State v. Friel
| Decision Date | 04 November 1985 |
| Citation | 500 A.2d 631 |
| Parties | STATE of Maine v. Dennis Eugene FRIEL. |
| Court | Maine Supreme Court |
Charles K. Leadbetter, Wayne S. Moss, Eric E. Wright (orally), Asst. Attys. Gen., Augusta, for the State.
Andrews B. Campbell (orally), Jura Burdinik, Campbell Law Office, Bowdoinham, for defendant.
Before NICHOLS, ROBERTS, VIOLETTE, WATHEN and GLASSMAN, JJ.
The State appeals from an order of the Superior Court, Knox County, dismissing an indictment against Dennis Eugene Friel on the ground of former jeopardy. The State contends that the mistrial order, which terminated the previous trial, was consented to by the defendant or, alternatively, was justified by manifest necessity. Because we find no support for the State's contentions, we affirm the dismissal.
The Grand Jury for Androscoggin County returned a one-count indictment charging Friel and a codefendant with aggravated criminal mischief pursuant to 17-A M.R.S.A. § 805. The indictment alleged that the defendants damaged some thirty churches and one town hall in Androscoggin, Sagadahoc, and Cumberland Counties. At the defendants' arraignment the Superior Court appointed counsel. Andrews B. Campbell was appointed to represent Friel.
After a change of venue, the jury trial of the defendants began on September 10, 1984 in the Superior Court, Knox County. On behalf of Friel, Campbell moved for a mistrial on three occasions during the course of the trial. The court expressly denied the first two motions and implicitly denied the third by continuing with the trial. Campbell made the last mistrial motion on the third day of trial after Friel, in the absence of the jury, had been found guilty of contempt of court, summarily sentenced to three days in jail, and removed from the courtroom. 1 Friel was placed in a room where he was able to listen to the courtroom proceedings.
After Friel was removed from the courtroom, Campbell twice announced to the court that, on his client's order, he would "stand mute." Thereafter, without the court's permission and after being warned of the consequences by the court, Campbell left the courtroom and returned three times. His behavior prompted the court to warn Campbell, in the absence of the jury, that Campbell would be held in contempt of court if he did not desist from his disruptive activities. Campbell replied that his client's interests demanded that his client be in federal court. The court then found Campbell guilty of contempt, but stayed the sentence until the trial concluded or Campbell failed to appear in court, whichever occurred first. 2
After returning from his third absence, Campbell refused to cross-examine a witness on his client's behalf, and the court reminded Campbell of his duty to represent his client. Campbell then adopted as his own the decision to stand mute. Thereafter, Campbell reconfirmed that the decision to stand mute was his own as well as his client's. On five occasions Campbell declined to cross-examine four State's witnesses, and, with the exception of making one objection, he refused to participate in the substance of the trial after his client's removal.
During the luncheon recess on September 12, the presiding justice called the State's attorney, the attorney for the co-defendant, and a court reporter into chambers and announced his decision to declare a mistrial in the case against Friel. He stated as his reason for declaring the mistrial Campbell's refusal to represent Friel's interests in court. He further stated that such refusal amounted to ineffective assistance of counsel in violation of the Code of Professional Responsibility. Neither Friel nor Campbell was present at the chambers conference, and neither was consulted regarding the decision to declare a mistrial.
Following the chambers conference, in open court, the presiding justice announced his intention to Campbell for the first time. The presiding justice announced that Campbell's ineffective assistance was in violation of the Code of Professional Responsibility and created a manifest necessity for the mistrial order. The court did not find that he intended to provoke the mistrial. Incident to the mistrial order the court also revoked Campbell's appointment to represent Friel. Campbell objected to the court order and reasserted that he acted pursuant to Friel's instructions and according to his best legal judgment. Friel was not present in court during the declaration of the mistrial. The State dismissed its prosecution of the codefendant with his consent pursuant to M.R.Crim.P. 48(a).
On December 12, 1984 Friel's case was rescheduled for trial. The defendant filed a motion to dismiss all charges on the ground of former jeopardy. On January 29, 1985 the Superior Court, Knox County, heard arguments on the merits of the defendant's motion. After reviewing the trial court record, affidavits submitted by the State, and counsels' memoranda, the court granted the motion to dismiss, finding that the defendant did not consent to the mistrial and that no manifest necessity existed.
