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DUI Appeal - Double Jeopardy Bars Retrial, Says North Dakota

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In Day v. Judge Bruce Haskell, --- N.W.2d ----, 2011 WL 2505052 (N.D.), 2011 ND 125, the defendant sought a writ from the Supreme Court of North Dakota to bar a judge from forcing the defendant to be retried. The facts of the case are unusual:

"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.

"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.

"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."

As stated in the opinion:

"‘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, 257 (N.D.1975)). Here, jeopardy attached when the jury was empaneled and sworn.

"However, the Double Jeopardy Clause does not prohibit retrial in every case where the first trial has terminated after jeopardy attached but before a verdict is rendered. Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201. Whether a defendant may be retried depends on whether a mistrial was properly granted. State v. Voigt, 2007 ND 100, ¶ 12, 734 N.W.2d 787. The basic controlling principles in determining whether a mistrial was properly granted are manifest necessity and the ends of public justice. Id. In United States v. Perez, 22 U.S. 579, 580 (1824), a landmark case construing the Double Jeopardy Clause, the United States Supreme Court said:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office."

Concluding, the court stated:

"In this case, the attorneys were briefly afforded an opportunity to be heard on the issue. However, the trial court failed to consider other alternatives before granting the State's motion for a mistrial and the decision was not made after sufficient reflection. The trial court allowed the attorneys to question the bailiff at Day's attorney's request, but in response, the trial court said, “frankly, any conversation would be grounds for a mistrial. So I'm not—I'll allow you to make your record, I don't think that it's going to be particularly helpful.” The issue was raised shortly before 10:49 a.m., and the trial court granted a mistrial at approximately 10:56 a.m. The trial court did not make any findings about juror bias or prejudice. Day's attorney requested a curative instruction, but the trial court failed to consider the request and granted a mistrial. The record indicates the trial court believed a mistrial would be required if there was any conversation between the defendant and the jury. A mistrial is not automatically required when the jury is exposed to improper communication; rather, the court must consider the circumstances of each case and determine if there is a manifest necessity for a mistrial. See United States v. Melius, 123 F.3d 1134, 1138–39 (8th Cir.1997) (the trial court's decision to grant a mistrial when there is a claim of possible juror bias is entitled to deference but the court's decision is not beyond review and the court must act responsibly and deliberately considering the defendant's interests). The trial court's decision to terminate a criminal proceeding after jeopardy has attached should not be taken lightly. Linghor, 2004 ND 224, ¶ 22, 690 N.W.2d 201. In this case, the trial court did not consider any alternatives and the decision was made quickly and without sufficient reflection. The trial court did not engage in the “scrupulous exercise of judicial discretion” required before making its decision.

"Under the facts and circumstances of this case, we conclude granting a mistrial was not manifestly necessary and retrial is constitutionally barred."

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DUI Appeal - Source Code Win in Georgia

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In Davenport v. State of Georgia, --- S.E.2d ----, 2011 WL 2436668 (Ga.) the trial court denied a request for defendant's request for a certificate requesting the attendance in Georgia of an out-of-state witness, namely the Person in control of the source code for the Intoxilyzer 5000. On appeal, the Supreme Court of Georgia found that the trial court's determination that such a witness was not 'material' employed the wrong standard. The standard announced in the opinion states:

“a material witness is ‘a witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.“

The court then remanded the matter for further proceedings. Of additional interest however, was the concurring opinion, which is reproduced in full herein:

I join fully in the majority opinion and note that it may have two salutary effects. First, in Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991), this Court held that the results of breathalyzer tests conducted in accordance with the statutory scheme “may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test.” Id. at 127, 401 S.E.2d 516. But the Court also said that “[a]n accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction,” with such evidence going to the weight of the breathalyzer results. Id. at 126, 401 S.E.2d 516. Under today's decision, defendants seeking to obtain such evidence from another state must still show the Georgia court that the evidence is “material” to their case as required by OCGA § 24–10–94(a), but they need not make the more demanding showing required by the now-disapproved Court of Appeals' decisions.

Second, by applying the correct “material witness” standard, trial courts may alleviate the due process concerns that may otherwise exist (but are not well presented in this appeal) when the State enacts a statutory scheme in which: (1) evidence usually determinative of the defendant's guilt (e.g., blood alcohol content in a per se DUI prosecution) is tested and reported, not by forensic experts who testify and face cross-examination on the reliability of their methods and the accuracy of their results, but rather by a machine (e.g., the Intoxilyzer 5000) that takes in a specimen from the defendant and, through internal mechanisms and computer code, generates a test report; (2) the machine's computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia; (3) the machine's test result is admissible at trial through a witness who can say that he was qualified to operate the machine and it operated as designed (see, e.g., OCGA § 40–6–392(a)), but who has no knowledge about whether the machine was in fact designed to produce reliable and accurate results under the circumstances presented; and (4) the machine uses up the specimen, with nothing maintained for later confirmation or independent testing.

