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Tritt v. State (1/4/2008) ap-2139

Tritt v. State (1/4/2008) ap-2139

     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-9600
Petitioner, ) Trial Court No. 4FA-05-3114 CR
v. ) O P I N I O N
Respondent. ) No. 2139 January 4, 2008
Appeal    from    the
          Superior  Court,  Fourth Judicial  District,
          Fairbanks, Jane F. Kauvar and Mark I.  Wood,

          Appearances:   Renee  McFarland,   Assistant
          Public Defender, and Quinlan Steiner, Public
          Defender,  Anchorage,  for  the  Petitioner.
          Tamara   E.  de  Lucia,  Assistant  Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Talis  J.  Colberg,
          Attorney    General,   Juneau,    for    the

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

          STEWART, Judge.

          Shortly  after the parties completed opening statements
in  Cordell Tritts jury trial, the trial court indicated that  it
would  offer the State the option of a mistrial because the court
believed   that  Tritts  opening  statement  was   unfair.    The
prosecutor  chose  the  courts option of a mistrial  over  Tritts
          Tritt  moved to dismiss the case on the ground  that  a
retrial  would violate the double jeopardy clause.  The  superior
court  denied the motion to dismiss.  Tritt petitioned this court
for  review,  and  we granted review.  Because we  conclude  that
there  was  no manifest necessity for a mistrial, we reverse  the
superior  court  and  direct the superior court  to  dismiss  the
charges against Tritt.
          Facts and proceedings
          On  September 10, 2005, a pickup truck crashed  into  a
utility pole in Fairbanks.  Witnesses saw three occupants  emerge
from  the  truck, and later identified Tritt as the driver.   The
police  arrested  Tritt  for  felony  driving  while  under   the
influence and driving while his license was cancelled, suspended,
or  revoked.  Throughout Tritts processing, Tritt maintained that
he  was not the driver of the truck.  Three days after the crash,
another occupant of the truck, Natalie Pitka, went to the  police
and  provided a written statement that she was the driver of  the
truck when it crashed.
          The  next day, September 14, the State presented  three
eyewitnesses to the events after the crash at grand jury, but did
not call Pitka.  The grand jury charged Tritt with felony driving
while  under  the influence, and the State filed  an  information
charging driving while license cancelled, suspended, or revoked.
          Before  opening  statements at Tritts jury  trial,  the
prosecutor  moved the court for a protective order barring  Tritt
from introducing hearsay statements Tritt made to the police that
he  was not driving.  Superior Court Judge pro tem Jane F. Kauvar
announced that the statements would be inadmissible unless  Tritt
took the stand in his own defense. Tritts attorney indicated that
he understood.
          During Tritts opening statement, Tritts attorney argued
that  Tritt had consistently told police he had not been driving.
The State objected, and Judge Kauvar told Tritts attorney that he
must  have evidence to support his claim. He replied that he did.
Tritts  attorney  emphasized this fact two more times before  the
State objected and asked to be heard. Judge Kauvar responded that
the State could be heard after Tritts  opening statement.
          Tritts  attorney  told the jury that  they  would  hear
testimony from Pitka.  He explained that Pitka went to the police
three  days  after the accident and provided a written  statement
that  she,  not  Tritt, had been driving when the pickup  crashed
into the utility pole. Tritts attorney continued:
          And  when  this  matter was presented  to  a
          grand  jury  for purposes of  charging,  Ms.
          Pitka  wasnt presented as a witness in  this
          matter   by  the  prosecutor  handling   the
          presentment.  The  three  witnesses  at  the
          scene that the State chooses to believe were

          The  prosecutor  objected, contending  that  Tritt  was
arguing  a pretrial motion issue that was improper to discuss  in
front  of the jury.  The court sustained the States objection  to
this  comment.   Tritts attorney then continued,  [Y]ou  are  the
first  jury, first body of decision-making citizens in this case,
who  will hear about what Ms. Pitka had to say with reference  to
what happened here.
          Tritts  attorney  completed opening  statement  moments
later, and the court proceeded outside the jurys presence.  Judge
Kauvar  told Tritt that if he did not testify, there would  be  a
mistrial.  Tritts attorney assured Judge Kauvar that Tritt  would
take the stand.
          The  prosecutor  thought that a  jury  instruction  was
necessary  to inform the jury that there was nothing improper  in
the  grand jury process.  Judge Kauvar said that she thought  the
opening  statement  started the trial on an unfair  footing,  and
indicated  that she would give the jury a cautionary  instruction
if the prosecutor did not want a mistrial.
          The   prosecutor  informed  the  judge  that  it  would
support a decision from the court to grant a mistrial, as long as
there was no bar to a retrial. The prosecutor maintained that the
jury  has  been irreparably tainted[.]  Tritt opposed a  mistrial
and pointed out the double jeopardy issue.
          Judge  Kauvar  announced that, if the  State  wanted  a
mistrial, she would grant it on the basis that the evidence  that
was  presented  in opening statement ... was highly  prejudicial.
Judge  Kauvar  concluded that the jury would  be  biased  and  an
instruction   to  the  jury  ineffective.   She  found   manifest
necessity and declared a mistrial.
          Tritt  moved  to  dismiss the case on  double  jeopardy
grounds,  claiming that manifest necessity did not  exist  and  a
mistrial  was unnecessary.  The case was reassigned  to  Superior
Court  Judge Mark I. Wood for consideration on the motion.  After
the  parties submitted briefs and participated in oral arguments,
Judge  Wood issued a written decision denying Tritts motion.   He
based his decision on the finding that manifest necessity existed
for mistrial because Tritts comments prejudiced the state to such
a  degree that a cautionary instruction would not have cured  the
bias.   Tritt  petitioned for review and this court  granted  the

