MAINE SUPREME JUDICIAL COURT                                                        Reporter of Decisions
Decision: 2014 ME 68
Docket:   Yor-13-330
Argued:   April 9, 2014
Decided:  May 20, 2014

Panel:          SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.


                                        STATE OF MAINE

                                                    v.

                                     THOMAS D. JOHNSON

MEAD, J.

         [¶1] Thomas D. Johnson’s trial in May 2013 on a charge of domestic

violence assault (Class C), 17-A M.R.S. § 207-A(1)(B)(3) (2013), ended when the

trial court (O’Neil, J.) found manifest necessity to declare a mistrial and then ruled

that the State would be allowed to retry Johnson. Asserting the double jeopardy

clauses of the United States and Maine Constitutions, Johnson appeals from the

court’s order denying his motion to reconsider the ruling that he may be retried.1

We affirm the order.

                                        I. BACKGROUND

         [¶2]     An indictment returned by the York County Grand Jury on

December 5,         2012,     charged       Johnson       with      assaulting      the    victim      on

September 12, 2012.           Johnson requested automatic discovery from the State
   1
     This interlocutory appeal does not violate the final judgment rule because “a pretrial order denying a
motion to dismiss based on grounds of double jeopardy is immediately appealable.” State v. Chase,
2000 ME 114, ¶ 1 n.1, 754 A.2d 961.
2

pursuant to M.R. Crim. P. 16(a), and discovery available by request pursuant to

M.R. Crim. P. 16(b). The case went to trial on May 14, 2013, five months after the

indictment was returned.

      [¶3] After the jury was seated in the jury box on the morning that the trial

began, the prosecutor requested a sidebar conference. He advised the court that he

had spoken with the victim that morning for the first time. He reported that she

gave him information that he had not known before, including that (1) during the

assault Johnson held a knife to her throat and said, “I’ll slash your fucking throat”;

and (2) she had written a statement for the police two or three weeks after the

incident. The prosecutor said that he had not known that the written statement

existed, did not have it, did not know what was in it, and presumed that the

Biddeford Police Department had it. He acknowledged that the new information

differed from what had been provided to Johnson in discovery. Johnson’s counsel

told the court that “if this stuff, in fact, exists, I ask that this case be dismissed on

an outrageous discovery violation.”

      With the jury waiting, the court ruled that

      [y]ou [the prosecutor] can call your first witness. And the case isn’t
      going to be dismissed. Oral statement of the knife is out as a
      discovery violation. With respect to the written statement, we will
      take that up when we get it here from the police. And I’ll address
      what sanction, if any, should be imposed.
                                                                                      3

      [¶4]   At the court’s direction, the State proceeded to give its opening

statement. In describing the assault to the jury, the prosecutor said that Johnson

“turns violent, physically violent. He grabs [the victim] by the front of her hair . . .

on the top of her head, takes her head and hits it against the counter.” This

“head-banging incident” had not been discussed at sidebar before the State gave its

opening statement.     Immediately after the State’s opening concluded, defense

counsel approached sidebar and objected:

      Judge, I’m going to object to the State’s entire opening argument and
      here is why: [w]e heard [that] . . . my client hits [the victim’s] head
      against the counter; never mention[ed] anywhere in any discovery [or]
      in any report. . . . taking this outrageous thing about the head banging
      down on the counter, that was not given in the discovery.

      The following exchange then occurred:

      STATE: That is what the witness told me this morning, your Honor.
      I have no idea what is in her written statement. I assume it is
      contained in there. But that is what the witness told me when I
      interviewed her this morning. She will testify to that this morning.

      DEFENDANT: . . . He is going to have her testify to stuff that he []
      knows that we have not heard about and have never been provided
      any information about. And for the State to wait until the morning of
      trial to do their interview of the victim and find out all of this . . . is
      not excusable, Judge. This is terrible trial prep and it prejudices my
      client beyond belief.

      STATE: It is trial prep that exists. . . . I can’t force somebody to come
      . . . and speak with me. I can only put them under subpoena if she
      didn’t want to speak with me. . . . [Defense counsel], I’m sure, will be
      able to impeach her with it when she is on the stand.
4

      COURT: . . . With respect to the issue about the head-banging, I
      mean, I don’t know what the discovery says so I’m not in a position at
      this point to issue a ruling . . . . I’ll take it under advisement.

