This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1684

 

 

State of Minnesota,

Appellant,

 

vs.

 

Philander Dermont Jenkins,

Respondent.

 

 

Filed July 19, 2005

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 03061256

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)

 

Jill E. Clark, Jill Clark, P.A., 2005 Aquila Avenue North, Golden Valley, MN 55427; and

 

Jill M. Waite, 2856 Humboldt Avenue South, Minneapolis, MN 55408 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant State of Minnesota challenges the district court's dismissal of a criminal complaint on double jeopardy grounds issued against respondent Philander Dermont Jenkins following a mistrial.  We affirm. 

FACTS

            By amended complaint filed January 9, 2004, the state charged Jenkins with two counts of first-degree felony aggravated robbery occurring on August 12, 2003, in violation of Minn. Stat. § 609.245, subd. 1 (2002); one count of second-degree felony assault in violation of Minn. Stat. § 609.222, subd. 1 (2002), and one count of felony prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (2002).  When the state filed the amended complaint, two other criminal complaints were pending against Jenkins, one charging him with controlled-substance and firearms violations in May and the other charging him with an August 14 burglary and assault. 

            Before trial, the district court granted Jenkins's motion to sequester witnesses; the court also warned the state to make sure its witnesses would not mention ongoing or completed criminal investigations against Jenkins, stating:

I assume that the State's witnesses are going to be well-buffed before they come in here on the areas that we are trying and not trying and that they are not going to inadvertently blurt out something that's going to cause us to start over because we do have these issues of jeopardy that we need to worry about if we have police officers blurting.

 

The prosecutor replied, "There will be no blurting." 

            Testimony began on July 23.  On July 26, the court learned that Sergeant Nancy Murphy of the Minneapolis Police Department, who was the state's principal investigator in both the August 14 offense and the August 12 offense at issue here, had been present during the state's preparation of another witness, in direct violation of a sequestration order.  The court also learned that Murphy was a "significant investigator" in the case for which the other witness was then on juvenile probation.

            The court subsequently characterized a chambers conference held at the close of testimony on July 26 this way:  

[T]his Court expressed to State's counsel its displeasure with the conduct of Sgt. Murphy. . . .  [T]he Court warned counsel for the State that its patience was growing thin with Sgt. Murphy and that her misconduct was not going to continue to be tolerated.  Again, counsel were admonished to ensure that their preparation of Sgt. Murphy informed and guided her not to violate this Court's prior orders regarding the August 14, 2003 case, and that she be on her guard to ensure that her testimony was not otherwise objectionable, nor that it strayed into areas that this Court had previously ruled were not relevant and would not be admissible.

 

Testifying the next day, Murphy made specific reference to Jenkins's prior police reports, contrary to the district court's order.

            Defense counsel objected and brought five separate motions, including one for a mistrial declaration and retrial before a different jury and one for a mistrial declaration and an order that the case would "go forward with a judicial fact finding" concerning one witness's previous testimony.  Defense counsel stated that she would prefer a curative "sanitizing" of Murphy's testimony to a mistrial declaration because "the defendant has some very good testimony in the record so far and there are some reasons why the defendant does not want a mistrial in this case." 

            The court ruled from the bench, stating that "the only appropriate remedy is to declare a mistrial in this case and to bar further prosecution of Mr. Jenkins for this offense."  Explaining the basis for its ruling, the court stated:  "Let me say first of all that at this point I am ruling solely on the motion for a mistrial with regard to that exchange [between Murphy and the prosecutor] and it is my position and will remain my position until the contrary ever appears that neither [prosecutor] had anything to do with Sgt. Murphy's [statements]."  The court also stated that "[t]his kind of conduct by an experienced Minneapolis police officer is without precedent and without excuse." 

            The next day, July 28, the state issued a second amended complaint that repeated the charges in the amended complaint, added a second felony assault charge and slightly altered the complaint's factual basis.  Jenkins moved to dismiss the reissued complaint, arguing among other things that a retrial would violate rights guaranteed him by the double jeopardy clause of the state and federal constitutions.  Following a hearing, the district court dismissed the second amended complaint on double jeopardy grounds and ordered that the state be barred from further prosecuting Jenkins in connection with the August 12, 2003 offense. 

