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State v. Chase6/19/2000
Submitted on Briefs: May 25, 2000
Jayne Chase appeals from an order of the Superior Court (Cumberland County, Humphrey, J.) denying her motion to dismiss based on double jeopardy. Chase argues that it was error for the court to determine that the inappropriate comment made by the prosecutor that necessitated the mistrial did not create a constitutional bar to a retrial. We disagree and affirm.
Chase was charged with operating a vehicle under the influence of intoxicating liquor in violation of 29-A M.R.S.A. § 2411 (1996). On August 23, 1999, her first trial was commenced, a jury was sworn, and the State proceeded with its case-in-chief. During defense counsel's cross- examination of the officer who had been assigned to administer the intoxilyzer test to Chase, the prosecutor interrupted and stated the following:
Your Honor, I believe [defense counsel] is beyond the questions he can ask an officer and the defendant can testify, if she takes the stand, about what she thought.
On hearing this statement, defense counsel immediately asked for a sidebar conference during which he requested and was granted a mistrial. Although it granted the mistrial on the ground that the errant comment created an expectation on the part of the jurors that they would hear from the defendant, the court indicated that it understood the point the State was trying to make when the comment was made and that the inappropriate wording had been used inadvertently. Chase then filed a motion to dismiss the complaint based on the prior jeopardy of the first trial.
At the hearing on the motion, the State characterized the prosecutor's conduct as a "rookie" mistake and stated the prosecutor was embarrassed that his errant comment had caused a mistrial. Chase conceded that the comment may have been the result of a "rookie error," but argued that an actual intent to bring about a mistrial is not the appropriate standard, and that the conduct need only be intentional insofar as it is the prosecutor's intent to say the words.
The court, citing State v. Tribou, 598 A.2d 173, 175 (Me. 1991), concluded that a mistrial declared on the defendant's motion removes any constitutional bar to retrial, unless the motion was provoked by intentional prosecutorial misconduct. Finding no intentional misconduct, the court denied Chase's motion to dismiss. Chase has appealed from this order.
Criminal defendants are protected against being "'twice put in jeopardy of life or limb' for the same offense under both the Maine and federal constitutions." State v. Cotton, 673 A.2d 1317, 1319 (Me. 1996) (quoting Tribou, 598 A.2d at 175). A motion by the defendant for mistrial, however, "is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error." State v. Flick, 495 A.2d 339, 344 (Me. 1985) (quoting United States v. Jorn, 400 U.S. 470, 485 (1971)). As to the conduct of the prosecutor, we have stated that, " arring intentional prosecutorial misconduct, a defendant's motion for . . . a declaration of mistrial eliminates any constitutional barrier, created by the double jeopardy clause of either the United States or Maine Constitutions, to retrial." State v. Beaudoin, 600 A.2d 1097, 1098 (Me. 1991) (emphasis added); see also Tribou, 598 A.2d at 175 (citing Oregon v. Kennedy, 456 U.S. 667, 676 (1982)). Moreover, 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 absen
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