          Why  we conclude there was no manifest necessity for  a
          Jeopardy  attaches  when  the  jury  is  sworn.1   Once
jeopardy  attaches,  the trial may not  be  stopped  short  of  a
verdict  unless  the  defendant consents  or  there  is  manifest
necessity  for  a  mistrial.2  Because  of  the  double  jeopardy
implications of ending a trial short of a verdict, this court has
cautioned trial courts that a mistrial should be declared without
a  defendants  consent  only in very extraordinary  and  striking
          We  review  a trial courts decision on a motion  for  a
mistrial  for abuse of discretion.4  We reverse the  trial  court
only  when, after reviewing the whole record, we are left with  a
definite  and firm conviction that the trial court erred  in  its
          Tritts  attorney  gave an opening  statement  that  was
keyed  to  an instruction given by Judge Kauvar just  before  the
parties opening statements that it is not uncommon for two honest
people  to witness the same event and hear or see things somewhat
differently.   The attorney stated that the evidence  would  show
that the visual perspective of the States witnesses could explain
their  identification of Tritt as the driver.  He said the police
did  not credit Tritts denials and tried to gain admissions  from
Tritt.   He summarized Pitkas expected testimony:  she  had  been
driving, was herself worried about legal trouble the day  of  the
offense,  but went to the police three days after the  crash  and
gave  a written statement accepting responsibility as the driver.
The  attorney  pointed  out that, at the grand  jury,  the  State
presented  three  witnesses from the scene  that  it  chooses  to
          Judge   Kauvar  (and  later,  Judge  Wood)   apparently
believed  that  a  mistrial  was  required  because  the  defense
attorney  had essentially accused a prosecutor of acting  in  bad
faith  by  willfully withholding exculpatory  evidence  from  the
grand  jury.6  But the defense attorney did not explicitly accuse
the  prosecutor  of  any  grand jury  impropriety.   The  defense
attorney  simply  noted that the prosecutor had  presented  three
inculpatory  witnesses  who  the  authorities  believed   to   be
credible,  that  the prosecutor had not chosen to present  Pitkas
contrary testimony, and that the twelve members of the petit jury
would be the first group to hear both sides of the case.
          Anyone  familiar with Alaska grand jury practice  would
understand  that  the  defense  attorney  was  merely  describing
typical  grand jury procedure.  Under Alaska law, the  prosecutor
is  normally not obliged to present the defense case to the grand
jury,7  and  the  trial is the time when the  defendant  has  the
opportunity  to  present a competing view of  the  episode  being
          Judge  Kauvar  may  have feared that the  trial  jurors
would misunderstand the defense attorneys remarks and infer  that
the  prosecutor had acted in bad faith by suppressing exculpatory
evidence  at  grand jury.  But the judge could  have  cured  this
problem  by  giving  an  explanatory instruction  to  the  jurors
informing them:  (1) that the purpose of grand jury is simply  to
decide whether there is good reason to require a person to  stand
trial;  (2)  that  the  prosecutor is normally  not  required  to
present  the defense case to the grand jury; (3) that  there  was
nothing improper about the prosecutors decision not to call Pitka
to  testify at the grand jury in Tritts case; and (4) that it was
indeed  the trial jurys obligation to now hear both sides of  the
case  and  then decide whether the State had proved Tritts  guilt
beyond a reasonable doubt.
          Because  the  problem could have  been  cured  in  this
manner,  there was no manifest necessity for a mistrial.  Because
there  was  no  manifest necessity for declaring a mistrial,  and
          because the mistrial was declared over Tritts objection, the
double jeopardy clause bars the State from trying Tritt again  on
these charges.
          We  take this opportunity to again urge trial judges to
be  cautious,  and to carefully consider all of the  alternatives
before declaring a mistrial without the defendants consent.
          As  this case demonstrates, a declaration of a mistrial
can  have grave consequences.  Here, the State will be denied the
opportunity  to  establish Tritts guilt of felony  driving  while
under  the  influence.  However, the framers of our constitutions
(both  state  and  federal) believed that our  society  would  be
subjected  to  greater evils if the government had the  power  to
bring  a  defendant  to  trial repeatedly on  the  same  criminal

          The  superior courts ruling is REVERSED.   Because  any
attempt  to  try Tritt again on these charges would  violate  his
rights  under the double jeopardy clause, we direct the  superior
court to dismiss the charges against Tritt.

     1 March v. State, 859 P.2d 714, 717 (Alaska App. 1993).

     2  Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct.  824,
830,  54  L. Ed. 2d 717 (1978); Browning v. State, 707 P.2d  266,
268 (Alaska App. 1985).

     3  Browning,  707 P.2d at 268 (quoting Lewis v.  State,  452
P.2d  892, 896 (Alaska 1969)).  See also Cook v. State,  36  P.3d
710, 729 (Alaska App. 2001); Riney v. State, 935 P.2d 828, 838-39
(Alaska  App. 1997); Nelson v. State, 874 P.2d 298,  308  (Alaska
App. 1994); March, 859 P.2d at 717.

4  Walker  v.  State,  652  P.2d 88,  92  (Alaska  1982)  (citing
Amidon v. State, 565 P.2d 1248, 1261 (Alaska 1977)).

     5  Hamilton  v. State, 59 P.3d 760, 769 (Alaska  App.  2002)
(citing  Keogh  v. W.R. Grasle, Inc., 816 P.2d  1343,  1349  n.11
(Alaska 1991)).

     6 See Frink v. State, 597 P.2d 154, 165-66 (Alaska 1979).

     7 Id. at 166.

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