      [¶5]   Johnson then gave his opening statement without referring to the

head-banging incident, following which the court took a recess. After the jury

retired, the court conferred with counsel regarding the victim’s written statement

that the prosecutor had by then received from the Biddeford Police Department.

The court noted that it

      includes statements made, such as: “Shut up, Bitch, I’m going to cut
      your throat,” and “I will kill you when I get out,” and an allegation
      essentially for the first time today that in addition to pulling of hair
      there was smashing of the face on the sideboard in the kitchen.

Defense counsel, noting that the statement was dated December 18, 2012, five

months before the trial, requested a dismissal based on the discovery violation and

the resulting prejudice to Johnson. He concluded his argument by saying,

      I think the prejudice to my client at this stage cannot be overcome by
      the Court asking this jury to disregard the State’s opening statement,
      which is based almost entirely not on the discovery that we have but
      on this statement that we didn’t have. And it can’t be corrected,
      Judge. I ask for a mistrial.

      [¶6]   In opposing a dismissal, the prosecutor agreed that the written

statement had been in the possession of the Biddeford Police Department for

months and that it had first been produced that morning. He advised the court that

the victim had appeared for trial only because she had been subpoenaed, not
                                                                                     5

because she was cooperating with the State. Defense counsel again objected to

continuing with the trial, saying, “I think that this is absolutely the [kind of] case

. . . that should be dismissed,” and that, “I seriously think that I deserve a mistrial

because the jury has been prejudiced beyond my ability to repair it.” The court

took “the mistrial issue and the dismissal issue” under advisement after sanctioning

the State for the discovery violation by excluding both the victim’s written

statement and the substantive disclosures that she made to the prosecutor that

morning, ruling that, “The State will be limited to the evidence that’s produced in

the original discovery involving the mechanism of assault here[.]” It then took a

recess to allow the State to determine the reason that the written statement had not

been produced earlier and to report that reason to the court.

      [¶7] Following a discussion in chambers, the court revisited the question of

how to proceed after defense counsel again requested a mistrial, asserting that he

had no way to cure the prosecutor’s reference in his opening statement to the

head-banging incident. The court found that (1) the prosecutor had received the

victim’s written statement that day because the Biddeford Police Department had

not logged it in at the time it was filed; (2) the failure to provide the statement in

discovery had prejudiced Johnson; (3) in making his opening statement, the

prosecutor had complied with the court’s ruling excluding evidence of the alleged

threat Johnson made with a knife; (4) the court had not yet excluded evidence of
6

the head-banging incident when the prosecutor referenced it in his opening; and

(5) defense counsel was correct in arguing that there was no way to “unring the

bell” concerning the head-banging incident because the jury had been told about it.

The court ruled that it would “accordingly, grant the defendant’s motion for a

mistrial.”

      [¶8] The court then turned to the issue of whether the mistrial resulted from

manifest necessity and found that it did, reasoning that Johnson could not get a fair

trial as a result of the late discovery, and that the State could not get a fair trial

because of “the Court’s ruling on the discovery issues, requiring the State to

sanitize its version of events.” Finally, in determining whether the State would be

allowed to retry Johnson, the court considered the question of whether the mistrial

involved prosecutorial misconduct:

      The Court does not conclude that there was prosecutorial misconduct
      here. That issue may have been different had I ruled before [the
      prosecutor’s] opening statement that he couldn’t use the
      bashed-the-face-into-the-sideboard theory of liability, but I didn’t do
      that. And [the prosecutor] was respectful of the Court’s rulings and
      did not mention the oral statements that had been excluded. So I
      cannot conclude that there is any prosecutorial misconduct.
      Accordingly, the State would be entitled to retry its case.

Johnson, “disagree[ing] with the manifest necessity piece,” preserved his objection

to the court’s ruling that he could be retried.
                                                                                  7

      [¶9] Two days later, Johnson filed a motion asking the court to reconsider

its ruling and requesting a dismissal of the indictment on the ground that a retrial

would violate his constitutional double jeopardy protections. At a hearing on the

motion, Johnson argued that a retrial should not be allowed because the State was

wholly responsible for the circumstances leading to the mistrial.        The court

reviewed the events that occurred at trial, reiterated its conclusion that the

discovery violation resulted from the inaction of the Biddeford Police Department,

and denied the motion. This appeal followed.

