State v. Nab

• Decision Date: 02 June 1987
• Docket Number: No. 16148,16148
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Randy Dale NAB, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 423

742 P.2d 423

113 Idaho 168

STATE of Idaho, Plaintiff-Respondent, v. Randy Dale NAB, Defendant-Appellant.

No. 16148.

Court of Appeals of Idaho.

June 2, 1987.

Randy Nab, pro se.

Randy J. Stokes, Twin Falls for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., for plaintiff-respondent.

SWANSTROM, Judge.

Randy Nab was convicted of delivery of a controlled substance by the second jury impanelled to hear the case. The first trial ended when the judge declared a mistrial after a juror failed to appear on the second day of trial. Nab has appealed, presenting four issues: (1) whether he was exposed to double jeopardy in violation of article 1, § 13, of the Idaho Constitution and the fifth amendment to the United States Constitution; (2) whether, at his second trial, he was denied a fair trial when he was not allowed to use prior felonies and witness bias for impeachment; (3) whether the admission of marital communications constituted reversible error; and (4) whether a jury instruction unconstitutionally shifted the burden of proof of an element of the crime. For the reasons that follow we uphold both the denial of Nab's motion to dismiss on double jeopardy grounds and his subsequent conviction.

I

We first address the double jeopardy claim. On day one of the first trial a jury was selected and sworn. No alternate juror was selected. The state's first witness testified briefly and the trial was recessed until the next day. On the following morning a juror did not show up. In the presence of the remaining jurors, defense counsel immediately moved to dismiss "on the grounds that jeopardy has attached" and the trial could not proceed. ¹ The prosecutor indicated that the state was ready to go forward and opined that, "at the most we are looking at a mistrial." The judge responded that he was "not going to rule on the question of former jeopardy. I will treat the motion as a motion to declare a mistrial which I will do." He immediately informed the jury that, "[a]pparently I have a situation with a juror whose car won't start this morning or for some reason can't be here and has flatly told me she is not going to be here...."

The state contends that the trial judge interpreted Nab's motion to dismiss as one for a mistrial and granted it; or, alternatively, that the mistrial was declared sua sponte with manifest necessity. First, we do not consider Nab's motion to dismiss as a motion for a mistrial, nor do we treat his silence in the face of the mistrial declaration, in the presence of the jury, as an indication that he considered his motion as having been changed to one for a mistrial. Thus, although it is not dispositive, we will briefly explain why we cannot agree with the state's argument that the district court should be sustained in declaring a mistrial sua sponte "with manifest necessity."

The double jeopardy clauses serve not only to preserve the integrity of final judgments and to protect against multiple punishments for the same offense, but they also protect an accused from the burdens of facing a second trial when the first does not proceed to judgment. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Thus, jeopardy attaches when the jury is impanelled and sworn. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). This rule embraces the right of the defendant to have his confrontation with society concluded by the first sworn jury and is such an integral part of the constitutional underpinnings of double jeopardy that the rule is binding on the states as an element of due process through the fourteenth amendment. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).

The defendant's "valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Arizona v. Washington, 434 U.S. 497, 503 n. 11, 98 S.Ct. 824, 829 n. 11, 54 L.Ed.2d 717 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)). To override a defendant's interest in finally concluding his "confrontation with society" it must be shown that a sua sponte mistrial, declared without defendant's consent, resulted from a manifest necessity, or that the ends of public justice would be defeated by continuation of the trial. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824). The decision to declare a sua sponte mistrial rests with the sound discretion of the trial judge. Arizona v. Washington, supra; State v. Talmage, 104 Idaho 249, 658 P.2d 920 (1983).

The state argues that there was a "manifest necessity" shown for a sua sponte declaration of mistrial. Alternatively, the state argues that, in any event, Nab consented to the mistrial. On the present record we cannot accept either of these arguments. Briefly stated, the record simply does not show that the trial judge considered available alternatives to a mistrial or gave counsel a timely opportunity to be heard on the subject. Brady v. Samaha, 667 F.2d 224 (1st Cir.1981); United States v. Smith, 621 F.2d 350 (9th Cir.1980); United States v. Sanders, 591 F.2d 1293 (9th Cir.1979). The cases establish that it is the court's duty to obtain sufficient information to enable it to consider alternatives to a mistrial. United States v. Jorn, supra; Douglas v. United States, 488 A.2d 121 (D.C.App.1985); People v. Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77 (1986). The constitution does not require the trial judge to state explicitly on the record the reasons leading to a finding of manifest necessity, but the record must support explicit or implicit findings of manifest necessity. Arizona v. Washington, supra; United States v. Sanders, supra.

The state has also contended that Nab, by failing to object to the characterization of his dismissal motion, consented to the sua sponte mistrial. We note that the jury was present when the mistrial was declared. No opportunity was given for an objection before the decision was made. Mere silence by Nab and his counsel following the ruling is not enough to infer consent. State v. Werneth, 101 Idaho 241, 611 P.2d 1026 (1980); Henderson v. Wright, 533 F.Supp. 1373 (D.Maine, 1982).

Our foregoing discussion is deliberately sketchy because findings of manifest necessity for a mistrial or of consent are not dispositive. Regardless of whether such findings could be made in this case, we nonetheless hold that Nab's second trial was not barred by the double jeopardy clauses. We base this ruling on the fact that--at the first trial--Nab immediately moved for a dismissal when the juror did not appear. If the relief he requested had been granted, then a reprosecution would not have offended the double jeopardy clauses. United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977). In Scott the Court was concerned with the appealability by the government of dismissals granted after jeopardy attached. There the court stated:

We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause.... Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression does not relieve a defendant from the consequences of his voluntary choice.

United States v. Scott, 437 U.S. at 98-99, 98 S.Ct. at 2198.

In Sedgwick v. Superior Court for District of Columbia, 584 F.2d 1044 (D.C.Cir.1978), the defendant moved for dismissal when it was learned during trial that there was a Brady problem. The Court sua sponte granted a mistrial. The appellate court did not view the case as one involving the manifest necessity standard.

We are instructed not to apply the Double Jeopardy Clause mechanically, but to look beyond the labels of trial motions and rulings to discern the actual intentions of the parties and trial court. [United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977).] Such an approach in this case impels the conclusion that the defendant was not interested in obtaining a verdict from the first jury. Therefore we do not believe that permitting a retrial in this case does violence to the values underlying the Double Jeopardy Clause. [Footnotes omitted.]

Id. at 1046-47. Likewise, we find that Nab relinquished his interest in obtaining a verdict from the first jury when he moved for a dismissal not based on the merits of the case.

Sedgwick did not address the issue of the waiver of a constitutional right. There is the implication that such a waiver occurs when a defendant moves for a dismissal or for a mistrial. Idaho recognizes the presumption against waiver of fundamental constitutional rights. State v. Werneth, supra. This proposition as set forth in Werneth derives from Abercrombie v. State, 91 Idaho 586, 428 P.2d 505 (1967). Abercrombie in turn was based on Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Both Abercrombie and Johnson involved the necessity of an intelligent and competent waiver of counsel. Here, it cannot be seriously contended that when Nab's counsel moved for dismissal Nab made a voluntary, knowing and intelligent waiver of his constitutional right not to be twice placed in jeopardy. However, subsequent federal cases have declined to place the double jeopardy guarantee in the category of fundamental rights that require a knowing, intelligent and voluntary waiver. United States v. Dinitz, supra; United States v. Smith, supra; United States v. Bobo, 586 F.2d 355 (5th Cir.1978), cert. denied sub nom ...