Opinion
Court of Appeals No. A-9846.
March 25, 2009.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-05-047 Cr.
Beth G. L. Trimmer, Assistant Public Advocate, Palmer, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION
Thomas R. Saddler and two co-defendants (Curt J. Friedmann and Stephen L. Hoyt) were jointly charged with second-degree controlled substance misconduct (running a methamphetamine operation). On the first day of trial after the jury was selected and sworn, but before opening statements, both Saddler's attorney and Hoyt's attorney notified the superior court that they had not received the lab report from the State ( i.e., the analysis of the chemical substances seized from the defendants) nor the related notice of expert testimony.
(As we explained in our earlier decision of co-defendant Friedmann's case, Friedmann v. State, 172 P.3d 831 (Alaska App. 2007), Friedmann's attorney had received the State's lab report and notice of expert testimony, but Saddler's attorney and Hoyt's attorney had not. Id. at 833. The superior court investigated this matter and concluded that the State's failure to serve Saddler's attorney and Hoyt's attorney was the result of "an understandable goof" rather than willful misconduct. Id. at 835.)
As we explain in more detail below, Saddler's attorney told the trial judge that he and his client would need a continuance of many weeks' duration to evaluate the lab report and to seek the input of an independent forensic expert. The trial judge concluded that he could not hold the jury that long, so the judge dismissed the jurors and declared a mistrial.
Saddler then moved to dismiss the charges against him, arguing that any further proceedings would be barred by the double jeopardy clause. After the superior court denied Saddler's motion, he pleaded no contest to the charges, reserving his right to renew his double jeopardy argument on appeal.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974) (authorizing this procedure).
On appeal, Saddler argues that, even though he sought a lengthy continuance of the trial, he never agreed to the dismissal of the jury, and he further argues that there was no necessity for discharging the jurors without his consent. Accordingly, Saddler asserts that the double jeopardy clauses of the federal and state constitutions barred any continuation of the criminal proceedings against him.
For the reasons explained here, we conclude that the trial judge did not abuse his discretion when he concluded that it was necessary to discharge the jury and declare a mistrial. We therefore reject Saddler's double jeopardy argument.
Underlying facts
As explained above, on the first day of trial, Saddler's attorney and Hoyt's attorney notified the trial judge — Superior Court Judge Eric Smith — that they had not received the State's lab report and notice of expert testimony. Saddler's attorney told Judge Smith that he wanted to have the evidence re-tested by an independent forensic expert — and (depending on the results of that re-testing) to have the independent expert testify as a defense witness at trial. Saddler's attorney informed Judge Smith that he would need a continuance of 90 days to accomplish this.
Saddler's attorney then engaged in procedural maneuvering in an attempt to get Judge Smith to suppress the State's evidence — thereby effectively ending the case in Saddler's favor.
The defense attorney told Judge Smith that there were three procedural options available to the court: (1) hold the selected jurors and delay the trial for three months, (2) declare a mistrial, or (3) suppress the State's evidence because of the lack of pre-trial disclosure. But Saddler's attorney then told Judge Smith that it would be impossible to hold the jury for that long. Saddler's attorney also declared that his client refused to consent to a mistrial — and that, if Judge Smith declared a mistrial without Saddler's consent, the defense attorney would respond by filing a motion to dismiss all the charges because of the guarantee against double jeopardy.
In other words, according to Saddler's attorney, procedural options (1) and (2) were not truly available to Judge Smith, leaving only option (3) — suppression of the State's evidence.
But because Judge Smith found that the State's failure to make pre-trial disclosure had been inadvertent and not willful, the judge refused to suppress the State's evidence. Instead, Judge Smith offered Saddler's attorney (and the other defendants' attorneys) the options of (1) immediately proceeding to trial, with the State allowed to introduce its chemical analysis of the physical evidence, or (2) ordering a lengthy continuance of the trial — with the attendant risk that the selected jurors would not be available, or could not be kept so long, and thus a mistrial would have to be declared.
Saddler's attorney indicated that, between these alternatives, he favored a continuance — even though, as we have explained here, Saddler's attorney had already told Judge Smith that he did not believe it was possible to hold the jurors for so long a time, and even though Judge Smith had warned the defense attorney that there was a distinct possibility that a lengthy continuance would lead to a mistrial.
Just before the jurors were brought back into the courtroom (so that they could be questioned concerning their continued availability if the trial was delayed), Saddler's attorney engaged Judge Smith in the following colloquy:
Saddler's Attorney: Judge, when [you] ask the jurors . . . if they're going to be available or whatever . . .
The Court: I'm going to tell them that we need 45 days — that I'm going to have to continue this trial [for] at least 45 days, and [I'm going to ask them,] "Is anybody not going to be available at that time?" That's all I'm going to say.
