City of West Fargo v. Ekstrom , 2020 ND 37 ( 2020 )


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  •                 Filed 2/12/20 by Clerk of Supreme Court
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2020 ND 37
    City of West Fargo,                                     Plaintiff and Appellee
    v.
    Mandie Le Ekstrom,                                  Defendant and Appellant
    No. 20190079
    Appeal from the District Court of Cass County, East Central Judicial District,
    the Honorable Susan Lynne Bailey, Judge.
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
    Opinion of the Court by McEvers, Justice, in which Chief Justice Jensen,
    Justices VandeWalle, Crothers, and Tufte joined. Justice Tufte filed an
    opinion concurring specially, in which Chief Justice Jensen joined.
    Stephen R. Hanson II (argued), Assistant City Attorney, and Kelsey Stock (on
    brief), third-year law student, under the Rule on Limited Practice of Law by
    Law Students, West Fargo, ND, for plaintiff and appellee.
    Luke T. Heck, Fargo, ND, for defendant and appellant.
    City of West Fargo v. Ekstrom
    No. 20190079
    McEvers, Justice.
    [¶1] Mandie Le Ekstrom appeals from a criminal judgment entered after a
    jury found her guilty of driving under the influence. We conclude the district
    court did not err in denying her motion to dismiss on state and federal
    constitutional double jeopardy grounds. We further conclude, however, the
    court erred in sentencing her because the jury did not find her chemical breath
    test result was .16 or greater. We affirm her conviction but reverse and remand
    for resentencing.
    I
    [¶2] In February 2018, the City of West Fargo charged Ekstrom in municipal
    court with driving under the influence after a chemical breath test indicated
    she was driving with an alcohol concentration in excess of the legal limit. She
    requested the case be transferred to district court for a jury trial. During the
    first trial in October 2018, Ekstrom moved for a mistrial after the City’s police
    officer testified to the chemical breath test results before the chemical test
    results had been offered into evidence. The court reserved its ruling, allowing
    the City to proceed and offer the chemical test result into evidence.
    [¶3] When the City offered the chemical breath test, however, Ekstrom
    objected arguing the City failed to offer evidence that the Intoxilyzer 8000 used
    in her case was installed by a field inspector under the approved method for
    operating the machine. See N.D.C.C. § 39-20-07(5); Ell v. Dir., Dep’t of Transp.,
    
    2016 ND 164
    , 
    883 N.W.2d 464
    . The court sustained her objection and granted
    her mistrial motion based on the City’s failure to provide proper foundation for
    the test result’s admission.
    [¶4] The district court gave the City ten days to schedule and notice a new
    trial date. Ekstrom objected on double jeopardy grounds and moved to dismiss
    the charge. She subsequently filed her motion to dismiss the case, arguing
    further prosecution would violate her double jeopardy rights. The City resisted
    the motion. After an October 29, 2018, hearing, the district court denied her
    1
    motion to dismiss. This Court also denied her petition for a supervisory writ,
    see Ekstrom v. Bailey, et al., No. 20180438. The district court held a second
    trial in February 2019.
    [¶5] At the second trial the district court denied Ekstrom’s motions in limine
    and allowed the City to introduce additional evidence and expert witness
    testimony not offered during the first trial. With proper foundation the court
    admitted the chemical breath test result into evidence.
    [¶6] Ekstrom objected to the elements in the jury instructions on grounds the
    City’s complaint only charged her with driving under the influence and did not
    charge her with aggravated DUI. She further argued the jury was required to
    make a finding regarding whether her alcohol concentration exceeded .16. The
    court overruled her objection, concluding the .16 finding was not an essential
    element of aggravated DUI.
    [¶7] The jury found Ekstrom guilty of driving under the influence. In
    sentencing her, the district court elevated her conviction from DUI to
    aggravated DUI. A criminal judgment was subsequently entered.
    II
    [¶8] Ekstrom argues the district court erred in denying her motion to dismiss
    on state and federal constitutional double jeopardy grounds.
    [¶9] The double jeopardy provisions of the federal and state constitutions and
    state law prohibit successive prosecutions and punishments for the same
    criminal offense. U.S. Const. amend. V; N.D. Const. art. I, § 12; N.D.C.C. § 29-
    01-07. In a jury trial, jeopardy attaches when the jury is empaneled and sworn.
