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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 43850/43851

STATE OF IDAHO,

Plaintiff-Respondent,

v.

DEVONTE CARTER,

Defendant-Appellant.

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2017 Unpublished Opinion No. 344

Filed: February 2, 2017

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, 

Kootenai County. Hon. Fred M. Gibler, District Judge. 

Orders denying motions to dismiss and judgment of conviction, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, 

Deputy Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

HUSKEY, Judge

Devonte Carter appeals from his judgment of conviction entered upon his guilty plea to 

delivery of a controlled substance. Carter argues the district court erred in denying his motions

to dismiss on double jeopardy grounds. Because a court does not violate double jeopardy when 

there is manifest necessity for a mistrial, the district court in this case properly determined the 

necessity for a mistrial after hearing arguments from both parties and considering alternatives to 

a mistrial. Therefore, we affirm the district court’s decision. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

Carter sold methamphetamine to a confidential informant, after which police obtained a 

warrant to search Carter’s residence. When police executed the search warrant, Carter was at the 

residence with four other individuals. During the search, police discovered drug paraphernalia, 

scales, and packaging materials. Police also found three plastic bags containing 
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methamphetamine. One of these bags was recovered from the pocket of a pair of size 44 Dickies 

shorts, which were located next to Carter’s social security card and identification card. Police 

confirmed the Dickies shorts were found in Carter’s bedroom. Carter was arrested and charged 

with three crimes: two counts of delivering a controlled substance, methamphetamine, Idaho 

Code § 37-2732(a), and one count of possessing methamphetamine, I.C. § 37-2732(c)(1).

The case proceeded to a jury trial. After the presentation of evidence, the jury was unable

to reach a consensus which resulted in a mistrial. While the drug case was pending, Carter was

charged with intimidation of a witness, I.C. § 18-2604(3), based on his behavior involving a 

witness in the drug case. Following the mistrial in the drug case, based on the State’s motion and 

despite Carter’s objection, the district court joined the cases for purposes of trial. Both cases 

proceeded to one jury trial on all charges. During the second trial, the district court declared a 

mistrial because a prospective juror made a prejudicial statement during voir dire.

Following the two mistrials, Carter again stood trial on the joined cases. In the State’s 

case-in-chief, a police officer testified about his execution of the search warrant. The officer 

explained how he discovered a bag of methamphetamine in the pocket of a pair of size 44

Dickies shorts. The Dickies shorts were located on a chair in the master bedroom of the home. 

The officer also discovered the social security card and Idaho identification card of Carter on the 

same chair. During cross-examination, defense counsel questioned the officer about the Dickies

shorts found on the chair. After playing the video from the officer’s body camera which showed 

Carter exiting the home, defense counsel presented the officer with the pair of shorts Carter was 

wearing at the time he was arrested. Counsel asked if the shorts appeared to be the same as the 

shorts Carter was wearing in the body camera video, and the officer responded, “I can’t say that 

they’re the same. They appear to be the same.” The State objected to the questioning about 

these shorts since the officer could not establish the shorts were exactly the same pair and 

because the shorts were not yet admitted into evidence. Defense counsel explained, “That is 

correct, Your Honor. This is all foundational. We’ll be linking it up later with another witness.” 

When the district court allowed the cross-examination to continue regarding the shorts Carter 

was wearing, the questioning progressed as follows:

Q. And what size are these shorts?

A. 38.

Q. Thank you, sir. And, again, the size of the Dickies found on the chair were?

A. 44.
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The next day, the State filed a motion in limine and request for discovery sanctions and to 

strike improperly introduced evidence in lieu of declaring a mistrial. The State’s motion sought 

to bar Carter from introducing evidence and testimony from two non-disclosed witnesses and 

any evidence of the pair of size 38 shorts worn when Carter was arrested, since Carter failed to 

disclose the witnesses and the shorts prior to trial. The district court listened to arguments from 

both parties. The State argued the non-disclosure of witnesses was prejudicial and the surprise 

introduction of the shorts was improper. Carter responded that although the witnesses were not 

disclosed, they would be used to rebut testimony by a State witness and it was no surprise 

because the State knew about the witnesses from the previous trials. Carter argued the shorts, 

although undisclosed, were in jail property before the trial and, therefore, were not unfairly 

surprising to the State. Carter also asserted the size 38 shorts were necessary to contrast how the 

size 44 Dickies that contained methamphetamine were too unlike the size 38 shorts Carter wore 

at the time of arrest. Carter explained, “It’s just a defense using the State’s own evidence. These 

were shorts on the body of my client when he was arrested, they’re in the video, and we’re going 

to be able to link that up. That’s a defense.” The district court ruled Carter violated Idaho 

Criminal Rule 16 when he did not disclose the witnesses or the physical evidence he intended to 

present. However, based on the arguments of counsel, the district court concluded the witnesses 

and the pair of size 38 shorts were critical to Carter’s defense and, therefore, it might infringe on 

Carter’s right to a fair trial if the court excluded the evidence. As a result, the district court 

declared, “I am going to, at the request of the State, declare a mistrial in this case. I do it 

reluctantly because obviously we’ve got two prior ones, and here we are again. But it seems to 

me that both sides’ interest in a fair trial trumps everything else.” 

