State v. Therriault

¶1with whom NICHOLS and SCOLNIK, JJ., join, dissenting.

¶2I respectfully dissent from the Court’s holding that the presiding justice erred in ruling that the investigative laboratory report was inadmissible under the business records exception to the hearsay rule. At trial defendant advanced four theories in support of the admissibility of the report. He argued alternatively that it was either a record of a regularly conducted business, former testimony, a statement against interest, or the admission of a party opponent. In his brief, defendant argues only the last two theories and cites no authority in support of either position. This Court correctly disposes of the arguments raised in the brief but then resurrects the business records argument offered at trial. In my judgment the investigative report at issue in this case is not admissible as either a public record or as a business record.

¶3We have not previously addressed the interrelationship between the hearsay exceptions for public records, M.R.Evid. 803(8), and business records, M.R.Evid. 803(6). Although the two rules may overlap to some extent, it is apparent that the rules are neither coextensive in rationale nor scope. Rule 803(6) premises reliability on the systematic, businesslike way in which records are kept as part of a regularly conducted business. Rule 803(8) relies less on regularity and recognizes the inherent impartiality and reliability of records made by public officials. The business records exception is directed toward documents generated as a regular practice in the course of a regularly conducted business. The public records exception, on the other hand, refers to reports of “regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.” Unlike the business records provision, Rule 803(8) contains no requirement of contemporaneousness nor does it require foundation testimony by the custodian. Significantly, Rule 803(8) specifically excludes “investigative reports by police and other law enforcement personnel.” The opinion in United States v. Oates, 560 F.2d 45 (2d Cir.1977) is instructive with respect *999to the relationship between the federal equivalent to Rule 803(8) and the remaining hearsay exceptions. In Oates, the prosecution offered, and the trial court admitted as a business record, the official report and worksheet of the United States Customs Service chemist who analyzed a white powdery substance seized from the defendant. The Second Circuit read into the federal business records provision an implied exception for investigative reports and reversed the evidentiary ruling of the trial court. See id. at 78.1

¶4It is beyond dispute that the record involved in the present case is not admissible as a public record. This Court, however, on the basis of a conclusory offer of proof, treats the investigative report as a business record and disregards the language of Rule 803(8). It is clear that unless this Court accepts the interrelation between the two rules provisions, the specific exception for investigative reports in Rule 803(8) will become a virtual nullity. If an investigative report is admissible as a business record, the rule would authorize its admission when offered by the state as well as the defendant. If such a result occurs, the potentially alarming aspects of the rules would be realized rather than avoided. See Field and Murray, Maine Evidence § 803.8 at 219.

¶5I would decline to accept the report as a business record. In the present case the presiding justice committed no error in excluding the investigative report. I would affirm the conviction.

¶7dissenting.

¶8Although I agree with the dissenting opinion of Wathen, J. that the laboratory report was inadmissible under M.R.Evid. 803(6), it is my opinion that the judgment should be vacated and an order entered dismissing the indictment because of a violation of the defendant’s right not to be twice placed in jeopardy.

¶9The court’s opinion gives short shrift to the issue of double jeopardy. It does not consider whether the trial justice acted within his discretion in declaring a mistrial at the defendant’s first trial. Instead it finds that the defendant consented to the mistrial, and thus waived his right not to be retried. This record shows neither manifest necessity for, nor the defendant’s consent to, a mistrial.

¶10There is no question that “the trial court may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial.” Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978). It is also clear that the trial court has “broad discretion in deciding whether or not ‘manifest necessity’ ” for a mistrial, viz., a genuinely deadlocked jury, exists in a particular case. Id.; State v. McConvey, 459 A.2d 562, 566 (Me.1983). But the court’s discretion is not unbounded. It may be exercised only within the parameters of the policy governing the defendant’s “valued right to have his trial completed by a particular tribunal.” Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832. Specifically, the court’s discretion is limited to ensuring that the verdict ultimately rendered derives from the “considered judgment of all the jurors,” and not from other “pressures inherent in the situation.” Id.A reviewing court is required to show deference to the trial court’s determination that a jury could not have reached a verdict with more deliberation only as long as the trial court acted within those boundaries. Id. at 510, n. 28, 98 S.Ct. at 832-33, n. 28; State v. Linscott, 416 A.2d 255, 260 (Me.1980).

¶11Because of the importance of the defendant’s right to be free from double jeopardy, “the trial justice has a duty to assure himself that the jury is genuinely deadlocked *1000before declaring a mistrial....” State v. Mahaney, 437 A.2d 613, 619, n. 4 (Me.1981) (emphasis added). This Court has listed standards that it deems relevant to the trial court’s decision. See State v. McConvey, 459 A.2d at 566-67; State v. Linscott, 416 A.2d at 260. These standards are objective factors that enable the Law Court to assess whether the trial court properly exercised its discretion. No single factor, except that the jury be allowed adequate time for deliberation, is mandatory, but, taken together, they have the force of “guidelines” that the trial court may not disregard. See State v. McConvey, 459 A.2d at 566-67; State v. Commeau, 438 A.2d 454, 456 (Me. 1981); State v. Henderson, 435 A.2d 1106, 1108 (Me.1981); State v. Linscott, 416 A.2d at 260. The Law Court’s evaluation of the trial courts’ decisions under these guidelines was determinative in those four cases. See also State v. Fredette, 462 A.2d 17, 20 (Me.1983) (alternative holding).

