State v. Dykstra
| Decision Date | 09 December 2020 |
| Docket Number | A163419 |
| Citation | 307 Or.App. 766,479 P.3d 294 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Andrew Ryan DYKSTRA, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ryan Scott argued the cause and filed the briefs for appellant.
Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.*
This appeal requires us to examine the double jeopardy implications of re-prosecuting defendant after a stipulated-facts bench trial, in which—after accepting the stipulated facts, finding defendant guilty except for insanity (GEI) on various charges, dismissing other charges, and announcing a sentence—the trial court granted the state's motion for a mistrial based on the lack of a jury waiver. The state then re-indicted defendant on the same charges ( one of them), and, in the second trial, the court found defendant GEI on five of the six charges, including those that the state had agreed to dismiss as part of the earlier stipulated-facts trial. Defendant appeals the judgment in that second case, raising three assignments of error based on double jeopardy principles, namely, that the trial court erred in (1) denying his motion to dismiss the second indictment, (2) not dismissing two counts that had been dismissed on the state's motion in the first trial, and (3) allowing the state to proceed in the second trial on an amended version of one of the counts. With respect to defendant's first assignment of error, we conclude that, because the state established manifest necessity for a mistrial in the first case, double jeopardy does not bar defendant's retrial; the court therefore did not err in refusing to dismiss the indictment in the second case. We reject defendant's second and third assignments of error without written discussion.
The material facts, which are primarily procedural, are undisputed. Defendant was charged, in Case No. C152591CR, with first-degree arson, ORS 164.325 (Count 1)1 ; unlawful possession of methamphetamine, ORS 475.894 (Count 2); attempted assault of a public safety officer, ORS 163.208 (Count 3); resisting arrest, ORS 162.315 (Count 4); recklessly endangering another person, ORS 163.195 (Count 5) and second-degree criminal mischief, ORS 164.354 (Count 6).
With respect to first-degree arson (Count 1), the indictment alleged:
"The defendant, or about October 14, 2015, in Washington County, Oregon, did unlawfully and intentionally damage protected property at 14256 S.W. Farmington Road, Beaverton, by starting a fire, thereby recklessly placing protected property of another, located at 14256 S.W. Farmington Road, Beaverton, in danger of damage."
(Emphasis added.) After "a long course of negotiation," the state and defendant agreed to a stipulated-facts trial as to Counts 1, 4, and 6, with the expectation that the court would find defendant GEI as to those counts, and that the state would dismiss Counts 2, 3, and 5.2
Pursuant to their agreement, the parties stipulated to the following facts. Early one morning, defendant leaned a " ‘Presto’ type fire log" against the victims’ fence, which is attached to their home. Defendant intentionally ignited the fire log. The fire from the fire log ignited the fence, which allowed the fire to spread towards the victims’ home, which is protected property, putting the home in danger of damage. When a police officer contacted defendant shortly after the fire had been extinguished, defendant "became angry and swatted [the officer's] hand and attempted to punch [the officer] in the face." When the officer attempted to arrest him, defendant resisted the arrest "by physically struggling with" the officer. Officers found fire-starting paraphernalia and methamphetamine in defendant's home.
A bench trial was held on July 13, 2016. The parties recited their agreement, and the court admitted the stipulation of facts signed by the parties, along with two psychiatric reports (one offered by the state and one by defendant) reflecting defendant's diagnosis of schizophrenia and the doctors’ GEI-related findings. Consistent with the parties’ agreement, the state moved to dismiss Counts 2, 3, and 5, and the court granted that request. The state then rested its case, arguing that the evidence was sufficient to find defendant GEI as to the remaining counts.
At that point, defendant moved for a judgment of acquittal on the arson charge, Count 1, arguing that the state had failed to prove that defendant had unlawfully and intentionally damaged "protected property," as alleged in the indictment, because the stipulated facts established that defendant damaged only the fence, which is not protected property under the definition of the offense. The state responded that the first use of the word "protected" in that count was surplusage, which the court had authority to strike by interlineation.3 Defendant contended that the court lacked that authority because jeopardy had attached when the court received the stipulated facts. The state disagreed. After further argument, the court asked the parties to submit authority for their respective positions and continued with the trial.