    See Day v. Haskell, 
    2011 ND 125
    , ¶ 8, 
    799 N.W.2d 355
    . However, double
    jeopardy does not always prohibit retrial when the first trial has terminated
    before a verdict is rendered. See 
    id. at ¶
    9; State v. Voigt, 
    2007 ND 100
    , ¶ 12,
    
    734 N.W.2d 787
    . “Each case in which a double jeopardy violation is asserted
    must turn upon its own facts.” 
    Id. at ¶
    13. A mistrial that is declared with the
    defendant’s consent, such as when the defendant moves for a mistrial without
    2
    having been goaded into doing so by misconduct attributable to the prosecutor,
    generally does not bar a later prosecution. Voigt, at ¶ 18.
    [¶10] In Oregon v. Kennedy, 
    456 U.S. 667
    , 675-76 (1982), the Supreme Court
    explained:
    Prosecutorial conduct that might be viewed as harassment
    or overreaching, even if sufficient to justify a mistrial on
    defendant’s motion, therefore, does not bar retrial absent intent on
    the part of the prosecutor to subvert the protections afforded by
    the Double Jeopardy Clause. A defendant’s motion for a mistrial
    constitutes “a deliberate election on his part to forgo his valued
    right to have his guilt or innocence determined before the first trier
    of fact.” United States v. Scott, 
    437 U.S. 82
    , 93, 
    98 S. Ct. 2187
    ,
    2195, 
    57 L. Ed. 2d 65
    (1978). Where prosecutorial error even of a
    degree sufficient to warrant a mistrial has occurred, “[t]he
    important consideration, for purposes of the Double Jeopardy
    Clause, is that the defendant retain primary control over the
    course to be followed in the event of such error.” United States v.
    
    Dinitz, supra
    , 424 U.S., at 
    609, 96 S. Ct., at 1080
    . Only where the
    governmental conduct in question is intended to “goad” the
    defendant into moving for a mistrial may a defendant raise the bar
    of double jeopardy to a second trial after having succeeded in
    aborting the first on his own motion.
    “[W]e do hold that the circumstances under which such a defendant may invoke
    the bar of double jeopardy in a second effort to try him are limited to those
    cases in which the conduct giving rise to the successful motion for a mistrial
    was intended to provoke the defendant into moving for a mistrial.” Kennedy,
    at 679.
    [¶11] Ekstrom argues that double jeopardy barred the retrial in her case.
    Although she moved for the mistrial, she asserts the City’s acts and omissions
    bar her retrial. She contends double jeopardy protects a defendant from a
    second prosecution when prosecutorial overreach provokes a mistrial and
    affords the prosecution a more favorable opportunity to convict a defendant.
    See 
    Kennedy, 456 U.S. at 674
    . Ekstrom also asserts a broader understanding
    of what constitutes prosecutorial overreach or harassment, relying in part on
    3
    Downum v. United States, 
    372 U.S. 734
    , 736 (1963), and U.S. v. Dinitz, 
    424 U.S. 600
    , 611 (1976). We note however, one court has said that to the extent
    these cases invoke a broader “harassment” standard, they were overruled by
    Kennedy. See State v. Butler, 
    810 A.2d 791
    , 796-97 (Conn. 2002).
    [¶12] Despite the fact that Ekstrom made the motion for mistrial, she argues
    the City not only caused the mistrial, but also acquiesced to the motion by not
    attempting to cure the foundational deficiency or objecting to the motion. She
    contends the City deliberately asked the broad question of the police officer,
    for which a highly prejudicial answer was foreseeable, i.e., the inadmissible
    chemical test result. She argues this Court should not adopt the Kennedy
    standard and that, even if adopted, Kennedy and subsequent law does not
    preclude dismissal in this case. She essentially asserts the City’s conduct in
    asking the general question of the police officer goaded or provoked her to move
    the district court for a mistrial.
    [¶13] Ekstrom further contends the North Dakota Constitution may provide
    even greater protections under its double jeopardy provision. See State v.
