State v. Flick

• Decision Date: 12 July 1985
• Citation: 495 A.2d 339
• Parties: STATE of Maine v. Daniel FLICK.
• Court: Maine Supreme Court

Page 339

495 A.2d 339

STATE of Maine v. Daniel FLICK.

Supreme Judicial Court of Maine.

Argued May 9, 1985.

Decided July 12, 1985.

David W. Crook, Dist. Atty., Pamela J. Ames (orally), Asst. Dist. Atty., Augusta, for plaintiff.

Clifford, Clifford, Samp & Stone, Alan G. Stone (orally), Lewiston, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and SCOLNIK, JJ.

SCOLNIK, Justice.

Defendant Daniel Flick was charged with Obstructing Government Administration, 17-A M.R.S.A. 751 (1983), and has had two jury trials in Superior Court (Kennebec County). Each ended in the declaration of a mistrial. Following the second trial the Defendant moved to dismiss the complaint on the ground that a third trial would violate the double jeopardy clause of the Maine Constitution, Article I, § 8, and of the Fifth Amendment to the United States Constitution. The Superior Court denied the motion. Flick appeals under an exception to the final judgment rule, State v. Hanson, 483 A.2d 723, 724 (Me.1984). We vacate the order denying the motion and remand for entry of an order dismissing the complaint.

I.

The Defendant was arrested on March 15, 1983. He was arraigned in District Court, Waterville, where he sought both a motion in limine to suppress a statement made by his brother Richard, who was present at the scene of the arrest and a transfer to Superior Court for a jury trial. The District Court ordered that, "[n]o third party may testify or be questioned at trial regarding [the statement]." It then transferred the case to the Superior Court. On August 11, 1983, the Defendant's first trial resulted in a hung jury. Deciding, after inquiry, that the jurors were "genuinely deadlocked," the court declared a mistrial. Flick's first appointed counsel withdrew from the case, the court appointed a second, and the retrial took place on January 25, 1984.

The Defendant's brother, Richard Flick, testified for the defense at the second trial. On direct examination, he was not asked whether or not he had made any statement at the time Daniel was arrested. Nonetheless, and without having first raised the question of its admissibility notwithstanding the ruling in limine, the Assistant District Attorney in cross-examination confronted him with the statement. The defense counsel objected, but was overruled. During the next recess she moved for a mistrial. The presiding Justice was apparently taken by surprise when advised of the ruling in limine, but he confirmed his ruling that the statement was admissible and denied the motion for mistrial.

Before the jury returned, the Defendant complained to the court that he was unfairly prejudiced, inter alia, by the admission of the statement. The court explained its rationale, then let the trial proceed. The Defendant later made an oblique reference to the ruling in the course of his testimony on direct examination, whereupon the court sent the jury out and again discussed the issue directly with the Defendant. Their colloquy lasted for some time. The court asked the Defendant a number of questions about his concerns, to which he responded frankly. The Defendant became quite agitated, expressing his frustration at the extended proceedings, and his displeasure with his lawyers' tactics in both trials, the arresting officers' credibility and treatment of him, and the general cast of the proceedings, which he saw as severely biased against him. While he clearly felt the presiding Justice was also biased, he was civil throughout, though excited. The Justice not only permitted the petty tirade to continue, he prolonged it by questioning the Defendant about the range of his concerns. The defense counsel took no part in the colloquy and, indeed, nothing further was heard from her after the court began questioning the Defendant.

At the end of the exchange the court ordered a recess, then declared a mistrial, stating its reasons on the record. They were (1) its concern that Flick's relationships with his counsel "could be a problem with any conviction on appeal," (2) that it would not be "appropriate to proceed with that record having been made," and (3) that, given Flick's remarks "with regard to the court, I don't know the extent to which, if there was a conviction, I would be in a position to impose a fair sentence."

Finally, the court stated, "I am also, to make sure the record is clear and protected with regard to any future trial, would grant the motion for the reasons originally urged by defense counsel, although I continue to view that as not the extent of the problem suggested by defense counsel." At no time did the court consult the defense counsel about its decision, either to inquire whether the defense wished to renew its earlier motion for mistrial, or whether the Defendant consented to a mistrial on any other ground.

