State of Maine v. Thomas D. Johnson ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 68
Docket: Yor-13-330
Argued: April 9, 2014
Decided: May 20, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
STATE OF MAINE
v.
THOMAS D. JOHNSON
MEAD, J.
[¶1] Thomas D. Johnson’s trial in May 2013 on a charge of domestic
violence assault (Class C), 17-A M.R.S. § 207-A(1)(B)(3) (2013), ended when the
trial court (O’Neil, J.) found manifest necessity to declare a mistrial and then ruled
that the State would be allowed to retry Johnson. Asserting the double jeopardy
clauses of the United States and Maine Constitutions, Johnson appeals from the
court’s order denying his motion to reconsider the ruling that he may be retried.1
We affirm the order.
I. BACKGROUND
[¶2] An indictment returned by the York County Grand Jury on
December 5, 2012, charged Johnson with assaulting the victim on
September 12, 2012. Johnson requested automatic discovery from the State
1
This interlocutory appeal does not violate the final judgment rule because “a pretrial order denying a
motion to dismiss based on grounds of double jeopardy is immediately appealable.” State v. Chase,
2000 ME 114, ¶ 1 n.1, 754 A.2d 961.
2
pursuant to M.R. Crim. P. 16(a), and discovery available by request pursuant to
M.R. Crim. P. 16(b). The case went to trial on May 14, 2013, five months after the
indictment was returned.
[¶3] After the jury was seated in the jury box on the morning that the trial
began, the prosecutor requested a sidebar conference. He advised the court that he
had spoken with the victim that morning for the first time. He reported that she
gave him information that he had not known before, including that (1) during the
assault Johnson held a knife to her throat and said, “I’ll slash your fucking throat”;
and (2) she had written a statement for the police two or three weeks after the
incident. The prosecutor said that he had not known that the written statement
existed, did not have it, did not know what was in it, and presumed that the
Biddeford Police Department had it. He acknowledged that the new information
differed from what had been provided to Johnson in discovery. Johnson’s counsel
told the court that “if this stuff, in fact, exists, I ask that this case be dismissed on
an outrageous discovery violation.”
With the jury waiting, the court ruled that
[y]ou [the prosecutor] can call your first witness. And the case isn’t
going to be dismissed. Oral statement of the knife is out as a
discovery violation. With respect to the written statement, we will
take that up when we get it here from the police. And I’ll address
what sanction, if any, should be imposed.
3
[¶4] At the court’s direction, the State proceeded to give its opening
statement. In describing the assault to the jury, the prosecutor said that Johnson
“turns violent, physically violent. He grabs [the victim] by the front of her hair . . .
on the top of her head, takes her head and hits it against the counter.” This
“head-banging incident” had not been discussed at sidebar before the State gave its
opening statement. Immediately after the State’s opening concluded, defense
counsel approached sidebar and objected:
Judge, I’m going to object to the State’s entire opening argument and
here is why: [w]e heard [that] . . . my client hits [the victim’s] head
against the counter; never mention[ed] anywhere in any discovery [or]
in any report. . . . taking this outrageous thing about the head banging
down on the counter, that was not given in the discovery.
The following exchange then occurred:
STATE: That is what the witness told me this morning, your Honor.
I have no idea what is in her written statement. I assume it is
contained in there. But that is what the witness told me when I
interviewed her this morning. She will testify to that this morning.
DEFENDANT: . . . He is going to have her testify to stuff that he []
knows that we have not heard about and have never been provided
any information about. And for the State to wait until the morning of
trial to do their interview of the victim and find out all of this . . . is
not excusable, Judge. This is terrible trial prep and it prejudices my
client beyond belief.
STATE: It is trial prep that exists. . . . I can’t force somebody to come
. . . and speak with me. I can only put them under subpoena if she
didn’t want to speak with me. . . . [Defense counsel], I’m sure, will be
able to impeach her with it when she is on the stand.
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COURT: . . . With respect to the issue about the head-banging, I
mean, I don’t know what the discovery says so I’m not in a position at
this point to issue a ruling . . . . I’ll take it under advisement.