Saddler's Attorney: Just as long as the State understands the impact of [the] requirement [that I give] 30 days' [notice] prior to trial [of any] expert [witness], if I, in fact, end up getting an expert based on what the tests [of the State's evidence] show. They may be . . .
The Court: I'm going to [tell the jurors] at least 45 . . . days. All right?
Saddler's Attorney: Okay.
The Court: I mean, . . . I would be shocked if all fourteen of them are willing to hang around on this case for 45 . . . days . . ., especially since it's banging into . . . Thanksgiving and Christmas.
The jurors then re-entered the courtroom, and Judge Smith addressed them as follows:
The Court: Good morning, everybody. Obviously, something came up. And what came up is going to require me to postpone this trial — what we call "continue" this trial — for a period of at least 45 days. My question to you is [this]: Is there anybody here who would not be — who can't be available at that time?
Five jurors raised their hands in response to Judge Smith's inquiry. The judge then declared, "Under those circumstances, in the interests of justice, I'm going to have to declare a mistrial, and we will re-calendar this case." The jury was then discharged.
Judge Smith did not question the five jurors individually concerning the reasons for, or the details of, their unavailability. On the other hand, Saddler and his two co-defendants did not ask the judge to engage in such inquiries, nor did they seek the opportunity to say anything further on the subject of a mistrial before Judge Smith discharged the jury.
Some days after Judge Smith dismissed the jurors and ordered a mistrial, Saddler's attorney (true to his word) filed a motion to dismiss all of the charges against his client on the ground of former jeopardy.
In this motion, Saddler's attorney argued that there was no manifest necessity for a mistrial. For the first time, Saddler's attorney asserted that Judge Smith's questioning of the jurors was deficient — that the judge should have examined each individual juror concerning the reasons for, and the anticipated length of, their unavailability. Saddler contended that, without this information, no one could know for sure whether a mistrial was needed.
Judge Smith initially found this reasoning persuasive, and he issued an order dismissing the charges against Saddler and the two co-defendants. However, he stayed the effect of this order for ten days to allow the State to ask for reconsideration. The State did file for reconsideration, arguing that Judge Smith's mistrial order was justified under Alaska Criminal Rule 27(d). After reading the State's pleading, Judge Smith changed his mind, reinstated the charges, and set a new date for Saddler's trial.
Following this ruling, Saddler pleaded no contest to the charges against him, but preserved his right to argue on appeal that prosecution of these charges was barred by the double jeopardy clause.
Why we conclude that Saddler is estopped from pursuing his claim that Judge Smith failed to conduct a sufficient inquiry into the unavailability of the jurors
As we have already explained, Saddler's attorney tried to corral Judge Smith into suppressing the State's evidence (which, in context, meant dismissing the State's case) by (1) insisting that a lengthy continuance of the trial was required, but (2) asserting that it would be impossible to hold the jury for that long, while at the same time (3) declaring that Saddler would not consent to a mistrial.
Now, on appeal, Saddler takes an inconsistent position. He argues that, even though a lengthy continuance of the trial was required, it nevertheless would (or at least might) have been possible to hold the jurors for many weeks. Even though five of the jurors indicated that they would not be available if the trial was delayed for 45 days, and even though Saddler's attorney cautioned Judge Smith that an even longer delay of trial might be required (depending on what his independent expert said about the State's testing of the evidence), Saddler now argues that Judge Smith failed to conduct a sufficient inquiry into the reasons these jurors would not be available — and thus, Saddler asserts, the record fails to establish that there was a manifest necessity for discharging the jury.
Under these circumstances, we conclude that Saddler is not entitled to challenge Judge Smith's finding that the five jurors would be unavailable (the factual basis for his declaration of a mistrial). There are two components of our decision. First, before any inquiry was made into the jurors' availability if the trial was delayed, Saddler's attorney had already declared his position that it would not be feasible to hold the jurors. And second, when Judge Smith polled the jurors to see if they would still be available if the trial was delayed for 45 days, Saddler's attorney made no contemporaneous suggestion that Judge Smith's inquiry was insufficient or that the jurors' answers should not be credited. It was only later, after the jury was discharged and it was impossible to remedy the situation, that Saddler's attorney first asserted that Judge Smith failed to make sufficient inquiry into the circumstances that justified the mistrial.
Under these facts, even if Judge Smith's inquiry was potentially insufficient, Saddler's attorney invited the error. Saddler's attorney had already announced his position that it would be impossible to hold the jurors for several weeks. Later, when five of the jurors declared that they would indeed be unavailable if the trial was delayed for a month and a half, and when Saddler's attorney failed to challenge these jurors' statements or to suggest that any further inquiry was needed, a judge in Judge Smith's position could reasonably conclude that Saddler's attorney's silence meant that the attorney took the five jurors' answers as a confirmation of his previously announced position — i.e., his position that it would be impossible to hold the jury.
