State v. Robinson

• Decision Date: 27 August 2008
• Docket Number: No. 35623-6-II.,35623-6-II.
• Citation: 191 P.3d 906,146 Wn. App. 471
• Parties: STATE of Washington, Respondent, v. Terrance Eugene ROBINSON, Appellant.
• Court: Washington Court of Appeals

191 P.3d 906

146 Wn. App. 471

STATE of Washington, Respondent, v. Terrance Eugene ROBINSON, Appellant.

No. 35623-6-II.

Court of Appeals of Washington, Division 2.

August 27, 2008.

Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Lori Ellen Smith, Lewis County Prosecuting Attorney's Office, Chehalis, WA, for Respondent.

HUNT, J.

¶ 1 Terrance Robinson appeals his jury convictions for first degree theft and trafficking in stolen property. He argues that his retrial, following a State-initiated mistrial over his objection, violated the constitutional prohibition against double jeopardy.¹ We agree, reverse, and remand to the trial court to dismiss the charges with prejudice.

FACTS

¶ 2 The State charged Robinson and Robert Church with second degree burglary (count one), first degree theft (count two), and first degree trafficking in stolen property (count three), arising from the theft and sale of black walnut timber planks stored in Daniel Steel's outbuilding. Trial began on September 5, 2006.

¶ 3 Steel testified that he posted a flier in an attempt to locate his missing planks, but neither party introduced the flier as an exhibit. Three days into trial, the bailiff approached the prosecutor and told him that the jury wanted to see the flier.² The prosecutor told the bailiff to repeat his statement to defense counsel, which he did.

I. Mistrial

¶ 4 The State then moved for a mistrial; Robinson objected. The trial court heard oral argument on the issue for less than nine minutes. The trial court did not conduct a hearing or interview the bailiff or any juror. Robinson continued to object to a mistrial. The trial court ruled that the bailiff had committed misconduct and granted the State's motion for a mistrial. Without providing a factual basis for its ruling, the trial court reasoned that (1) the jury did not follow the trial court's instruction to refrain from discussing the evidence before deliberations and (2) the bailiff's comment would affect the attorneys' trial strategies, perhaps causing them to admit Steel's flier into evidence or to elicit more testimony about it.

¶ 5 The trial court acknowledged on the record that granting a mistrial would raise double jeopardy issues. But it declined to consider the issue and did not determine whether there was a "manifest necessity" for a mistrial, in spite of Robinson's objection.

¶ 6 Robinson moved to dismiss because after the court's declaration of a mistrial, a retrial would violate the constitutional double jeopardy prohibition. Robinson argued primarily that the trial court's failure to question the jurors or bailiff rendered the State-initiated mistrial procedurally defective. He argued, "[T]he question is, what did [the trial judge] base his granting of [the State's] request for a mistrial on? And the answer is we don't know." Report of Proceedings (RP) (Nov. 14, 2006) at 2. Counsel asserted that (1) on the record, there was no sound basis for concluding that the bailiff or jury had committed misconduct and, therefore, no reason to declare a mistrial; (2) based on the existing record, the bailiff may have overheard a single juror wonder out loud whether the parties would offer the flier into evidence, a factual scenario that would not constitute misconduct; (3) in the absence of an evidentiary inquiry, the record did not support a mistrial based on manifest necessity; and (4) the retrial would prejudice Robinson because the State could reformulate its case after the mistrial and obtain the testimony of a witness who did not appear at the first trial.

¶ 7 The trial court denied Robinson's motion to dismiss, ruling that the mistrial was based on "manifest necessity" caused by juror and bailiff misconduct. Nevertheless, the trial court candidly commented, "Do I agree that perhaps further inquiry would have been beneficial? Yes, I do. I think that's a valid issue." RP (Nov. 14, 2006) at 18.

II. Retrial

¶ 8 The State tried Robinson a second time. The jury convicted him of first degree theft (count two) and first degree trafficking in stolen property (count three). It found him not guilty of the burglary charge (count one).

¶ 9 Robinson appeals.

ANALYSIS

¶ 10 Robinson argues that the constitutional prohibition against double jeopardy barred his retrial after the trial court declared a mistrial on the State's motion over his objection. We agree.

I. Double Jeopardy Prohibition

¶ 11 A basic tenet of our constitutional freedoms is the prohibition against a second trial for the same offense: No person shall be "twice put in jeopardy of life or limb" for the same offense. U.S. Const. amend. V. Mirroring the federal constitution, article I, section 9 of the Washington Constitution provides: "No person shall ... be twice put in jeopardy for the same offense."

