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Beattie v. State (6/24/2011) ap-2314

Beattie v. State (6/24/2011) ap-2314

                                                 NOTICE 

        The text of this opinion can be corrected before the opinion is published in thePacific 
        Reporter.   Readers are encouraged to bring typographical or other formal errors to 
        the attention of the Clerk of the Appellate Courts. 

                                303 K Street, Anchorage, Alaska  99501
 
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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

THOMAS M. BEATTIE,                                ) 
                                                  )          Court of Appeals No. A-10505 
                            Appellant,            )         Trial Court No. 3PA-08-197 CR 
                                                  ) 
             v.                                   ) 
                                                  )                O   P   I  N  I  O   N 
STATE OF ALASKA,                                  ) 
                                                  ) 
                            Appellee.             ) 
                                                  )             No. 2314 - June 24, 2011 

                 Appeal from the Superior Court, Third Judicial District, Palmer, 
                 Eric Smith, Judge. 

                 Appearances: Jane B. Martinez, Contract Attorney, and Quinlan 
                 Steiner, Public Defender, Anchorage, for the Appellant.  Diane 
                 L.  Wendlandt,   Assistant   Attorney   General,   Office   of   Special 
                 Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, 
                 Attorney General, Juneau, for the Appellee. 

                 Before:    Coats,    Chief   Judge,   and   Mannheimer       and  Bolger, 
                 Judges. 

                 BOLGER, Judge. 

                 Thomas M. Beattie was tried for felony driving under the influence, a charge 

that required the State to prove that Beattie had at least two prior convictions for driving 

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under the influence within the preceding ten years.1  The superior court granted Beattie's 

request to bifurcate his trial, so that the jury would hear no evidence of Beattie's prior 

convictions unless and until they found Beattie guilty of driving under the influence on 

the current occasion. 

                The primary issue presented in this appeal arises because, after the jury found 

Beattie guilty in the first stage of the trial, the trial judge mistakenly dismissed the jurors 

without asking them to make any finding with regard to Beattie's prior convictions.  To 

rectify this error, the superior court convened a second jury to decide whether Beattie had 

the   requisite    prior  convictions.     Beattie     claims    that  this  procedure     violated   the 

constitutional guarantee against double jeopardy.              As we explain in this opinion, we 

conclude that Beattie implicitly consented to this procedure, and thus his double jeopardy 

rights were not violated. 

                Beattie  also argues his five-year sentence is excessive.   We conclude that 

we   do not have jurisdiction to hear Beattie's sentence appeal because his composite 

sentence falls within the presumptive range for his felony offense. 

        Background 

                The State charged Beattie with felony DUI, driving with a revoked license, 
and   resisting   arrest.2  At   a   pretrial   evidentiary   hearing,   Superior   Court   Judge   Kari 

Kristiansen granted Beattie's request for a bifurcated trial on the felony DUI charge. 

Superior Court Judge Eric Smith then began a trial on the three charges, reserving the issue 

of Beattie's prior convictions for the second phase of the trial. 

        1   See AS 28.35.030(n). 

        2   AS 28.35.030(a)(1), (n); AS 28.15.291(a)(1); AS 11.56.700(a)(1). 

                                                  - 2 -                                              2314 

----------------------- Page 3-----------------------

                 On the last day of trial, defense counsel told the prosecutor that he believed 

Beattie would stipulate to proof of his prior convictions.  This procedure would remove 

the need for this issue to be submitted to the jury.            Later that day, the jury returned its 

verdicts, acquitting Beattie of resisting arrest and convicting him of driving with a revoked 

license and driving under the influence. 

                 The court reviewed the verdicts with the parties, determined that they were 

in proper form, read the verdicts out loud, and polled the jury members individually. The 

judge then thanked the jurors for their service and told them that they were free to discuss 

the case with others.      Then the judge advised the jury about a decision-making survey 

and asked the bailiff to give them more detailed written instructions about how to fill it 

out.  The judge advised the jury that he would be available to answer any questions after 

court adjourned. Defense counsel did not object or request that the jury be retained for 

the second phase of the trial.       Judge Smith then discharged the jury. 

