States v. Givens, 88 F.3d 608, 613 (8th Cir. 1996). In determining whether a mistrial was manifestly necessary, the "critical inquiry" for the appellate court is whether less drastic alternatives were available. Long, 184 F.3d at 761. The appellate court also considers whether the trial court acted "responsibly and deliberately, and accorded careful consideration to the [defendantís] interest in having the trial concluded in a single proceeding." Washington, 434 U.S. at 516, 98 S. Ct. at 835.

In the instant case, we conclude the trial court did not adequately assess less drastic alternatives to mistrial and consider the importance to the defendant of concluding his trial "through the verdict of a tribunal he might believe to be favorably disposed to his fate." Id. at 514, 98 S. Ct. at 835 (quotation omitted). "Under these circumstances, the reason for special deference by the appellate court disappears and close appellate scrutiny is appropriate." Dixon, 913 F.2d at 1313 (citation omitted).

The state requested a mistrial based on the second jury question because it believed the jury had disregarded the courtís instructions and begun deliberations prior to the conclusion of the trial. There is, however, no evidence in the record that the second question came from the entire jury. In fact, the trial court indicated it did not know whether the question was from an individual juror or from the entire jury. Despite this unknown, the trial court did not poll the jury in order to determine the origin of the question or whether the jury had actually begun to deliberate nor consider the possibility of issuing a curative instruction.

Additionally, the record exhibits no consideration of Arevaloís right to have his trial completed in a single proceeding. Arevalo was not present when the state made its motion for mistrial, and Arevaloís counsel was not given an opportunity to discuss the mistrial motion with him. The court simply adopted the stateís motion without considering any less drastic alternatives or giving Arevalo an opportunity to explain his position on the propriety of a mistrial or to suggest any less drastic alternatives.

In light of the fact the trial court did not evaluate available alternatives to mistrial or consider Arevaloís right to have his trial resolved by the jury he chose, we conclude the mistrial order is not supported by the "high degree" of necessity contemplated by the manifest necessity standard. See id. at 1314 (holding precipitous nature of district courtís decision and rapid sequence of events culminating in declaration of a mistrial indicate district court did not give adequate consideration to defendantís interests). Because no manifest necessity justified the trial courtís declaration of a mistrial, Arevaloís retrial for the Brown County offenses is barred by double jeopardy.

We need not reach the timeliness or merits of Arevaloís postconviction relief claims, given our resolution of the mistrial issue.

Reversed.