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Friedmann v. State (12/21/2007) ap-2135

Friedmann v. State (12/21/2007) ap-2135

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-9750
Appellant, ) Trial Court No. 3PA-05-043 Cr
v. )
) O P I N I O N
Appellee. ) No. 2135 December 21, 2007
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:    Renee  McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Kenneth  M.  Rosenstein,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          Because  of a criminal defendants constitutional  right
not  to be placed in jeopardy a second time for the same offense,
our  law  forbids a trial judge from discharging a  jury  in  the
middle  of an uncompleted criminal trial unless (1) the defendant
consents to this action, or (2) there is a manifest necessity for
this action.1
          Nevertheless,  Alaska Criminal Rule  27(d)(3)  suggests
that  the mid-trial dismissal of a jury might be authorized on  a
          separate ground.  Criminal Rule 27(d)(3) states that if one or
more   jurors  are  unable  to  perform  their  duties   or   are
disqualified from performing their duties before the jury retires
to  consider  its  verdict,  the trial  judge  is  authorized  to
discharge  the  affected jurors  and, if there  are  insufficient
alternate  jurors  to  complete  the  panel,  the  jury  may   be
discharged and a new jury then or afterwards formed.
          This  appeal presents the question of whether  a  trial
judges  authority to discharge a jury in the middle of a criminal
trial   under   Criminal  Rule  27(d)(3)  is  governed   by   the
restrictions that the double jeopardy clause would normally place
on this action.
          We  conclude that the dismissal of a jury in the middle
of  a criminal trial under Criminal Rule 27(d)(3) must be treated
as  equivalent to a declaration of a mistrial for double jeopardy
purposes.  Thus, even when a judge does not expressly label their
action a mistrial, a judges dismissal of the jury panel under the
authority  of Criminal Rule 27(d)(3) will bar further prosecution
of  the  defendant unless the defendant consented to  the  judges
action,  or  unless  there  was  a  manifest  necessity  for  the
dismissal of the jury.
          In  the present case, the superior court dismissed  the
jury  in the middle of trial, then invoked Criminal Rule 27(d)(3)
in  an attempt to avoid the double jeopardy consequences of  this
action.   However, the record shows that the defendant  consented
to the dismissal of the jury  that, in fact, the defense attorney
counseled the trial judge to adopt this course of action.   As  a
consequence, there was no violation of the double jeopardy clause
when the superior court ordered that the defendant be brought  to
trial a second time.