The State argues that we may properly disregard the motion justice's decision and focus our appellate review on the propriety of the trial justice's declaration of a mistrial. The State contends that the motion justice's ruling is merely the vehicle by which this Court acquires appellate jurisdiction, and that we should exercise our independent judgment in ruling from the written record. We disagree with the State's characterization of the scope of appellate review.
We have recognized that the relevant record for appellate review is the record before the justice at the motion hearing. See State v. Pierce, 459 A.2d 148, 150-51 (Me.1983). The defendant's motion to dismiss the indictment was brought pursuant to M.R.Crim.P. 12(b)(2). Under Rule 12(b)(4) the court hearing the motion shall determine all issues of fact necessary to decide the motion and may accept evidence in the form of affidavits or in such other form as the court may direct. Because the motion justice had factfinding power, the proceeding before the motion justice was not an appellate review. The State had the burden at the motion hearing, by introducing evidence or otherwise, to show that the defendant consented to the mistrial or that a mistrial order was manifestly necessary under the circumstances. State v. Rowe, 480 A.2d 778, 782 (Me.1984); State v. Linscott, 416 A.2d 255, 259 (Me.1980).
We must necessarily review the motion justice's decision for errors of law and his findings of fact for clear error. When either party relies upon the trial court record, the motion justice must give deference to any of the trial court's findings of fact that are supported by the record. In our review we do examine the trial court's findings, but only to determine whether the motion justice has given them appropriate deference. We do not directly review the decision of the trial court.
Both the Federal and the Maine Constitutions protect persons in this State from being put twice in jeopardy of life or limb for the same offense. See U.S. Const. amend. V, (held applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)); Me. Const. art. I, § 8. The guarantee against double jeopardy protects the right of the accused to have a trial completed by a particular tribunal. Rowe, 480 A.2d at 782. Despite this guarantee, the prohibition against double jeopardy usually will not bar retrial of the defendant if the defendant consented to the mistrial declaration. State v. Flick, 495 A.2d 339, 344 (Me.1985) (quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)).
The State argues that Friel did consent to the mistrial. The motion justice, however, found no consent to the mistrial order. We cannot say that his finding is clearly erroneous. Although defense counsel moved for a mistrial three times during the course of the trial, the court expressly denied the first two motions and implicitly denied the third by continuing with the trial. Upon later declaring the mistrial, the trial court made no inquiry into whether the defendant wished to renew the motion. A court cannot raise the mistrial issue sua sponte and deem the defendant to have consented via a prior denied motion. Flick, 495 A.2d at 345. Allowing the court to revive the defendant's motion sua sponte would deprive the defendant of his right to retain primary control over the course of the...
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State v. Richard
...without either the defendant's consent or any manifest necessity, see Green v. United States, 355 U.S. 184, 188 (1957); State v. Friel, 500 A.2d 631, 634 (Me. 1985). [¶15] The second and third enumerated methods by which jeopardy terminates are inapplicable here—Shirey was not convicted, an......
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...failed to adequately explore alleged conflict and did not consider alternatives to mistrial). Finally, while the court in State v. Friel, 500 A.2d 631 (Me. 1985) did hold that courts should resort to less drastic options when counsel is removed for ineffectiveness, as with Harrison, Phetsay......
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...trial standard when the defendant moves for a mistrial. See, e.g., State v. Ardolino (1997), 1997 ME 141, 697 A.2d 73, 79; State v. Friel (Me.1985), 500 A.2d 631, 634; Smith v. State (1994), 263 Ga. 782, 439 S.E.2d 483, 485; Byrd v. State (1992), 262 Ga. 426, 420 S.E.2d 748, 749; State v. S......
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...because of mere possibility that the defendant might, at some later date, claim ineffective assistance of counsel). In State v. Friel, 500 A.2d 631, 635 & n. 3 (Me.1985), the Supreme Judicial Court of Maine observed that, even where a trial judge is correct in finding ineffective assistance......