¶ 12 Generally, the double jeopardy prohibition guards against government oppression. State v. Maestas, 124 Wash.App. 352, 358, 101 P.3d 426 (2004) (quoting United States v. Welch, 928 F.2d 915, 917 (10th Cir.1991)). Specifically, the prohibition protects defendants from running the same "gauntlet" more than once. State v. Corrado, 81 Wash.App. 640, 646 n. 11, 915 P.2d 1121 (1996) (quoting Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)). It also prohibits the State from having more than one opportunity to convict a defendant for the same crime. Corrado, 81 Wash.App. at 646 n. 12, 915 P.2d 1121 (citing Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978)). And, most relevant here, the double jeopardy prohibition protects the defendant's "valued right to have his trial completed by a particular tribunal." State v. Melton, 97 Wash.App. 327, 331-32, 983 P.2d 699 (1999) (quoting Arizona v. Washington, 434 U.S. at 519, 98 S.Ct. 824).

¶ 13 Once a jury has been empanelled and sworn, jeopardy attaches. State v. Eldridge, 17 Wash.App. 270, 276, 562 P.2d 276 (1977) (citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963)), review denied, 89 Wash.2d 1017, 1978 WL 61574 (1978). Once jeopardy has attached, the court must determine whether a retrial is barred. Eldridge, 17 Wash.App. at 276, 562 P.2d 276.

II. Manifest Necessity

¶ 14 Standards governing whether retrial is barred differ dramatically depending on whether the defendant requested the mistrial or whether the State sought a mistrial over the defendant's objection. When the defendant requests a mistrial, double jeopardy does not bar retrial.³ State v. Wright, 131 Wash.App. 474, 484, 127 P.3d 742 (2006) (citing United States v. Scott, 437 U.S. 82, 99, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)); but see State v. Martinez, 121 Wash.App. 21, 35, 86 P.3d 1210 (2004) (holding that retrial may be barred as a violation of the right to fair trial if the defendant requested a mistrial due to outrageous government conduct).

¶ 15 In contrast, a mistrial without the defendant's consent must be based on "manifest necessity" in order to circumvent the double jeopardy prohibition. Melton, 97 Wash.App. at 331, 983 P.2d 699. When the State seeks a mistrial over the defendant's objection, "`extraordinary and striking circumstances' must exist before the judge's discretion can come into play." State v. Jones, 97 Wash.2d 159, 164, 641 P.2d 708 (1982). The trial court must "engage in a scrupulous exercise of judicial discretion before foreclosing a defendant's valued right to have his trial completed by a particular tribunal." Melton, 97 Wash.App. at 331-32, 983 P.2d 699 (quoting State v. Browning, 38 Wash.App. 772, 775, 689 P.2d 1108 (1984) (footnote and internal quotations omitted)). "In evaluating the manner in which the trial court exercised its discretion, the fundamental question is whether it acted in a precipitate or unreasoning fashion." Melton, 97 Wash.App. at 333, 983 P.2d 699 (citing Arizona v. Washington, 434 U.S. at 514-15, 98 S.Ct. 824).

A. Standard of Review

¶ 16 Courts consider three factors to determine whether a State-initiated mistrial was properly based on manifest necessity:

(1) whether the court acted precipitately ... or gave both defense counsel and the prosecutor full opportunity to explain their positions; (2) whether it accorded careful consideration to the defendant's interest in having the trial concluded in a single proceeding; and (3) whether it considered alternatives to declaring a mistrial.

Melton, 97 Wash.App. at 332, 983 P.2d 699 (footnotes and internal quotations omitted). Examining these factors as they apply here, we hold that Robinson's mistrial was not based on manifest necessity. We address each factor in turn.

B. "Precipitate" Action

¶ 17 First, the trial court failed to engage in a "scrupulous exercise of judicial discretion." Melton, 97 Wash.App. at 332, 983 P.2d 699 (quoting Browning, 38 Wash.App. at 775, 689 P.2d 1108). On the contrary, the trial court acted "precipitately" by failing to question the bailiff and affected jurors in a fact-finding hearing.⁴ Instead, it allowed less than nine minutes of unprepared oral argument by the parties' attorneys before rendering its decision.⁵

1. Bailiff misconduct

¶ 18 The trial court ruled that the bailiff committed misconduct, but it did not establish any factual basis for its ruling. Although there are theories that might arguably support this ruling, the record is insufficiently developed to support them.⁶ In short, the trial court did not ask the questions necessary to determine whether the bailiff committed misconduct. Thus, the record before us on appeal is insufficient to determine whether a mistrial was warranted based on bailiff misconduct. We hold that the trial court acted "precipitately" when it declared a mistrial without developing the necessary facts to determine the issue of bailiff misconduct.

2. Juror misconduct

¶ 19 The trial court also failed to interview any jurors who might have engaged in or have been affected by juror misconduct.⁷ We cannot tell from the...