    Herrick, 
    1999 ND 1
    , ¶ 22, 
    588 N.W.2d 847
    . For this proposition she relies on
    Justice Levine’s reasoning in her dissent in State v. Jacobson, 
    545 N.W.2d 152
    ,
    156 (N.D. 1996). Ekstrom asserts the City “clearly” acted with indifference
    towards the mistrial committing prosecutorial overreach at a minimum, if not
    outright misconduct.
    [¶14] In Jacobson, it was argued that North Dakota’s constitution provided
    greater protections for purposes of double jeopardy than under federal
    constitutional 
    law. 545 N.W.2d at 153
    . We declined to overrule settled law,
    stating the framers of our state constitution did not intend an interpretation
    different than the Double Jeopardy Clause of the United States. 
    Id. (citing State
    v. Allesi, 
    216 N.W.2d 805
    , 817-18 (N.D. 1974)). Other than citing to
    Justice Levine’s dissenting opinion, Ekstrom offers no new legal or factual
    support that North Dakota’s double jeopardy clause was intended to provide
    more protection than the double jeopardy clause under the federal constitution.
    4
    [¶15] We hold the double jeopardy standard under Kennedy is the proper
    standard in North Dakota. See Voigt, 
    2007 ND 100
    , ¶ 18, 
    734 N.W.2d 787
    . To
    the extent Ekstrom now argues about the requisite intent under the Kennedy
    standard to provoke her into moving for a mistrial, she did not raise that in the
    district court. Rather, she argued that double jeopardy applied, regardless of
    the City’s intent, because the City’s misconduct caused the mistrial. She
    argued the City and the testifying police officer knew or had reason to know
    not to discuss the specific chemical test results, when the test itself was
    inadmissible at trial without the correct foundational documentation.
    [¶16] Here, the facts and circumstances presented in this case do not bar
    Ekstrom’s retrial. As asserted by the City, the police officer was the City’s first
    witness early in the trial, it had no reason to provoke a mistrial at that early
    stage, and it did not intend to provoke Ekstrom’s mistrial motion. The City
    asserts the officer’s unsolicited testimony was, at most, an unintended
    mistake. Moreover, the City’s lack of an explicit objection to the mistrial does
    not establish an intent to provoke a mistrial. We conclude Ekstrom has not
    established the City’s conduct at issue was intended to “goad” her into moving
    for a mistrial. See Voigt, 
    2007 ND 100
    , ¶ 18, 
    734 N.W.2d 787
    .
    [¶17] We therefore conclude Ekstrom’s motion for mistrial precludes double
    jeopardy from applying and she has not established the City’s conduct in
    asking a general question of the police officer goaded or provoked her into
    moving for the mistrial. We further hold her attempt to argue the North
    Dakota Constitution affords greater protection for double jeopardy is
    unpersuasive.
    [¶18] Under the standard adopted in Kennedy, as applied to the facts and
    circumstances in this case, we conclude Ekstrom’s retrial was not barred by
    double jeopardy.
    III
    [¶19] Ekstrom argues the district court erred in elevating her conviction to an
    aggravated first offense DUI without providing jury instructions requiring the
    jury to find whether her chemical breath test was .16 or greater. She contends
    5
    the court erred by denying her demand for the jury to decide whether her
    chemical breath test was .16 or greater.
    [¶20] In State v. Watkins, 
    2017 ND 165
    , ¶ 9, 
    898 N.W.2d 442
    , this Court
    explained:
    In Apprendi v. New Jersey, 
    530 U.S. 466
    , 490 (2000), the
    United States Supreme Court held that a fact used to enhance a
    criminal sentence beyond the statutory maximum for the crime
    committed must be decided by a jury beyond a reasonable doubt.
    See also Clark v. State, 
    2001 ND 9
    , ¶¶ 3, 5, 
    621 N.W.2d 576
    . In
    Alleyne v. United States, 
    133 S. Ct. 2151
    , 2155 (2013), the Supreme
    Court extended the reasoning in Apprendi and held that any fact
    leading to the imposition of a mandatory minimum sentence must
    also be found by a jury beyond a reasonable doubt.
    However, because “[n]either Apprendi nor Alleyne errors constitute structural
    errors requiring automatic reversal[,] . . . these errors may be waived through
    the doctrine of invited error.” Watkins, at ¶ 13 (citations omitted).