     Underlying facts
               Curt  J.  Friedmann, along with co-defendants
     Stephen L. Hoyt and Thomas R. Saddler, was indicted  on
     several counts of controlled substance misconduct.  The
     State  alleged that the three men were partners in  the
     manufacture and distribution of methamphetamine.
               The  three  defendants cases were joined  for
     trial,  and  that trial began on August 23,  2005.   On
     that   day,  a  jury  was  selected  and  sworn    thus
     triggering  the  protections  of  the  double  jeopardy
               The  parties  were supposed to deliver  their
     opening statements the following morning, August  24th.
     But   when  the  court  reconvened,  Saddlers  attorney
     announced that he had just become aware of a defect  in
     the States pre-trial discovery.  The attorney explained
     he  had  never  received a laboratory report  from  the
     State, or a notice of expert testimony.
               Following  this announcement, Hoyts  attorney
     also  stated  that he did not have a lab  report  or  a
     notice of expert testimony from the State.
               Friedmanns attorney, on the other hand,  told
     the  court  that he had received the States lab  report
               and its notice of expert testimony.
          Basically,  a  trial court can  consider  two
potential remedies when the State fails to make  proper
pre-trial  disclosure under Alaska  Criminal  Rule  16.
The  normal  remedy  is to grant a  continuance  (i.e.,
delay  the  trial)  to  allow the defendant  and  their
attorney  to re-evaluate the defense case in  light  of
the  new  information.3  But if the trial  has  already
started,   and   if  the  defendants   preparation   or
presentation  of  the case has been prejudiced  by  the
lack  of  this  information,  the  trial  court  should
ordinarily grant a defendants request for a mistrial.4
          A  few Alaska cases mention a third potential
option:  suppressing the non-disclosed evidence if  the
defendant has suffered substantial prejudice, or if the
States  failure to disclose the information was willful
(i.e.,  a  knowing  violation of its obligations  under
Rule  16).5   However, the supreme courts  decision  in
Bostic v. State, 805 P.2d 344 (Alaska 1991), appears to
reject this remedy.
          The  Bostic majority declared that, in  cases
involving   violations  of  the   pre-trial   discovery
provisions of Criminal Rule 16, [t]he injury to the non-
offending party is the same regardless of the intent of
the party violating Rule 16, since the [same] advantage
inures to the violating party regardless of whether the
violation was negligent or deliberate, whether done  in
good  faith  or  in  bad  faith.6   The  majority  then
described  the remedy of mistrial as a tailored  remedy
...   which   [both]   allow[s]  [the   defendant]   to
restructure  his  defense  in  light  of   the   sudden
revelation of information which he was entitled to have
all  along,  and [allows] the state to put on  relevant
evidence in its possession, should it deem the evidence
too  important  to proceed without it.7   And  the  two
dissenters in Bostic declared that a defendant  had  no
right  to  demand suppression of evidence if  the  sole
problem  was  a discovery violation, since  [t]he  only
right  implicated  ...  is [the  defendants]  right  to
notice in advance of trial.8
          Returning  to the facts of the present  case,
Saddlers attorney asserted that he would need  90  days
to have the physical evidence re-tested, and (depending
on  the  results of the re-testing) to have a  rebuttal
expert  prepare  a report.  Because of  this,  Saddlers
attorney argued that continuance of the trial (with the
already-selected  jury kept waiting  for  at  least  90
days) would be impossible.
          However,  after explaining that a continuance
of  the  trial  would be impossible, Saddlers  attorney
then  declared that he would not consent to a  mistrial
and  he  threatened  that,  if  the  court  declared  a
mistrial  without his consent, he would seek  dismissal
of  all  the charges under the double jeopardy  clause.
Therefore,  according to Saddlers  attorney,  the  only
          available remedy was to suppress the States physical
evidence  and/or to preclude the State from  presenting
expert testimony to establish the chemical identity  of
the physical evidence.
          (It  was obvious to everyone in the courtroom
including  Judge Smith  that suppression of  the  drugs
and/or  the experts testimony would, in effect, require
the court to acquit the defendants.)
          Up until this point, Friedmanns attorney  the
only  defense  attorney who had  received  all  of  the
States pre-trial disclosure  had contributed nothing of
substance  to the discussion.  However, after  Saddlers
and   Hoyts   attorneys  had  stated  their   positions
regarding  the pre-trial disclosure problem, Friedmanns
attorney  informed Judge Smith that he  ran  into  this
very  issue some years ago in front of [Superior Court]
Judge [Eric] Sanders:
          Friedmanns   attorney:    [It   was]   a
     criminal  case  where ... the State  did  not
     produce  the [notice of] expert ...  and  the
