State v. Fassero

• Decision Date: 30 June 2008
• Docket Number: No. SC 88894.,SC 88894.
• Citation: 256 S.W.3d 109
• Parties: STATE of Missouri, Respondent, v. Brian B. FASSERO, Appellant.
• Court: Missouri Supreme Court

256 S.W.3d 109

STATE of Missouri, Respondent, v. Brian B. FASSERO, Appellant.

No. SC 88894.

Supreme Court of Missouri, En Banc.

June 30, 2008.

Craig A. Johnson, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen Kramer, Asst. Atty. Gen., Jefferson City, for Respondent.

MICHAEL A. WOLFF, Judge.

Brian Fassero's appeal of his conviction and sentence for first-degree child molestation raises two significant issues:

Did the conviction in Fassero's second trial — which followed the grant of a mistrial when the first trial jury reported a deadlock — violate Fassero's right under the double jeopardy provision of the United States Constitution?

Did the trial court err in the penalty phase in admitting evidence of an Illinois indictment for aggravated sexual abuse of a child?

Facts

Fassero was arrested in February 2003 on suspicion that he inappropriately touched a ten-year-old girl. He was charged with statutory sodomy in the first degree under section 566.062¹ and, in the alternative, first degree child molestation under section 566.067.

Fassero's first trial began in June 2004. A little over four hours after the jury began deliberations, the jury sent the judge a note stating that, "[t]he jury deliberated vigorously and came to a final vote of 10 not guilty and 2 jurors voting guilty." Upon receiving this note, the judge called the jury back into the courtroom and questioned the jurors about their deliberations:

"THE COURT: ... Let the record show it is now 2:35 p.m. The jury has been deliberating a little over four hours. Mr. Raymond, are you the Foreperson of the jury?

JUROR RAYMOND: Yes, your Honor.

THE COURT: I was handed a note from the jury a few minutes ago that says basically the jury deliberated vigorously and is not at this time able to reach a unanimous verdict; is that correct?

JUROR RAYMOND: That's correct, your Honor.

THE COURT: All right. And I don't want you to make any statements about how many votes there were for guilty or how many votes there were for not guilty, and we are not going to ask each of you what your vote is at this time, but according to the note that you sent me, the jury is split ten to two; is that correct?

JUROR RAYMOND: That's correct.

THE COURT: All right. And it's been a few minutes since you gave me this. We had to get everybody back in the courtroom. Has there been any change in that split since you wrote this note to me about fifteen minutes ago?

JUROR RAYMOND: No, there hasn't.

THE COURT: And the jury has at this time deliberated for about four — about five and a half hours. My suggestion to you at this time is whether or not you believe any further — maybe it's four and a half hours, I am sorry, whether or not you believe any further deliberation would result in the jury being able to reach a unanimous verdict in this case?

JUROR RAYMOND: We discussed it and, no, no one is willing to change their decision.

THE COURT: And so it's your opinion that you would not be able by continued deliberation in good faith to reach a unanimous verdict?

JUROR RAYMOND: That's correct.

THE COURT: Everyone who agrees with the statement that your Foreperson just made, please raise your hand at this time. For the record, the Court notes that each and every juror has raised his or her hand."

Based on the jurors' statement that they were unable to reach a unanimous verdict, the trial court declared a mistrial.

When Fassero's second trial began in January 2005, Fassero moved to dismiss on the grounds that retrial after the first court's declaration of mistrial would violate his federal constitutional rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the states by the 14th Amendment. The court overruled the motion.

The state presented evidence that, while in the ball pit of "Tumble Drum," a local indoor play area, Fassero inserted his finger into the vagina of A.A., age 10, who was playing in the ball pit with a number of other children. Fassero's daughter, age six, was also in the ball pit. While playing, Fassero's daughter began to cry, and Fassero went into the ball pit. He began playing with his daughter and with a number of children, including A.A., who had relatives outside the pit watching the play. The evidence showed that, while playing with the children, Fassero reached down and put his finger in A.A.'s vagina.