    [¶21] Ekstrom was prosecuted under W. Fargo Mun. Ord. § 13-0203, which the
    parties concede is an equivalent of N.D.C.C. § 39-08-01. Ekstrom argues that
    under both sections an individual convicted of a first offense DUI is subject to
    minimum mandatory penalties, which are dependent on finding an
    aggravating factor: whether the defendant’s chemical test result yielded an
    alcohol concentration of at least .16. See W. Fargo Mun. Ord. § 13-0203(5)(a);
    N.D.C.C. § 39-08-01(5)(a).
    [¶22] Ekstrom contends that neither the ordinance nor the statute provides for
    a court to take “judicial notice” of a heightened alcohol concentration when
    evaluating the defendant’s sentence, as the court does with prior convictions
    under N.D.C.C. § 39-08-01(3). She therefore argues the factfinder must find
    the convicted person’s alcohol concentration was in excess of .16 to be convicted
    of an aggravated first offense under the ordinance. She asserts the court made
    a finding on its own, taking a factual finding away from the jury, and while she
    was sentenced within the permissible sentencing range for a class B
    6
    misdemeanor, she was still entitled to have the jury make this factual
    determination.
    [¶23] The City responds that this Court should either affirm the sentence or,
    in the alternative, remand for resentencing and essentially concedes the jury
    should have decided whether Ekstrom’s alcohol concentration was at least .16
    to subject her to the ordinance’s mandatory minimum sentence. The City
    contends, however, Ekstrom waived the issue by not properly articulating it to
    the district court. The City asserts this Court could affirm by concluding the
    district court did not substantially rely on the mandatory minimum provision.
    The City also contends, however, that if this Court cannot affirm the sentence
    on this record, the proper remedy is to remand for resentencing, in which the
    district court would not consider the mandatory minimum sentencing
    provision in resentencing her.
    [¶24] Here, while not an element of the criminal offense, whether Ekstrom’s
    chemical breath test was .16 or greater is an aggravating fact for purposes of
    the enhanced sentence. The district court found “the best evidence presented
    to the Court is that Ms. Ekstrom had a blood alcohol content of .167 within two
    hours after operating a motor vehicle.” The jury as the factfinder did not
    specifically find this aggravating fact. We therefore reverse and remand to the
    district court for resentencing without consideration of the mandatory
    minimum under the ordinance.
    IV
    [¶25] The judgment is affirmed in part, reversed in part, and the case is
    remanded for resentencing.
    [¶26] Lisa Fair McEvers
    Gerald W. VandeWalle
    Daniel J. Crothers
    Jerod E. Tufte
    Jon J. Jensen, C.J.
    7
    Tufte, Justice, concurring specially.
    [¶27] I agree with the majority opinion and have signed it. I write separately
    to emphasize that we may not prospectively bind ourselves to follow future as
    yet unannounced interpretations of the Fifth Amendment when we interpret
    art. I, § 12. State v. Jacobson, 
    545 N.W.2d 152
    , 153 (N.D. 1996) (VandeWalle,
    C.J., concurring specially) (stating that it is one thing to conclude the framers
    of the North Dakota Constitution meant to adopt the existing interpretation of
    the Fifth Amendment, but emphasizing that “[i]t is something else to ‘buy-in,’
    in 1974 or now, to a future and as yet unannounced construction”). The
    Majority, at ¶ 15, says it holds that “Kennedy is the proper standard in North
    Dakota.” An interpretation of the Fifth Amendment’s Double Jeopardy Clause
    persuades us here to interpret art. I, § 12 in the same way despite differences
    in language and history that suggest the possibility of different applications in
    some scenarios not yet presented to this Court. Simply because we have
    previously interpreted a clause in our Constitution to carry a meaning
    consistent with more recent interpretations of a similarly worded clause in the
    United States Constitution does not mean that it must always be so.
    [¶28] We are periodically asked to interpret the state constitution to ‘provide
    greater protection’ compared to a related provision in the U.S. Constitution.