The court found that although "there had not been any participation" by the prosecution in Murphy's actions, those actions "[n]evertheless . . . constitute prosecutorial misconduct.  She is an employee and agent of the State and her actions and their motives are attributable to the prosecution in this case. . . .  [T]he State [has n]ever been able to provide a reasonable and innocent explanation for Sgt. Murphy's actions."  The court added, "In this case the State had its chance, it was in trial, and solely through the actions of an agent of the State was Mr. Jenkins deprived of his fundamental right to a fair trial." 

The court further found that when Murphy testified, she knew that

the case had been going well for the defense and that her testimony was going to be crucial in solidifying this prosecution for the State.  Nevertheless, she chose to interject into this case a remark highlighting the existence of a prior record for [Jenkins], which was totally inadmissible, had been so ruled by this Court, and could only lead to the declaration of a mistrial once it was said.

 

Specifically rejecting the state's argument that Jenkins had requested or acquiesced in a mistrial, the court stated:  "This mistrial was granted on the Court's initiative to correct a manifest injustice and that injustice was the actions of Sgt. Murphy in attempting to obtain a retrial for the State in a trial which was arguably not going as well as it might have gone."  The court dismissed the complaint because "[t]his case is . . . tainted" by "inappropriate comment and intentional acts."

D E C I S I O N

1.         The parties dispute whether this court has jurisdiction over this matter.  They agree that the July 27 mistrial order, issued after the jury was impaneled and jeopardy attached, was unappealable by the state.  See Minn. R. Crim. P. 28.04, subd. 1 (providing prosecution may generally appeal as of right only from pretrial order of district court); State v. Rhines, 435 N.W.2d 542, 544 (Minn. App. 1989) (stating that "[t]here is no provision in the rules of criminal procedure for the state to appeal an order issued after impaneling"), review denied (Minn. March 17, 1989).  They also agree that in order to obtain review of the July 27 order, the state was required to reissue the complaint, thereby returning the matter to a pretrial posture, wait for Jenkins to request and receive an order dismissing the reissued complaint on double jeopardy grounds, and appeal from that order.  See State v. Schroeder, 300 N.W.2d 790, 791 (Minn. 1981) (holding that when seeking to challenge dismissal of complaint following attachment of jeopardy, state's "remedy is not an appeal but a reissuance of the complaint"); State v. Fleck, 269 N.W.2d 736, 737 (Minn. 1978) (holding that because dismissed complaint is unappealable, "state's remedy is not an appeal but to either reissue the . . . complaint or try to get the court to reconsider its decision"); State v. White, 369 N.W.2d 301, 303 (Minn. App. 1985) (characterizing as "pretrial motion" defendant's motion to dismiss complaint reissued after mistrial), review denied (Minn. Aug. 20, 1985). 

Jenkins argues that the state's "misconduct" in setting the appearance on the amended complaint without notice to defense counsel and in front of a different judge prevented returning the matter to a pretrial posture for the purpose of appeal.  But the alleged misconduct, even if true, has no jurisdictional significance.  The state submitted the second amended complaint in accordance with established and recognized procedures, and the order dismissing that complaint is therefore appealable as a pretrial order. 

2.         The state argues that the mistrial declaration did not bar further prosecution of Jenkins.  The United States and Minnesota Constitutions each contain a double jeopardy provision protecting the individual from a second trial for the same offense.  U.S. Const. amend. V; Minn. Const. art. 1, § 7.  Double jeopardy and attaches when a jury is impaneled and sworn.  State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974).  Because the double jeopardy clause of the Minnesota Constitution is "textually identical" to the federal provision, the decisions of the United States Supreme Court construing the federal provision are "of inherently persuasive, although not necessarily compelling, force."  State v. Fuller, 374 N.W.2d 722, 727 (Minn. 1985). 

This court reviews issues of double jeopardy de novo.  State v. Large, 607 N.W.2d 774, 778 (Minn. 2000).  The district court's findings concerning whether double jeopardy bars retrial are reviewed for clear error.  Fuller, 374 N.W.2d at 726.  Findings of fact are clearly erroneous only if there is not "reasonable evidence to support" them.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  The district court's decision to declare a mistrial is reviewed under an abuse of discretion standard.  See McDonald, 298 Minn. at 454, 215 N.W.2d at 610. 