At trial, the state called Jennifer Comte-Fassero, Fassero's ex-wife, to testify about Fassero's reputation for truthfulness. Comte-Fassero testified that Fassero had a reputation for being untruthful. During cross-examination, defense counsel asked Comte-Fassero whether she trusted Fassero to care for their daughter. Comte-Fassero replied that she did not trust Fassero with their child. On re-direct, the state asked why Comte-Fassero did not trust Fassero to care for their daughter. Comte-Fassero replied, "I believe he was molesting her." Defense counsel moved for a mistrial. The trial court overruled the motion.

The next day, defense counsel requested that the court instruct the jury to disregard Conte-Fassero's testimony regarding her belief that Fassero was molesting their daughter. In response, the trial court instructed the jury as follows: "Ladies and gentlemen, at this time the court will advise the jury that only the following question asked and answer given by Jennifer Comte-Fassero be disregarded. QUESTION: What was your opinion as why didn't you trust Mr. Fassero with your daughter at that point? ANSWER: I believe that he was molesting her."

The jury found Fassero guilty of first degree child molestation. During the penalty phase, the state presented an indictment from Madison County, Illinois, charging Fassero with two felony counts of aggravated criminal sexual abuse. Fassero objected on the grounds that the indictment was not "history and character" evidence admissible during the penalty phase under section 557.036. The trial court overruled Fassero's objection and admitted the indictment into evidence.

The jury recommended that Fassero be sentenced to a 15-year prison term, and judgment was entered in accordance with the jury's guilty verdict and sentencing recommendation. Fassero appealed. Following opinion in the court of appeals, this Court granted transfer and has jurisdiction. Mo. Const. art. V, sec. 10.

Double Jeopardy

The double jeopardy clause of the Fifth Amendment, which applies to the states through the 14th Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb." U.S. Const. Amend. V.

Double jeopardy protection attaches when the jury is impaneled and sworn. State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 51 (Mo. banc 2006) (citing United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)). Once double jeopardy protection attaches, the defendant has a right to have his trial completed by the jury that has been selected. Id. (citing United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)).

Although double jeopardy protection generally gives a defendant a right to have his trial completed by the jury selected, not all declarations of mistrial bar retrial. When a defendant requests or consents to a mistrial, for example, double jeopardy does not prohibit reprosecution. If the defendant opposes the mistrial, double jeopardy will bar retrial unless there is a "manifest necessity" for the trial court's declaration of mistrial. In this case, the court in Fassero's first trial declared a mistrial sua sponte. Since Fassero neither sought nor agreed to a mistrial, the first court's mistrial must be justified by "manifest necessity."

Manifest necessity exists when "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." State v. Fitzpatrick, 676 S.W.2d 831, 835 (Mo. banc 1984) (quoting United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)). The prototypical example of "manifest necessity" sufficient to remove the double jeopardy bar in a case of a court-declared mistrial is the jury's declaration that it is unable to reach a verdict. Oregon v. Kennedy, 456 U.S. at 672, 102 S.Ct. 2083. Unless the trial court abuses its discretion in finding that the jury is genuinely deadlocked, the constitution allows reprosecution of the defendant after a mistrial resulting from a hung jury. See generally, United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824).

Whether or not there is manifest necessity sufficient to justify mistrial is a case-specific inquiry. Kemper, 191 S.W.3d at 51. "Manifest necessity" is not a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. 824. A trial court has the authority "to discharge a jury from giving any verdict, whenever, in their opinion, taking all 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." United States v. Perez, 22 U.S. at 580.

Because the decision rests within the sound discretion of the trial court, a declaration of mistrial will not be disturbed on appeal absent an abuse of discretion. Kemper at 49 (citing State v. Clover, 924 S.W.2d 853, 856 (Mo. banc 1996)). An abuse of discretion occurs when the trial court's ruling "is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Kemper at 49 (citing State ex rel. Webster...