    Ekstrom makes this request here. The argument presented in this case is more
    developed than arguments in some other matters in which the state
    constitutional claim appears to have been an undeveloped alternative
    argument. In my view, Ekstrom’s argument here fails to persuade because it
    lacks support in the primary sources and authorities our cases have relied on
    when interpreting the North Dakota Constitution.
    [¶29] Ekstrom relies on Surrogate Judge Beryl Levine’s dissent in Jacobson.
    In particular, Ekstrom refers us to passages emphasizing additional double
    jeopardy protections provided in state statutes and suggests that public policy
    reasons weigh in favor of our providing greater double jeopardy protections
    under our state constitution. I find these reasons unpersuasive. Statutes
    adopted contemporaneously with a constitutional provision may reflect a
    legislative understanding of the scope of the constitutional provision,
    8
    particularly when an argument is made that the statute conflicts with a newly-
    enacted constitutional provision. City of Bismarck v. Fettig, 
    1999 ND 1
    93, ¶ 11,
    
    601 N.W.2d 247
    . Such legislative enactments may be informative about the
    scope of a related constitution provision because we have presumed the
    Legislative Assembly makes its own assessment of the constitutionality of a
    bill when it passes through the legislative process. See State ex rel. Heitkamp
    v. Hagerty, 
    1998 ND 122
    , ¶ 20, 
    580 N.W.2d 139
    .
    [¶30] The statutes cited by Judge Levine to which Ekstrom refers us do not
    appear to have been enacted close in time to the 1889 adoption of art. I, § 12
    (then art I, § 13). 
    Jacobson, 545 N.W.2d at 158
    (Levine, S.J., dissenting). And
    the fact that the Legislative Assembly has provided additional double jeopardy
    protections in statute is perfectly consistent with a narrow reading of the
    double jeopardy clause. One may infer the Legislative Assembly believed these
    statutes protect more broadly than the constitutional protection or there would
    have been little reason to enact them. Ekstrom’s citation to Judge Levine
    includes her reference to State v Hunt, 
    91 N.J. 338
    , 
    450 A.2d 952
    (1982), for
    the proposition that later legislative expressions of a state’s public policy may
    justify a court’s interpretation of the state constitution. Legislative statements
    of public policy require a contextual connection to the meaning of a
    constitutional provision when it was adopted, to properly inform a judicial
    interpretation of the provision. I fail to see how the cited statutes illustrate
    what meaning the framers and adopters of art. I, § 12 would have intended in
    enacting its words and phrases.
    [¶31] The appellant also argues that the doctrine developed under the Fifth
    Amendment, as expressed in Oregon v. Kennedy, 
    456 U.S. 667
    (1982), is “a
    confusing and subjective test.” Members of this court have previously
    expressed in other contexts that where the United States Supreme Court, in
    interpreting the United States Constitution, has developed confusing or
    dubious doctrine, we ought to consider developing our own doctrine under the
    North Dakota Constitution that may be more suitable to circumstances in
    North Dakota and clearer in its application for both the state and its citizens.
    See, e.g., State v. Hendrickson, 
    2019 ND 183
    , ¶ 23, 
    931 N.W.2d 236
    (Crothers,
    J., specially concurring) (stating the court should consider “in an appropriate
    9
    case where we were asked, whether we should decouple our federal and state
    constitutional analysis in the area of driving under the influence investigative
    stops”); State v. Gardner, 
    2019 ND 122
    , ¶ 16, 
    927 N.W.2d 84
    (referring to the
    “sometimes murky way Katz [v. United States, 
    389 U.S. 347
    (1967),] has
    influenced search and seizure cases”).
    [¶32] If this Court is unsatisfied with the doctrinal tests developed under
    related federal provisions, we remain free to independently develop our own
    doctrine under the state constitution. Advocates before the court should be
    prepared to provide persuasive reasons to do so.
    [¶33] In recent years, litigants have sought to persuade this Court to adopt an
    independent interpretation or doctrine with arguments that too often reach no
    further than policy arguments supported by “because you can.” Counsel would
    aid the Court by starting with the text of our constitution. The provision at
    issue here reads: “No person shall be twice put in jeopardy for the same
    offense.” N.D. Const. art. I, § 12. Identify whether the text differs from a related
    federal provision. Here, there are textual differences. The Fifth Amendment
    reads in pertinent part: “nor shall any person be subject for the same offence
    to be twice put in jeopardy of life or limb.” Is any textual difference material to
    the issues presented here? Here, appellant has not argued there is a textual
    difference between the two provisions that is material to the issue before us.
