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	 dismiss	 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	 mistrial 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),	
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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	 trooper.

1 Jandreau	 objected	 to	 the	 use	 of	 the	 accident	

reconstruction	report	at	trial,	and	the	court	acceded	to	Jandreau’s	objection by	

restricting	 the	 State’s	 use	 of	 information	 from	 the	 report.	 	 Thereafter,	 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 miles	per	hour 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,	instructions,	and	polling.	

Three	 times	 during	 its deliberations,	 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	Jandreau	had	been	alerted	to	the	calibration	issue	earlier	

during	the	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	tolerance”	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.		
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indicating	 that	 it	 was	 unable	 to	 reach	 a	 verdict.	 The	 court	 polled	 the	 jury	

twice,	 asking	 each	 juror	 whether	 he	 or	 she	 believed	 that	 the	 jury	 was	

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,	 eleven	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	jury	back	 for	 further	deliberation.	 When	 the	court	

polled	 the	 jury	 after	 its	 third	 note,	 however,	 all	 twelve	 jurors	 reported	 that	

they	 were deadlocked	 and	 that	 they would	 not	 be	 able	 to	 reach	 a	 verdict.	

Concluding	 that the	 jury	 was	 genuinely	 deadlocked, the	 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	which	it	was	revealed	 that	miscommunication	

 2	 	After	 the	 mistrial,	 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.		Jandreau	pleaded	

not	guilty to	the	new	charge.
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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,	the	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	 hour	 at	 impact,	 rather	 than	 the	

sixty-four miles	 per	 hour	 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	 that data	 to	be	reported	out	of	order.	 Thus,	although	 the	

black	box	data	appeared	 to	show	 that	 the	last	speed	recorded	before	impact	

was	sixty-four miles	per	hour,	it	was,	in	fact,	twenty-seven miles	per	hour.

[¶6]		On	May	24,	2016,	 the	court	denied	 Jandreau’s	motion	 to	dismiss,	

concluding	 that	the	Double	 Jeopardy	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	 deadlocked	 jury	 and	

(2) although	 the	 missing	 accident	 reconstruction	 report	 resulted	 in	 the	

presentation	 of	 incorrect	 information	 about	 the	 vehicle’s	 speed	 to	 the	 jury,	
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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	

prosecutorial misconduct.	 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.		When 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	 the	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 (explaining	that	an	

appeal	 of	 the	 denial	 of	 a	 motion	 to	 dismiss	 based	 on	 double	 jeopardy	 grounds	 is	 not	 barred	 as	

interlocutory).
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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	first	contention on	appeal,	we	conclude	that	

there	was	manifest	necessity	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	 an	

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).

[¶10]	 	 The record	 provides	 a	 clear	 factual	 foundation	 for	 appellate	

review	of the	Derby factors:	the	jurors deliberated	 for	about	four	hours;	they

sent	three	notes	to	the	court	indicating	that	they could	not	reach	a	verdict;	the	
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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	

deliberations, and	by	giving	him the	opportunity	to	be	fully	heard—the	court	

gave Jandreau’s	 counsel	 ample opportunity	 to	 participate	 in	 the	 decision	 to	

declare	a	mistrial.

[¶11]		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	 jury	 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	the	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	record	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	 precisely	 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).
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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	 (holding	 that	 there	was	manifest	necessity	

for	a	mistrial	where	the	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	make	a	statement	for	the	record).

B. Prosecutorial	Misconduct

[¶12]	 	 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	 misconduct.”	 	 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.		

[¶13]	 	 This	 is	 clearly	 not	 a	 case	 in	 which	 the	 prosecutor withheld	

evidence	to	prevent the	defendant’s	acquittal.	 	See	id. ¶	6.	 	 First,	contrary	 to	
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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	 inclinations	 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	supported	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	 officers may	 have	 been	

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”).

[¶14]	 	 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	 ‘intentional	

prosecutorial	misconduct’ standard,	[the	defendant]	invites	us	to	adopt	an	‘inexcusable	negligence’

standard.	 We	decline	the	invitation.”).		
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adverted	 to	 in	 a	 perfunctory	 manner,	 unaccompanied	 by	 some	 effort	 at	

developed	argumentation,	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	 District	 V,	 Bangor,	 for	 appellee	

State	of	Maine

Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2013-2659

FOR	CLERK	REFERENCE	ONLY