MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 44 Docket: Pen

- 16

- 284 Submitted On	Briefs: February	10 ,	2017 Decided: March	9,	2017
Panel: SAUFLEY,	C.J.,	and ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM, and HUMPHREY, JJ.

STATE	OF	MAINE

v. KENNETH	A.	JANDREAU

GORMAN ,	J. [¶1] Kenneth	 A.	 Jandreau appeals	 from an	 order of	 the trial	 court ( Penobscot	 County, Anderson,	 J. )	 denying	 his	 motion	 to	 di s miss a	 criminal complaint	 against	 him

. The court concluded	 that	 the	 prosecution	 did	 not violate	 Jandreau’s	 rights	 pursuant	 to	 the	 Double	 Jeopardy	 Clauses	 of	 the United	 States	 and	 Maine	 Constitutions because ,	 at	 his	 first	 trial, there	 had been	 manifest	 necessity	 for	 a	 mis trial and	 there	 had	 been	 no	 prosecutorial misconduct

. We	affirm	the	judgment.
I.		BACKGROUND [¶2 ] On	 May	 8,	 2013,	 Jandreau	 crashed	 his	 car	 into	 a	 utility	 pole	 in Millinocket. He	 was charged	 with	 operating	 under	 the	 influence	 (Class	 D),2 29

- A	M.R.S. § 2411(1

- A)(A)	(2016 ) ,	to	which	he	pleaded	not	guilty. In	May	of 2015, the	court	held	a two
- day jury	trial on	the	matter

. [¶3 ] During the	trial, a	witness for	the	State produced a	document that had	not	been disclosed in	discovery: an	accident	reconstruction	report made by a State t rooper . 1 Jandreau objected	 to	 the	 use	 of	 the	 accident reconstruction	report	at	trial,	and	t he	cou rt	acceded	to	Jandreau’s	objection by restricting	 the	 State’s	 use	 of	 information	 from	 the	 report

. Thereaft er , the trooper	who	 created	 the	 report testified	 that information	 obtained	 from	 the car’s	 event	 data	 recorder,	 or	 “black	 box,” showed	 that Jandreau had been traveling	at	a	speed	of	sixty

- four m iles p er h our a	split	second before colliding with the	utility	pole

. [¶4 ] After the	 close	 of	 the evidence ,	 the	 jury	 deliberated	 for approximately four	hours ,	excluding	time	for	breaks, instruction s ,	and polling. Three	 times	 during	 its deliberation s ,	 the	 jury	 sent	 a	 note	 to	 the	 court

1 A	 second	 document	 produced	 during	 trial

— the	 printout	 of	 the	 breath	 alcohol	 test	 results showing	 that	 there	 had	 been	 an	 initial	 calibration	 error	 on	 the	 Intoxilyzer	 machine	 during Jandreau’s	test

— was	also	the	subject	of	a	motion	in limine. The	calibration	error	had	not	appeared on	 the	 printouts	 that	 Jandreau	 received	 before	 trial	 because	it	 was	 available	 only	 to	 the	 chemist who	oversees	the	State’s	Intoxilyzers ,	but	J andreau	had	been	alerted	to	the	calibration	issue	earlier during	t he	discovery	process. Jandreau	used	the	report	to	cross

- examine	the	chemist	regarding	the calibration	error	and	also	elicited	 testimony	 from	his	own	expert	witness	on	 the	reliability	of	 the breath	alcohol	test	results	in	light	of	the	“cal	check	out	of	tol erance”	reading. This	document	played only	a	very	minor role	in	Jandreau’s	motion to	dismiss and ,	because	Jandreau’s argument on	appeal concerning	the	calibration	error is	not	at	all	persuasive, we	do	not	discuss	it further

.3 indicating	 that	 it was	 unable	 to	 reach	 a	 verdict. The	 court	 polled	 th e	 jury twice,	 asking	 each	 juror whether	 he	 or	 she	 believed	 that	 the	 jury	 w as deadlocked	 and	 whether	 he	 or she	 believed that the	 jury	 would	 be	 able	 to reach	 a	 verdict	 with	 further	 deliberation	 or	 instruction. When	 the	 court polled	 the	jury	 after	its	 second	 note,	 el even	jurors stated	 that	 they believed the	jury	would	not	be	able	to	reach	a	verdict

. One juror told	the	court	that the jury	might	be	able	to	reach	a	verdict	with	further	deliberation. Based	on	this report,	 the	court	sent	 the	jur y	back	 for	 further	deliberation

. When	 the	court polled	 the	 jury	 after	 its	 third	 note, however, all	 tw elve	 jurors reported	 that they	 were dea dlocked	 and	 that they would	 not	 be	 able	 to	 reach	 a	 verdict. Concluding	 that the	 jury	 was genuinely deadlocked, t he	 court	 sua	 sponte declared	a	mistrial	due	to	manifest	necessity. [¶5 ] In	 September	 of	 2015, Jandreau	 moved	 to	 dismiss the criminal complaint against	him , 2 contending