                                II. DISCUSSION

      [¶10] Because the double jeopardy clauses of the United States and Maine

Constitutions protect a criminal defendant “against being twice put in jeopardy of

life or limb for the same offense,” State v. Chase, 2000 ME 114, ¶ 6, 754 A.2d 961

(quotation marks omitted), once the jury is sworn and jeopardy attaches, a

defendant “will not be required to stand trial a second time unless he consents to a

mistrial . . . or unless under all the circumstances, the mistrial was mandated by

manifest necessity.” State v. Rowe, 480 A.2d 778, 781 (Me. 1984) (citations

omitted).

      [¶11] As discussed above, Johnson strenuously objected several times to the

trial continuing past opening statements.      Sometimes his requests were for a

dismissal, other times for a mistrial. His final argument to the court—that he could
8

not “unring the bell” after the State’s opening statement—concluded with “[a]nd

that’s really the basis for my . . . request for the mistrial.” Whatever the term used,

it is clear that Johnson did not want the trial to move forward. After the court

“grant[ed] the defendant’s motion for a mistrial,” defense counsel, although he

“disagreed with the manifest necessity piece,” agreed that “under the circumstance

I think that your ruling, as far as getting rid of the trial today, is, in fact, the only

thing that we can do.”

      [¶12] We recently said that “[t]he defendant’s consent to mistrial or conduct

constituting implied consent . . . eliminates any barrier to retrial under the double

jeopardy clause, barring intentional prosecutorial misconduct.” State v. Carey,

2013 ME 83, ¶ 21, 77 A.3d 471.            By consenting to not “hav[ing] his trial

completed by a particular tribunal once jeopardy attach[ed],” Rowe, 480 A.2d at

782, Johnson removed any double jeopardy barrier to a retrial so long as the court

was correct in finding that intentional prosecutorial misconduct did not impose a

constitutional bar. For that reason, we do not reach the trial court’s determination

that a mistrial was manifestly necessary.          See Carey, 2013 ME 83, ¶ 20,

77 A.3d 471 (“[I]n this case we need not reach the issue of manifest necessity. We

affirm the declaration of a mistrial on the alternate grounds that [the defendant]

impliedly consented to the entry of a mistrial.”).
                                                                                   9

      [¶13] Because we conclude that Johnson consented to a mistrial, we next

consider whether intentional prosecutorial misconduct nonetheless bars a retrial.

See id. ¶ 21; Chase, 2000 ME 114, ¶ 6, 754 A.2d 961. In order for the State’s

actions to preclude it from a second trial,

      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 absence of his misconduct. We will not upset a trial court’s
      factual determination that there was no intentional prosecutorial
      misconduct unless the finding is clearly erroneous.

Chase, 2000 ME 114, ¶¶ 6-7, 754 A.2d 961 (citations omitted) (emphasis in

original). In Chase, we declined the defendant’s invitation to substitute a lower

“inexcusable negligence” standard for the “intentional prosecutorial misconduct”

standard. Id. ¶ 6 n.3.

      [¶14] Here, the trial court explicitly found that no prosecutorial misconduct

occurred. We defer to that finding because “the trial court . . . was in the best

position to view the course in which the trial was moving and the conduct of

counsel.” Id. ¶ 7. Johnson argues that the underlying reason for the mistrial is

chargeable to the State—essentially urging us to apply the “inexcusable

negligence” standard that we rejected in Chase—but does not contend that the

prosecutor’s actions were “intended to force a mistrial and prevent an impending

acquittal.” Id. ¶¶ 6 n.3, 8. The court’s finding that prosecutorial misconduct rising
10

to that level did not occur was not clearly erroneous. See id. ¶ 7. As we did in

Chase, we again decline the invitation to change the applicable test.

