State of Minnesota, Respondent, vs. Michael Joseph Winterfeldt, Appellant.

State of Minnesota, Respondent, vs. Michael Joseph Winterfeldt, Appellant. A06-1834, Court of Appeals Unpublished Decision, December 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-1834
 
State of Minnesota,
Respondent,
 
vs.
 
Michael Joseph Winterfeldt,
Appellant.

Filed December 18, 2007

Affirmed

Peterson, Judge

 

Le Sueur County District Court

File No. CR-06-248

 

 

Lori Swanson, Attorney General, Peter R. Marker, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Brent A. Christian, Le Sueur County Attorney, 65 South Park Avenue, Le Center, MN  56057 (for respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order denying appellant's motion to dismiss the complaint, appellant argues that the Minnesota Constitution should be interpreted more broadly than the United States Constitution to protect double-jeopardy rights.  We affirm. 

FACTS

            Appellant Michael Joseph Winterfeldt was charged with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2004).  On July 10, 2006, the jury was sworn and trial commenced.  The case was submitted to the jury on July 13, 2006.  During deliberations, the jury asked the district court several questions, including a request for an elaboration on the reasonable-doubt standard.  The bailiff delivered the court's written responses to the jury.  Sometime after the bailiff delivered the responses, the court was informed that during a conversation between the prosecutor and the bailiff, the bailiff stated that a majority of the jurors have a "gut feeling" that the defendant is guilty and that was the basis for their questions about the reasonable-doubt instruction.  The bailiff and the prosecutor each acknowledged to the court that the bailiff had made the statement.  The court relieved the bailiff of his duties, and a substitute bailiff was sworn. 

At a hearing, the court stated that it would grant a mistrial upon appellant's motion.  After consulting with counsel, appellant moved for a mistrial, and his motion was granted.    

            At a later hearing, appellant moved to dismiss the complaint on double-jeopardy grounds.  Appellant argued that the mistrial was the product of "an unusual case of misconduct" based on the actions of the state and that he would be placed at a severe disadvantage in a new trial because his defense theory had been disclosed to the state. 

            The district court denied appellant's motion to dismiss.  In the memorandum that accompanied its order, the district court noted that there was no inappropriate communication with the jury and that "[t]here is no information that this Court has received that the prosecutor was ‘pumping' the bailiff for information."  The district court described the extent of the prosecutor's inappropriate action as "using bad judgment by eating and conversing with the bailiff during deliberations."  The district court concluded that because there was no evidence suggesting that the jury was in any way influenced by or even aware of the inappropriate conversation, the mistrial would not have been declared if not for appellant's motion. 

            The court ordered that the matter be set for retrial.  This appeal followed.

D E C I S I O N

I.

            This court reviews the application of the constitutional protection against double jeopardy de novo.  State v. Gouleed, 720 N.W.2d 794, 800 (Minn. 2006).  Both  the United States Constitution and the Minnesota Constitution prohibit a criminal defendant from being placed twice in jeopardy of punishment for the same offense.  U.S. Const. amend. V (stating "nor shall any person be subject for the same offence to be put twice in jeopardy of life or limb"); Minn. Const. art. I, § 7 (stating "no person shall be put twice in jeopardy of punishment for the same offense").  The United States Constitution's Fifth Amendment double-jeopardy prohibition applies to the states through the Fourteenth Amendment.  Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969).  In both federal and Minnesota courts, jeopardy attaches in a jury trial when the jury is sworn and impaneled.  Crist v. Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156, 2161 (1978); State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985). 

            "When a criminal trial is terminated over a defendant's objection, the double jeopardy clause of the federal constitution bars a second trial unless there was a ‘manifest necessity' that the first trial be terminated."  Id. (quoting Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 2087 (1982)).  But when a mistrial is granted on the defendant's motion, "the double jeopardy clause does not bar a second trial unless the mistrial resulted from governmental misconduct intended to provoke the mistrial request."  Id. (citing Kennedy, 456 U.S. at 673-79, 102 S. Ct. at 2088-91).   

            Appellant does not contend that retrial is barred under the federal constitution.  Instead, he argues that even if retrial is not barred by federal constitutional principles, this court should apply broader double-jeopardy protection under the Minnesota Constitution and rule that a retrial is barred.  But appellant did not argue in the district court that broader double-jeopardy protection under the Minnesota Constitution should apply to bar a second trial.  Generally, this court will not decide an issue that was not raised in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Therefore, because appellant did not raise this issue in the district court, the issue is not properly before us, and we decline to review it. 

In declining to review this issue, we note that in Fuller, after expressly acknowledging that "[i]t is axiomatic that a state supreme court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution,"  374 N.W.2d at 726, the Minnesota Supreme Court declined

to decide whether the double jeopardy clause of the Minnesota Constitution gives a criminal defendant greater protection than the federal constitution against retrial following a mistrial provoked by prosecutorial misconduct . . . because the defendant in [Fuller was] clearly not entitled to relief under any reasonable alternative to the rule recognized by the United States Supreme Court in Kennedy,

 

Id. at 727.  The supreme court also stated that because the double-jeopardy provisions in the United States and Minnesota Constitutions are textually identical, decisions of the United States Supreme Court interpreting the federal Double Jeopardy Clause are of "inherently persuasive, although not necessarily compelling, force."  Id. at 726-27. 

            Because appellant did not argue in the district court that broader double-jeopardy protection under the Minnesota Constitution should apply to bar a second trial, the record has not been developed with regard to appellant's entitlement to relief under an alternative broader standard.  Reviewing this issue on a limited record would be inconsistent with the caution that the supreme court has indicated should be exercised when considering whether the double jeopardy clause of the Minnesota Constitution gives a criminal defendant greater protection than the federal constitution.

II.

            In a pro se supplemental brief, appellant contends that the prosecutor lied at the bail hearing, that the judge may have been biased, and that a retrial would be unfair because of the improper conduct of the prosecutor and the bailiff and because the defense strategy has already been revealed to the state.  Allegations of error based on "mere assertion" without legal argument or authority to support them are deemed waived unless prejudicial error is obvious on mere inspection.  State v. Ouellette, 740 N.W.2d 355, 361 (Minn. App. 2007), pet. for review filed (Minn. Oct. 31, 2007).  Because appellant's allegations are not supported with legal argument or authority and prejudicial error is not obvious on mere inspection of the record, appellant's allegations of error are deemed waived.   

            Affirmed.