    Nor is one readily apparent.
    [¶34] Here, counsel has provided no evidence about what the original public
    meaning of the text was when it was adopted in 1889. Appellant has not
    referred us to any authority prior to 1889, to include judicial or scholarly
    interpretations of the Fifth Amendment, that might illuminate how the people
    who drafted and adopted our constitution in 1889 might have understood the
    meaning of the disputed terms. Pelkey v. City of Fargo, 
    453 N.W.2d 801
    , 804
    (N.D. 1990) (“The sole object in construing a constitutional provision is to
    ascertain and give effect to the intention and purpose of the framers and the
    people who adopted it, and such intention and purpose are to be found in and
    deduced from the language of the constitution itself.”) Dictionaries and leading
    treatises from the period may be helpful to illustrate what a term of art such
    10
    as “twice put in jeopardy” had been interpreted and understood to mean by the
    people who adopted the North Dakota Constitution in 1889.
    [¶35] For example, Thomas M. Cooley is widely regarded as the leading scholar
    of state constitutions during the late 1800s. Paul D. Carrington, The
    Constitutional Law Scholarship of Thomas McIntyre Cooley, 41 Am. J. Legal
    Hist. 368 (1997). He spoke to the North Dakota Constitutional Convention on
    that topic. Journal of the Convention at 52 (noting “Judge Cooley addressed
    the Convention.”); Bismarck Wkly. Trib., Jul. 19, 1889, at 8 (reprinting
    Cooley’s remarks to the convention). Regarding double jeopardy, Cooley wrote
    that if “the jury are discharged with the consent of the defendant expressed or
    implied . . . the accused may again be put upon trial upon the same facts before
    charged against him, and the proceedings had will constitute no protection.”
    Thomas M. Cooley, Constitutional Limitations 401-02 (5th ed. 1883). The cases
    cited by Cooley on this point do not appear to provide guidance on the specific
    issue presented in this case.
    [¶36] Pre-1889 interpretations are particularly relevant because when we
    have adopted language from an identifiable source into our constitution,
    whether in 1889 or in a later amendment, we have taken the prior
    authoritative interpretations with the text. State ex rel. Linde v. Hall, 
    35 N.D. 34
    , 53, 
    159 N.W. 281
    (1916) (applying the “general rule” “that where one state
    borrows a constitutional provision from another state that has previously been
    construed by the courts of the latter state, such construction is presumed to
    have been adopted along with the provision”). Here, if there were an
    identifiable source for the language at issue, a judicial interpretation from that
    jurisdiction would be highly persuasive. Ekstrom has not argued there are
    relevant authoritative interpretations of a source text here. It appears likely
    that there was no single source for this provision, as Herbert L. Meschke &
    Lawrence D. Spears, Digging for Roots: The North Dakota Constitution and the
    Thayer Correspondence, 
    65 N.D. L
    . Rev. 343, 379-80 (1989), suggests that
    “constitutions generally” are the publicly-known sources for provisions in the
    declaration of rights.
    11
    [¶37] To date, we have not been persuaded that the doctrine developed under
    the Fifth Amendment Double Jeopardy Clause would reach a different result
    or provide a different test or method of analysis than a faithful reading of our
    state constitution. State v. Linghor, 
    2004 ND 224
    , ¶ 19, 
    690 N.W.2d 201
    ; State
    v. Kelly, 
    2001 ND 135
    , ¶ 11, 
    631 N.W.2d 167
    ; State v. Allesi, 
    216 N.W.2d 805
    ,
    817 (N.D. 1974). Our decision here continues that consistent treatment. When
    interpreting the North Dakota Constitution, we are not bound to follow in
    lockstep federal doctrine implementing similar federal provisions. Counsel
    may assist the Court and serve their clients by marshalling any available
    evidence that may illuminate what meaning was intended when adopting a
    particular provision.
    [¶38] Jerod E. Tufte
    Jon J. Jensen, C.J.
    12