         [¶15] Johnson finally contends that our decision in State v. Rowe requires

that the indictment be dismissed. In Rowe, we said that “[t]he State cannot rely on

a problem created by its own neglect to establish the existence of manifest

necessity.” 480 A.2d at 783. For two reasons, Rowe is not controlling here. First,

it is inapplicable because Johnson consented to the mistrial, and so we do not reach

the issue of whether a mistrial was also justified by manifest necessity. See Chase,

2000 ME 114, ¶ 6, 754 A.2d 961 (“A motion by the defendant for mistrial . . . is

ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s

motion is necessitated by prosecutorial or judicial error.” (quotation marks

omitted)).

         [¶16] Second, if we were to reach that issue, the mistrial in Rowe was

directly precipitated by the State’s negligence—the State created what it should

have foreseen as a Bruton problem2 at an early stage in the case, and then failed to

correct it until the trial was well underway and it was too late. Rowe, 480 A.2d at

783. Here, because the police are the equivalent of the prosecutor for purposes of

the discovery rules, the State was negligent in failing to provide the victim’s
     2
     As we explained in Rowe: “Bruton [v. United States] holds that in joint trial cases, the admission in
evidence of a non-testifying defendant’s confession implicating his codefendant violates the
codefendant’s Sixth Amendment right to cross-examine his accusers.” State v. Rowe, 480 A.2d 778, 780
n.4 (Me. 1984) (citing Bruton v. United States, 391 U.S. 123, 137 (1968)).
                                                                                                      11

written statement in discovery before the trial. See M.R. Crim. P. 16(b)(1). The

event directly precipitating the mistrial was not the State’s negligence in providing

late discovery, however, but rather the prosecutor’s reference to the head-banging

incident—which had not yet been excluded by the court—in his opening.

        [¶17]    At that point in the trial, the factual basis for the head-banging

reference was not the victim’s written statement, but rather the prosecutor’s

discussion with the victim that morning. Johnson seeks to conflate the victim’s

written statement with her oral statements because they eventually proved to

contain the same information, but he fails to recognize the critical difference in

their origin. A victim’s written statement in the State’s possession that is not

provided to the defense is properly excluded as a discovery violation, but it is

neither improper nor particularly unusual in a domestic violence case for a

prosecutor to interview a victim on the day of the trial after the victim appears only

in compliance with a subpoena. Notwithstanding Johnson’s objection to what he

considers to be the State’s inadequate trial preparation, if the victim in this case

had not given police a written statement at all and had only talked to the prosecutor

on the morning of the trial, no discovery violation would be evident.3


   3
      In hindsight, before giving his opening statement the prosecutor would have been well advised to
obtain a ruling from the court as to the admissibility of the victim’s oral statement concerning the
head-banging incident, as he did concerning the knife-threatening incident. Nevertheless, we defer to the
court’s determination that the prosecutor was “respectful” of its rulings and that no prosecutorial
misconduct occurred.
12

        [¶18] The court found that the State’s opening was made in good faith

because the prosecutor avoided discussing issues that the court had excluded, and

evidence of the head-banging incident was excluded only after both parties had

opened and the late written statement became available. Accordingly, there was

not a direct causal connection between the State’s negligence in failing to provide

discovery and the problem causing the mistrial.                         For that reason, Rowe is

distinguishable.

        The entry is:

                         Order affirmed.




On the briefs:

        Clifford B. Strike, Esq., Strike, Goodwin & O’Brien, Portland,
        for appellant Thomas D. Johnson

        Kathryn Loftus Slattery, District Attorney, and Anne Marie
        Pazar, Esq., Prosecutorial District No.1, Alfred, for appellee
        State of Maine




    We also do not suggest that a discovery violation resulting from the State’s failure to provide a written
statement in a timely manner can be cured simply by having a witness orally repeat on the morning of
trial what the written statement says. Here, because they contained the same substantive information, the
court excluded both the victim’s written and last-minute oral statements. Had it been able to do so before
the parties opened, there would have been no mistrial, and the State would have been required to present
its case-in-chief without using any of the challenged statements.
                                                                        13

At oral argument:

        Clifford B. Strike, Esq. for appellant Thomas Douglas Johnson

        Anne Marie Pazar, Esq., for appellee State of Maine



York County Superior Court docket number CR-2012-1870
FOR CLERK REFERENCE ONLY