     lab   report.    [And]  it  was   a   cocaine
     distribution case:  clearly, the case was ...
     going  to  [turn] primarily on  [whether  the
     physical   evidence]  was  cocaine   or   not
     cocaine.   [And it was] after the jury  [was]
     impaneled [and] jeopardy had attached.
          I  made ... the same type of motion  [on
     behalf  of  the  defendant].   ...   And  the
     remedy  in that particular case ...  was  not
     exclusion  of the evidence.  And  because  of
     the  fact that it was going to [require]  ...
     re-test[ing]  and  that  type  of  thing,   a
     mistrial  was  declared by the  court   which
     allowed the defense an opportunity to go have
     the drugs re-tested, and to be able to figure
     out where we [stood] after [the results] came
          So I guess [this] Courts options ... are
     fairly   clear.    ...    [I]ts   either    a
     continuance, and the jury can come  back,  or
     [its]  exclusion ... .  [But] I think,  based
     [on]  the case law  theres no willful, wanton
     behavior  on [the part] of the State.   So  I
     think  [that] the other option is a  mistrial
     ... .
     After  a  little more discussion,  Friedmanns
     attorney summed up his position as follows:
          Friedmanns attorney:  [The way]  I  look
     at  [it]  is [that] the proper remedies  here
     would either be  from my standpoint and  from
     my  clients standpoint  a continuance of  the
     trial  to allow the [other] defense attorneys
     to  re-examine this evidence and look  at  it
     with their expert[s], if thats what they  ...
     chose  to do, or declare a mistrial  in  this
     case.  Thank you.
          A  little  later  that  day,  Judge
Smith  held  a  hearing  to  investigate  the
circumstances surrounding the States  failure
to  deliver  the  laboratory report  and  the
notice of expert witness to Saddlers attorney
and Hoyts attorney.  Based on the information
elicited  at this hearing, Judge  Eric  Smith
concluded the States failure was not willful.
At    worst,   the   judge   concluded,   the
prosecutors  office  made  an  understandable
goof as to where to send the materials.  And,
because  there  was no willful  violation  of
Rule 16, Judge Smith rejected suppression  as
a remedy.
          Judge  Smith did, however, conclude
that  Saddler  and Hoyt were  entitled  to  a
continuance  so that they could  re-test  the
physical  evidence.  And, because it appeared
likely  that the jury could not be  preserved
through  the course of a lengthy continuance,
Judge  Smith concluded that he would probably
have to declare a mistrial in the interest of
          Judge Smith summoned the jurors  to
the  courtroom and asked if any of them would
be  unavailable to attend the trial if it was
postponed  by  45 days.  Five  jurors  raised
their  hands.   Based on  these  five  jurors
responses, and without questioning the jurors
further, Judge Smith declared a mistrial  and
discharged the jury.
          About   five   weeks   later,    on
September 28th, Hoyts attorney filed a motion
to  dismiss all of the charges, based on  the
assertion  that a second trial would  violate
the  double jeopardy clause.  One week later,
Friedmanns  attorney filed a  short  pleading
indicating  that  he joined  this  motion  to
dismiss the charges.
          After  considering this  motion  to
dismiss,    Judge   Smith    concluded    (in
retrospect) that he had failed to  conduct  a
sufficient inquiry to establish that the five
jurors  would actually have been  unavailable
if  the trial had been continued for 45 days.
Thus,   Judge  Smith  concluded,  the  record
failed  to demonstrate that it was manifestly
necessary to declare a mistrial.
          However, Judge Smith also concluded
that  it  had not been necessary for  him  to
declare  a  mistrial when  he  dismissed  the
jury.  Instead, Judge Smith decided that  his
dismissal   of  the  jury  was  independently
authorized by Criminal Rule 27(d)(3).  As  we
explained  earlier  in  this  opinion,   Rule
27(d)(3)   authorizes  a   trial   judge   to
discharge  a  jury  and to  form  a  new  one
(either then or later) if, during the  trial,
one   or   more  jurors  are  found   to   be
disqualified or otherwise unable  to  perform
their  duties, and if there are  insufficient
alternate jurors to complete the panel.
          Judge  Smith  concluded  that   the
situation   he   confronted  in   Friedmanns,
Saddlers,  and  Hoyts  case  was   the   same
situation  described in  Rule  27(d)(3)   and
that,  consequently, Rule  27(d)(3)  provided
independent  authority  for  discharging  the
jury,  even  though  the  record  failed   to
establish  a  manifest  necessity  for   this
          In   accord  with  this   view   of
matters,  Judge Smith retroactively rescinded
his  declaration  of a mistrial  and  instead
declared  that  the jury had been  discharged
under   the   authority  of   Criminal   Rule
27(d)(3).  He then calendared a second  trial
for the three defendants.
          After   Judge  Smith  issued   this
decision,  Friedmann entered a Cooksey  plea,
reserving  his right to appeal  Judge  Smiths
ruling that a second trial was not barred  by
the double jeopardy clause.9