[¶5] Johnson then gave his opening statement without referring to the
head-banging incident, following which the court took a recess. After the jury
retired, the court conferred with counsel regarding the victim’s written statement
that the prosecutor had by then received from the Biddeford Police Department.
The court noted that it
includes statements made, such as: “Shut up, Bitch, I’m going to cut
your throat,” and “I will kill you when I get out,” and an allegation
essentially for the first time today that in addition to pulling of hair
there was smashing of the face on the sideboard in the kitchen.
Defense counsel, noting that the statement was dated December 18, 2012, five
months before the trial, requested a dismissal based on the discovery violation and
the resulting prejudice to Johnson. He concluded his argument by saying,
I think the prejudice to my client at this stage cannot be overcome by
the Court asking this jury to disregard the State’s opening statement,
which is based almost entirely not on the discovery that we have but
on this statement that we didn’t have. And it can’t be corrected,
Judge. I ask for a mistrial.
[¶6] In opposing a dismissal, the prosecutor agreed that the written
statement had been in the possession of the Biddeford Police Department for
months and that it had first been produced that morning. He advised the court that
the victim had appeared for trial only because she had been subpoenaed, not
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because she was cooperating with the State. Defense counsel again objected to
continuing with the trial, saying, “I think that this is absolutely the [kind of] case
. . . that should be dismissed,” and that, “I seriously think that I deserve a mistrial
because the jury has been prejudiced beyond my ability to repair it.” The court
took “the mistrial issue and the dismissal issue” under advisement after sanctioning
the State for the discovery violation by excluding both the victim’s written
statement and the substantive disclosures that she made to the prosecutor that
morning, ruling that, “The State will be limited to the evidence that’s produced in
the original discovery involving the mechanism of assault here[.]” It then took a
recess to allow the State to determine the reason that the written statement had not
been produced earlier and to report that reason to the court.
[¶7] Following a discussion in chambers, the court revisited the question of
how to proceed after defense counsel again requested a mistrial, asserting that he
had no way to cure the prosecutor’s reference in his opening statement to the
head-banging incident. The court found that (1) the prosecutor had received the
victim’s written statement that day because the Biddeford Police Department had
not logged it in at the time it was filed; (2) the failure to provide the statement in
discovery had prejudiced Johnson; (3) in making his opening statement, the
prosecutor had complied with the court’s ruling excluding evidence of the alleged
threat Johnson made with a knife; (4) the court had not yet excluded evidence of
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the head-banging incident when the prosecutor referenced it in his opening; and
(5) defense counsel was correct in arguing that there was no way to “unring the
bell” concerning the head-banging incident because the jury had been told about it.
The court ruled that it would “accordingly, grant the defendant’s motion for a
mistrial.”
[¶8] The court then turned to the issue of whether the mistrial resulted from
manifest necessity and found that it did, reasoning that Johnson could not get a fair
trial as a result of the late discovery, and that the State could not get a fair trial
because of “the Court’s ruling on the discovery issues, requiring the State to
sanitize its version of events.” Finally, in determining whether the State would be
allowed to retry Johnson, the court considered the question of whether the mistrial
involved prosecutorial misconduct:
The Court does not conclude that there was prosecutorial misconduct
here. That issue may have been different had I ruled before [the
prosecutor’s] opening statement that he couldn’t use the
bashed-the-face-into-the-sideboard theory of liability, but I didn’t do
that. And [the prosecutor] was respectful of the Court’s rulings and
did not mention the oral statements that had been excluded. So I
cannot conclude that there is any prosecutorial misconduct.
Accordingly, the State would be entitled to retry its case.
Johnson, “disagree[ing] with the manifest necessity piece,” preserved his objection
to the court’s ruling that he could be retried.
7
[¶9] Two days later, Johnson filed a motion asking the court to reconsider
its ruling and requesting a dismissal of the indictment on the ground that a retrial
would violate his constitutional double jeopardy protections. At a hearing on the
motion, Johnson argued that a retrial should not be allowed because the State was
wholly responsible for the circumstances leading to the mistrial. The court
reviewed the events that occurred at trial, reiterated its conclusion that the
discovery violation resulted from the inaction of the Biddeford Police Department,
and denied the motion. This appeal followed.
