Lewis v. State

• Decision Date: 07 April 1969
• Docket Number: No. 931,931
• Citation: 452 P.2d 892
• Parties: Jack LEWIS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 892

452 P.2d 892

Jack LEWIS, Appellant, v. STATE of Alaska, Appellee.

No. 931.

Supreme Court of Alaska.

April 7, 1969.

Brian J. Brundin and Robert C. Erwin, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellant.

Daniel A. Gerety, Asst. Dist. Atty., and Douglas B. Baily, Dist. Atty., Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

RABINOWITZ, Justice.

On April 25, 1967, appellant, a licensed guide, was in Game Management Unit 9 on the Alaska Peninsula near the Aniakchak Crater guiding Robert Ascroft, a nonresident hunter from Berkely, Michigan. As a result of the events of that day, both appellant and his client were charged with violations of Alaska's game laws. ¹ Separate trials were thereafter calendared for appellant and Ascroft. The latter forfeited his appearance bond when he failed to appear for trial in district court. Prior to the trial date scheduled in his case, appellant moved the district court for an order permitting the taking of Ascroft's deposition. ² Appellant's motion was denied and a jury trial was thereafter commenced in district court. After the prosecution had presented its case in chief and while appellant was testifying on direct examination on his own behalf, the district judge declared a mistrial. The trial court took this action in response to a motion by the prosecution which was objected to by appellant's counsel.

After the jury was discharged, appellant moved to dismiss, with prejudice, the complaint which had been filed against him. The basis for appellant's motion was that 'he has been once in jeopardy and further action or another trial would be violative of his constitutional rights against being placed in double jeopardy.' ³ The district court denied the motion. Thereafter, appellant sought review in the superior court of the district court's denial of his motion for dismissal. The superior court affirmed the action of the district court and this appeal followed. ⁴ The issue presented in this appeal is whether the district court, as well as the superior court, erred in rejecting appellant's claim of double jeopardy on the facts of this record.

It is beyond dispute that jeopardy had attached in this case. In Selman v. State ⁵ we said:

The authorities are well settled that a defendant is considered to have been placed in jeopardy as soon as he has gone to trial and the jury sworn.

In the Selman case two additional facets of the double jeopardy question were briefly mentioned. There we also said that:

If the jury is discharged without his (the defendant's) consent he cannot be tried again. If the jury is discharged with his consent, he may be tried again. ⁶

As already mentioned, the record reflects that the motion for mistrial was made by the prosecution and objected to by appellant's counsel. Thus, we are not faced with a situation where the jury was discharged before reaching a verdict with the consent of the accused. On the other hand, in Selman we recognized the wellestablished rule that the fact that an accused has been placed on trial before a competent tribunal does not, standing alone, invariably bar his reprosecution if the trial did not result in a verdict. ⁷ This interpretation of the prohibition against double jeopardy was articulated by Mr. Justice Black in Wade v. Hunter ⁸ in the following manner:

The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. * * * What has been said is enough to show that a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.

This construction of the Double Jeopardy Clause of the Fifth Amendment has been followed by federal courts and state tribunals which have had occasion to interpret their particular constitution's prohibition against double jeopardy. ⁹ There are numerous circumstances which have been held to permit the retrial of on accused even though the first trial jury had been discharged without reaching a verdict and without the defendant's consent. Mistrial occasioned by the jury's inability to reach a verdict has been characterized as a 'classic example.' ¹⁰ Discovery by the trial judge during the course of the trial that 'one or more members of a jury might be biased against the Government or the defendant' has been held to permit the discharge of the first jury and the retrial of the accused. ¹¹ Similarly, the declaration of a first trial mistrial because of the disqualification ¹² or illness of a juror ¹³ have been held not to bar reprosecution in the face of double jeopardy challenges.

In federal courts the test for determining what situations would justify the premature termination of an initial trial without barring retrial under the double jeopardy prohibition has been articulated in terms of 'manifest necessity.' This test was first formulated in United States v. Perez ¹⁴ where in a capital case the jury was discharged, without the accused's consent, after it was unable to reach a verdict. Writing for a unanimous court, Mr. Justice Story stated:

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. ¹⁵

At times the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest-when there is an imperious necessity to do so. * * * Differences have arisen as to the application of the principle. See Brock v. North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456; Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199, (204), (61 A.L.R.2d 1119). Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches. * * * But those extreme cases do not mark the limits of the guarantee. The discretion to discharge the jury before it has reached a verdict is to be exercised 'only in very extraordinary and striking circumstances,' to use the words of Mr. Justice Story in United States v. Coolidge ((C.C.Mass.), 2 Gall 364), 25 Fed.Cas. (No. 14,858 pp.) 622, 623. For the prohibition of the Double Jeopardy Clause is 'not against being twice punished, but against being twice put in jeopardy.' United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (302). ¹⁷

We adopt and apply the federal standard to the issues in the case at bar. In order to determine whether appellant's trial in district court was terminated under circumstances permitting his reprosecution, a more detailed reference to the trial proceedings is appropriate at this point.

We previously mentioned that a jury had been impaneled and the government had presented its case in chief. The district judge's declaration of a mistrial occurred during appellant's direct testimony. Appellant's counsel asked the following questions regarding Robert Ascroft, the hunter whom appellant was guiding on the day in question:

Q Now you've testified the hunter who was with you, his name was Mr. Ascroft is that right?

A Ascroft, yes.

Q Is he going to be a witness here today?

A No, I don't think so.

Q Why not?

A Well we tried to get a deposition, but the District Attorney wouldn't allow it.

MR. ROWLAND: Objection * * * and I think it's highly prejudicial and I think defense counsel knew it was going to be.

THE COURT: All right. Now-now this is the first I've known about any deposition not being taken and the jury will be instructed to disregard the * * * comment about any deposition.

MR. BRUNDIN: * * * we have a right to show why Mr. Ascroft is not here. There is a presumption in the evidence that witness, ah, that we should have here if they're not. * * *

The record next shows that the jury was excused. After some discussion had taken place out of the hearing of the jurors, the prosecution requested the court to declare a mistrial. Initially, the district judge denied the motion, but almost immediately thereafter declared a mistrial. ¹⁸

We conclude that this record does not disclose a situation which presented a 'manifest necessity' for the declaration of a mistrial. Nor can we find that the trial court's premature discharge of the jury was necessitated by 'very...