— on	double	jeopardy	grounds

— that lack of	manifest	necessity	 for	a	mistrial	and	prosecutorial	misconduct in	 the	 first trial barred	 a	 second	 prosecution for	 the	 same	 crimes

. The	 court	 held	 a hearing	on	 the	motion, during	wh ich	it	was revealed	 that	miscommunication

2 After	 the mis trial,	 the State	 amended	 the	 criminal	 complaint,	 adding	 a	 charge	 of	 driving	 to endanger	 (Class	E), 29

- A	M.R.S.	 § 2413(1)	 (2016 ) , based	on the	same incident

. Jan dreau	pleaded not	guilty to	the	new	charge.4 between	 investigating	 officers from	 two	 different	 law	 enforcement	 agencies delayed the transmission	 of	 the accident	 reconstruction	 report to	 the prosecutor ’s	office	and	to	Jandreau. At	the	same	hearing,	t he	court also heard evidence	 that	 the accident	 reconstruction	 report showed	 that	 Jandreau	 had been	traveling	at	a	speed	of	40.87	miles	per	hour	when	he	lost control	of	the car	 and	 about	 twenty

- seven miles	 per	 ho ur	 at	 impact,	 rather	 than	 the sixty

- four miles	 per	 hou r at	 impact that the	 trooper	 testified	 to	 at	 trial

. Finally,	 the	court	heard	evidence	 that	 the	 trooper’s	 trial	 testimony	had	been based	 on	 the data reported	 by	 the	 car’s	 black	 box,	 but	 that an	 intermittent power	loss	caused	 th at data	 to	be	reported	out	of	order. Thus ,	although	 the black	box	data	appeared	 to	show	 that	 the	last	spe ed	recorded	before	impact was	sixty

- four miles	per	hour ,	it	was,	in	fact,	twenty

- seven miles	per	hour

. [¶6 ] On	May	24,	2016,	 t he	court	denied	 Jandrea u’s	motion	 to	dismiss, concluding	 that the	Double	 J eopardy Clauses	 of	 the	United	States	and	Maine
Constitutions did	 not	 bar	 a	 second	 prosecution	 because	 (1)	 there	 had	 been manifest	 necessity	 for	 a	 mistrial	 due	 to	 a	 genuinely	 deadlock ed	 jury	 and (2) althoug h	 the	 missing	 accident	 reconstruction	 report resulted	 in	 the presentation	 of	 incorrect	 information	 about	 the	 vehicle’s	 speed	 to	 the	 jury ,5 there	 had	 been	 no prosecutorial	 misconduct	 because	 the State had	 not withheld the	evidence	intentionally

. Jandreau appealed. 3
II.		DISCUSSION [¶7 ] Jandreau	 contends	 that	 the	 court	erred	in	 denying	 his	motion	 to dismiss	 because (1) the jury	 was	 not	 genuinely	 deadlocked and (2)	 the prosecutor ’s	 failure	 to	 turn	 over	 evidence in	 discovery amounted	 to
pr osecutorial misco nduct

. We	disagree with	both	contentions

. [¶8 ] Absent	 the	defendant’s	consent	 to	or the manifest	necessity for	a mistrial , the	 Double	 Jeopardy	 Clauses	 of	 the	 United	 States	 and	 Maine
Constitutions preclude	 the	 State	 from	 bringing	 a	 second	 prosecution	 of	 the defendant	 on	 the	 same	 charges	 after the	 declaration	 of	 a	 mistrial. State	 v.
Torrie ,	2002	ME	59,	¶	8,	794	A.2d	82 ; see U.S.	Const.	amend.	V;	Me.	Const.	art.	I, §	8

. Whe n the	trial	court	declares a	mistrial	due	to	manifest	necessity	and	the defendant	 then	 appeals	 the	 court’s	 denial	 of	 a	 motion	 to	 dismiss	 on	 double jeopardy	 grounds, “ we review	 the	 ruling	 of	 the	 motion	 justice	 to	 determine whether	 the	 findings	of	 fact	of	 the	 trial	justice,	and	of	 th e	motion	justice,	are supported	 by	 substantial	 evidence,	 and	 whether	 the	 legal	 conclusion	 is

3 Although	no	final judgment has	been	issued	in	this	matter,	Jandreau’s	appeal	is	not	barred	by the	final	judgment	rule. State	v.	Hoover ,	2015	ME	109,	¶	10	n.1,	121 A.3d 1281 (explain ing	that	an appeal	 of	 the	 denial	 of	 a	 motion	 to	 dismiss	 based	 on	 double	 jeopardy	 grounds	 is	 not	 barr ed	 as interlocutory).6 correct.” State	v.	Nielsen ,	2000	ME	202,	¶	7,	761 A.2d 876

