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State v. Jayne Chase

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 114
Docket:	Cum-99-737	
Submitted
on Briefs:	May 25, 2000
Decided:	June 19, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




STATE OF MAINE v. JAYNE CHASE


DANA, J.

	[¶1]  Jayne Chase appeals from an order of the Superior Court
(Cumberland County, Humphrey, J.) denying her motion to dismiss based on
double jeopardy.{1}  Chase argues that it was error for the court to determine
that the inappropriate comment made by the prosecutor that necessitated
the mistrial did not create a constitutional bar to a retrial.  We disagree and
affirm.
	[¶2]  Chase was charged with operating a vehicle under the influence
of intoxicating liquor in violation of 29-A M.R.S.A. § 2411 (1996).{2}  On
August 23, 1999, her first trial was commenced, a jury was sworn, and the
State proceeded with its case-in-chief.  During defense counsel's cross-
examination of the officer who had been assigned to administer the
intoxilyzer test to Chase, the prosecutor interrupted and stated the
following:
Your Honor, I believe [defense counsel] is beyond the questions
he can ask an officer and the defendant can testify, if she takes
the stand, about what she thought.
	[¶3]  On hearing this statement, defense counsel immediately asked
for a sidebar conference during which he requested and was granted a
mistrial.  Although it granted the mistrial on the ground that the errant
comment created an expectation on the part of the jurors that they would
hear from the defendant, the court indicated that it understood the point
the State was trying to make when the comment was made and that the
inappropriate wording had been used inadvertently.  Chase then filed a
motion to dismiss the complaint based on the prior jeopardy of the first
trial.
	[¶4]  At the hearing on the motion, the State characterized the
prosecutor's conduct as a "rookie" mistake and stated the prosecutor was
embarrassed that his errant comment had caused a mistrial.  Chase
conceded that the comment may have been the result of a "rookie error,"
but argued that an actual intent to bring about a mistrial is not the
appropriate standard, and that the conduct need only be intentional insofar
as it is the prosecutor's intent to say the words.
	[¶5]  The court, citing State v. Tribou, 598 A.2d 173, 175 (Me. 1991),
concluded that a mistrial declared on the defendant's motion removes any
constitutional bar to retrial, unless the motion was provoked by intentional
prosecutorial misconduct.  Finding no intentional misconduct, the court
denied Chase's motion to dismiss.  Chase has appealed from this order.
	[¶6]  Criminal defendants are protected against being "'twice put in
jeopardy of life or limb' for the same offense under both the Maine and
federal constitutions."  State v. Cotton, 673 A.2d 1317, 1319 (Me. 1996)
(quoting Tribou, 598 A.2d at 175).  A motion by the defendant for mistrial,
however, "is ordinarily assumed to remove any barrier to reprosecution,
even if the defendant's motion is necessitated by prosecutorial or judicial
error."  State v. Flick, 495 A.2d 339, 344 (Me. 1985) (quoting United States
v. Jorn, 400 U.S. 470, 485 (1971)).  As to the conduct of the prosecutor, we
have stated that, "[b]arring intentional prosecutorial misconduct,{3} a
defendant's motion for . . . a declaration of mistrial eliminates any
constitutional barrier, created by the double jeopardy clause of either the
United States or Maine Constitutions, to retrial."  State v. Beaudoin, 600
A.2d 1097, 1098 (Me. 1991) (emphasis added); see also Tribou, 598 A.2d at
175 (citing Oregon v. Kennedy, 456 U.S. 667, 676 (1982)).  Moreover, the
prosecutorial misconduct "must rise to an egregious level for double
jeopardy to bar a retrial.  A defendant cannot be retried only where the
conduct of the prosecutor is undertaken . . . to prevent an acquittal that [the
prosecutor] believed at the time was likely to occur in the absence of his
misconduct."   United States v. Gary, 74 F.3d 304, 315 (1st Cir. 1996)
(internal quotations omitted) (citing United States v. Wallach, 979 F.2d 912,
916 (2nd Cir. 1992), cert. denied, 508 U.S. 939 (1993)) (emphasis added);
Kennedy, 456 U.S. at 679; United States v. Cartagena-Carrasquillo, 70 F.3d
706, 714-15 (1st Cir. 1995).
	[¶7]  We will not upset a trial court's factual determination that there
was no intentional prosecutorial misconduct unless the finding is clearly
erroneous.  State v. Chapman, 496 A.2d 297, 301 (Me. 1985).  In the
present case, the trial court, which was in the best position to view the
course in which the trial was moving and the conduct of counsel, stated that
it understood what the prosecutor was attempting to do when he made the
improper statement.  The court also felt compelled to state more than once
its belief that the improper statement was made inadvertently and was in no
way an attempt to purposely interfere with Chase's right to have her case
tried before that tribunal.
	[¶8]  Later, at the hearing on Chase's motion to dismiss, both parties
recognized the statement as a "rookie" error.  Moreover, the court's order
includes a factual finding, which Chase in her brief expressly states she does
not challenge, that the remark was "inadvertent and not intentional."  Thus,
there is no question that the inappropriate comment was made
inadvertently and did not constitute intentional prosecutorial misconduct
that was intended to force a mistrial and prevent an impending acquittal. 
See Gary, 74 F.3d at 315; see also, e.g., Chapman, 496 A.2d at 300 (retrial
not barred where prosecutor inquired of medical expert as to cause of
victim's death where two defense objections had been sustained on the
ground of improper foundation); State v. Tibbetts, 299 A.2d 883, 890 (Me.
1973) (retrial ordered where prosecutor had impermissibly commented
during closing argument on defendant's failure to testify).
	The entry is:
			Judgment affirmed.
                                                                  