¶12We require that the trial justice allow the jury adequate time for deliberation (which may in part depend on the length of the trial), and suggest that he inquire of the foreman whether there exists a reasonable probability of a unanimous verdict. Beyond that we have looked to the extent of the disagreement reported, the number of communications from the jury indicating a deadlock, whether the judge gave the jurors additional instructions to aid in breaking the impasse, the number of times the judge sent the jurors back for more deliberation, whether he questioned each juror about the probability of a verdict, and whether the defense counsel was given the opportunity to participate in the decision to declare a mistrial.

¶13After a two-day trial, the court in this case dismissed the jury after four and one half hours of deliberation. Unlike Linscott, Henderson, Commeau, McConvey, and Fredette, the jury in this case did not on its own initiative communicate to the trial court that it could not agree. The only communications from the jury requested a “readback” of certain testimony and the repetition of the reasonable doubt instruction. With the consent of counsel, the trial justice originated a written inquiry about the probability of agreement that was delivered to the jury. It was not in response to any message from the jury. Once they were in the court room, the justice neither gave the jurors additional instructions regarding their duty to reach a verdict (as in Henderson, Commeau, and Fredette), nor returned them to the jury room after their first indication of inability to agree (as in Henderson, Commeau, McConvey, and Fredette). The justice did not question each juror individually (as in Commeauand McConvey, and suggested by Linscott), nor did he solicit defense counsel’s participation in the decision to declare the jury “genuinely deadlocked.” (See Linscott and McConvey.)

¶14There was, in short, nothing in this record on which the trial court could have based a conclusion that the jury, if required to deliberate longer, would have decided on the basis of improper considerations. Indeed, this court has approved the use of the A.B.A. approved instructions regarding the jurors’ duty to consult with one another with a view to reaching a verdict because, “the jury should not be permitted to avoid a reasonable period of deliberations merely by repeated indications that it is unable to agree.” State v. Mahaney, 437 A.2d at 618, quoting from the 1968 Commentary to the A.B.A. Standards Relating to the Administration of Criminal Justice, Trial by Jury, § 5.4. That this jury did not initiate the communication regarding deadlock is highly significant in assessing whether they were “suffering [in] mind or body.” Arizona v. Washington, 434 U.S. at 510, n. 27, 98 S.Ct. at 832, n. 27 (quoting from Regina v. Charlesworth, 1 B. & S. 460, 504, 121 Eng.Rep. 786, 802 (Q.B.1861)).

¶15Before this court can conclude that the defendant has not been subjected to double jeopardy, it must find that the trial court properly exercised its discretion under the Linscottstandards. The factors indicating manifest necessity for a mistrial must af*1001firmatively appear in the record. In this case the record discloses no basis on which the trial court could have decided that the public interest in fair judgments had been infringed. It thus abused its discretion in declaring a mistrial.

¶16Nor is it constitutionally permissible to hold in this case that the defendant waived his right to claim double jeopardy by failing to object to the mistrial. While that would be the correct result if the defendant had consented (United States v. Dinitz, 424 U.S. 600, 606-08, 96 S.Ct. 1075, 1079-80, 47 L.Ed.2d 267 (1976); State v. McConvey, 459 A.2d at 566, n. 2), the transcript discloses no affirmative agreement to the mistrial.

¶17The court relies on State v. Fredette, 462 A.2d 17, but the facts in Fredetteare clearly distinguishable. In Fredette,

The trial justice sought the views of defense counsel, and defense counsel actively participated in the decision whether to grant a mistrial. At the point when the trial justice decided he would discharge the jury if they felt they could not reach a verdict, he made this known to defense counsel who offered no objection.

¶18Id. at 20. The record in the present case discloses no such active participation by counsel in the mistrial decision. Unlike Fredette, the court did not advise counsel in advance that it would declare a mistrial if the jury indicated no reasonable probability of reaching a verdict. This court’s opinion states only that the defense counsel did not object. The question here is not whether a defendant has failed to preserve an error for appellate review. It is whether he has waived his right not to be twice put in jeopardy by failing affirmatively to protect it.

¶19It is true that a defendant may be retried after a mistrial without a knowing, voluntary, and intelligent waiver of his right to be free from double jeopardy. United States v. Dinitz, 424 U.S. at 609, n. 11, 96 S.Ct. at 1080-81, n. 11. However, this is because “the protection against the burden of multiple prosecutions underlying the constitutional prohibition against double jeopardy” is satisfied when manifest necessity exists to declare a mistrial. Id.Where, as in this case, there has been no proper finding of manifest necessity for a mistrial, the reason for holding an affirmative waiver unnecessary disappears. The defendant here did not consent to the mistrial. His right not to be twice put in jeopardy is too important for this court, sua sponte in review, to find as a fact that the defendant manifested his consent by his silence.

¶20That the defendant continued to engage in plea bargaining after the mistrial lends no support to this court’s finding of consent. While a negotiated guilty plea may constitute a waiver of a defendant’s right to trial and related constitutional privileges (e.g. Shorette v. State, 402 A.2d 450, 459 (Me.1979)), the mere participation in negotiations on the day following his first trial was in no way inconsistent with his assertion of double jeopardy, and does not support a finding of consent to mistrial or waiver of his right not to be twice placed in jeopardy.

¶21Accordingly, I conclude that, without even minimal compliance with the Linscottstandards, there was insufficient basis for the trial justice to find that the jury was genuinely deadlocked. Without manifest necessity to do so, it was an abuse of discretion to declare a mistrial. I would vacate the judgment and enter an order dismissing the indictment.