True, Saddler's attorney adamantly refused to consent to a mistrial. But at the same time, he affirmatively advocated a view of the facts — i.e., the impossibility of holding the jury — that effectively required a mistrial. Accordingly, we conclude that Saddler is now barred from arguing on appeal that the facts necessitating a mistrial were insufficiently established.
Why we conclude that, in any event, Judge Smith could reasonably conclude that there was a manifest necessity for the mistrial
Even if Saddler were allowed to argue on appeal that Judge Smith's inquiry to the jurors was insufficient to warrant his discharge of the jury and concomitant declaration of a mistrial, we would still uphold Judge Smith's decision.
We acknowledge that a juror's mid-trial unavailability will not always require a mistrial, especially if this unavailability will last only a matter of days. But the situation was different in Saddler's case: the contemplated mid-trial delay was at least 45 days, and potentially (according to Saddler's attorney's estimate) as much as three months. In other words, the question facing Judge Smith was whether the already-sworn jurors could be kept at the ready, and kept safeguarded from extraneous information and influences, during a hiatus of uncertain duration that would last a minimum of six weeks.
See Cohens v. Elwell, 600 So.2d 1224 (Fla.App. 1992); People v. Michael, 394 N.E.2d 1134 (N.Y. 1979).
Another factor that Judge Smith could reasonably consider was the fact that Saddler was not the only defendant in this case; rather, he was one of three. Two of these defendants (Saddler and Hoyt) declared themselves opposed to a mistrial, while the third defendant (Friedmann) was actively advocating the declaration of a mistrial. This made the situation more complicated in two ways. First, a lengthy continuance might require severance of the defendants' trials. And second, after Saddler obtained his independent forensic expert, and the expert tested the State's evidence and submitted their report, any attempt to promptly reconvene the trial would almost inevitably be hindered by the fact that four different attorneys' schedules (as well as various w itnesses' schedules) would have to be accommodated when setting the new trial date.
Many courts have concluded that mid-trial continuances of lengthy and uncertain duration will, of themselves, provide a constitutionally adequate necessity for a mistrial. The facts of Saddler's case presented the same difficulty: the delay of Saddler's trial was going to be of unknown duration, and (even at best) it was going to be protracted. Judge Smith could reasonably conclude that it was necessary to discharge the jurors and start again at a later time — after Saddler and his co-defendants had the opportunity to engage an independent forensic expert, have that expert re-test the physical evidence, and then (depending on the results of the re-testing) have the expert prepare a report and then travel to Alaska to testify for the defendants.
See, e.g., United States v. Williams, 717 F.2d 473, 475 (9th Cir. 1983) (finding a manifest necessity for a mistrial because an extended continuance was necessary to allow a new attorney to prepare the case, because it was likely that many jurors would be unavailable on the new trial date, and because there was a substantial risk of juror prejudice resulting from media coverage of the case); United States v. Peng, 602 F.Supp. 298, 305 (S.D. N.Y. 1985), aff'd, 766 F.2d 82 (2nd Cir. 1985) (a mistrial was justified by the impracticability of keeping the jury impaneled during a continuance that would be of uncertain duration, and w as likely to be lengthy); MacArthur v. Bank of New York, 524 F.Supp. 1205, 1207-08 (S.D. N.Y. 1981) (a mistrial was justified by the impracticability of retaining the jury during the several weeks that would be needed for a new defense attorney to prepare to litigate the case); Rasmussen v. White, 502 F.Supp. 237, 240 (E.D. Tex. 1980) (holding that the mistrial was manifestly necessary when a continuance was not feasible); State v. Messier, 686 P.2d 272, 275 (N .M . App. 1984) (same); Commonwealth v. Robson, 337 A.2d 573, 577 (Pa. 1975) (a mistrial was justified when the trial had to be delayed for several weeks due to the trial judge's mid-trial illness).
When a trial judge's decision to grant or deny a mistrial is challenged on appeal, the applicable standard of review is "abuse of discretion". Under this standard, we must affirm Judge Smith's decision to order a mistrial unless we are left with a "definite and firm impression" that it was unreasonable, under the circumstances, for Judge Smith to conclude that it was necessary to discharge the jury, given Saddler's refusal to consent to this course of action.
Hewitt v. State, 188 P.3d 697, 699 (Alaska App. 2008); Tritt v. State, 173 P.3d 1017, 1019 (Alaska App. 2008); Artemie v. State, 158 P.3d 860, 863 (Alaska App. 2007).
Tritt, 173 P.3d at 1019.
As we noted earlier, we have found several cases from other jurisdictions in which appellate courts upheld trial judges' decisions to order mistrials in comparable circumstances. In light of these decisions, and given the circumstances here, we can not say that Judge Smith abused his discretion when he concluded that it was necessary to order a mistrial.
It follows that Saddler had no valid claim of former jeopardy, and that the State was entitled to pursue the charges against Saddler by bringing him to trial a second time.
The judgement of the superior court is AFFIRMED.