Maes v. District Court In and For City and County of Denver

• Decision Date: 27 November 1972
• Docket Number: No. 25688,25688
• Citation: 180 Colo. 169,503 P.2d 621
• Parties: Freddie Joe MAES, Petitioner, v. The DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER, State of Colorado, and the Honorable Robert E. McLean, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 621

503 P.2d 621

180 Colo. 169

Freddie Joe MAES, Petitioner, v. The DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER,

State of Colorado, and the Honorable Robert E.

McLean, one of the Judges thereof, Respondents.

No. 25688.

Supreme Court of Colorado, En Banc.

Nov. 27, 1972.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Alvin D. Lichtenstein, Deputy State Public Defender, Denver, for petitioner.

Jarvis W. Seccombe, Dist. Atty., Frederic B. Rodgers, Deputy Dist. Atty., Joseph T. Carroll, Jr., Deputy Dist. Atty., Second Judicial District, Denver, for respondents.

LEE, Justice.

In this original proceeding, we issued our rule to show cause why respondents should not be prohibited from re-trying petitioner on criminal charges, the initial trial of which resulted in a mistrial. The matter is now at issue and, having considered the merits of the controversy, we make the rule absolute.

Petitioner was charged with assault to rob and assault with a deadly weapon. Trial was to a jury. The voir dire examination of prospective jurors was not recorded. However, we are able to gather from the record--and there is no contention to the contrary--that defense counsel, while interrogating the jurors, inquired of at least two jurors whether the fact that petitioner was part Chicano and part Indian would prevent them from being fair and impartial jurors. The district attorney thereafter objected to this question. The court admonished defense counsel not to pursue the racial matter further unless proof of petitioner's racial background would be offered. Defense counsel advised that he intended to offer testimony concerning petitioner's Chicano-Indian background. However, in subsequent questioning of the jury panel, counsel limited its questions concerning racial prejudice to inquiring whether the jurors could give petitioner, whose name was 'Maes,' as fair a trial as they could if his name were 'Smith' or 'Jones.' No further objections were made and the jury was impaneled.

Petitioner did not present evidence concerning his racial background. At the conclusion of all of the evidence, the district attorney moved for a mistrial based upon the alleged impropriety of the racial questions asked by defense counsel during voir dire examination and counsel's subsequent failure to present testimony concerning petitioner's racial background.

Defense counsel initially consented to the mistrial and the court granted the district attorney's motion. However, approximately fifteen minutes later, after consulting with petitioner, and before the jury trying the case had been discharged, defense counsel advised the court that petitioner did object to the granting of the mistrial. The court was asked to reconsider its ruling. It declined to do so and the jury was thereafter discharged.

Petitioner's subsequent motion to dismiss the case on the basis of double jeopardy was denied and this original proceeding was commenced.

The issue we are called upon to determine is whether the trial judge abused his discretion in granting a mistrial under the foregoing circumstances, so that re-trying petitioner for the same offense would constitute double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, Section 18, of the Colorado Constitution.

The general rule is that a person is in jeopardy when he has been brought to trial on a valid indictment or information in a court of competent jurisdiction, and has been arraigned and has pleaded, and a jury has been impaneled and sworn to try the cause. Krutka v. Spinuzzi, 153 Colo. 115, 384 P.2d 928; Menton v. Johns, 151 Colo. 276, 377 P.2d 104; Markiewicz v. Black, 138 Colo. 128, 330 P.2d 539. Here, all of the foregoing tests of jeopardy exist. Additionally, both the prosecution and the defense presented their cases in full and rested. Clearly, petitioner's first trial placed him in jeopardy unless it can be stated under the circumstances that the trial court was legally justified in declaring a mistrial.

I.

The propriety of declaring a mistrial and requiring a defendant in a criminal case to go through a further trial to determine his guilt or innocence has been the subject of a multitude of cases. The most recent leading case, United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, observes that courts generally have declined to formulate rules based on 'categories of circumstances' which will permit or preclude retrials. In discussing this problem, the Court quoted from Justice Story's opinion in United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165:

'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 favour 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 Court reaffirmed the doctrine of 'manifest necessity' as laid down in Perez, supra, stating that '* * * (It) stands as a command to trial judges not to foreclose the defendant's option (to go to the jury and complete his trial) until a scrupulous exercise of sound judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. * * *'

This Court, in Brown v. People, 132 Colo. 561, 291 P.2d 680, and followed by Falgout v. People, 170 Colo. 32, 459 P.2d 572, and Barriner v. District Court, 174 Colo. 447, 484 P.2d 774, adopted the 'manifest necessity' principle as the guiding standard by which the trial judge should exercise his discretion in determining whether to abort a trial for a cause which otherwise might defeat the 'ends of justice.' This Court summed up the principle in the term 'legal justification' as a basis for declaring a mistrial. To be legally justified, the Court cautioned that 'whimsical notion or frivolous impulse' would not amount to legal justification and that the cause for declaring a mistrial must be 'substantial and real' although it need not be vital, such as might be a cause of reversible error. Falgout v. People, Supra; Brown v. People, Supra.

'* * * It need only be such as could affect, or might in some way or manner be considered as interfering with, retarding, or influencing, to even a slight degree, the administration of honest, fair, even-handed justice to either, both, or any, of the parties to the proceeding. When it appears to the chancellor that such an irregularity prevails and when in the exercise of his sincere judgment he declares a mistrial, it must be said that he has fairly exercised his judicial discretion and that his action is properly and legally justified. * * *' Brown v. People, Supra.

Applying the foregoing to the present case, we conclude that...