Day v. Haskell, 20110096.

Decision Date24 June 2011
Docket NumberNo. 20110096.,20110096.
Citation799 N.W.2d 355,2011 ND 125
PartiesDavid Allen DAY, Petitionerv.Judge Bruce B. HASKELL, Judge of the District Court, South Central Judicial District, and State of North Dakota, Respondents.
CourtNorth Dakota Supreme Court


Justin Jacob Vinje, Bismarck, N.D., for petitioner.Lloyd Clayton Suhr (argued), Bismarck, N.D. and Tyrone Jay Turner (on brief), Bismarck, N.D., Assistant State's Attorneys, for respondents.MARING, Justice.

[¶ 1] David Allen Day petitioned for a supervisory writ, requesting that we direct the district court to vacate its order denying his motion to dismiss. We grant the petition for a supervisory writ, concluding double jeopardy prohibits the district court from retrying Day for driving under the influence of alcohol, and we direct the court to vacate its order denying Day's motion to dismiss and to enter an order dismissing the complaint.


[¶ 2] In April 2010, Day was charged by complaint with driving under the influence of alcohol. A jury trial was held in February 2011. After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.

[¶ 3] The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.

[¶ 4] On March 10, 2011, Day moved to dismiss the complaint, arguing a second trial was prohibited under Fifth Amendment double jeopardy principles. In April 2011, the trial court, another judge presiding, denied Day's motion to dismiss, finding a mistrial was reasonably necessary.


[¶ 5] This Court has authority to issue supervisory writs under N.D. Const. art. VI, § 2, and N.D.C.C. § 27–02–04. The authority to issue supervisory writs is discretionary and is exercised on a case-by-case basis. Roe v. Rothe–Seeger, 2000 ND 63, ¶ 5, 608 N.W.2d 289. Generally, we will not exercise supervisory authority when the proper remedy is an appeal. Id. We exercise our authority rarely and cautiously, “and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy.” Id.

[¶ 6] The Double Jeopardy Clause protects an individual from being convicted of the same crime twice and that right can be fully vindicated on appeal after a conviction and sentence. Abney v. United States, 431 U.S. 651, 660–61, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). However, the United States Supreme Court has held an accused's rights would be significantly undermined if the accused has to wait for appellate review until after conviction and sentence. Id. The rationale stated is that “the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.” Id. The purpose of the Double Jeopardy Clause is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ Id. at 661–62, 97 S.Ct. 2034 (quoting Green v. United States, 355 U.S. 184, 187–88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)). We conclude this is an appropriate case to exercise our supervisory authority and original jurisdiction. See State v. Robideaux, 475 N.W.2d 915, 916 (N.D.1991) (a supervisory writ is one way to adequately protect the defendant's interest against being placed in “risk” of double jeopardy).


[¶ 7] The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits successive prosecutions and punishments for the same offense. The Double Jeopardy Clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. State v. Linghor, 2004 ND 224, ¶ 19, 690 N.W.2d 201. North Dakota constitutional and statutory provisions provide protections consistent with the Fifth Amendment. See N.D. Const. art. I, § 12; N.D.C.C. § 29–01–07; Linghor, at ¶ 19.

[¶ 8] ‘The general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn, and in a non-jury trial when the court begins to hear evidence.’ Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201 (quoting State v. Berger, 235 N.W.2d 254, 257 (N.D.1975)). Here, jeopardy attached when the jury was empaneled and sworn.

[¶ 9] However, the Double Jeopardy Clause does not prohibit retrial in every case where the first trial has terminated after jeopardy attached but before a verdict is rendered. Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201. Whether a defendant may be retried depends on whether a mistrial was properly granted. State v. Voigt, 2007 ND 100, ¶ 12, 734 N.W.2d 787. The basic controlling principles in determining whether a mistrial was properly granted are manifest necessity and the ends of public justice. Id. In United States v. Perez, 22 U.S. 579, 580, 9 Wheat. 579, 6 L.Ed. 165 (1824), a landmark case construing the Double Jeopardy Clause, the United States Supreme Court said:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

“The Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.’ Voigt, at ¶ 12 (quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971)). Further, a “mechanical formula” does not exist for deciding whether the termination of a criminal trial is supported by a manifest necessity and each case will depend upon its own facts. Voigt, 2007 ND 100, ¶ 13, 734 N.W.2d 787. This Court has identified a list of nonexclusive...

To continue reading

Request your trial
3 cases
  • City of W. Fargo v. Le Ekstrom
    • United States
    • North Dakota Supreme Court
    • February 12, 2020
    ...V ; N.D. Const. art. I, § 12 ; N.D.C.C. § 29-01-07. In a jury trial, jeopardy attaches when the jury is empaneled and sworn. See Day v. Haskell , 2011 ND 125, ¶ 8, 799 N.W.2d 355. However, double jeopardy does not always prohibit retrial when the first trial has terminated before a verdict ......
  • State v. Webb
    • United States
    • Kansas Court of Appeals
    • July 22, 2016
    ...Ex parte Adams , 669 So.2d 128, 132 (Ala. 1995) ; Keating v. Sherlock , 278 Mont. 218, 224–25, 924 P.2d 1297 (1996) ; Day v. Haskell , 799 N.W.2d 355, 358–60 (N.D. 2011) ; Ex parte Robinson , 641 S.W.2d 552, 554–55 (Tex. Crim. App. 1982). And along a similar vein, Arizona allows for the def......
  • Kaspari v. Olson
    • United States
    • North Dakota Supreme Court
    • June 24, 2011

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT