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Artemie v. State (5/25/2007) ap-2104

Artemie v. State (5/25/2007) ap-2104

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

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) Court of Appeals No. A-9286
Petitioner, ) Trial Court No. 3AN-03-1999 CR
v. ) O P I N I O N
Respondent. ) No. 2104 - May 25, 2007
          Petition for Review from the Superior  Court,
          Third Judicial District, Anchorage, Larry  D.
          Card, Judge.

          Appearances: Allan Beiswenger, Anchorage, for
          the   Petitioner.   Tamara   E.   de   Lucia,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Respondent.

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

          COATS, Chief Judge.

          Douglas  W. Artemie was tried on two counts  of  first-
degree sexual assault and one count of first-degree assault.  The
jury  could  not  agree  on  a verdict.   On  its  first  day  of
deliberations,  the jury sent two notes to Superior  Court  Judge
Larry  D.  Card telling him that it was deadlocked.   Judge  Card
responded  to  both  notes  by  telling  the  jury  to   continue
          On the second day of deliberations, the jurors listened
to  a  recording of trial testimony and then sent a note to Judge
Card  saying that they were still deadlocked and did not  believe
they  would be able to reach a unanimous verdict.  Artemie  asked
Judge   Card   to   instruct  the  jurors   to   continue   their
deliberations.   Judge  Card denied  the  request.   Instead,  he
brought  the  jurors  to the courtroom and  asked  them  if  they
understood the instructions and if additional instructions  would
assist  them.   All  of  the  jurors  indicated  that  additional
instructions  would not assist them, and Judge  Card  declared  a
          Two  weeks  later, Artemie moved for dismissal  of  the
case  with  prejudice, arguing that a retrial was barred  by  the
double  jeopardy  clause.   Judge Card  denied  the  motion,  and
Artemie  has petitioned us to review that decision.  The question
is  whether, under the circumstances of Artemies case, Judge Card
could reasonably conclude that there was manifest necessity for a
mistrial because there was no probability the jury would reach  a
unanimous  verdict.   We  hold that Judge Card  could  reasonably
reach  this conclusion and, therefore, the double jeopardy clause
does not bar Artemies retrial.

          Facts and proceedings
          Artemie  was  charged with two counts  of  first-degree
sexual  assault and one count of first-degree assault.1   At  his
trial,  the jury heard approximately seventeen hours of testimony
and three hours of argument over the course of six days.
          The  case  essentially  involved  a  dispute  over  the
identity  of the assailant and the credibility of the  witnesses.
N.J.  testified  that Artemie sexually assaulted  her.    In  his
defense, Artemie admitted that he and N.J. had kissed earlier  in
the night, but he claimed he left the apartment when he heard  an
angry voicemail message left on N.J.s telephone answering machine
and  thought a man with whom he did not get along was on his  way
to  the  apartment.   Artemie argued that  the  jury  should  not
believe  N.J.s testimony because she was drunk  it was undisputed
that she had a blood alcohol level of 0.311 percent an hour after
the  assault  and did not remember portions of the evening.   And
Artemie  contended that the assailant could have been  N.J.s  ex-
boyfriend  or  the  man Artemie thought was on  his  way  to  the
          At  the  end  of  the trial, Judge Card instructed  the
jury.   Instruction Number 38 stated that the jurys verdict  must
be  unanimous.   It further provided that the jurors  should  not
hesitate  to  reexamine their own views or change their  opinions
but  that  they should not surrender their honest beliefs  solely
because  of the opinion of other jurors or to return a  verdict.2
          After instructing the jurors, Judge Card excused the jury for the

          The jury began deliberations at approximately 9:00 a.m.
on Friday, April 15.  Just after noon, the jury foreperson wrote,
We  are unable to reach a unanimous decision.  What should we do?
A  half-hour  later,  Judge Card responded,  Please  continue  to
deliberate.  If there are any additional instructions on the  law
that  you  desire,  or you desire the playback of  any  testimony
heard  during  the trial, please send me a note  requesting  your
desires.   After  an  additional 30 minutes of  deliberations,  a
second juror  wrote:
          Sir, we started the day at 9 (not guilty) and
          3  (guilty).  We have been deadlocked  at  10
          (not  guilty)  and  2 (guilty)  since  around
          10:00  a.m.  We are all very adamant  on  our
          current  vote and do not feel any  review  of
          the evidence/testimony will change any of our
          minds.  Your guidance is appreciated.

Judge  Card responded an hour later: I have discussed  the  issue
with  counsel, and in light of the fact that we all  had  a  very
long  day  yesterday, I feel it best to recess deliberations  for
the  weekend, and you are to return on Monday morning  to  resume
your deliberations.
          On Monday, the jurors came in at 9:00 a.m. and listened
to  a  recording of approximately six  hours of testimony by N.J.
and  Artemie.  They did not take a lunch break. At 3:35 p.m., the
jury  foreperson  wrote, We are still  unable  to  reach  a  [  ]
unanimous decision.  We do not believe we will be able to reach a
unanimous decision.
          At  that point, the State argued that Judge Card should
declare  a mistrial because it did not appear the jury  would  be
able  to reach a unanimous decision. Artemie objected.  He argued
that  the jury had only been deliberating for three to four hours
and  Judge Card should re-read Instruction Number 38 and tell the
jury to continue deliberating.  Judge Card denied the request.

          At  approximately 4:30 p.m., Judge Card asked the  jury
to  return to the courtroom.  He told the jury foreperson that he
had  received her note that the jury was still unable to reach  a
unanimous  decision.  He  then  asked  the  jurors  whether  they
understood  the instructions and whether additional  instructions
would assist them.  The jurors indicated that they understood the
instructions  and that additional instructions would  not  assist
them.   Judge  Card  therefore found  manifest  necessity  for  a
mistrial.  After  Judge  Card  granted  a  mistrial,   the   jury
foreperson stated that the jury had a couple people go  back  and
forth  but  the  final  tally  was eight  (not  guilty)  to  four
          Approximately two weeks later, Artemie moved to dismiss
the  case with prejudice  that is, without an opportunity for the
State to retry him.  He noted that the mistrial was declared over
his  objection,  and he argued that a retrial would  violate  his
right  against  double jeopardy. Judge Card  denied  the  motion.
Artemie petitioned this court for review.

          Did  Judge  Card  abuse his discretion in  denying  the
          motion to dismiss?
          A  trial judge may discharge a jury before it reaches a
verdict whenever there is manifest necessity to do so.3  Manifest
necessity  exists when there is no probability that  a  unanimous
verdict will be reached.4
          In  Koehler v. State,5 the Alaska Supreme Court applied
the  standards of the American Bar Association (ABA)  Project  on
Standards  Relating to Trial by Jury to determine  whether  there
was a probability the jurors would reach a unanimous verdict:
[W]hether  there  exists  a  probability   of
agreement   should  be  determined   by   (1)
questioning the jurors as to their  inability
to  agree  without any attempt on  the  trial
judges part to ascertain how the jurors stand
on the question of innocence or guilt and (2)
considering  the length of the deliberations,
the  length of the trial, and the  nature  or
complexity  of  the case. ...  In  exercising
its  discretion the trial court need not make
express  findings pertaining to its  decision
to  discharge the jury.  However, the  record
must   clearly   support  the  trial   courts
implicit   finding   of   no   prospect    of

Here, Judge Card told the jurors that he had received their note
declaring  that  they were deadlocked.   He  asked  the
jurors to confirm that they understood the instructions
and to tell him if they thought additional instructions
would  assist  them.  Although he did not directly  ask
the  jurors if they were unable to agree on a  verdict,
Judge  Card had just received his third note  from  the
jury  stating  that the jury was deadlocked.    Artemie
did  not ask Judge Card to individually poll the  jury,
and  on  appeal  he  has  not  challenged  Judge  Cards
questioning of the jurors.
In  deciding whether to grant a mistrial, a trial judge
must  consider  the  length of the  deliberations,  the
length  of  the trial, and the nature or complexity  of
the case.7  As the Ninth Circuit has noted:
There  is no minimum amount of time  which  a
jury  must  spend in deliberations  before  a
mistrial can be declared. This factor is  one
which  is  best left to the determination  of
the  trial  judge who was most aware  of  the
circumstances of the trial.[8]

