The opinion of the court was delivered by: Maring, Justice.
N.D. Supreme CourtDay v. Haskell,
This opinion is subject to petition for rehearing.
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Petition for Supervisory Writ. SUPERVISORY WRIT GRANTED. Opinion of the Court by Maring, Justice.
[¶1] David Allen Day petitioned for a supervisory writ, requesting that we direct the district court to vacate its order denying his motion to dismiss. We grant the petition for a supervisory writ, concluding double jeopardy prohibits the district court from retrying Day for driving under the influence of alcohol, and we direct the court to vacate its order denying Day's motion to dismiss and to enter an order dismissing the complaint.
I [¶2] In April 2010, Day was charged by complaint with driving under the influence of alcohol. A jury trial was held in February 2011. After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.
[¶3] The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.
[¶4] On March 10, 2011, Day moved to dismiss the complaint, arguing a second trial was prohibited under Fifth Amendment double jeopardy principles. In April 2011, the trial court, another judge presiding, denied Day's motion to dismiss, finding a mistrial was reasonably necessary.
II [¶5] This Court has authority to issue supervisory writs under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04. The authority to issue supervisory writs is discretionary and is exercised on a case-by-case basis. Roe v. Rothe-Seeger, 2000 ND 63, ¶ 5, 608 N.W.2d 289. Generally, we will not exercise supervisory authority when the proper remedy is an appeal. Id. We exercise our authority rarely and cautiously, "and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy." Id.
[¶6] The Double Jeopardy Clause protects an individual from being convicted of the same crime twice and that right can be fully vindicated on appeal after a conviction and sentence. Abney v. United States, 431 U.S. 651, 660-61 (1977). However, the United States Supreme Court has held an accused's rights would be significantly undermined if the accused has to wait for appellate review until after conviction and sentence. Id. The rationale stated is that "the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense." Id. The purpose of the Double Jeopardy Clause is that "'the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'" Id. at 661-62 (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)). We conclude this is an appropriate case to exercise our supervisory authority and original jurisdiction. See State v. Robideaux, 475 N.W.2d 915, 916 (N.D. 1991) (a supervisory writ is one way to adequately protect the defendant's interest against being placed in "risk" of double jeopardy).
III [¶7] The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits successive prosecutions and punishments for the same offense. The Double Jeopardy Clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. State v. Linghor, 2004 ND 224, ¶ 19, 690 N.W.2d 201. North Dakota constitutional and statutory provisions provide protections consistent with the Fifth Amendment. See N.D. Const. art. I, § 12; N.D.C.C. § 29-01-07; Linghor, at ¶ 19.
[¶8] "'The general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn, and in a non-jury trial when the court begins to hear evidence.'" Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201 (quoting State v. Berger, 235 N.W.2d 254, ...