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State v. David Nielsen

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MAINE SUPREME JUDICIAL COURT			      	                   Reporter of Decisions
Decision:	2000 ME 202
Docket: 	Cum-99-589
on briefs:	September 15, 2000
Decided:	November 16, 2000



	[¶1]  David Nielsen appeals an order entered in the Superior Court
(Cumberland County, Perkins, A.R.J.) denying his motion to dismiss the
criminal indictment brought against him.{1}  Nielsen contends that by
refusing to dismiss the indictment, the court violated his rights under the
Double Jeopardy Clauses of the United States and Maine Constitutions.  We
agree with Nielsen and remand to the Superior Court with instructions to
enter a judgment dismissing the indictment.
	[¶2]  On December 10, 1998, Nielsen was indicted on charges of
criminal threatening with a dangerous weapon and assault pursuant to
17-A M.R.S.A. §§ 207, 209 (1983 & Supp. 1999).  On April 22, 1999, the
jury trial date for the two charges in the Superior Court (Bradford, J.), the
State indicated that although all of its other witnesses were available, its key
witness and the alleged victim, Virginia Burke, could not be located, even
though she had been subpoenaed and a warrant issued for her arrest.  The
State continued its attempts to find Burke, and decided to proceed with its
other witnesses.
	[¶3]  The jury was impaneled, four State's witnesses were examined,
and the case was then continued over Nielsen's objection to allow the State
time to locate Burke.  When the trial reconvened four days later, Burke had
still not been located.  Following the State's disclosure that it intended to
rest on the evidence already presented without Burke's testimony, Nielsen
moved for a judgment of acquittal, citing a lack of substantive evidence as
well as a violation of his right of confrontation.  The State then moved for a
mistrial.  The court found that Burke was unavailable as a witness through no
fault of the State, and granted the mistrial on grounds of public necessity
based on the "inability of the state to compel the attendance of Miss Burke."
	[¶4]  Nielsen later moved to dismiss the indictment, which had been
amended in the meantime, on the ground that a second trial would violate
his double jeopardy rights.  It is from the court's denial of the motion to
dismiss that Nielsen appeals.
	[¶5]  The Double Jeopardy Clauses of the U.S. Constitution,{2} applied to
the states through the Fourteenth Amendment, Benton v. Maryland,
395 U.S. 784, 794 (1969), as well as the Maine Constitution{3} guarantee
freedom from multiple trials for the same offense in order to protect against
the emotional, financial, and societal burdens of defending oneself
repeatedly.  A stronger second prosecution may be a consequence of a
mistrial, but cannot be its purpose.  A crucial aspect of double jeopardy is
the right of the defendant to have his case tried completely by one tribunal. 
Wade v. Hunter, 336 U.S. 684, 689 (1949).  Double jeopardy attaches when
the jury is impaneled in a jury trial.  State v. Rowe, 480 A.2d 778, 781 (Me.
1984).  A declaration of mistrial after a jury is impaneled will thus prevent
the government from attempting prosecution again on the same charges
except in certain limited circumstances-when the defendant consents to
the mistrial,{4} or a manifest necessity for the mistrial exists.  State v. Landry,
600 A.2d 101, 102 (Me. 1991).
	[¶6]  The State may retry a defendant following a declaration of
mistrial only when "taking all the circumstances into consideration, there is
a manifest necessity for the act, or the ends of public justice would
otherwise be defeated." United States v. Perez, 22 U.S. (9 Wheat.) 579, 580
(1824).  The manifest necessity exception is narrow, and should be used
sparingly, only "with the greatest caution, under urgent circumstances, and
for very plain and obvious cases . . . ."  Landry, 600 A.2d at 102 (quoting
Perez, 22 U.S. at 580).  Classic examples of manifest necessity include:  a
"genuinely deadlocked" jury; discovery of bias among the jurors; illness of a
juror, judge, or the defendant; or when a fixed court term ends prior to
verdict.  State v. Slorah, 118 Me. 203, 209, 106 A. 768, 771 (1919); State v.