Carter filed motions to dismiss all the charges against him on double jeopardy grounds. 

The district court denied the motions to dismiss. Carter then entered into a binding Idaho 

Criminal Rule 11 plea agreement with the State. Pursuant to the plea agreement, Carter pleaded

guilty to one count of delivery of a controlled substance and the State dismissed the remaining 

drug charges and the witness intimidation case. As part of the plea agreement, Carter reserved 

his right to appeal the district court’s orders denying his motions to dismiss. For delivery of a 

controlled substance, the district court sentenced Carter to term of twelve years, with four years 

determinate. Carter timely appeals. 
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II. 

STANDARD OF REVIEW

We initially note that Carter does not claim the Double Jeopardy Clause of the Idaho 

Constitution provides any broader protection than that of the United States Constitution. 

Therefore, we will analyze this claim under the double jeopardy provisions of the United States 

Constitution. See State v. Talavera, 127 Idaho 700, 703, 905 P.2d 633, 636 (1995). 

Whether a defendant’s prosecution complies with the constitutional protection against 

being placed in jeopardy twice is a question of law over which we exercise free review. State v. 

Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000). The Double Jeopardy Clause of 

the United States Constitution provides that no person shall “be subject for the same offense to 

be twice put in jeopardy of life or limb.” The Clause affords a defendant three basic protections. 

It protects against a second prosecution for the same offense after acquittal, a second prosecution 

for the same offense after conviction, and multiple criminal punishments for the same offense. 

Schiro v. Farley, 510 U.S. 222, 229 (1994); State v. McKeeth, 136 Idaho 619, 622, 38 P.3d 1275, 

1278 (Ct. App. 2001). 

III.

ANALYSIS

Carter argues the district court erred in denying his motions to dismiss on double 

jeopardy grounds. Specifically, Carter asserts the district court abused its discretion in declaring 

a mistrial for two reasons: first, the district court did not act consistently with applicable legal 

standards, and second, the court did not allow Carter an adequate opportunity to be heard.

A. The District Court Did Not Err When It Declared a Mistrial

Carter argues the district court erred when it declared a mistrial because the court’s

actions were inconsistent with legal standards that apply to discovery violations. He further 

asserts that under the federal and state constitution, double jeopardy precludes a further retrial of 

the charges. We disagree.

Double jeopardy provides that no person shall “be subject for the same offense to be 

twice put in jeopardy of life or limb.” U.S. CONST. amend. V. However, the Supreme Court has 

been clear that the Double Jeopardy Clause does not mean a criminal defendant is free every 

time a trial fails to end in a final judgment. Wade v. Hunter, 336 U.S. 684, 688 (1949). The 

United States Supreme Court has ruled that a criminal defendant may be retried if the first trial 
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was prematurely terminated by the district court, without the defendant’s consent, due to 

“manifest necessity.” United States v. Perez, 22 U.S. 579, 580 (1824). The standard of manifest 

necessity in the context of double jeopardy was explained by the Idaho Supreme Court as 

follows:

The basic rule is that criminal actions may be terminated by a mistrial 

without double jeopardy consequences if there is a sufficiently compelling reason 

to do so, some procedural error or other problem obstructing a full and fair 

adjudication of the case which is serious enough to outweigh the interest of the 

defendant in obtaining a final resolution of the charges against him-what is 

commonly termed a “manifest necessity” or “legal necessity.” The courts have 

generally declined to lay out any bright-line rule as to what constitutes “manifest 

necessity,” but have based their decisions on the facts of each case, looking to 

such factors as whether the problem could be adequately resolved by any less 

drastic alternative action; whether it would necessarily have led to a reversal on 

appeal if the trial had continued and the defendant had been convicted; whether it 

reflected bad faith or oppressive conduct on the part of the prosecution; whether 

or not it had been declared in the interest of the defendant; and whether and to 

what extent the defendant would be prejudiced by a second trial. Since the trial 

judge is ordinarily in the best position to observe the circumstances which 

allegedly call for a mistrial, his or her judgment as to the necessity for a mistrial is 

commonly deferred to; but that judgment may be set aside if the reviewing court 

finds that the judge has abused this discretionary power, particularly where it 

appears that the judge has not “scrupulously” exercised his or her discretion by 

making a full inquiry into all the pertinent circumstances and deliberately 

considering the options available.

State v. Stevens, 126 Idaho 822, 826, 892 P.2d 889, 893 (1995).

When a trial court’s discretionary decision is reviewed on appeal, the appellate court 

conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the 

issue as one of discretion, acted within the boundaries of such discretion and consistently with 

any legal standards applicable to the specific choices before it, and reached its decision by an 

exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). Here, the 

first and third prongs of the inquiry are not at issue. Therefore, the only issue here is whether the 

district court acted within the boundaries of its discretion and consistently with the applicable 

legal standards.