. Having	carefully reviewed	the	record in this	case ,	we	conclude	that	the court’s	findings	of	fact and conclusions	of	law	both	at	trial	and	in	ruling	on	the	motion	to	dismiss	are supported	by	substantial	evidence	and	are	legally	sound.
A. Genuinely	Deadlocked	Jury [¶9 ] Regarding Jandreau’s	firs t	contention on	appeal , we	conclude	that there	was	manifest	ne cessity	for	a	mistrial	due	to	a	genuinely	deadlocked	jury. In	 reviewing	 the	 declaration	 of	 a	 mistrial,	 we	 afford	 the	 trial	 court	 great deference	 in	 the	 exercise	 of	 its	 discretion, State	 v.	 McConvey ,	 459 A.2d	 562, 566	(Me.	1983) ,	and	examine	four	objective	factors	(the Derby factors): 1) [ t ] he	number	of hours	the	jury	had	deliberated, 2)	 the	 number	 of	 communications	 from	 the	 jury	 indicating	 a n inability	to	reach	a	verdict, 3)	 whether	 each	 individual	 juror	 was	 asked	 whether	 any reasonable	expectations	of reaching	a	verdict	existed,	and 4)	whether	the	defendant’s	counsel	was	provided	an	opportunity to	participate	in	the decision	to	declare	a	mistrial

. Torrie , 2002 ME 59,	¶	9,	794	A.2d	82 (quotation	marks	omitted)

. [¶1 0 ] The record	 provides	 a	 clear	 factual	 foundation	 for	 appellate review	of the Derby factors :	t he jurors deliberated	 for	about four	hours ;	the y sent	three	notes	to	the	court	indicating	that they could	not	reach	a	verdict ; the7
court twice asked each	 juror whether	 he	 or	 she	 believed	 that	 the	 jury	 was deadlocked	and whether	he	or	she	believed that	the	jury	could	reach	a	verdict with	 further	 deliberation	 or	 instruction ;	 and

— by discussing	 all	 three	 jury notes	with Jandreau’s	counsel ,	asking for	his	input on	the reinstruction	of	the jury,	 the	 polling	 of	 the	 jury,	 and	 the	 decisions	 to	 send	 the	 jury	 back	 into deliberation s, and by giving	him the	opportunity	to	be	fully	heard

— the court
gave Jandreau’s	 counsel ample opportunity	 to	 participate	 in	 the	 decision	 to decla re	a	mistrial. [¶1 1 ] Giving	 these	 factors	equal	weight	and	viewing	 them	as a whole, the trial court made	a thorough and	appropriate	effort	to	determine	whether the	 jury	 was	 genuinely	 deadlocked,	 and did	 not	 abuse	 its	 discretion in determining	 that	 the	 jur y	 was	 unable	 to	 reach	 a	 verdict	 and	 declaring	 a mistrial	 for	that	reason. 4 See	id. ¶	12. In	short,	it did	not	err	in	determining that	there	was	manifest	necessity	for	a	mistrial. Cf. id. ¶ ¶ 3

- 5,	12

- 13 (holding that	there	was	manifest	necessity	for	a	mistrial	where	t he	jury	deliberated	for

4 Moreover,	 Jandreau’s	 assertion	 that	 “there	 was reasonable	 probability that	 the	 jury	 could reach	a	verdict” (emphasis	omitted) and	his	comparison	of	the	instant	case	with	the	facts	of State	v. Derby are, at	best ,	unsupported	by	reco rd	evidence:	at	one	point,	a single juror	indicated	that	he	or she	 believed	 the	 jury	 might	 be	 able	 to	 reach	 a	 verdict;	 after	 its	 third	 attempt	 at	 deliberation,	 all twelve	jurors unanimously agreed	 that	 they	were	 unable	 to	 reach	a	 verdict. This	is	 precisel y	 the opposite	of	the	situation	in Derby

. See State	v. Derby ,	581 A.2d 815,	817

- 18	(Me. 1990) (holding	that the	jury	was	not	genuinely	deadlocked	where	eleven	of	 twelve	jurors	believed	 that	 the	jury	could reach	a	verdict	with	further	deliberation).8 six	 hours,	 sent	 two	 notes	 to	 the	 court	 declaring	it	 was	 deadlocked, and was polled	 once,	and where defense	 counsel	was	allowed	 to	approach	 the	 bench

once ); McConvey , 459 A.2d at 567	 ( hol ding	 that	 there	was	manifest	necessity for	a	mistrial	where	t he	jury	deliberated	for	eight	hours,	sent	two	notes	to	the court	 declaring	 it	 was	 deadlocked,	 and	 was	 polled	 once,	 and where defense counsel	was	allowed	to	m ake	a	statement for	the	record)

