State v. Fuller
| Citation | 374 N.W.2d 722 |
| Decision Date | 11 October 1985 |
| Docket Number | No. C3-83-2002,C3-83-2002 |
| Parties | STATE of Minnesota, Petitioner, Appellant, v. Gary Curtis FULLER, Respondent. |
| Court | Supreme Court of Minnesota (US) |
Syllabus by the Court
Double jeopardy clause of Minnesota Constitution does not bar retrial of criminal defendant who requested and obtained mistrial following unintentional--at worst, negligent--elicitation of inadmissible evidence by prosecutor.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, David J. Melban, Asst. City Atty., Duluth, for appellant.
Robert E. Lucas, Duluth, for respondent.
Peter W. Gorman, Monte W. Miller, MN Trial Lawyers Assn., C. Paul Jones, Mr. Jack Nordby, Minneapolis, John Henry Hingson, III, National Assn. of Criminal Defense Lawyers, Oregon City, OR, Amicus Curiae.
Heard, considered, and decided by the court en banc.
Defendant, Gary Curtis Fuller, was charged in county court with three misdemeanors. Two attempts to try him ended in mistrials because of prejudicial testimony by the alleged victim during direct examination by the prosecutor. Defendant unsuccessfully moved for a dismissal of all charges, claiming that further prosecution was barred by the double jeopardy provisions of the United States and Minnesota Constitutions. Defendant then obtained a writ of prohibition from the court of appeals, based on that court's interpretation of the double jeopardy clause of the Minnesota Constitution. We reverse and remand to the trial court.
On March 14, 1983, defendant was charged in county court with three misdemeanors: assault in the fifth degree, Minn.Stat. Sec. 609.224, subd. 2 (1984), criminal damage to property, Minn.Stat. Sec. 609.595, subd. 2 (1984), and driving after suspension of his license, Minn.Stat. Sec. 171.24 (1984). The charges stemmed from a February 1983 incident reported by a woman with whom defendant had lived in 1978 and with whom he had a son.
On November 7, 1983, the matter came on for trial. Before trial commenced, both parties stipulated (1) that at the time of the incident defendant's driver's license had been suspended and (2) that defendant was aware of the suspension. As a part of the stipulation, the court ruled that other evidence regarding these facts was inadmissible. The stipulation was read to the impaneled jury just before the prosecutor gave his opening statement.
The state's first witness was the alleged victim. She was a reluctant witness, having sought unsuccessfully to persuade the prosecutor to dismiss the charges, which were based on her complaint. After several minutes of direct examination, she and the prosecutor engaged in the following exchange concerning her acceptance of a ride from defendant:
Q What was discussed at that point in time regarding the license and whether or not [defendant's license] was suspended or revoked?
A I didn't have to ask if it was suspended or revoked. I just knew he didn't have a license.
Q Did you say that to him?
A Yes.
Q What was his response?
A This was his friend's car, no one was going to recognize him in his friend's car so he felt safe.
* * *
* * *
Q When did you have any other discussions about whether or not he had a license to drive?
A I just asked how he could drive around the day he got out of jail or being locked up and--
Defense counsel moved for a mistrial, and the trial court granted the motion.
Two weeks later, on November 21, 1983, a new jury was impaneled. The following exchange occurred out of the hearing of the jury:
Before the jurors were sworn, defense counsel informed the court that his wife, who had been summoned for jury duty but dismissed from this case, had spoken during a break with one of the jurors who had been selected to hear defendant's case. Because this discussion had been unrelated to the case, however, neither the prosecutor nor the judge at that time viewed the incident as warranting more than a general cautionary instruction to the jury.
As in the first trial, the jurors were read the stipulation as to defendant's suspended driver's license. The prosecutor once again called the alleged victim as his first witness. During her testimony, the following exchange occurred:
Q Did you have an occasion to express any concern about [defendant's] transporting you that evening?
A No.
Q Did you suspect there might be some difficulty with him doing it legally?
A Well, I knew he didn't have a driver's license. I thought he didn't have one and I know [he] always drives without one, you know.
Defendant again moved for a mistrial. The prosecutor opposed this, saying:
[PROSECUTOR]: Well, I regret that it happened and it isn't certainly something that I asked her to say. It was basically the same question that I asked her before when she responded that he would drive her home and that he had a friend's car and he wouldn't be recognized and I discussed this with her two weeks ago and that we won't talk about him being in jail and I reiterated that to her again today. The last time I told her she couldn't talk about anything other than the facts of this case and we won't go back to any assault or any other driving or anything and we were only concerned with what happened that day unless I asked a direct question. This isn't the same situation that we had two weeks ago.
The court again declared a mistrial, citing both the testimony of the witness and the contact between defense counsel's wife and the juror.
Defense counsel then moved to dismiss the case, claiming that further prosecution was barred by the double jeopardy clauses of the United States and Minnesota Constitutions. The trial court denied this motion, stating:
THE COURT: There is no showing that there was any willful or intentional conduct on the part of the prosecution in this case and I am going to deny your motion. I do want to say something on the record about this matter because I know it's coming up again. I think it should occur to everyone here that there is a possibility due to the relationship between the chief witness for the state and the defendant that that witness might be playing games. I guess I will make it clear. It's clear that they had a child together and it's clear that they lived together for a period of time. They obviously have some feelings toward each other and I am not sure, I am not sure in my own mind that that witness is not deliberately prolonging this affair by doing these things, by blurting out these things.
The court of appeals granted a writ of prohibition barring further prosecution. It recognized that under the federal constitution, as interpreted by the United States Supreme Court, the trial court correctly denied the motion to dismiss because the prosecutor's elicitation of the inadmissible evidence was not intentional or willful. The court of appeals concluded, however, that the prosecutor's conduct in eliciting the evidence was "gross negligence constituting bad faith" and that under the double jeopardy clause of the Minnesota Constitution further prosecution should be barred. State v. Fuller, 350 N.W.2d 382, 386 (Minn.App.1984).
Both the United States Constitution and the Minnesota Constitution prohibit putting a person twice in jeopardy for the same offense. The Fifth Amendment of the United States Constitution provides, in relevant part, "No person shall * * * be subject for the same offense to be twice put in jeopardy of life or limb." The Minnesota Constitution provides, in Article 1, Section 7, that "[n]o person * * * for the same offense shall be put twice in jeopardy of punishment." A person is in jeopardy and the constitutional provisions attach as soon as a jury is sworn. State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 608-09 (1974).
When a criminal trial is terminated over a defendant's objection, the double jeopardy clause of the federal constitution bars a second trial unless there was a "manifest necessity" that the first trial be terminated. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982). However, if a trial is terminated at the defendant's request, the double jeopardy...
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