II. DISCUSSION
[¶10] Because the double jeopardy clauses of the United States and Maine
Constitutions protect a criminal defendant “against being twice put in jeopardy of
life or limb for the same offense,” State v. Chase, 2000 ME 114, ¶ 6, 754 A.2d 961
(quotation marks omitted), once the jury is sworn and jeopardy attaches, a
defendant “will not be required to stand trial a second time unless he consents to a
mistrial . . . or unless under all the circumstances, the mistrial was mandated by
manifest necessity.” State v. Rowe, 480 A.2d 778, 781 (Me. 1984) (citations
omitted).
[¶11] As discussed above, Johnson strenuously objected several times to the
trial continuing past opening statements. Sometimes his requests were for a
dismissal, other times for a mistrial. His final argument to the court—that he could
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not “unring the bell” after the State’s opening statement—concluded with “[a]nd
that’s really the basis for my . . . request for the mistrial.” Whatever the term used,
it is clear that Johnson did not want the trial to move forward. After the court
“grant[ed] the defendant’s motion for a mistrial,” defense counsel, although he
“disagreed with the manifest necessity piece,” agreed that “under the circumstance
I think that your ruling, as far as getting rid of the trial today, is, in fact, the only
thing that we can do.”
[¶12] We recently said that “[t]he defendant’s consent to mistrial or conduct
constituting implied consent . . . eliminates any barrier to retrial under the double
jeopardy clause, barring intentional prosecutorial misconduct.” State v. Carey,
2013 ME 83, ¶ 21, 77 A.3d 471. By consenting to not “hav[ing] his trial
completed by a particular tribunal once jeopardy attach[ed],” Rowe, 480 A.2d at
782, Johnson removed any double jeopardy barrier to a retrial so long as the court
was correct in finding that intentional prosecutorial misconduct did not impose a
constitutional bar. For that reason, we do not reach the trial court’s determination
that a mistrial was manifestly necessary. See Carey, 2013 ME 83, ¶ 20,
77 A.3d 471 (“[I]n this case we need not reach the issue of manifest necessity. We
affirm the declaration of a mistrial on the alternate grounds that [the defendant]
impliedly consented to the entry of a mistrial.”).
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[¶13] Because we conclude that Johnson consented to a mistrial, we next
consider whether intentional prosecutorial misconduct nonetheless bars a retrial.
See id. ¶ 21; Chase, 2000 ME 114, ¶ 6, 754 A.2d 961. In order for the State’s
actions to preclude it from a second trial,
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. We will not upset a trial court’s
factual determination that there was no intentional prosecutorial
misconduct unless the finding is clearly erroneous.
Chase, 2000 ME 114, ¶¶ 6-7, 754 A.2d 961 (citations omitted) (emphasis in
original). In Chase, we declined the defendant’s invitation to substitute a lower
“inexcusable negligence” standard for the “intentional prosecutorial misconduct”
standard. Id. ¶ 6 n.3.
[¶14] Here, the trial court explicitly found that no prosecutorial misconduct
occurred. We defer to that finding because “the trial court . . . was in the best
position to view the course in which the trial was moving and the conduct of
counsel.” Id. ¶ 7. Johnson argues that the underlying reason for the mistrial is
chargeable to the State—essentially urging us to apply the “inexcusable
negligence” standard that we rejected in Chase—but does not contend that the
prosecutor’s actions were “intended to force a mistrial and prevent an impending
acquittal.” Id. ¶¶ 6 n.3, 8. The court’s finding that prosecutorial misconduct rising
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to that level did not occur was not clearly erroneous. See id. ¶ 7. As we did in
Chase, we again decline the invitation to change the applicable test.