Dismissal of a jury under Criminal Rule 27(d)(3) is the
equivalent of a declaration of mistrial for purposes of
the guarantee against double jeopardy

          When  a criminal defendant is tried by  jury,
jeopardy attaches once the jury is sworn.10  This  rule
is    the    linchpin   [of]   all   double    jeopardy
          And  once  jeopardy attaches, a defendant  is
entitled  to  have their case decided by  the  original
jury empaneled and sworn to try the case (including any
duly   selected   alternates).    The   defendant   can
relinquish this right by requesting or consenting to  a
mistrial.  But  otherwise, the double  jeopardy  clause
protects the defendant from a renewed trial in front of
a  different  jury  unless the record establishes  that
there was a manifest necessity for stopping the initial
trial short of a verdict.12
          Because a defendants right to have their case
          decided by the originally empaneled jury is a crucial
aspect  of the constitutional protection against double
jeopardy,13   the  dismissal of that  jury  always  has
constitutional consequences.  This remains true even if
the  jury  is dismissed under the authority  of  Alaska
Criminal  Rule 27(d)(3)  that is, even when  one  might
arguably  describe the defendants renewed  trial  as  a
continuation  of the original trial,  but  with  a  new
          The  Sixth Circuit faced a similar  issue  in
Watkins  v.  Kassulke, 90 F.3d 138 (6th Cir.  1996),  a
case  in which the trial judge dismissed two jurors  in
the  middle of a criminal trial and replaced them  with
other  members  of  the  original  group  of  potential
jurors,  even though these other potential  jurors  had
not  been  designated as alternate jurors and  had,  in
fact,  already  been dismissed.14  Although  the  trial
judge  did  not  expressly declare a mistrial  when  he
replaced  the two jurors, the Sixth Circuit  held  that
the trial judges action triggered the defendants rights
under the double jeopardy clause:
     [Even   though]  the  trial  court  did   not
     formally  declare a mistrial, we  agree  with
     the  parties  that what occurred in  Watkinss
     trial  should  be treated as a  mistrial  for
     purposes  of  analyzing the  double  jeopardy
     question.  The original jury did not hear the
     case  through to a verdict, and this fact  is
     the defining characteristic of a mistrial.
     Watkins, 90 F.3d at 141.
               We  have  examined the Court  Rules
     Attorneys historical file on Alaska  Criminal
     Rule 27(d), and it contains no discussion  of
     this double jeopardy issue.  But even in  the
     unlikely   event  that  our   supreme   court
     intended  Rule 27(d) to supersede the  double
     jeopardy   clause,  and   to   abrogate   the
     constitutional  protections   that   normally
     attend the mid-trial dismissal of a jury in a
     criminal case, we could not lawfully  enforce
     that supposed intention.
          As   the   Supreme  Court  of   the
Territory  of  New  Mexico  noted  almost   a
century  ago, It is ... not within the  power
of  the  Legislature to take  away  from  the
citizens  the  constitutional  guarantee   of
immunity  from  [a] second jeopardy.   United
States  v.  Aurandt, 107 P. 1064, 1067  (N.M.
1910).    This  same  principle  limits   the
actions of our supreme court when it acts  in
its  legislative capacity, promulgating rules
of  procedure.  See Etheredge v. Bradley, 502
P.2d  146  (Alaska  1972) (holding  that  the
          former Alaska civil rule governing pre-
judgement   attachments  violated   the   due
process  clauses of both the  state  and  the
federal Constitutions).
          Moreover, in the absence  of  clear
legislative history to the contrary,  we  are
to  interpret Criminal Rule 27(d) so that  it
is   in  harmony  with  the  double  jeopardy
clause.15   Interpreting  the  rule  in  this
fashion, we conclude that Criminal Rule 27(d)
simply  describes the various options that  a
trial  judge  may consider when one  or  more
jurors  are unable to complete their  service
and  there  are  insufficient  alternates  to
replace them.
          One  of  these options  the  option
described in subsection (d)(3)  is to dismiss
the  entire panel and start again.   But  the
fact  that this option is listed in the  rule
does   not  absolve  the  trial  judge   from
complying  with  the mandate  of  the  double
jeopardy clause.  The trial judge must  honor
the  defendants right to have the  originally
empaneled  jury  decide the case  unless  the
defendant  consents to the dismissal  of  the
jury, or unless it is manifestly necessary to
begin again.
          Of   course,  when  the   situation
described  in  Rule  27(d)(3)  occurs  in   a
criminal  trial  jurors unable to serve,  and
insufficient alternates to take  their  place
there  will generally be a manifest necessity
for  declaring a mistrial (unless the parties
stipulate under Criminal Rule 23(b)  to  have
the  case  decided by a smaller  jury).   But
this fact simply bolsters our conclusion that
the  dismissal of a jury under Rule  27(d)(3)
is,     constitutionally    speaking,     the
declaration of a mistrial.