Lastly, the dissenting opinion stated in part:

"[T]here is no merit to Davenport's assertion that the trial court's ruling denies her constitutional rights to compulsory process, confrontation, due process of law, and a fair trial. The contention is based upon the premise that the I–5000 is Davenport's accuser, invoking the constitutional right of confrontation. However, as noted by the State, the I–5000 is simply a tool used by law enforcement to determine the breath-alcohol content of a driver who is suspected of driving under the influence. Davenport was adjudged guilty by the trial court on the basis of evidence, to which Davenport stipulated, some of which was reported by the I–5000 after it was certified to be fully operational. In the context of a challenge to the admission into evidence of an inspection certificate for the Intoxilyzer, this Court has determined that there is no violation of the right of confrontation. Rackoff v. State, 281 Ga. 306, 309(2), 637 S.E.2d 706 (2006); Brown v. State, 268 Ga. 76, 80, 485 S.E.2d 486 (1997); see also Jacobson v. State, 306 Ga.App. 815, 818(4), 703 S.E.2d 376 (2010). This is so, in part, because an inspection certificate, like a computer source code, is not testimonial in nature; it is part of the regular course of business regarding operation of the I–5000, and it is not utilized in an investigatory or adversarial setting or generated in anticipation of the prosecution of a particular defendant. Rackoff v. State, supra at 309(2), 637 S.E.2d 706.

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DWI Appeal - Texas Jury Instruction on Refusals Flawed

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In Galinas v. State of Texas, Not Reported in S.W.3d, 2011 WL 2420858 (Tex.App.-El Paso), the defendant was stopped because he allegedly had a red light illuminating his rear license plate (the law requires white) and because he failed to signal while exiting a private driveway onto a public road. With regard to the light above the plate, the videotape of the stop showed that the light above the plate was actually white, as required by law. Trooper Marquez stated that at the time of the traffic stop, he believed Appellant's failure to signal out of the private driveway constituted a traffic violation. It was ultimately determined that the officer incorrectly believed that Texas law required the use of a signal while turning from a private driveway. He also stopped the vehicle because of a red license plate light. After the traffic stop, Marquez noticed that there was also a white light illuminating the license plate. At the time of the stop, he saw only the red light. A white light illuminating a license plate must be visible from at least fifty feet. With regard to the license plate light, he could not tell whether the light was “white”; he could only tell that it was “faint.” The trial court denied the motion to suppress.

In Texas, apparently the jury is also instructed to decide whether a stop was illegal and whether evidence should therefore be suppressed. The defendant on appeal complained that the trial court abused its discretion in failing to give the requested suppression instruction to the jury (which admittedly correctly stated Texas law):

"If you the jury find that Trooper Diego Marquez illegally stopped the defendant on February 16, 2007, or have any reasonable doubt thereof, you are instructed to exclude all evidence obtained by the trooper from and after the illegal stop from—during your deliberations."

Instead, the jury was wrongfully instructed to the opposite:

"...if you find from the evidence that on the occasion in question the Defendant, JAMES HENRY GELINAS, was driving his vehicle on a public road immediately preceding his stop and detention by the officer and you find from the evidence that his vehicle failed to comply with the Texas Transportation Code Provision, which requires a white light to illuminate the vehicle's license plate or you have a reasonable doubt thereof, then such stopping of the accused would be illegal and, if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard this testimony of Trooper Marquez relative to his stopping the defendant and his conclusions drawn as a result thereof, and you will not consider such evidence for any purpose whatsoever."

The State argued on appeal that, even though the jury instruction was wrong, the arguments of counsel corrected the defect. In rejecting that argument, the court wrote:

"The Hutch majority quickly rejected the contention that legal arguments could cure charge error:

The United States Supreme Court, when faced with the assertion that a prosecutor's argument on a presumption of innocence cures a jury charge deficient in that instruction, wrote ‘arguments of counsel cannot substitute for instructions by the court.’ [Citation deleted]. And, we have similarly noted that ‘jury argument is not a substitute for a proper jury charge.’

Id. at 173–74. The majority then recognized that because the application paragraph was so flawed as to charge the jury on the opposite of what the law actually provides and because the legality of the stop was a hotly contested issue, the error could not be cured by jury arguments. Id. at 174. Because the error vitally affected Hutch's defensive theory, the court reversed and remanded.

The right to a trial by jury in criminal matters is among those fundamental rights guaranteed by our Constitutions. In order to effectuate this valuable right, there is a minimal requirement that the instructions to the jury not be exactly opposite of what the law actually is."

Due to the error, the appeals court reversed and remanded for a new trial.

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