The district court acted within the boundaries of its discretion in declaring a mistrial. 

Although Carter argues the district court did not act consistently with applicable legal standards 

because it failed to consider alternative remedies for the discovery violation, we disagree. In 

United States v. Jorn, 400 U.S. 470 (1971), the United States Supreme Court ruled the trial court 
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did not exercise sound discretion in determining there was manifest necessity to declare a 

mistrial. Id. at 487. There, the trial court judge suspected that five witnesses had not been 

warned of their constitutional rights. Id. at 473. The judge did not hear arguments from the 

parties, but instead, questioned the prosecutor about the witnesses being advised of their 

constitutional rights. Id. Although the prosecutor indicated that the witnesses were informed of 

their rights, the trial judge declared the warnings were “probably inadequate” and ended the trial 

without any additional arguments from counsel. Id. The Supreme Court found the trial court 

abused its discretion since it abruptly discharged the jury, did not hear statements from the 

attorneys, and only partially examined the issue before cutting off all explanations and declaring 

a mistrial. Id. at 487.

Similarly, in Stevens, the Idaho Supreme Court found an abrupt mistrial ruling by the 

district court was improper because “the court sua sponte and without defense input or 

opportunity to deliberate and object declared a mistrial, dismissed the case and discharged the 

jury.” Stevens, 126 Idaho at 827, 892 P.2d at 894. Likewise, in State v. Manley, 142 Idaho 338, 

127 P.3d 954 (2005), the district court failed to act within the boundaries of its discretion 

because it did not consider alternatives to a mistrial or give counsel a meaningful opportunity to 

be heard on the subject. Id. at 345, 127 P.3d at 961. The trial court had instead declared a 

mistrial without consulting defense counsel or the State. Id. at 341, 127 P.3d at 957.

Here, the actions of the trial judge contrast with the behavior in the above cases. At trial, 

the State filed a motion in limine and request for discovery sanctions and to strike improperly 

introduced evidence in lieu of declaring a mistrial. Unlike the trial judges in Jorn, Stevens, and 

Manley who failed to consult with the State and defense counsel before declaring a mistrial, here 

the district court listened to arguments from the State and Carter on whether the evidence of the 

size 38 shorts and the two undisclosed witnesses should be excluded from the case. Throughout 

the arguments, the trial judge asked about the purpose of the evidence and why Carter failed to 

disclose the evidence to the State. Following the explanations from both parties, the district 

court described its need to weigh Carter’s right to a fair trial with Carter’s liberty interest in 

having favorable evidence presented to the jury. The court also considered the interest of both 

parties in adhering to Idaho Criminal Rules, as well as the role of withholding evidence that 

would be critical to Carter’s case. Although alternatives were available to the court, such as 

excluding evidence and allowing witnesses to testify to the material facts, the district court 
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explained that the exclusion would be unfair to Carter and open up the potential for successful 

post-conviction relief claims against defense counsel. Therefore, unlike the judges in Jorn, 

Stevens, and Manley, the district court here heard arguments, contemplated the impact of various 

scenarios, and considered alternatives to a mistrial. Only after these considerations did the 

district court declare a mistrial in order to maintain Carter’s and the State’s interest in a fair trial. 

The judicial decision was reached by an exercise of reason and consistent with legal standards;

the district court did not err in declaring a mistrial. 

B. The District Court Allowed Carter the Opportunity to Be Heard

Carter argues the district court did not give him an opportunity to comment on the 

appropriate remedy. We disagree. Carter provides no authority supporting his claim that the 

defendant, in addition to his defense counsel, has a constitutional, statutory, or procedural right 

to allocute on this issue before the district court makes a decision. Furthermore, Manley clarified 

what constitutes an “opportunity to be heard” when it made the following comment: “In making 

the manifest necessity determination, a district court ought to obtain sufficient information to 

enable it to consider alternatives to a mistrial and give counsel a timely and meaningful 

opportunity to be heard on the subject.” Manley, 142 Idaho at 345, 127 P.3d at 961. Here, the 

defense counsel for Carter was informed of the State’s motion in limine and request for 

discovery sanctions and to strike improperly introduced evidence in lieu of declaring a mistrial. 

The defense counsel then heard the State’s explanation of the motion and argument for a mistrial 

if the evidence was not excluded. Afterwards, counsel for the defense was given the opportunity 

to respond, identify the witnesses, and explain the reason for the evidence. The district court 

gave defense counsel an opportunity to be heard on the subject, thereby satisfying Carter’s right 

to be heard and, thus, meeting the requirements set forth in Manley. 

IV.

CONCLUSION

Because the district court did not violate Carter’s double jeopardy rights, we affirm the 

district court’s denial of Carter’s motions to dismiss and judgment of conviction. 

Chief Judge GRATTON and Judge MELANSON CONCUR.