[¶15] Johnson finally contends that our decision in State v. Rowe requires
that the indictment be dismissed. In Rowe, we said that “[t]he State cannot rely on
a problem created by its own neglect to establish the existence of manifest
necessity.” 480 A.2d at 783. For two reasons, Rowe is not controlling here. First,
it is inapplicable because Johnson consented to the mistrial, and so we do not reach
the issue of whether a mistrial was also justified by manifest necessity. See Chase,
2000 ME 114, ¶ 6, 754 A.2d 961 (“A motion by the defendant for mistrial . . . is
ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s
motion is necessitated by prosecutorial or judicial error.” (quotation marks
omitted)).
[¶16] Second, if we were to reach that issue, the mistrial in Rowe was
directly precipitated by the State’s negligence—the State created what it should
have foreseen as a Bruton problem2 at an early stage in the case, and then failed to
correct it until the trial was well underway and it was too late. Rowe, 480 A.2d at
783. Here, because the police are the equivalent of the prosecutor for purposes of
the discovery rules, the State was negligent in failing to provide the victim’s
2
As we explained in Rowe: “Bruton [v. United States] holds that in joint trial cases, the admission in
evidence of a non-testifying defendant’s confession implicating his codefendant violates the
codefendant’s Sixth Amendment right to cross-examine his accusers.” State v. Rowe, 480 A.2d 778, 780
n.4 (Me. 1984) (citing Bruton v. United States, 391 U.S. 123, 137 (1968)).
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written statement in discovery before the trial. See M.R. Crim. P. 16(b)(1). The
event directly precipitating the mistrial was not the State’s negligence in providing
late discovery, however, but rather the prosecutor’s reference to the head-banging
incident—which had not yet been excluded by the court—in his opening.
[¶17] At that point in the trial, the factual basis for the head-banging
reference was not the victim’s written statement, but rather the prosecutor’s
discussion with the victim that morning. Johnson seeks to conflate the victim’s
written statement with her oral statements because they eventually proved to
contain the same information, but he fails to recognize the critical difference in
their origin. A victim’s written statement in the State’s possession that is not
provided to the defense is properly excluded as a discovery violation, but it is
neither improper nor particularly unusual in a domestic violence case for a
prosecutor to interview a victim on the day of the trial after the victim appears only
in compliance with a subpoena. Notwithstanding Johnson’s objection to what he
considers to be the State’s inadequate trial preparation, if the victim in this case
had not given police a written statement at all and had only talked to the prosecutor
on the morning of the trial, no discovery violation would be evident.3
3
In hindsight, before giving his opening statement the prosecutor would have been well advised to
obtain a ruling from the court as to the admissibility of the victim’s oral statement concerning the
head-banging incident, as he did concerning the knife-threatening incident. Nevertheless, we defer to the
court’s determination that the prosecutor was “respectful” of its rulings and that no prosecutorial
misconduct occurred.
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[¶18] The court found that the State’s opening was made in good faith
because the prosecutor avoided discussing issues that the court had excluded, and
evidence of the head-banging incident was excluded only after both parties had
opened and the late written statement became available. Accordingly, there was
not a direct causal connection between the State’s negligence in failing to provide
discovery and the problem causing the mistrial. For that reason, Rowe is
distinguishable.
The entry is:
Order affirmed.
On the briefs:
Clifford B. Strike, Esq., Strike, Goodwin & O’Brien, Portland,
for appellant Thomas D. Johnson
Kathryn Loftus Slattery, District Attorney, and Anne Marie
Pazar, Esq., Prosecutorial District No.1, Alfred, for appellee
State of Maine
We also do not suggest that a discovery violation resulting from the State’s failure to provide a written
statement in a timely manner can be cured simply by having a witness orally repeat on the morning of
trial what the written statement says. Here, because they contained the same substantive information, the
court excluded both the victim’s written and last-minute oral statements. Had it been able to do so before
the parties opened, there would have been no mistrial, and the State would have been required to present
its case-in-chief without using any of the challenged statements.
13
At oral argument:
Clifford B. Strike, Esq. for appellant Thomas Douglas Johnson
Anne Marie Pazar, Esq., for appellee State of Maine
York County Superior Court docket number CR-2012-1870
FOR CLERK REFERENCE ONLY