. B. Prosecutorial	Misconduct [¶1 2 ] Turning	 to Jandreau’s second	 contention, we	 conclude	 that his allegations	 of	 prosecutorial	 misconduct	 are	 unfounded. We	 take	 this opportunity	 to	 reiterate	 that	 “prosecutorial	 misconduct	 must	 rise	 to	 an egregious	 level	 for	 double	 jeopardy	 to	 bar	 a	 retrial.	 	 [Double	 jeopardy	 bars retrial] only	where	the	conduct	of	the	prosecutor	is	undertaken

.	.	. to	prevent	an acquittal	 that	 the	 prosecutor believed	 at	 the	 time	 was	 likely	 to	 occur	 in the absence	 of	 his	 mi sconduct

. ” State	 v.	 Chase ,	 2000	 ME	 114,	 ¶	 6,	 754 A.2d 961 (alteration	 omitted) (quotation	 marks	 omitted)

. We	 will	 overturn	 a	 court’s determination	that	there	was	no	intentional	prosecutorial	misconduct	only	if that	determination	is	clearly	erroneous. Id. ¶	7. [¶1 3 ] This	 is	 clearly	 not	 a	 case	 in	 which	 the prosecutor withheld evidence to	prevent the	defendant’s	acquittal

. See	i d. ¶	6.	 	 First,	contrary	 to9 Jandreau’s	suggestion,	even	a	generous	characterization	of	the	record	reveals no	indication	 that the	jurors	were	likely	 to	acquit	him;	 there	was,	in	 fact,	no information	 whatsoever	 as	 to	 the	 inclinati ons	 of	 individual	 jurors	 toward a particular	verdict. See supra n . 4

. Second, the motion court’s	 finding that	 the State	did	not	intentionally withhold	evidence	is	su pported	by	record	evidence that the prosecutor did	 not	 know	 of	 the	 existence	 of the	 accident reconstruction	report until	trial and	believed	that	the	State	had	turned	over	all discovery	 to	 Jandreau

. Although	 the investigating	 office rs may	 have	 be en negligent	 in failing	 to	 transmit these	 documents to	 the	 prosecutor ’s	 office , there	 is	 no	 evidence	 that	 any	 representative	 of	 the	 State intentionally withheld	 anything from	 Jandreau. 5 See State	 v.	 Johnson ,	 2014 ME 68,	 ¶	 16,
92 A.3d	 351 (“[B]ecause	 the	 police	 are	 the	 equivalent	 of	 the	 prosecutor	 for purposes	of	 the	discovery	rules,	 the	State	was	negligent	in	 failing	 to	provide the	[evidence] in	discovery	before	the	trial ”). [¶1 4 ] We	 deem	 the	 remainder	 of	 Jandreau’s	 arguments	 on	 appeal waived. See Mehlhorn	 v.	Derby ,	 2006	ME	 110,	 ¶	 11,	 905	A.2d	 290 (“[I]ssues

5 Jandreau	 urges	 us	 to	 change	 the	 standard	 for	 prosecutorial	 misconduct	 from	 intent	 to negligence ; we	 again	 decline	 to	 do	 so. See State	 v. Johnson ,	 2014 ME 68,	 ¶ ¶ 13

- 14,	 92 A.3d	 351 ; State	 v. Chase ,	 2000	 ME	 114,	 ¶	 6	 n.3,	 754 A.2d 961 (“As	 an	 alternative	 to the	 ‘ inten tional prosecutorial	misconduct’ standard, [the	defendant]	invites	us	to	adopt	an	‘inexcusable	negligence’ standard. We	decline	the	invitation. ”)

.10 adverted	 to	 in	 a	 perfunctory	 manner,	 unaccompanied	 by	 some	 effort	 at developed	argumen tation,	are	deemed	waived

. ”	(quotation	marks	omitted)). The	entry	is: Order affirmed.

Ezra	 A.R.	 Willey,	 Esq.,	 and	 N.	 Laurence	 Willey,	 Jr.,	 Esq., Willey	 Law	 Offices, Bangor,	for	appellant	Kenneth	A.	Jandreau R.	 Christopher	 Almy,	 District	 Attorney,	 Tracy	 Collins,	 Asst.	 Dist.	 Atty.,	 and William	 Johnson,	 Stud.	 Atty.,	 Prosecutorial	 Distri ct	 V,	 Bangor,	 for	 appellee State	of	Maine

Penobscot	County	Unified	Criminal	Docket	docket	number	CR

- 2013

- 2659 F OR C LERK R EFERENCE O NLY