                 After the jury was dismissed, the court and parties stayed on the record and 

scheduled the sentencing date, discussed the (felony) presentence report, and discussed 

post-conviction bail - all issues that assumed no further jury proceedings were necessary. 

During the bail discussion, the prosecutor noted that now Beattie had been convicted of 

another felony.  That is, the prosecutor's remarks assumed that the present case counted 

as a felony conviction.       The defense did not object or request that the jury be recalled. 

Before the court adjourned, the judge announced that the attorneys were free to talk with 

the jury.  In total, the court was on record for approximately eight minutes between the 

time that the jury came into the courtroom until the court adjourned. 

                 After adjournment, the judge and attorneys and investigators for both parties 

discussed the case with the jurors who remained at the courthouse.   The defense did not 

object   to   the   contact   with   the   jurors,   even   though   the   State's   investigator   discussed 

Beattie's prior convictions. 

                                                   - 3 -                                              2314
 

----------------------- Page 4-----------------------

                The next morning, court staff called the parties to remind them that they 

needed to put the stipulation regarding Beattie's prior DUI convictions on the record, and 

they scheduled a hearing for 1:30 p.m. that day to do so.           Beattie's attorney confirmed 

on the telephone that Beattie would be stipulating to his prior convictions. 

                But when the parties appeared in court for the hearing, Beattie's attorney 

announced that his client would not be stipulating to his prior convictions.  The defense 

attorney explained that he had spoken about Beattie's case with a senior attorney in his 

office; this senior attorney pointed out that, because the jury was discharged without being 

asked to decide the issue of Beattie's prior convictions, Beattie had a potential double 

jeopardy objection to any renewed proceedings.   The defense attorney told the superior 

court that, under these circumstances, he was obliged to advise his client not to stipulate 

to the prior convictions.  The defense attorney additionally argued that it was too late to 

recall   the  original   jury  -    that  some   jurors   had  been   tainted   by  their  post-trial 

conversations with the trial judge, the attorneys for both sides, and their investigators. 

                Over Beattie's objection, Judge Smith decided to call in a second jury to 

determine the prior-convictions issue.  (Defense counsel later agreed that only the prior- 

convictions issue would need to be submitted to the new jury.)              The second jury found 

the State proved Beattie's prior convictions beyond a reasonable doubt, and the court 

entered a conviction for felony DUI.        The court sentenced Beattie to four and one-half 

years of imprisonment for the felony DUI and six months for the license charge. 

        Double Jeopardy 

                The protection against double jeopardy includes the defendant's right to have 
the case decided by the original jury empaneled and sworn to try the case.3  Beattie asserts 

        3    Friedmann v. State, 172 P.3d 831, 836 (Alaska App. 2007). 

                                                - 4 -                                            2314 

----------------------- Page 5-----------------------

that his double jeopardy rights were violated when the superior court convened a second 

jury to decide the latter phase of his bifurcated trial. 

                 Once jeopardy attaches, a defendant may not be retried before a second jury 

for the same offense "unless he has consented to a mistrial or there was manifest necessity 
for granting a mistrial."4      But criminal defendants may relinquish their protection against 

double jeopardy by their own conduct or by the conduct of their attorneys.5 

                 Most federal courts have concluded that defendants may relinquish their 

protection against double jeopardy when they have the clear opportunity to object to the 
discharge of the original jury but fail to do so.6          Many state courts have adopted the same 

rule.7   We join these courts and conclude that a defendant gives his implicit consent to 

         4    Douglas v. State, 214 P.3d 312, 326 (Alaska 2009). 

         5    Dutton v. State, 970 P.2d 925, 932 (Alaska App. 1999). 

         6    See United States v. DiPietro, 936 F.2d 6, 11-12 (1st Cir. 1991) (finding implied 

consent   to   a   mistrial   where   error   occurred   several   hours   before   court   declared   mistrial, 
defense   attorney knew   court   was   considering   remedies   although   court   did   not   explicitly 
announce it was considering mistrial, and parties and court stayed in courtroom for several 
minutes after mistrial decision was announced, during which time defense attorney argued 
for judgment of acquittal and discussed new dates for trial but did not object to mistrial); 
 United States v. Nichols, 977 F.2d 972, 974 (5th Cir. 1992) (holding that consent need not 
be   express,   but   may   be   implied   from   the   totality   of   the   circumstances   attendant   to   the 
declaration of mistrial); Camden v. Circuit Court, 892 F.2d 610, 615 (7th Cir. 1989) ("The 
record     reveals   that  Camden      and   her  attorney    were   afforded    a  minimal     but  adequate 
opportunity   to     object,  albeit   in  the  presence    of  the  jury  while   the   mistrial  was   being 
declared.");  United States v. Puleo, 817 F.2d 702, 705 (11th Cir. 1987) (noting defendant 
consented to mistrial where trial judge expressed clear intent to declare mistrial and defense 
counsel had opportunity to object but did not). 

         7   See Brock v. State, 936 N.E.2d 266, 270 (Ind. App. 2010) (indicating defendant 

waived   right   to   claim   double   jeopardy   violation   by   not   objecting   to   State's   request   for 
mistrial or court's decision to grant one); State v. White, 369 N.W.2d 301, 304 (Minn. App. 
 1985) (finding implied consent to a mistrial where defense counsel understood trial court 
intended   retrial   and   counsel's   responses   encouraged   court   to   declare   mistrial); Marte   v. 
Berkman, 70 A.D.3d 493, 494 (N.Y. App. Div. 2010) (holding that defense counsel's failure 

                                                     - 5 -                                                2314
 

----------------------- Page 6-----------------------

trial before a second jury when he has the clear opportunity to object to the discharge of 

the original jury but fails to do so. 

                The Fourth Circuit Court of Appeals dealt with a similar situation to Beattie's 
in United States v. Ham.8      In Ham, the district court completed most of a trial but failed 

to try a discrete issue required for the government's forfeiture request.            The court rules 

required a special verdict regarding the forfeiture issue, but the trial court simply failed 
to present the forfeiture issue to the original jury.9 

                The Fourth Circuit held that the defendant had consented to the dismissal 

of the first jury because his attorney had the opportunity to object to the discharge of the 
jury but failed to do so. 10 

                The record in this case shows that, after the clerk read the 
                verdict and the defendants polled the jury, the district judge 
                thanked the members of the jury for their time   and effort, 
                apologized for their inconvenience, and wished them a Happy 
                Easter. With these short remarks, the district judge was clearly 
                dismissing the jury. [Defendant] Swami's counsel could have 
                interrupted     the  judge   before   he  discharged     the  jury  and 
                reminded him that the jury had not completed the forfeiture 
                phase of the trial.   If Swami had wanted the original jury to 
                decide the ... forfeiture issue, he should have informed the 
                court of this desire before it dismissed the jury. 

to object when court invited comment, or before the jury was discharged, constituted implied 
consent to declaration of mistrial); State v. Houston, 328 S.W.3d 867, 881 (Tenn. Crim. App. 
2010) (noting that, where the trial court clearly intends to declare mistrial and defendant fails 
to object to discharge of jury, defendant's consent can be inferred). 

        8    58 F.3d 78 (4th Cir. 1995). 

        9     Id. at 80-81. 

        10   Id. at 84. 

                                                 - 6 -                                            2314
 

----------------------- Page 7-----------------------

                 Although Swami had a right to have the original jury decide 
                 the ... forfeiture issue, he could have asserted this right and 
                 prevented the district court from prematurely dismissing the 
                 jury.  He did not do so.  Swami cannot avoid a second trial on 
                 the forfeiture count on double jeopardy grounds and thereby 
                 profit from his failure to act. The actions of Swami's attorneys 
                 suggest     that  the   double    jeopardy    argument      was   a  mere 
                 afterthought that one of Swami's attorneys conjured up long 
                 after the district court dismissed the original jury.11 

These facts are almost identical to Beattie's, except in Beattie's case, it was not merely 

"suggested" that the double jeopardy argument was an afterthought - in Beattie's case 

the   defense   attorney   clearly   admitted   that   he   did   not   consider   the   double   jeopardy 

implications of dismissing the jury until after the jury had been discharged. 

