The opinion of the court was delivered by: MCGLYNN
The defendant moved to dismiss Counts 12 through 19 and Count 26 of indictment 84-490-01, and to bar further prosecution of the defendant on these counts, as violative of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The defendant argues that the Court abused its discretion in declaring a mistrial at defendant's first trial on these charges where there existed no manifest necessity for such a declaration.
By order dated August 6, 1985, the motion was denied. The following sets forth the court's findings of fact and conclusions of law with respect to this ruling.
The defendant was charged in twenty-three Counts of criminal indictment number 84-490. Trial commenced on Monday, April 8, 1985, with closing argument presented on Friday, April 12, 1985. On Monday, April 15, 1985, after instructions from the Court, the jury deliberated for approximately five and a half hours. Deliberation resumed on the morning of Tuesday, April 16, 1985.
At 2:10 p.m., the Court advised counsel of a note from the jury stating that an impasse had been reached on Counts 12 through 19 and asking for further instruction regarding Counts 25 and 26. Transcript, p. 4. Following consultation with counsel, the Court addressed the jury at 2:18 p.m. Transcript, p. 8. The Court began by responding to the jury's announcement of an impasse as follows:
With respect to your first statement where you say we have reached an impasse on several counts of the indictment, I don't know whether you want me to comment on that at this point or not. I think perhaps what I'll do, I'll respond to the second query and let you continue your deliberations, and at an appropriate time, you can tell me where you stand, whether or not you can return to a verdict or not with respect to some or any of the counts.
After discussing Counts 25 and 26, the Court responded again to the subject of an impasse, stating as follows:
As I say, with respect to your first statement, we'll just wait and see where you are and then you can tell me whether you have a verdict on some or all the counts, or what you want to do. You may continue your deliberations.
The jury resumed its deliberations at 2:22 p.m., and returned to render its verdict at 3:10 p.m. Transcript, p. 10. Before taking the jury's verdict, the Court engaged in a colloquy with the jury, as follows:
THE COURT: Do you have a foreman?
THE COURT: You can answer for us. I've got a report from the marshal advising me that you have a verdict on Counts 1 through 5, 7 through 11, 20, and 22 - and 25. Would that also include 26, the last count? You do or do not have a verdict on that?
JUROR NO. 1: Not on the last one, no.
THE COURT: And then you say with respect to No. 12 through 19, you are unable to reach a verdict, is that correct?
THE COURT: What about 26? Are you unable to reach a verdict or not? Do you want to continue to deliberate with respect to No. 26? I don't know where you stand with respect to ...