Failure to Object to Mistrial, Having the Opportunity to do so, is Highly Indicative of Consent to that Mistrial

State v. Hunter, Minn.Ct.App. 7/2/2012.  Mr. Hunter struck a woman in a crosswalk with his vehicle and then left.  The woman died a week later, resulting in charges of leaving the scene of an accident involving death and driving on a suspended license.  The jury heard the case, talked about it  – sequestered - for three days, then seemingly, at least to the trial judge, threw up its hands, deadlocked. 

During its deliberations, the jury asked a lot of questions.  Here’s the first day’s batch:

(1) What is the general process of notification for the state of Minnesota when your license is suspended? (2) What is the general process of notification for the state of Minnesota when your license is reinstated? (3) Did the speeding ticket received indicate besides speeding that the police officer knew his license was suspended? (4) Can we receive the stenographer notes of witness testimony from the trial? (5) Can we see statements shown to witnesses to refresh their memory if not entered as exhibits?

On the second day of deliberations, the jury said that it was deadlocked.  Without giving an “Allen” charge, the trial court encouraged them to keep at it.  His pep rally resulted in this missive from the jury:

Does (prudent men and women, page 1, paragraph 5) apply to us as jurors, the witnesses, or both?

On the third day of deliberations, the jury told the judge that they really had other plans:

Can any consideration be given for someone who needs to leave for a bus trip next Monday through Thursday?

and

We would like to dismiss today at 4:00 p.m. for an anniversary mass today for a death in the family.

The was the last straw.  The trial court threw up his hands and declared a mistrial.  The trial court later explained that he’d done that because two of the three charges – the fleeing charges – were basically the same thing and the third charge was nothing but a stupid misdemeanor; if the jury couldn’t reach a verdict after three days then it just wasn’t going to happen.  Defense counsel didn’t affirmatively object although whether his mouth was agape the opinion doesn’t say.

Before the retrial, counsel moved to dismiss on double jeopardy grounds.  Now, if a defendant consents to a mistrial then he’s waived any jeopardy argument.  State v. White, 369 N.W.2d 301 (Minn.Ct.App., 1985).  On the other hand, if he does object then jeopardy bars a second trial unless a “manifest necessity” required that the first trial be terminated.  State v. Fuller, 374 N.W.2d 722 (Minn. 1985).  Not objecting is not the same thing as consenting, but it’s a factor to consider, and a pretty strong one at that.  Where, as here, defense counsel had ample opportunity to object – both during in chambers discussions and in the court room – and doesn’t, then, well, counsel consented.  Whether Mr. Hunter, himself, had to object – well, the court doesn’t take up that question because no one brought it up in the trial court. 

The court of appeals, for good measure, also concluded that there was a “manifest necessity” to declare the mistrial.