Friedmann consented to this mistrial

          As  explained  in the preceding section,  the
double  jeopardy clause does not bar a retrial  if  the
trial  judge  declares a mistrial in  response  to  the
defendants  request, or if the defendant  affirmatively
consents to the mistrial.  That is what happened here.
          As  we  have already described, the trial  of
Friedmann  and  his two co-defendants came  to  an  end
after  the  lawyers for the two co-defendants  informed
the  court  that they did not have the States  complete
pre-trial disclosure.  Friedmanns attorney was  not  in
this  position;  he had received all of the  disclosure
materials.  Thus, when Friedmanns attorney entered  the
discussion  about what should be done, he was  in  some
          sense commenting from the sidelines.
          (Potentially, Friedmanns attorney could  have
asked  to  have Friedmanns case severed  from  his  co-
defendants cases, so that Friedmann could proceed  with
the   already-commenced  trial,  even  though  the  co-
defendants  cases  were going to be delayed.   However,
Friedmanns  attorney never requested  this  relief  nor
even mentioned this possibility.)
          As we have already explained, when Friedmanns
attorney joined the discussion, he informed Judge Smith
that  he (the attorney) had been involved in an earlier
case raising this very issue  a criminal case where ...
the  State  did not produce the [notice of] expert  ...
and  the lab report, and where this discovery violation
came  to  light  after the jury [was]  impaneled  [and]
jeopardy   had  attached.   The  attorney  then   spoke
favorably  of the fact that the other trial  judge  had
handled   this   problem  by  declaring   a   mistrial:
[B]ecause of the fact that [the situation] was going to
[require] ... re-test[ing] [of the evidence]  and  that
type  of  thing, a mistrial was declared by  the  court
which allowed the defense an opportunity to go have the
drugs re-tested, and to be able to figure out where  we
[stood] after [the results] came back.
          Friedmanns   attorney  then  summarized   his
          Friedmanns attorney:  [The way]  I  look
     at  [it]  is [that] the proper remedies  here
     would either be  from my standpoint and  from
     my  clients standpoint  a continuance of  the
     trial  to allow the [other] defense attorneys
     to  re-examine this evidence and look  at  it
     with their expert[s], if thats what they  ...
     chose  to do, or declare a mistrial  in  this
     case.  Thank you.
     Friedmanns   attorney  did  not   express   a
     preference  for  one remedy over  the  other.
     But  he  clearly  proposed that  Judge  Smith
     pursue one or the other of these courses.
               This  record shows that  Friedmanns
     attorney   actively  urged  Judge  Smith   to
     consider  declaring a mistrial, and that  the
     attorney  spoke approvingly of the fact  that
     another judge had pursued this same course in
     an  earlier,  similar case.   The   attorneys
     statements constituted a request for,  or  at
     least  a  consent  to, the declaration  of  a
     mistrial. Thus, there was no violation of the
     double  jeopardy  clause  when  Judge   Smith
     declared   a   mistrial  and   then   ordered
     Friedmann to stand trial a second time.

