State of Utah v. Cram

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Valden Cram,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990506-CA

F I L E D
December 21, 2000 200 UT App 375 -----

Fifth District, St. George Department
The Honorable G. Rand Beacham

Attorneys:
Aaron J. Prisbrey, St. George, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Thorne.

THORNE, Judge:

Defendant Valden Cram appeals from an order denying his motion to dismiss a subsequent charge, following the trial court's declaration of mistrial. We affirm.

Defendant argues that the trial court's denial of his motion to dismiss violates the Fifth Amendment right against being twice put in jeopardy for the same criminal offense.(1) We disagree. Defendant's motion to dismiss followed the trial court's decision to declare a mistrial after determining that the jury was unable to reach a verdict. Defendant made no objection to the trial court's decision to declare a mistrial.(2) We have explained that "Utah courts require specific objections in order 'to bring all claimed errors to the trial court's attention to give the court an opportunity to correct the errors if appropriate.'" State v. Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993) (emphasis added) (citation omitted). This is particularly true where, as here, the trial court could have resolved defendant's timely objection before the jury was discharged.

"As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346 (citing State v. Marvin, 964 P.2d 313, 318 (Utah 1998)). The preservation rule, as it is known, "applies to every claim, including constitutional questions." Id. (emphasis added). Utah does, however, recognize three exceptions to the preservation rule: (1) plain error, (2) exceptional circumstances, and (3) ineffective assistance of counsel. See State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996).

Defendant fails to argue any of these three exceptions to the preservation rule. Rather, defendant acknowledges that he knew the court was contemplating a mistrial, but believed he was not obligated to object. Defendant was in error. "[A] defendant should not be permitted to forego making an objection with the strategy of 'enhanc[ing] the defendant's chances of acquittal and then, if that strategy fails, . . . claim[ing] on appeal that the Court should reverse.'" Holgate, 2000 UT 74 at ¶11 (alterations in original) (citation omitted). Accordingly, defendant has failed to adequately preserve his objection.

Were we to address the merits of defendant's double jeopardy claim, our ultimate conclusion would not change. The Utah Supreme Court has explained that "[w]hen . . . the jury is unable to reach a verdict, . . . a defendant may be retried notwithstanding the double jeopardy clause." State v. Musselman, 667 P.2d 1061, 1065 (Utah 1983) (emphasis added) (citing Lee v. United States, 432 U.S. 23, 97 S. Ct. 2141 (1977); State v. Jaramillo, 25 Utah 2d 328, 481 P.2d 394 (1971); State v. Gardner, 62 Utah 62, 217 P. 976 (1923); United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187 (1980)); see also Utah Code Ann. § 76-1-403(4) (1999) (codifying the protection against double jeopardy). However, "Utah courts have interpreted the protection against double jeopardy . . . to mean that upon the declaration of mistrial, a defendant may not be retried on the same charge unless a 'legal necessity' justified termination of the trial." West Valley City v. Patten, 1999 UT App 149,¶10, 981 P.2d 420 (citation omitted).

In Patten, we set forth the standards previously articulated by our supreme court in State v. Ambrose, 598 P.2d 354 (Utah 1979), for determining whether "legal necessity" exists for granting a mistrial. First, the "trial court must give an explanation for its decision and discuss possible 'curative alternatives to a mistrial.'" Patten, 1999 UT App 14 at ¶11 (citation omitted). "Second, the trial court must enter findings of fact supporting its decision . . . ." Id. Finally, the trial court "may not declare a mistrial 'so abruptly . . . that defendant's counsel ha[s] no opportunity to object.'" Id. (alteration in original) (citation omitted).

In the present matter, the trial court, on two separate occasions, inquired of the jury foreperson whether additional deliberation time or the court answering additional questions would facilitate a verdict. On both occasions, the jury foreperson responded "no." We conclude that the trial court discussed "'possible curative alternatives to a mistrial.'" Id. (citation omitted).

The dialogue between the trial court and the jury foreperson, the subsequent Minute Entry chronicling the time the jury deliberated, the court's supplemental "deadlock" instruction to the jury, and the time spent conferring with counsel--all contained in the record--demonstrate that sufficient grounds exist to support the trial court's declaration of mistrial. We conclude the trial court did not abuse its discretion by declaring a mistrial.

Finally, the trial court clearly did "not declare a mistrial 'so abruptly . . . that defendant's counsel ha[d] no opportunity to object.'" Id. (quoting Ambrose, 598 P.2d at 360). The trial court, on two separate occasions, asked defendant's counsel if he would like to go on record in response to the jury's inability to reach a verdict or inquire of the jury foreperson. Defendant's counsel declined on both occasions. Accordingly, we are convinced that the trial court complied with the standards set forth in Ambrose and that a "'legal necessity' justified termination of [defendant's] trial." Id. at ¶10 (citation omitted). The trial judge was properly exercising his discretion when he declared a mistrial. Double jeopardy does not bar defendant's subsequent retrial and conviction.

Denial of defendant's motion to dismiss is affirmed.
 
 
 

______________________________
William A. Thorne, Jr., Judge ----- WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge

1. Defendant also argues that the trial court's dismissal of his motion violates Utah Const. art. I, § 12, but he presents this court no independent analysis of how the trial court's ruling violates the State constitutional provision, therefore, we do not address this issue. See Utah R. App. P. 24.

2. In fact, defendant waited until the scheduling conference for the new trial to alert the court of his objection to the mistrial.