State v. Kornelson, No. 118,091

• Decision Date: 02 July 2020
• Docket Number: No. 118,091
• Citation: 466 P.3d 892
• Parties: STATE of Kansas, Appellee, v. Grady Allen KORNELSON, Appellant.
• Court: Kansas Supreme Court

466 P.3d 892

STATE of Kansas, Appellee,

v.Grady Allen KORNELSON, Appellant.

No. 118,091

Supreme Court of Kansas.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 15, 2019. Opinion filed July 2, 2020.

Kai Tate Mann, of Kansas Appellate Defender Office, was on the briefs for appellant.

Natasha Esau, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Biles, J.:

The second jury to hear his case convicted Grady Kornelson of driving under the influence and illegal transportation of liquor. The first trial ended when the court declared a mistrial without Kornelson's consent because of a jury deadlock. He appeals his convictions, arguing the second trial violated his right against double jeopardy as guaranteed by the United States Constitution. He also claims the jury instruction on the State's burden of proof improperly discouraged the jury from exercising its nullification power. A Court of Appeals panel affirmed. State v. Kornelson , No. 118,091, 2019 WL 1213248, at *6 (Kan. App. 2019) (unpublished opinion). We agree with the panel's result, although we do so by applying "manifest necessity" to the double jeopardy issue, rather than the prosecutorial "goading" standard it used.

We hold "manifest necessity" is the correct measure for declaring a jury deadlocked under the United States Supreme Court's double jeopardy caselaw when the defendant does not object or consent to the mistrial. The contrary holding in State v. Graham , 277 Kan. 121, 83 P.3d 143 (2004), is overruled. We also hold the district court appropriately declared a mistrial under the circumstances based on that manifest necessity standard. Finally, we reject the jury instruction challenge. See State v. Patterson , 311 Kan. 59, 68-69, 455 P.3d 792 (2020). We affirm Kornelson's convictions.

FACTUAL AND PROCEDURAL BACKGROUND

As a result of a traffic stop, the State charged Kornelson with felony driving under the influence under alternative theories of driving with excessive blood or breath alcohol concentration and driving while incapable of safely operating a vehicle because of alcohol impairment. See K.S.A. 2019 Supp. 8-1567(a)(2), (3). It also charged him with illegally transporting liquor in an open container and operating a vehicle without a previously required ignition interlock device. See K.S.A. 2019 Supp. 8-1017(a)(4) (operating vehicle without required interlock device); K.S.A. 2019 Supp. 8-1599(b) (illegal transportation). Kornelson pled no contest to the ignition interlock charge and was ordered to pay a $100 fine and to restart his ignition interlock requirement period. He went to trial on the remaining charges.

In the first trial, the evidence was presented in a single afternoon. Shortly after 4:30 p.m., the court instructed the jury, and the parties presented their arguments. The court sent the jury to deliberate, but the record does not reflect what time. The district court anticipated the arguments and instructions would last until 5:15 p.m. About an hour and 15 minutes after that, the jury sent a note to the court, saying "Count 1 Hung" and "Count 2 Hung[.]" Counts 1 and 2 were the alternate DUI charges. The court went back on the record with the jury, Kornelson, and the parties' attorneys present:

"The Court: ... [M]y court reporter ... has advised me that you have advised her that you feel like you cannot reach a unanimous verdict.... Is that an accurate statement?

"[Foreperson]: Yes ma'am, at this point in it.

"The Court: It is 6:30 at night and everyone is probably kind of weary and you could come back in the morning and what I would do is have you convene at 8:30 a.m. and as soon as I would be advised you're all present, I would give the go ahead to begin deliberating again. I will ask you, [jury foreperson], do you think that that might be a fruitful course of action?

"[Foreperson]: Well, on one of the counts—

"The Court: Okay. Now—

"[Foreperson]: That's a yes or no?

"The Court: That's a yes or no.

"[Foreperson]: Um, we will have access to all of the information we had today again; is that correct, the evidence?

"The Court: Yes.

"[Foreperson]: Okay. I guess I would have to ask my team whether or not they felt it would be worthwhile. I don't have that much say over that, and I don't want to say something that might be incorrect. That's all. Does that make sense?

"The Court: Would it create a hardship on any of you and if you will just show me by hands, if I required you to come back in the morning? [Juror A.], it would?