                 In Beattie's case, we may infer from the totality of the conduct by his counsel 

that Beattie consented to the discharge of the jury.               The court discussed end-of-trial 

procedures with the parties before bringing the jury in to deliver the verdict.                  After the 

jury delivered the verdict, the court advised the jurors regarding a survey about their 

experience as jurors, thanked the jurors for their time, advised them they were free to talk 

about the case, and dismissed them. 

                 As in Ham, the judge's remarks and procedure clearly indicated he was 

dismissing the jury.  Beattie's counsel could have interrupted at any time and reminded 

the court of the need to retain the jury to try the prior-convictions issue.  Beattie's counsel 

could have objected to the dismissal of the jurors. And even after the court dismissed the 

jurors, the parties and court remained on the record and discussed sentencing and post- 

conviction bail.  Beattie still did not raise any request to have the jury recalled.  Instead, 

after the court adjourned, Beattie's counsel and investigator participated in discussions 

with members of the jury that would prevent the jury from being recalled. 

         11   Id. 

                                                   - 7 -                                                2314 

----------------------- Page 8-----------------------

               Beattie's attorney had ample opportunity to object to the discharge of the 

jury. His acquiescence and his participation in the post-discharge discussions establishes 

that Beattie consented to the discharge of the jury.          Because Beattie consented to the 

discharge of the original jury, the superior court did not violate Beattie's double jeopardy 

rights by convening a second jury to determine the issue of his prior convictions. 

        Sentence Appeal 

               Judge Smith sentenced Beattie to four and one-half years for felony DUI 

and six months for driving with a revoked license.         The judge then stated, "The [net] is 

five years."    We assume for purposes of this appeal that the judge intended to impose a 

five-year   composite   sentence.     Beattie   now   argues   that   this   composite   sentence   is 

excessive, relying on his right to appeal his sentence under AS 12.55.120. 

               The sentence appeal statute provides that this court has authority to review 
a misdemeanor sentence that exceeds 120 days to serve.12              Thus, if Beattie had been 

convicted of driving with a revoked license alone and had been sentenced to the same 

six months to serve, we would have the authority to review his sentence.                However, 

Beattie's composite sentence is within the applicable presumptive range for a third felony 
offender convicted of a class C felony.13 Alaska Statute 12.55.120(e) prohibits a defendant 

from challenging his sentence as excessive if the "sentence [is] within an applicable 

presumptive range set out in AS 12.55.125." 

        12  See AS 12.55.120(a); AS 22.07.020(b). 

        13  See AS 12.55.125(e)(3). 

                                               - 8 -                                           2314 

----------------------- Page 9-----------------------

                We recently determined that we have no jurisdiction to decide a sentence 

appeal in this situation - where the composite sentence falls within the presumptive range 
for the defendant's most serious conviction.14 

                        Both the Alaska Supreme Court and this Court have 
                repeatedly held that when a defendant is sentenced for two or 
                more offenses, Alaska law does not require that each of the 
                defendant's   separate   sentences   be      individually    justifiable 
                under the Chaney sentencing criteria, as if that sentence had 
                been imposed in isolation. Rather, the question is whether the 
                defendant's   combined   sentence   is   justified   in   light   of   the 
                entirety of the defendant's conduct and history.15 

Because the propriety of Beattie's sentence must be assessed in light of the totality of his 

conduct and background, we conclude that we should not review Beattie's misdemeanor 

sentence when we have no jurisdiction to review his accompanying felony sentence. 

                We have no jurisdiction to review Beattie's composite sentence.                Instead, 

we must refer Beattie's case to the Alaska Supreme Court under Appellate Rule 215(k). 

        Conclusion 

                We   AFFIRM the superior court's judgment of conviction, but we lack 

jurisdiction to decide whether the sentence is excessive. We refer that matter to the Alaska 

Supreme Court. 

        14  See Richards v. State, 249 P.3d 303, 306-07 (Alaska App. 2011). 

        15  Id. at 307 (emphasis omitted) (footnotes omitted) (citing State v. Chaney, 477 P.2d 

441, 443 (Alaska 1970)). 

                                                 - 9 -                                              2314 
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