In this case, the jury listened to approximately seventeen hours
of  testimony  and  three hours of  argument  over  the
course  of six days.  The jury then spent approximately
six  hours listening to playbacks of testimony  and  at
least   three   and  up  to  six  and  one-half   hours
In  Koehler, the court noted that, according to an  ABA
study,  juries often take longer than this to  reach  a
verdict  in  a  trial  of  this  duration.10   However,
Artemies  case  primarily hinged on the credibility  of
witnesses  particularly the credibility of Artemie  and
the  alleged victim, N.J.  If some jurors were firm  in
their  belief  of  N.J.s version of  events  and  other
jurors  were firm in their belief of Artemies  version,
even  after listening to a playback of their testimony,
there  was little to debate.  Moreover, Judge Card  did
not  declare  a  mistrial until the jury  reported  its
inability to reach a verdict for the third time.
We  agree  with  the Second Circuit that [r]equiring  a
jury  to  continue  deliberations despite  genuine  and
irreconcilable disagreement more often than not defeats
the   ends  of  public  justice;  not  only  will  such
compulsion    needlessly   waste   valuable    judicial
resources,  it may coerce erroneous verdicts.11   Judge
Card did not abuse his discretion in finding there  was
no  probability  of the jury reaching  a  verdict  and,
therefore, in declaring a mistrial.
Mistrial occasioned by the jurys inability to  reach  a
verdict is a classic example of a case in which retrial
is  permitted even though the first jury was discharged
without the defendants consent.12  Accordingly, Artemies
retrial will not violate his right against twice  being
placed  in  jeopardy, and Judge Card  did  not  err  in
denying Artemies motion to dismiss.

Judge  Card  did  not abuse his discretion  in  finding
manifest necessity for a mistrial.  The decision of the
trial court is AFFIRMED.

     1 AS 11.41.410(a)(1) and AS 11.41.200(a)(1), respectively.

     2 The entire instruction read as follows:

     A  verdict  must represent the considered  judgment  of
     each  juror.   In  order to return  a  verdict,  it  is
     necessary that each juror agree thereto.  Your  verdict
     must be unanimous. It is your duty as jurors to consult
     with  one  another and to deliberate  with  a  view  to
     reaching  an  agreement,  if  you  can  do  so  without
     violence  to  individual judgment.  Each  of  you  must
     decide  the  case for yourself, but do  so  only  after
     impartial  consideration  of  the  evidence  with  your
     fellow jurors.  In the course of your deliberations, do
     not  hesitate to re-examine your own views  and  change
     your  opinion if convinced it is erroneous, but do  not
     surrender  your honest belief as to the weight  of  the
     evidence  solely because of the opinion of your  fellow
     jurors  or for the mere purpose of returning a verdict.
     You  are  not  parsons, you are judges, judges  of  the
     facts.  Your sole interest is to ascertain a truth from
     the evidence in the case.
     3 Lewis v. State, 452 P.2d 892, 895-96 (Alaska 1969).

     4 Koehler v. State, 519 P.2d 442, 448 (Alaska 1974).

     5 519 P.2d 442.

6 Id. at 449.

7 Id.

8 Arnold v. McCarthy, 566 F.2d 1377, 1387 (9th Cir. 1978).

9 On Friday, the jury deliberated for about three to five
hours   depending on whether it continued deliberations
while  waiting  for  responses to  its  questions.   On
Monday,  the  jury  listened  to  about  six  hours  of
testimony  and  then deliberated for somewhere  between
five minutes and one and a half hours  depending on the
length  of the playbacks and whether the jury continued
deliberating while waiting for a response to  its  note
that it was deadlocked.

10 Koehler, 519 P.2d at 449 (citing ABA Project on Standards
Relating  to  Trial by Jury (1968)  at  156-57  and  H.
Kalven  &  H.  Zeisel,  The  American  Jury  at  454-63

11 United States v. Goldstein, 479 F.2d 1061, 1068 (2d Cir.
1973).   See also United States v. See, 505  F.2d  845,
851 (9th Cir. 1974).

12 Lewis, 452 P.2d at 894.

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