State of Minnesota,
Respondent,

vs.

Jeanne Friday,
Appellant.

Hennepin County District Court
File No. 98094667

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

Jay M. Heffern, Minneapolis City Attorney, Judd E. Gushwa, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh St., Minneapolis, MN 55402 (for respondent)

Rachael Goldberger, Jerry Strauss, Strauss & Associates, Commerce at the Crossings, 250 Second Ave. S., Suite 145, Minneapolis, MN 55401-2169 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

DAVIES, Judge

Appellant challenges the district court’s denial of her motion to dismiss on the ground of double jeopardy. We affirm.

Appellant was arrested for driving while intoxicated. Appellant’s two-day jury trial ended in the afternoon of February 10, 1999. After closing arguments, the trial court instructed the jury and told them that they would be released to go home if they did not have a verdict by 4:30 that afternoon. Appellant’s counsel asked to approach the bench and spoke loudly enough for the record to include his statement, "You can’t do that without my consent. You can’t do that without my consent." The parties continued a discussion at the bench off the record. The trial court then told the jury:

The defendant has requested that you be sequestered. That means that you will be taken to the hotel at 4:30 and sequestered for the evening, and you will be provided your dinner and your room. The court will then have you reconvene tomorrow morning at 9 o’clock.

The court excused the jury at approximately 3:55 p.m. Appellant then moved for a mistrial, claiming the above statement was prejudicial. The trial court granted appellant’s motion.

When the parties returned the next day for a second trial, appellant moved to dismiss the case based on the double jeopardy provisions of the United States and Minnesota constitutions. Appellant argued that retrial was barred because the trial court had intentionally forced appellant into requesting a mistrial by unnecessarily telling the jury that appellant was responsible for their being sequestered. The court denied appellant’s motion to dismiss, stating for the record that appellant had not raised the issue of jury sequestration before the court charged the jury and that, until then, the court had not intended to sequester the jury. The court also stated that prejudice occurred because the jury overheard the statements appellant’s counsel made at the bench.

Appellant waived her right to a jury trial, agreed to submit the case to the court for trial, and moved to incorporate the testimony and other evidence received at the jury trial. The trial court found appellant guilty of driving with a blood-alcohol level of .10 or more. This appeal followed.

The double jeopardy provisions of the United States and Minnesota constitutions protect criminal defendants from multiple prosecutions for the same crime. U.S. Const. Amend. V; Minn. Const. art.1, § 7. 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 inherently persuasive. State v. Fuller, 374 N.W.2d 722, 727 (Minn. 1985). Generally, jeopardy attaches when a jury is impaneled. State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974).

The double jeopardy clause ordinarily does not bar a retrial, even when a motion for a mistrial is brought and granted because of judicial error. United States v. Jorn, 400 U.S. 470, 485, 91 S. Ct. 547, 557 (1971). Retrial is barred, however, when either the judge or prosecutor acted intentionally to provoke a defendant into requesting a mistrial. Oregon v. Kennedy, 456 U.S. 667, 679-80, 102 S. Ct. 2083, 2091 (1982); State v. Lory, 559 N.W.2d 425, 429 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997). Therefore, when an appellant has requested and been granted a mistrial because of judicial misconduct and subsequently claims double jeopardy, this court must determine whether or not the judicial misconduct was intentional. Id. at 429.

The appellant must show that the trial court’s misconduct was more than mere negligence. See Fuller, 374 N.W.2d at 726-27 (no double jeopardy because prosecutor was merely negligent and did not willfully or intentionally elicit mistrial motion). Appellant bears a significant burden to show that the trial court engaged in misconduct intended to force the mistrial request. We are reluctant to see the double jeopardy standard relaxed, for, if it is relaxed, trial courts will be less inclined to grant justified mistrial motions, knowing that an unintended consequence might be a double jeopardy bar to retrial.

Turning to the case at hand, we conclude that the trial court’s statement to the jury does not constitute intentional misconduct. First, the trial court instructed the jury to go home for the day if they had not reached a verdict by 4:30 p.m. Second, appellant’s counsel himself, by speaking loudly enough for the trial court record to include his statements, ensured that the subsequent trial court decision to sequester would be traceable to appellant. Third, the trial court stated for the record that it never intended to order sequestration but felt trapped into doing so because of the statements appellant’s counsel made at the bench. Finally, appellant could have waived her right to sequester the jury, thereby avoiding any prejudice.

Appellant has not shown that the trial court acted intentionally when it made the prejudicial statements. Although the trial court’s statement that "the defense has requested that you be sequestered" was unfortunate, it was at worst negligent. Appellant’s retrial was, therefore, not barred by the double jeopardy clauses of either the United States or Minnesota Constitution.