Dismissal on the Merits, After Jeopardy Attaches, Precludes Filing of New Charges, Even if Dismissal Was Error.

State v. Sahr, Minn.S.Ct., 4/25/2012.  This is an extremely complicated and important Opinion about which I could write a lot, but I’m going to let the concurrence do the talking.  The Opinion raises serious questions about the respective role of the state and the defense in the prosecution of criminal cases.  Justice G. Barry Anderson said it best, certainly better than I could:

I begin with the observation that this case rests at the intersection of constitutional and statutory protections against self-incrimination and provisions of the Minnesota Rules of Criminal Procedure. The dissent argues that “the district court erred when it considered Sahr’s untimely motion to dismiss the complaint based on a known defect in the complaint after the jury was sworn.” The dissent also argues that when a defendant deliberately fails to raise a known defect in the complaint before the jury is sworn, constitutional and statutory double jeopardy protections do not bar future prosecution. The implication of this latter argument is that a defendant not only has a right, but an obligation, to challenge known defects in a complaint before trial and failure to do so not only results in a waiver of the right to challenge the complaint at a later time, it also automatically results in forfeiture of double jeopardy protections.

…..

What happened here was not the failure of the State to draft a sufficiently detailed complaint, such as was alleged to have occurred in State v. Stagg, 342 N.W.2d 124 (Minn. 1984). Here, the prosecution charged the wrong offense altogether, an offense which everyone concedes the defendant was not guilty of. Not cited by either party, but perhaps relevant here, are the provisions of Rule 9, which require the defense to inform the prosecutor in writing of “any defense, other than not guilty, that the defendant intends to assert.” Minn. R. Crim. P. 9.02, subd. 1(5) (emphasis added). The dissent dismisses this language by characterizing it as a discovery rule; perhaps, although the relevance of that characterization is not immediately evident. What it does suggest, however, is that a defendant has no obligation to tell the State it cannot prove the crime charged. The dissent cites no authority, and I have not found any, that specifically holds that the provisions of Minn. R. Crim. P. 10.01 apply to the kind of fundamental failure of the State to charge the appropriate offense at issue here.

The state charged Mr. Sahr with criminal sexual conduct in the first degree under the subsection that prohibits a person from engaging in “sexual contact” – bare genital to bare genital - with a person under 13 years of age when that person is more than 36 months older than the victim.  The problem was, which Mr. Sahr’s attorney knew practically from the day of the filing of the Complaint, the state only had proof to support the claim that Mr. Sahr had touched the victim’s bare vaginal area with his hand.  Oops.

After the jury was impaneled and sworn, defense counsel brought this little problem to the trial court’s attention.  In response, the state sought to amend the Complaint to add second degree criminal sexual conduct, a crime that the state could prove.  The trial court refused to allow the amendment and dismissed the Complaint, concluding that there was insufficient evidence to convict Mr. Sahr.  Thereafter, the state sought to file a new Complaint charging second degree criminal sexual conduct, but the trial court denied that request on double jeopardy grounds.

What the state wanted the courts to say was that defense counsel had an obligation to alert the prosecutor before jeopardy attached that it had charged the wrong crime.  The trial court rejected this proposition, saying that this would shift the burden of responsibility in charging to the defendant.  Alternatively, the state wanted to be able to get an instruction on second degree criminal sexual conduct as a lesser included offense of the first degree charge.  The trial court also rejected this request, saying that the state could not charge a crime for which it concededly lacked sufficient evidence to prove and then piggy back a lesser included crime.

Justice Page concluded that the trial court had dismissed the Complaint on the merits for lack of sufficient evidence.  This conclusion essentially dictates the result that the majority reached:  double jeopardy prohibits a new complaint against Mr. Sahr.  It’s well settled law that where there is an acquittal on the merits, double jeopardy bars review of any underlying issues, including erroneous legal rulings.  State v. Large, 607 N.W.2d 774 (Minn. 2000).  This resolution meant that the majority did not have to decide the thornier question whether Mr. Sarh somehow waived any double jeopardy protection by deliberately failing to raise a known defect in the complaint before the jury is sworn.  Even if the trial court was wrong in rejecting the waiver claim, Large precluded appellate review if the dismissal was on the merits.

Ominously, Chief Justice Gidlea and Justice Dietzen would have reached the waiver issue and would have concluded that the defense had such an obligation to tell the prosecutor that it had charged the wrong crime.  Amazingly, only the trial court judge and Justice G. Barry Anderson squarely reject this notion and say that the defense has no obligation to alert the state that it has filed a complaint that charges the wrong crime.