Flick's counsel received permission to withdraw soon after the trial. The court then appointed a third attorney who filed the present motion to dismiss on May 14, 1984. The motion asserts that neither mistrial was properly granted, and thus that the Defendant has been in jeopardy twice within the meaning of Article I, Section 8 and the Fifth Amendment. Alternatively, it asserts that the second prosecutor engaged in deliberate misconduct when she disregarded the ruling in limine in order to question Richard Flick about his statement. The defense argues that the complaint must be dismissed because of either instance of former jeopardy or because of the prosecutor's conduct.

The motion Justice considered the circumstances of both trials. As to the first, he found that the deadlocked jury made it "manifestly necessary" to declare a mistrial. As to the second, he found both "manifest necessity" and consent to the mistrial. Though he agreed with the presiding Justice that the prosecutor had not engaged in deliberate misconduct by eliciting the suppressed statement, the motion Justice found that the defendant's motion for mistrial was not withdrawn and constituted his consent to the trial court's ultimate declaration of mistrial. In addition, the motion Justice held that the reasons for mistrial stated on the record by the presiding Justice constituted "manifest necessity."

II.

"No person, for the same offense, shall be twice put in jeopardy of life or limb." Me. Const. art. I, § 8. This guarantee protects "the valued right of the accused to have his trial completed by a particular tribunal." State v. Rowe, 480 A.2d 778, 782 (Me.1984). The Fifth Amendment to the United States Constitution contains a similar provision. In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the United States Supreme Court overruled Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and held that the Fourteenth Amendment made the Fifth Amendment applicable to the States. We have, of course, applied the double jeopardy prohibition as a matter of Maine constitutional or common law since well before Benton. See, e.g., State v. Sanborn, 157 Me. 424, 173 A.2d 854 (1961); State v. Slorah, 118 Me. 203, 106 A. 768 (1919); Stephens v. Fassett, 27 Me. 266 (1847).

In State v. Howes, 432 A.2d 419 (Me.1981), we said that Article I, Section 8 "afford[s] protection essentially like that guaranteed by" the Fifth Amendment. Id. at 423. This is because both provisions have a common purpose and common roots in English law. The prohibition against double jeopardy "is another great privilege secured by the common law, as well as by the constitution." Saco v. Wentworth, 37 Me. 165, 175 (1853). As the Supreme Court said in Green v. United States,

[t]he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continual state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); State v. Linscott, 416 A.2d 255, 258 (Me.1980). Indeed, the exceptions to the rule barring retrial after former jeopardy also stem from a common origin, "[a]s early as the time of Blackstone at least," State v. Slorah, 118 Me. at 209, 106 A. at 770. ¹

This parallel, though separate, jurisprudential history is the reason that, while the United States Supreme Court's decisions "delineat[e] the binding effect on the States of the federal Constitution's protection against double jeopardy, [we may also] look upon them as most helpful guides regarding the scope of the protection against double jeopardy afforded by the Constitution of Maine." State v. Howes, 432 A.2d at 423. However, the vigor of the separate Maine constitutional provision throughout this history makes it equally clear that its protection does not depend on the interpretation of the federal Constitution.

While the drafters of Article I, Section 8 and the Fifth Amendment certainly sought the same objectives,

[t]his does not, however, say much toward demonstrating the correct application of such a constitutional text. In particular, the proposition does not support the non sequitur that the United States Supreme Court's decisions under such a text not only deserve respect but presumptively fix its correct meaning also in state constitutions.

State v. Kennedy, 295 Ore. 260, 666 P.2d 1316, 1322 (1983). ² Where, as in this case a defendant invokes the protection of Article I, Section 8, we should, State v. Badger, 141 Vt. 430, 450 A.2d 336, 346-47 (1982), and will, State v. Rowe, 480 A.2d at 781, examine the state constitutional claim before reaching any federal question. In doing so, we may use the Supreme Court opinions as "helpful guides" to the underlying policy of both double jeopardy provisions, but our citation...