"[Juror A.]: I'm down one employee and I'm the only other person so this, yes, it is going to be a hardship.

"The Court: Okay. Alright. Well, you have certainly given it your all. It's a long day to be here from nine until 6:30. I'm going to declare what we call a hung jury. That sounds kind of harsh. We're not going to do anything to you but I do appreciate your service. I realize that is for some of you perhaps a frustrating outcome, and but it is a legitimate outcome and sometimes it happens. So I believe you have been given the work releases that you need. Those of you, Ms. Potter has them. You are now released from the prohibition about talking because the case is done. So if you want to talk to anyone about the case, you are free to do that. And you're also free to go with my thanks."

Neither Kornelson nor the State objected to the trial court discharging the jury.

After the second trial, a new jury found Kornelson guilty on both DUI theories and the open container charge. The district court sentenced him to 6 months' jail time followed by 12 months' probation for the DUI based on excessive blood or breath alcohol content. It fined him $100 for the open container.

Kornelson appealed, arguing for the first time to the Court of Appeals that the second trial violated his right against double jeopardy because the record did not reflect a "manifest necessity" for the mistrial. He also claimed the district court erred by giving a reasonable doubt instruction that he believes prohibited the jury from exercising its nullification power.

A panel affirmed the convictions. Kornelson , 2019 WL 1213248, at *6. It reached the merits of the double jeopardy claim after concluding Kornelson properly invoked exceptions to the general rule prohibiting new issues from being raised for the first time on appeal. It then rejected the claim on its merits. 2019 WL 1213248, at *3. It held he failed to show prosecutorial conduct that "goaded" him into not objecting to the mistrial, citing Graham . It also held there was no error in the reasonable doubt instruction. 2019 WL 1213248, at *6.

Kornelson timely petitioned this court for review of the panel's decisions, which we granted. The State did not cross-petition for review of the panel's preservation holding on the double jeopardy issue. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

DOUBLE JEOPARDY DOES NOT BAR THE SECOND TRIAL

To decide whether Kornelson's retrial violated double jeopardy when the district court held the jury was deadlocked after a brief, inconclusive exchange with two jurors and just over an hour of deliberation, two questions must be resolved. First, what test applies? And second, did double jeopardy bar Kornelson's second trial under the circumstances using that standard?

Standard of review

"Whether a particular criminal defendant's protection against double jeopardy was violated is a question of law over which [the court has] unlimited review." State v. Morton , 283 Kan. 464, 468, 153 P.3d 532 (2007).

Manifest necessity applies

For its test, the panel required Kornelson to establish " ‘governmental conduct’ " " ‘intended to provoke [him] into seeking a mistrial,’ " i.e. "goading," because he did not object to the court's jury deadlock determination. Kornelson , 2019 WL 1213248, at *3. To justify this, the panel relied on our court's 2004 decision in Graham , 277 Kan. 121, 83 P.3d 143, which had similar facts. There, the jury informed the district court twice it was deadlocked, so the court declared a mistrial. The court did not consult defendant before doing so, and defense counsel did not object. The Graham court held the "manifest necessity" standard did not apply because defendant did not object at the time. It explained this in just two sentences:

"In State v. Wittsell , 275 Kan. 442, 446, 66 P.3d 831 (2003), this court stated: ‘The long-established test applied where the first trial was terminated over objection of the defendant is the "manifest necessity" standard. [Citation omitted.] Retrial is constitutionally permissible only where a high degree of necessity supports the mistrial.’ (Emphasis added.) Since Graham did not object to the granting of a mistrial, the ‘manifest necessity’ standard is not applicable." 277 Kan. at 133, 83 P.3d 143.

Kornelson argues Graham cannot be reconciled with United States Supreme Court precedent interpreting the Double Jeopardy Clause. We agree.

"The United States Supreme Court's interpretation of the United States Constitution is controlling upon and must be followed by state courts." State v. Lawson , 296 Kan. 1084, Syl. ¶ 1, 297 P.3d 1164 (2013). The Fifth Amendment to the United States Constitution provides that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." It applies to the states through the Fourteenth Amendment. Benton v. Maryland , 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Section 10 of the Kansas Constitution Bill of Rights also contains a protection against double jeopardy that is " ‘equivalent to the protection guaranteed in the United States Constitution.’ " State v. Wittsell , 275 Kan. 442, 446, 66 P.3d 831 (2003) ; see State v....