Derby, 581 A.2d 815, 817 (Me. 1990).
	[¶7]  On appeal of a denial of a motion to dismiss on grounds of double
jeopardy following a mistrial based on manifest necessity, we review the
ruling of the motion justice to determine whether the findings of fact of the
trial justice, and of the motion justice, are supported by substantial
evidence, and whether the legal conclusion is correct.  Landry, 600 A.2d at
102.  On a motion by a defendant to dismiss the indictment following a
mistrial, it is the State's burden to show that the mistrial was manifestly
necessary.  State v. Friel, 500 A.2d 631, 634 (Me. 1985).
	[¶8]  It is undisputed in this case that jeopardy had attached at the
impaneling of the jury on April 22, 1999.  We must determine whether the
unavailability of the State's key witness was a sufficient basis on which to
conclude that there was a manifest necessity to declare a mistrial and to
remove the second prosecution from the scope of double jeopardy
protection.  Friel, 500 A.2d at 634; Landry, 600 A.2d at 102.  In the
circumstances of this case, we conclude that it was not.
	[¶9]  The State was aware that its most important witness was
unavailable before the trial began.  It could have sought a continuance, or
dismissed the case without prejudice prior to trial and reindicted Nielsen at
a later time.  The State chose instead to proceed with the trial and present
those witnesses that were available.  Only after Nielsen moved for a
judgment of acquittal did the State move for a mistrial.
	[¶10]  The State contends that the unavailability of its key witness
through no fault of the State is sufficient reason for the declaration of a
mistrial.  Nielsen argues that the absence of a witness can never constitute
manifest necessity.  Although Nielsen is correct that the law does not
encourage mistrials based on the unavailability of prosecution witnesses,
Arizona v. Washington, 434 U.S. 497, 508 (1978), we reject the bright line
rule he proposes and conclude that the determination should be made
instead on a case by case basis.
	[¶11]  There have been very few cases, however, when double jeopardy
did not operate to bar the retrial of a defendant following a mistrial based on
a witness's unavailability.{5}  This is not one of those few cases.
	[¶12]  In choosing to proceed with the jury trial, the State assumed
the risk of not finding its key witness, and decided to rest on the evidence
presented through other witnesses.  To require Nielsen to stand trial a
second time would be to permit the State to secure a kind of post-jeopardy
continuance, allowing it to gather more evidence to bolster its case.  This
the Double Jeopardy Clauses do not permit.  In view of the narrowness of the
manifest necessity standard and the existence of other alternatives available
to the State, the denial of Nielsen's motion to dismiss the indictment was
	The entry is:
Denial of the motion to dismiss vacated. 
Remanded to the Superior Court for the entry
of a judgment of dismissal.

Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: William S. Norbert, Esq. One India Street Portland, Me 04101
FOOTNOTES******************************** {1} . "[A] pretrial order denying a motion to dismiss based on double jeopardy grounds is immediately appealable under [an] exception to the final judgment rule . . . ." State v. Lebroke, 589 A.2d 941, 942-43 (Me. 1991). {2} . "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ." U.S. Const. amend. V. {3} . "No person, for the same offense, shall be twice put in jeopardy of life or limb." Me. Const. art. I, § 8. {4} . Nielsen did not consent to the mistrial in this case. {5} . In Wade, for example, manifest necessity was upheld for mistrial in a court-martial where American troops' advances into Germany during World War II necessitated movement of the command post holding the court-martial too far from the location of crucial civilian witnesses, rendering them unavailable. Wade, 336 U.S. at 692. Retrial was permitted in another case when two witnesses for the State invoked the privilege against self-incrimination in order to dispose of their own charges before testifying. Brock v. North Carolina, 344 U.S. 424, 426-28 (1953), overturned in part by Benton v. Maryland, 395 U.S. 784 (1969).