Keating v. Sherlock

• Decision Date: 10 September 1996
• Docket Number: 96-457,96-452,Nos. 96-402,s. 96-402
• Citation: 278 Mont. 218,53 St.Rep. 855,924 P.2d 1297
• Parties: Philip KEATING, Petitioner, v. Hon. Jeffrey SHERLOCK, District Judge, First Judicial District, Mike McGrath, County Attorney, and Vicki Frasier, Assistant County Attorney, Lewis and Clark County, Montana, and Joseph P. Mazurek, Attorney General of the State of Montana, Respondents.
• Court: Montana Supreme Court

Page 1297

924 P.2d 1297

278 Mont. 218

Philip KEATING, Petitioner, v. Hon. Jeffrey SHERLOCK, District Judge, First Judicial

District, Mike McGrath, County Attorney, and Vicki Frasier,

Assistant County Attorney, Lewis and Clark County, Montana,

and Joseph P. Mazurek, Attorney General of the State of

Montana, Respondents.

Nos. 96-402, 96-452, 96-457.

Supreme Court of Montana.

Sept. 10, 1996.

OPINION AND ORDER

LEAPHART, Justice.

In this opinion we address the legal issues raised by Petitioner Philip Keating (Keating) in three separate applications for extraordinary writs filed in July and August 1996.

Procedural Background

Keating was charged in the First Judicial District, Lewis and Clark County, with felony assault; criminal possession of dangerous drugs (methamphetamine), a felony; criminal possession of dangerous drugs (marijuana), a misdemeanor; and two counts of criminal possession of drug paraphernalia, misdemeanors. The matter was set for trial on July 9, 1996. The matter proceeded to trial on July 9, 1996 at which time a jury of twelve was selected. Pursuant to the practice of the First Judicial District with regard to trials of three days or less, as well as the stipulation of the parties, no alternate jurors were selected or seated with the twelve Petit jurors. Following the seating and swearing of the jury, opening statements were presented by both the State and Keating's counsel. Following the opening statements, the trial recessed for lunch.

When the proceedings resumed after lunch, Judge Jeffrey Sherlock informed the parties that during the lunch recess a juror had advised the court that she was ill and would not be returning to jury duty. After Judge Sherlock was unsuccessful at obtaining an agreement to continue the trial in order to wait for the juror, the judge discussed with counsel the possibility of proceeding with eleven jurors, or calling additional members of the Keating jury panel in order to obtain a new juror. Keating rejected both these alternatives and requested a mistrial. The court declared a mistrial without objection from Keating. Trial was then rescheduled for July 22, 1996.

On Wednesday, July 17, Keating filed a motion to dismiss all of the charges on double jeopardy grounds. On Thursday, July 18, prior to Judge Sherlock's ruling on the pending motion to dismiss, Keating filed an Application for a Writ of Supervisory Control in the Supreme Court (No. 96-402) seeking a stay of the District Court proceedings until the double jeopardy issue had been addressed. On July 18, this Court issued an order staying further proceedings in the District Court until such time as the State had an opportunity to respond to the motion. Later that same day, the State filed a response asking this Court to reconsider its order vacating the trial setting and to dismiss Keating's application for a writ of supervisory control. The State contended that granting the writ was inappropriate since Keating had an adequate remedy by way of appeal. We declined to reconsider our prior order and remanded to the District Court for a determination of whether the mistrial was the result of manifest necessity. In our order refusing to reconsider, we indicated that an opinion from this Court would be issued at a later date.

In subsequent proceedings, the trial court ruled that Keating impliedly consented to the mistrial and that the declaration of a mistrial due to a sick juror constituted manifest necessity. The court then scheduled a new trial for August 5, 1996. On August 1, 1996, Keating filed another Application for Writ of Supervisory Control (No. 96-452) arguing that the District Court's finding that Keating acquiesced in the mistrial was erroneous. Keating's August 1, 1996, Application did not raise an issue as to whether the juror was, in fact, ill; did not address the court's holding that juror illness constituted manifest necessity; nor did the Application contend that he had been denied an evidentiary hearing on the question of manifest necessity. We declined to issue the writ of supervisory control.

On Monday, August 5, 1996, the second trial proceeded as scheduled. The jury was empaneled and sworn and the State proceeded with presenting its case. That afternoon, Keating filed an Application for a Writ of Habeas Corpus (No. 96-457) claiming that his right not to be placed again in jeopardy and his right to due process were denied when the trial court made a determination of manifest necessity without affording him an evidentiary hearing on that issue. All three applications are discussed below.