          The  judgement  of  the  superior  court   is

  1  Koehler v. State, 519 P.2d 442, 448 (Alaska 1974); Nelson v.
State, 874 P.2d 298, 308 (Alaska App. 1994); March v. State,  859
P.2d 714, 717 (Alaska App. 1993); Staael v. State, 697 P.2d 1050,
1053 (Alaska App. 1985).

2  Soundara  v.  State,  107 P.3d 290, 296  (Alaska  App.  2005);
March v. State, 859 P.2d 714, 717 (Alaska App. 1993).

3  See  Bostic  v. State, 805 P.2d 344, 348  (Alaska  1991);
Williams  v.  State, 600 P.2d 741, 742 n. 3  (Alaska  1979);
Stevens v. State, 582 P.2d 621, 624 n. 9 (Alaska 1978);  Des
Jardins v. State, 551 P.2d 181, 187 (Alaska 1976).

4 See Bostic, 805 P.2d at 348.

5 See Bostic, 805 P.2d at 348; Longley v. State, 776 P.2d 339,
343 (Alaska App. 1989).

6 Bostic, 805 P.2d at 347.

7 Id. at 348.

8 Id. at 350 (Rabinowitz, J., and Matthews, C.J., dissenting).

9See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974)
(allowing a defendant to plead no contest to a criminal
charge  but  still  preserve  the  right  to  pursue  a
dispositive claim on appeal).

10Crist  v. Bretz, 437 U.S. 28, 38; 98 S.Ct. 2156, 2162;  57
L.Ed.2d 24 (1978); United States v. Sammaripa, 55 F.3d  433,
434  (9th  Cir. 1995); Soundara v. State, 107 P.3d 290,  296
(Alaska  App.  2005);  March v. State,  859  P.2d  714,  717
(Alaska App. 1993).

11Crist v. Bretz, 437 U.S. at 38, 98 S.Ct. at 2162.

12United  States v. Dinitz, 424 U.S. 600, 606-07;  96  S.Ct.
1075,  1078-79; 47 L.Ed.2d 267 (1976); Watkins v.  Kassulke,
90 F.3d 138, 141 (6th Cir. 1996); Wayne R. LaFave, Jerold H.
Israel,  and  Nancy  J. King, Criminal  Procedure  (2nd  ed.
1999),  25.1(g), Vol. 5, pp. 647-48.

13See  Arizona v. Washington, 434 U.S. 497, 503-04; 98 S.Ct.
824,  829; 54 L.Ed.2d 717 (1978); Crist v. Bretz , 437  U.S.
at  38,  98 S.Ct. at 2162; United States v. Jorn,  400  U.S.
470, 484; 91 S.Ct. 547, 557; 27 L.Ed.2d 543 (1971); Wade  v.
Hunter, 336 U.S. 684, 689; 69 S.Ct. 834, 837 (1949);  United
States  v. Pavloyianis, 996 F.2d 1467, 1472 (2nd Cir. 1993);
Koehler v. State, 519 P.2d 442, 447 (Alaska 1974).

14Watkins, 90 F.3d at 139-140.

15  See Reutter v. State, 886 P.2d 1298, 1306 (Alaska App.
1994);  State  v. R.H., 683 P.2d 269, 282 (Alaska  App.
1984);  Parker  v. State, 667 P.2d 1272,  1274  (Alaska
App. 1983).

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