Attorneys for the state: Stephanie Anderson, Esq. District Attorney Julia Sheridan, Esq. Assistant District Attorney Cumberland County Courthouse 205 Newbury St. Portland, Maine 04l0l Attorney for the defendant: Thomas Connolly, Esq. P.O. Box 7563 Portland, Maine 04112-7563
FOOTNOTES******************************** {1} . Although interlocutory orders lack finality and are generally not appealable pursuant to the final judgment rule, a pretrial order denying a motion to dismiss based on grounds of double jeopardy is immediately appealable under the exception to the final judgment rule that permits appeals "where substantial rights of a party will be irreparably lost if review is delayed until final judgment." State v. Hanson, 483 A.2d 723, 724 (Me. 1984); see also Abney v. United States, 431 U.S. 651, 662 (1977). {2} . Section 2411 provides in pertinent part as follows: 1. Offense. A person commits OUI, which is a Class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more. {3} . As an alternative to the "intentional prosecutorial misconduct" standard, Chase invites us to adopt an "inexcusable negligence" standard. We decline the invitation. The rule finds its origin in Hylton v. Eighth Judicial Dist. Court of Nevada, Dep't IV, 743 P.2d 622 (1987). In Hylton, a Nevada court held the State's negligence that led to the necessity of a mistrial "inexcusable" where the prosecutor was warned as early as seven months prior to trial and on three separate occasions that one of the State's witnesses could invoke the attorney-client privilege if the defendant's counsel continued to represent the defendant at trial. Id. at 627. As of the calendar call, the prosecutor had made efforts to compel that witness's attendance at trial while at the same time opposing the defense counsel's motion to continue the trial so his client could obtain new counsel. See id. The court concluded that "[t]he prosecutor did not prevent the circumstances for a mistrial from occurring, when the prosecutor had adequate notice that a mistrial was likely to occur and when the prosecutor's office was expressly asked by the [trial] court to be forthcoming on that issue." Id. As the facts of Hylton demonstrate, the court's characterization of the prosecutor's conduct as "negligent" appears to be quite generous. The prosecutor was on notice for seven months that one of his witnesses could cause problems at trial because of the witness's relationship with defense counsel. In spite of his awareness of this situation, the prosecutor made affirmative efforts to compel that witness's attendance at trial and to block defense counsel's attempt to remove himself from the case. Certainly, the conduct of the prosecutor in the present case, which was an isolated and spontaneous statement made in the middle of a trial, cannot be considered to rise to this level. In the present case, all we have before us is an isolated comment of a prosecutor made as a spontaneous reaction to what he perceived as an improper question posed to a witness. As Chase has failed to put before us a case that includes conduct that could constitute inexcusable neglect, we have no cause to consider the prudence of Nevada's rule.