Issues Presented

We phrase the issues presented as follows:

1. Must an issue of double jeopardy be addressed prior to the commencement of the second trial or is an appeal after the second trial adequate?

2. Did Keating consent to a retrial by moving for a mistrial and by failing to object to the court's declaration of mistrial?

Discussion

1. Must an issue of double jeopardy be addressed prior to the commencement of the second trial or is an appeal after the second trial adequate?

On July 9, 1996, a jury was selected, empaneled and sworn and the counsel for the respective parties presented their opening statements. After a lunch break, a juror advised the court that she would not be able to continue to serve as a juror. Thereafter, Keating moved for a mistrial. The trial court declared a mistrial and set a new trial for July 22, 1996. Keating subsequently moved to dismiss the charges on the basis of the constitutional prohibition against placing a person twice in jeopardy. Fifth Amend., U.S. Const. and Art. II, Sec. 25, Mont. Const.

Before a question of double jeopardy arises, there must be an initial determination as to whether jeopardy has attached in the first instance. In a case which originated in Montana, the United States Supreme Court declared as unconstitutional, Montana's statutory provision that jeopardy attaches when the first witness is sworn. Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24. In Bretz, the Court held that, in a jury trial, jeopardy attaches when the jury is empaneled and sworn, not when the first witness is sworn. Despite the Bretz decision, § 46-11-503(1)(d)(i), MCA, still provides that a prosecution is barred if: "the former prosecution was terminated for reasons not amounting to an acquittal and takes place: in a jury trial, after the first witness is sworn but before a verdict is returned...." (Emphasis added.) This provision is just as unconstitutional now as it was eighteen years ago. Here, the District Court acknowledged, as it must, that the pronouncement by the United States Supreme Court in Bretz controls over the provisions of the statute.

In the present case, a jury was empaneled and sworn and opening statements were presented before the juror informed the court that she would be unable to continue sitting due to illness. Accordingly, there is no question under the holding in Bretz but that jeopardy had attached at the point in time when the court declared a mistrial.

The trial court reset the matter for trial and Keating then moved to dismiss based upon the constitutional prohibition against placing a person twice in jeopardy. Keating argued that the issue of double jeopardy had to be addressed prior to the commencement of the second trial. Relying upon our decision in State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 701 P.2d 1346, the State countered that the matter could proceed to retrial and that Keating's double jeopardy issue could be adequately addressed on a subsequent appeal. In Forsyth, we held as follows:

This Court has previously held that the refusal by a district court to dismiss criminal charges on a double jeopardy claim does not warrant supervisory control, as the remedy for a criminal defendant lies in an appeal following conviction or in a post-conviction proceeding. State ex rel. LaFlesch v. District Court (1974), 165 Mont. 302, 306, 529 P.2d 1403, 1405.

Forsyth, 701 P.2d at 1351.

We now overrule Forsyth and LaFlesch. Both the U.S. Constitution, Fifth Amendment and the Montana Constitution, Article II, Section 25, protect individuals from being twice placed in jeopardy. If those guarantees are to have any significance, they require that the prohibition must be given effect prior to, not after, the second trial. If, as the State argued, Keating proceeded with a second trial and were convicted, he could appeal on the basis of double jeopardy. This Court could vacate the conviction. However, vacating the conviction would not change the fact that Keating would have been "put in jeopardy." The same would hold true even if Keating were acquitted in the second trial. That is, the acquittal would not alter the fact that, in being tried a second time, he was again placed in jeopardy of being convicted. The constitutional prohibition is designed to prevent the individual from being put at risk of conviction at a second trial. Once he endures the second trial, regardless of conviction or acquittal, he has incurred the risk; he has been put in "jeopardy," and that fact cannot be remedied or expunged after the fact.

The United States Supreme Court, in Abney v. United States (1977), 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, established that a double jeopardy challenge is unique and must be addressed before the risk of a second trial occurs. The Court recognized that the Double Jeopardy Clause protects not only against double punishment but against "being twice put to trial for the same offense." Abney, 431 U.S. at 661, 97 S.Ct. at 2041.

In construing the Fifth Amendment language, "nor shall any person be subject (for the same offense) to be twice put in jeopardy of life and limb," the Court found that "[t]he 'twice put in jeopardy' language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the 'same offense' for which he was initially...