MacPherson v. State , 533 P.2d 1103 ( 1975 )

OPINION

RABINOWITZ, Chief Justice.

This case presents difficult questions as to the circumstances under which a mistrial may be said to have been declared sua sponte by the trial judge and as to the impact of a court’s sua sponte declaration of mistrial on the ability of the state to retry the defendant. Following two and one-half days of jury selection, MacPherson’s trial for the sale of amphetamines commenced on August 14, 1973. During the abbreviated course of the trial, defense counsel twice moved for a mistrial. While we are not in agreement as to how the record should be interpreted, it does disclose that subsequent to the second motion based on the alleged prejudice of the court toward the defense and the jury’s awareness of the bias, the court recessed. Upon reconvening out of the presence of the jury, Judge Occhipinti declared a mistrial, at least initially in response to defense counsel’s motion. Prior to recalling the jury, an exchange took place between Judge Occhipinti and defense counsel during the course of which defense counsel seemingly attempted to withdraw his request for a mistrial although the withdrawal was more in the form of a denial that the request had ever been made. Among other things, defense counsel indicated that he was well pleased with the jury presently impanelled and felt that a better one could not be found. The trial judge acknowledged the fact that defense counsel had changed his mind concerning the desirability of a mistrial but decided that a mistrial was necessary in the best interest of the defendant and therefore declared the mistrial, referring to it as sua sponte.¹ The jury was then called back and dismissed.

The case was subsequently scheduled for retrial. Defendant moved for dismissal of the charges, asserting that the state was barred from reprosecution by virtue of the constitutional prohibition against double jeopardy.² The motion was denied, and defendant now petitions this court seeking a reversal of the order denying dismissal of charges against her. We have previously held that our extraordinary review jurisdiction is properly exercised in cases presenting an issue identical to that posed here and, adhering to these past decisions, we grant review in this case.³

On the merits, MacPherson urges that, there being no manifest necessity for the declaration of a mistrial, the federal and state constitutional guarantees⁴ against being placed twice in jeopardy for the same offense bar reprosecution. It is not disputed that jeopardy had attached since the declaration of mistrial took place on the third day of trial.⁵ Nor is there any question as to the basic rule of law to be applied. Following the United States Supreme Court decision in United States v. Perez,⁶ this court has adopted the rule that the premature termination of a trial will bar retrial under the double jeopardy prohibition unless the termination was justified by manifest necessity.⁷ Thus the question presented for review is whether manifest necessity existed for the declaration of a mistrial.

It is a well settled rule, which the state contends may appropriately be applied to this case, that the requisite manifest necessity which prevents a declaration of mistrial from barring reprosecution will generally be found where the mistrial is declared at the request of the defendant.⁸ There can be no doubt but that Judge Occhipinti was initially responding to the requests of defense counsel when the judge called a recess and subsequently informed counsel for both sides out of the presence of the jury of his intent to declare a mistrial. However, on the crucial question of whether defense council then attempted to withdraw his request for a mistrial prior to binding judicial action thereon, this court is divided. The majority is of the opinion that defense counsel did not effectively attempt to withdraw his request for a mistrial; that the trial court judge, in declaring a mistrial, was responding to defense counsel’s request and that, since the mistrial was thus declared at the request of the defendant, reprosecution of the defendant is not barred by the constitutional prohibitions against being placed twice in jeopardy.⁹ In reaching this conclusion, we focus on the exchange which took place between defense counsel and the trial judge immediately prior to the declaration of mistrial. Mr. Kulik, defense counsel, stated:

Well, I think that this court’s feelings for defense counsel in this case are not only obvious, you know, in this last few minutes as the court has stated them explicitly, but I think in more subtle ways they’ve been made obvious to the jury and if you want my honest opinion I do think that the jury has picked up on the court’s bias toward the defense in this case. Whether it’s toward me personally I don’t know, but I think the jury has picked up on it and I would ask for a mistrial.

To this the court replied:

Mr. Kulik, you’ve been aiming for a mistrial. You’ve been baiting this court and this record will so show. Let’s recess for a few minutes.

Upon reconvening out of the presence of the jury, the judge stated:

I have recessed and cooled off a little, but I find I must declare a mistrial at this time. The defense has asked for a mistrial.

