State v. Voigt

• Decision Date: 26 June 2007
• Docket Number: No. 20060271.,20060271.
• Citation: 734 N.W.2d 787,2007 ND 100
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Shane VOIGT, Defendant and Appellant.
• Court: North Dakota Supreme Court

734 N.W.2d 787

2007 ND 100

STATE of North Dakota, Plaintiff and Appellee v. Shane VOIGT, Defendant and Appellant.

No. 20060271.

Supreme Court of North Dakota.

June 26, 2007.

Lloyd Clayton Suhr, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Thomas John Glass, Bismarck, N.D., for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Shane Voigt appealed from a criminal judgment entered on a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2) to gross sexual imposition. We conclude double jeopardy bars prosecution of Voigt for this charge, and we reverse and remand to allow him the opportunity to withdraw his guilty plea.

I

[¶ 2] On August 4, 2004, Voigt was charged with gross sexual imposition and an attorney was appointed to represent him. At a change of plea hearing on September 23, 2005, Voigt stated he did not want to change his plea, he no longer wanted his court-appointed attorney to represent him, and he would hire his own attorney. The district court judge told Voigt's court-appointed attorney that he was no longer Voigt's attorney of record and had no further responsibilities in the case. A jury trial was scheduled for January 12, 2006.

[¶ 3] On December 13, 2005, Voigt, while incarcerated for other crimes, wrote a letter to the district court stating he had intended to hire a lawyer to represent him on the gross sexual imposition charge but could not afford to do so. Voigt requested a new court-appointed attorney. The clerk of district court responded with a letter incorrectly stating that Voigt's first court-appointed attorney remained his attorney for the gross sexual imposition case.

[¶ 4] Voigt appeared at his January 12, 2006, trial without an attorney and told the district court judge he presumed his first court-appointed attorney was representing him at the trial based on the clerk of court's letter. Nevertheless, the court proceeded with voir dire and a jury was empaneled and sworn for the trial. After the jury was excused from the courtroom, Voigt again requested that an attorney be appointed to represent him, but the court denied the request and called a recess. During a meeting in the judge's chambers, the court informed the parties that "I'm not comfortable proceeding with this trial." The court explained:

I just don't think I have any choice in this matter. Had the clerk not sent that letter, I wouldn't even be hesitating but when the clerk of court sends somebody something, I think they have the right to rely on that and when I was talking my way through the record earlier, the more I talked, the more I realized that it wouldn't be—Mr. Voigt's constitutional rights would be violated. What would happen is we'd have a trial, if he's found guilty there'd be an appeal, it would be reversed and then we'd have to do this all over again. So what I'm going to do is discharge the jurors. I'm going to allow you Mr. Voigt to fill out an application for court-appointed attorney because at this point Mr. Hager is no longer your attorney. I also think I'm probably going to recuse myself from any further proceedings in this case because I have personal feelings about your behavior in this case Mr. Voigt that would make it so I probably couldn't be fair to you. The matter will be reset for trial as soon as possible.

[¶ 5] The prosecutor expressed "concern about double jeopardy since we've now had a jury sworn" and requested a ruling on the issue. The district court responded:

Right. I'm not declaring a mistrial because if I did that, because the jury has been sworn, there would be a double jeopardy issue. I am granting a continuance so that Mr. Voigt can secure counsel pursuant to his request to do so. I would also think, and maybe mistaken, that he would waive any double jeopardy argument because of his continuous requests for court-appointed attorney. There was no allegation of misconduct on the part of the State during the trial—or jury selection process. The issue was whether Mr. Voigt should have legal counsel. He appropriately and correctly raised that issue. I would note that he raised that issue prior to the jury being sworn as well and if that—I don't know if that's dispositive or not but the simple fact is the Court should have honored that request earlier and did not and therefore I believe that it would not be violative of Mr. Voigt's rights against double jeopardy to simply continue the matter and reschedule it for trial.

After completion of the in-chambers conference, the district court discharged the jury and recused himself from any further proceedings in the case.