The court found defendant GEI on the remaining two undisputed counts (Counts 4 and 6) and indicated that it would find defendant GEI on Count 1 also, assuming it could strike the word "protected" from the indictment. More particularly, the court stated that it would "craft [its] sentence" assuming the state was correct about that, but, if the court "change[d its] mind" after reviewing the case law, it would inform the parties by written opinion. The court then proceeded to pronounce sentence on all three counts, placing defendant under the jurisdiction of the Psychiatric Security Review Board (PSRB) for a period of 20 years on Count 1 and for a period of one year each on Counts 4 and 6. It does not appear that any order or judgment memorializing those decisions or the court's earlier dismissal of Counts 2, 3, and 5 was ever entered in the court's register. Defendant filed a written motion for judgment of acquittal (MJOA) on Count 1 the same day.
On July 26, the court reconvened the parties to resolve defendant's MJOA on Count 1 and the issue "whether [the court] was going to strike the word ‘protected’ " from the indictment. The court told the parties that it was not planning to decide the question, explaining that, since the parties had contemplated a stipulated-facts trial that would result in a GEI sentence, "it seems to this Court that it should be resolved in that manner with an agreement to the sentence that I basically already gave or we should vacate the sentence and have you guys go to trial." The prosecutor then asserted that the trial was invalid in any event because defendant had not submitted a jury trial waiver, necessitating a mistrial. The court and the parties debated the issue further; eventually, the court indicated that, notwithstanding defendant's objection, it was declaring a mistrial, and then set the case over for defense counsel to have time to confer with his client as to how he wanted to proceed.
At a subsequent hearing, on August 5, the court stated that the case was back in a pretrial posture due to the mistrial and allowed defendant to put any objections on the record. Defense counsel argued that returning the case to pretrial status was inappropriate because "double jeopardy attaches upon the tendering and acceptance of stipulated facts." Counsel further argued that, because the mistrial was caused by the state as the result of the state's "direct motion without the consent of the Defense," the state could not retry defendant. Counsel indicated that the problem that the state argued required a mistrial was "easily repaired" because defendant was willing to sign a jury waiver. The state responded that the mistrial was not caused by the state; rather, the lack of a signed jury waiver was "a legal defect that made the trial unlawful." The state also requested that the court rule on its motion to amend the indictment to strike "protected" from Count 1, which it had filed before the hearing. The court declined to rule. Later, the court granted the state's motion to dismiss the indictment in Case No. C152591CR.
The state then obtained a new indictment in Case No. 16CR50085 (), charging defendant with the same offenses except that, with respect to Count 1, the indictment now alleged that defendant did "unlawfully and intentionally damage "property," rather than "protected property."4 A different judge presided.
Defendant filed a motion to dismiss the indictment for subjecting him to double jeopardy under the state and federal constitutions, arguing, among other things, that jeopardy attached at the moment the stipulation of facts was received by the court in the earlier trial.5 Defendant also argued that jeopardy attached to the counts dismissed on the state's motion at that trial, Counts 2, 3, and 5. As to the implications of the mistrial, defendant reasserted that the state cannot recharge defendant when the state moves for a mistrial it caused, except in the case of "manifest necessity," which was not present here because the lack of a jury waiver was repairable. Finally, defendant argued that contract law barred the state from re-indicting defendant on the previously dismissed charges.
The state responded that the stipulated-facts trial was not valid—and therefore jeopardy had not attached—because defendant had not submitted a written jury waiver, as required under Article I, section 11. The state also argued that the mistrial was justified by manifest necessity and ORS 131.525(1)(b)(B), which provides that a mistrial terminates jeopardy if the trial court finds that termination of the previous prosecution is necessary due to ...
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