State v. LeRoy

594 N.W.2d 193, 1999 WL 289232

Opinions

OPINION

HOLTAN, Judge.

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Appellant argues that double jeopardy-bars her retrial on a fifth-degree assault charge on which the jury voted to acquit before declaration of a mistrial. We affirm.

FACTS

Appellant Susan Leroy was tried oh one charge of disorderly conduct and one charge of fifth-degree assault. After receiving the verdict forms from the jury foreperson, the trial court discovered that the jury had received a copy of the amended complaint. Nonetheless, the court read the verdict forms aloud, pronouncing appellant guilty of disorderly conduct but not guilty of fifth-degree assault, and aSked the jurors, “Is this your verdict, so say you one and all?” After the jurors answered affirmatively, they were temporarily removed from the courtroom.

The court determined that the court administrator had mistakenly given the jury the copy of the amended ■ complaint. Appellant’s counsel moved for a mistrial, which the court granted. The court ordered a retrial, then recalled and dismissed the jury.

Appellant subsequently moved to bar retrial on the fifth-degree assault charge on the basis of double jeopardy, and argued that its motion for a mistrial was in substance a motion for a new trial on the charge of disorderly conduct. The trial court denied appellant’s motion, and this appeal followed.

ISSUE

Do the double jeopardy provisions of the United States Constitution or Minnesota Constitution bar appellant’s retrial on the charge of fifth-degree assault?

ANALYSIS

The double jeopardy clauses of the constitutions of the United States and Minnesota protect criminal defendants from multiple prosecutions for the same offense. U.S. Const, amend. V; Minn. Const, art. I, § 7. “The appellate court reviews de novo the constitutional issue of double jeopardy.” State v. Watley, 541 N.W.2d 345, 347 (Minn.App.1995), review denied (Minn. Feb. 27, 1996).

“[Jjeopardy attaches when a jury is impaneled and sworn.” State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974). Double jeopardy “applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.” Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984).

We conclude that appellant’s original jeopardy did not terminate before the court declared a mistrial because the jury’s verdict of acquittal on the fifth-degree assault charge never became final. For this reason, appellant cannot now assert a valid claim of double jeopardy.

A verdict returned by the jurors may not be completed unless it is a verdict “such as the court may receive.” Minn. Stat. § 631.17 (1998). Here, the court knew, at the time it received the verdicts, that a copy of the complaint against appellant had been accidentally given to the jury. The verdicts were not “such as the court may receive” because the court knew they were potentially tainted by the jury having access to prejudicial information in the complaint. See State v. Cox, 322 N.W.2d 555, 558 (Minn.1982) (“exposure of a jury to potentially prejudicial material creates a problem of constitutional magnitude”). They were not receivable, if at all, until there had been a proper inquiry that disclosed no prejudice. See Minn. R.Crim. P. 26.03, subd. 9 (prescribing inquiry when suspicion of juror prejudice). Thus, these verdicts were not capable of completion, and the original jeopardy did not terminate.

We are convinced that this disposition works no prejudice to appellant. The record does not indicate that the trial court or appellant treated this verdict as final. Appellant moved for a mistrial, and the judge did not discharge the jury before appellant’s motion. See Minn.Stat. § 631.17 (jury discharged when verdict complete); Minn. R.Crim. P. 26.04 (listing postverdict motions and not including mistrial).

DECISION

We conclude that the jury’s verdict of acquittal on the fifth-degree assault charge against appellant never became final. Because appellant’s original jeopardy never terminated, she cannot now assert a valid claim of double jeopardy. The trial court properly denied appellant’s motion to bar retrial on the charge of fifth-degree assault, and appellant may now be retried on both the charge of disorderly conduct and the charge of fifth-degree assault.

Affirmed.

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.