The court then requested defense counsel to locate the defendant and bring her into the courtroom with which request counsel complied. At this point, the record shows that defense counsel then made the following disingenuous statement:

May the record also reflect that at the time the defense asked for a mistrial the mistrial was based on the fact that the defendant thought that evidence was being brought in on redirect examination which was prejudicial and inadmissible for the reasons stated at the time and that was the only reason that the defense asked for a mistrial and that the court is granting a mistrial for' separate reasons which are the court’s.¹⁰

In response to defense counsel’s inaccurate statement, the court said in part:

Your innuendos and your assertions made when I excused the jurors is a basis for my mistrial. You’ve implied certain things here that may have been prejudicial — unduly prejudicial for your client and my opinion is that the prejudice that’s derived for your client is probably your own doing and that’s why I’m going to declare a mistrial right now, and I’m doing so. And if you want to make [it] sua sponte, it’ll be sua sponte because I think the defendant’s entitled to a better defense than she’s been getting, and by better I mean not necessarily factually but attitude-wise.

So you can say whatever you wish for the record. Go ahead.

Defense counsel’s reply was again disingenuous. His response was:

. . . Your Honor, I think we had an excellent jury panel. Mr. Bittner and I spent 2 and a half days selecting a jury and I don’t think we could get a better jury than this and I like the jury and I was satisfied with the trial other than the one narrow point that I made earlier. We’ve already gone over that. There’s no sense in — of belaboring the point.

Also, the trial judge’s final comments before recalling the jury are of considerable significance. The record shows that the court stated:

Well, as I said the implications made by counsel — and it’s a matter of record, the implications about the attitude of the court toward him is very firm in the record and for that reason I’m declaring a mistrial. .

These final comments of the trial judge disclose that he was grounding his declaration of mistrial on the very basis urged by defense counsel in support of his second motion for mistrial.

Defense counsel, despite his denials, moved for a mistrial which the trial court granted on the grounds urged. At no point did defense counsel unequivocally move to withdraw his motion, object to the trial court’s stated intention to declare a mistrial or object to the actual grant of a mistrial. Once defense counsel invited the court to grant the relief of a mistrial, he was under a duty not only not to mislead the trial court, but also to clearly reveal that he desired to withdraw his motion and would object to the discharge of the jury. Thus, the mistrial must be characterized as being at the request of defense counsel, and therefore reprosecution is not prohibited.¹¹

Affirmed. ¹²

BOOCHEVER, J., with whom CON-NOR, J., joins, dissenting.

1 . THE COURT:

Well, you can cover it anyway you wish, Mr. Kulik, and the record speaks for itself. Your innuendos and your assertions made when I excused the jurors is a basis for my mistrial. You’ve implied certain things here that may have been prejudicial —unduly prejudicial for your client and my opinion is that the prejudice that’s derived for your client is probably your own doing and that’s why I’m going to declare a mistrial right now, and I’m doing so. And if you want to make sua sponte, it’ll be sua sponte because I think the defendant’s entitled to a better defense than she’s been getting, and by better I mean not necessarily factually, but attitude-wise. I think the attitude you’ve displayed toward this court is reprehensible and I resent it and I’m trying to keep control of myself and I would probable do a better job now that I’ve reflected, but I think it has necessitated a mistrial and I am so declaring it. .

THE COURT:

Well, before we leave that, then your sudden change of mind before is a matter of record now.

MR. KULIK:

Pardon me?

THE COURT:

Your sudden change of mind as far as your motion was concerned is a matter of record now. You have changed your mind concerning the mistrial that you requested?

2 . Alaska Const, art. I, § 9 provides:

No person shall be put in jeopardy twice for the same offense. No person shall be compelled in any criminal proceeding to be a witness against himself.

United States Const, amend. Y provides in part:

[N]or shall any person be subject for the the same offense to be twice put in jeopardy of life or limb.

3 . Koehler v. State, 519 P.2d 442, 445 n. 3 (Alaska 1974) ; citing Muller v. State, 478 P.2d 822 (Alaska 1971), as dispositive of the question whether a petition for review of an order denying a double jeopardy claim should be granted.

4 . See note 2, supra.

5 . Koehler v. State, 519 P.2d 442, 448 (Alaska 1974) ; Selman v. State, 406 P.2d 181, 186 (Alaska 1965).

6 . 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).

7 . Lewis v. State, 452 P.2d 892, 895 (Alaska 1969).

8 . Muller v. State, 478 P.2d 822, 826 (Alaska 1971) ; Selman v. State, 406 P.2d 181, 186 (Alaska 1965) ; United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1589, 12 L.Ed. 2d 448, 452 (1964).

9 . See note 8, supra.

10 . Prior to the request for mistrial by defense counsel which is the subject of this opinion, defense counsel requested a mistrial on the ground that the prosecution had elicited irrelevant and prejudicial testimony regarding uncharged misconduct on petitioner’s part.

11 . See note 8, supra.

12 . While we cannot agree with the dissent’s characterization of the declaration of mistrial as being on the judge’s own motion, we concur in the legal analysis set forth in the dissenting opinion which follows from that initial characterization.