In cases where a mistrial has been declared before a verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the double jeopardy clause bars retrial.  Illinois v. Somerville, 410 U.S. 458, 467, 93 S. Ct. 1066, 1072 (1973).  "In some circumstances, even after the jury is impaneled, the trial court may abort the proceedings and retry the defendant without violating the double jeopardy clause."  White, 369 N.W.2d at 304.  If a mistrial is declared with the defendant's consent, he is deemed to have waived any double jeopardy claim he might otherwise have.  United States v. Dinitz, 424 U.S. 600, 608, 96 S. Ct. 1075, 1080 (1976).  See White, 369 N.W.2d at 304 (defendant's consent to mistrial need not be express but may be implied from totality of circumstances, including failure to object).  If the court declares a mistrial without the defendant's consent, the double jeopardy clause will bar retrial unless the mistrial was dictated by "manifest necessity" or the "ends of public justice."  Arizona v. Washington, 434 U.S. 497, 506 n.18, 98 S. Ct. 824, 830 n.18 (1978) (quotation omitted);  McDonald, 298 Minn. at 453, 215 N.W.2d at 609. 

Here, although Jenkins made two separate motions for a mistrial on July 26, our review of the transcript satisfies us that each motion was made with the understanding that a retrial would follow.  In the first motion, Jenkins requested that a new jury be impaneled following mistrial; in the second, he requested that further proceedings take notice of specific judicial findings made during the first trial.  In declaring the mistrial barring further prosecution, the court stated, "I am ruling solely on the motion for a mistrial," without indicating which of Jenkins's motions, if any, it was referencing.  In its September 1 order, the court clarified that the mistrial was granted not in response to either of Jenkins's motions, but "on the Court's initiative." 

The state contends that the district court clearly erred in finding that the mistrial as declared was not "requested by the defense or at least acquiesced in by the defense."   We recognize the merit of the state's argument concerning Jenkins's consent, especially in light of Jenkins's motions immediately following officer Murphy's objectionable testimony and the district court's ambiguous statement, at the time it declared the mistrial, that it was acting "on the motion for a mistrial." 

But we also recognize that the district court is uniquely situated to assess the proceedings before it, and where, as here, the court is interpreting its own statements, characterizing the parties' conduct, and explaining its reasons for making rulings, we are not inclined to disturb its findings.  See Fuller, 374 N.W.2d at 726 (holding that the district court's characterization of a witness's conduct is a finding of fact that must be accepted by this court unless it is clearly erroneous); Stieler v. Stieler, 244 Minn. 312, 319, 70 N.W.2d 127, 131 (1955) (citing various cases for proposition that judgment "open to diverse constructions . . . may be clarified by the tribunal which ordered it"); Auer v. Scott, 494 N.W.2d 54, 58 (Minn. App. 1992) (holding that "[g]enerally, a trial court's construction of its own decree is accorded great weight on appeal").  On the facts in the record before us, we conclude that the district court's finding that Jenkins did not consent to the mistrial as granted was not clearly erroneous.

Because the district court declared a mistrial without Jenkins's consent, the double jeopardy clause bars retrial here unless the mistrial was dictated by manifest necessity.  McDonald, 298 Minn. at 453-54, 215 N.W.2d at 609-10.  Generally, manifest necessity exists where there has been a procedural error in the proceedings that would necessitate a reversal on appeal.  Somerville, 410 U.S. at 464, 93 S. Ct. at 1070.  Here, the state does not argue, and the record does not suggest, that Murphy's remark presented a manifest necessity for a mistrial.  Because the district court found the mistrial was declared here without Jenkins's consent and because the mistrial was not dictated by manifest necessity, double jeopardy bars retrial.

The district court devoted a portion of its analysis to determining whether Murphy intended to provoke a mistrial and whether Murphy's actions and their motives were attributable to the prosecution for the purposes of double jeopardy.  We observe that because the court had already determined that Jenkins had not consented to the mistrial, the issue of Murphy's intent to provoke the mistrial was not relevant. 

Affirmed.