[¶ 6] A new attorney was appointed to represent Voigt, and on the morning of the March 29, 2006, rescheduled jury trial, before selection of a new jury was to occur, his attorney moved to dismiss the case on double jeopardy grounds. The district court denied the motion, concluding "[t]he motion technically is not timely . . ." Voigt then entered a conditional plea of guilty, reserving his right to challenge the court's denial of his motion to dismiss.

II

[¶ 7] The district court dismissed Voigt's motion to dismiss without reaching the merits of his double jeopardy argument because the court believed the motion was untimely.

[¶ 8] Double jeopardy is a defense that may be waived. See State v. O'Rourke, 544 N.W.2d 384, 385 (N.D.1996). In O'Rourke, at 385, a majority of this Court adopted the rule that a defendant's failure to raise a double jeopardy claim before trial does not result in a waiver, but the claim must be raised at some time in the proceedings before the district court. The majority declined to decide whether the defendant's claim made after trial and before the district court sentenced him was timely, and rejected the claim on the merits. Id. at 386. Two justices concurred in the result on the narrow ground that the defendant's claim was not timely because "[i]t is well established that a defendant must raise the double jeopardy issue before or during trial." Id. at 387 (Levine, J., concurring in the result).

[¶ 9] Under either the majority or minority opinions in O'Rourke, Voigt's double jeopardy claim made on the morning of his rescheduled jury trial was timely. The district court erred in dismissing his motion on this ground.

III

[¶ 10] Voigt argues that double jeopardy bars further prosecution for gross sexual imposition because jeopardy had attached at his January 12, 2006, trial when the jury was empaneled and sworn, and then was discharged from the case by the district court on its own motion. The State contends Voigt's double jeopardy rights were not violated by the district court's "continuance" of the jury trial after the jury had been empaneled and sworn.

A

[¶ 11] The double jeopardy provisions of the federal and state constitutions, and state law, prohibit successive prosecutions and punishments for the same criminal offense. See U.S. Const. amend. V; N.D. Const. art. I, § 12; N.D.C.C. § 29-01-07; State v. McClary, 2004 ND 98, ¶ 20, 679 N.W.2d 455. It is well settled that, in a jury trial, jeopardy attaches when the jury is empaneled and sworn. See, e.g., State v. Martin, 2001 ND 189, ¶ 10, 636 N.W.2d 447; State v. Foley, 2000 ND 91, ¶ 6, 610 N.W.2d 49; State v. Hammond, 498 N.W.2d 126, 128 (N.D.1993); State v. Jensen, 333 N.W.2d 686, 691 (N.D. 1983). Jeopardy attached in this case when the jury was empaneled and sworn.

[¶ 12] A defendant has a "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). Nevertheless, when a trial has terminated before a verdict, the conclusion that jeopardy has attached only begins the inquiry whether the double jeopardy clause bars retrial. See State v. Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201. The double jeopardy clause does not always prohibit retrial when the first trial has terminated before a verdict is rendered. See State v. Allesi, 216 N.W.2d 805, 814 (N.D.1974). Although the district court refrained from using the term "mistrial" in terminating the proceedings and referred to its action as a "continuance," the court's termination of the trial on its own motion in contemplation of further proceedings must be reviewed under the same standard as if it had granted a motion for a mistrial. See Lee v. United States, 432 U.S. 23, 31, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) (no distinction between dismissals and mistrials for purposes of double jeopardy analysis); 5 W. LaFave, J. Israel, and N. King, Criminal Procedure § 25.2(f) (1999) (dismissals are equivalent to mistrials); 2 D. Rudstein, C. Erlinder, and D. Thomas, Criminal Constitutional Law ¶ 11.01[3][h], at p. 11-108.2 (2006) ("A trial judge's action constitutes a `dismissal' when it terminates the proceedings against the defendant on a basis unrelated to his factual guilt or innocence"). In Linghor, at ¶¶ 21-22, we noted that "manifest necessity and the ends of public justice are the basic controlling principles in determining whether a mistrial was properly granted so that a defendant may be retried," and quoted from the Supreme Court's landmark decision in United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 580, 6 L.Ed. 165 (1824):

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the...