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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
| Docket Number: |
29894-9 |
| Title of Case: |
State of Washington v. James L. Colbert |
| File Date: |
02/09/2012 |
SOURCE OF APPEAL
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| Appeal from Columbia Superior Court |
| Docket No: | 10-1-00021-1 |
| Judgment or order under review |
| Date filed: | 05/05/2011 |
| Judge signing: | Honorable William D Acey |
JUDGES
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| Authored by | Kevin M. Korsmo |
| Concurring: | Stephen M. Brown |
| Teresa C. Kulik |
COUNSEL OF RECORD
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Counsel for Petitioner(s) |
| | Rea Lynn Culwell |
| | Columbia County Prosecutors Office |
| | 116 N 3rd St |
| | Dayton, WA, 99328-1149 |
Counsel for Respondent(s) |
| | Andrea Burkhart |
| | Burkhart & Burkhart PLLC |
| | 6 1/2 N 2nd Ave Ste 200 |
| | Walla Walla, WA, 99362-1855 |
FILED
FEB 09, 2012
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 29894-9-III
)
Petitioner, )
)
v. ) Division Three
)
JAMES L. COLBERT, )
)
Respondent. ) UNPUBLISHED OPINION
Korsmo, J. -- The trial court declared a mistrial sua sponte over the objections of
the parties. The court subsequently denied motions to dismiss from both parties. The
State obtained review from this court, arguing that a retrial will violate double jeopardy
principles. We agree and reverse.
FACTS
James L. Colbert was charged with vehicular homicide. On the second day of jury
trial, the parties learned that certain electronic measurements in the State's possession had
not been turned over to the defense despite multiple requests. The failure to disclose was
No. 29894-9-III
State v. Colbert
apparently unintentional; the requested measurements were in a strange format that the
prosecutor thought was "gibberish."
The defense moved for a dismissal, arguing that if it had earlier possession of the
data, its expert could have demonstrated that Mr. Colbert was not the driver. In the
alternative, the defense would proceed with trial by presenting its case. The trial court
found that the error was unfair to Mr. Colbert, and declared a mistrial over his objection.
The court's explanation was that the defense expert needed time to examine the data in
order to prepare the defense. The court reserved ruling on the motion to dismiss pending
further briefing.
After receiving the briefing, the court denied Mr. Colbert's motion to dismiss.
Once a second trial was scheduled, the State moved to dismiss the case on double
jeopardy grounds. That motion was also denied. This court granted the State's motion
for discretionary review.
ANALYSIS
The only issue presented is whether a second trial would subject Mr. Colbert to
double jeopardy.
It is fundamental that a defendant cannot be placed in jeopardy twice for the same
offense. U.S. Const. amend. V; Wash. Const. art. I, § 9. One "valued right" protected by
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No. 29894-9-III
State v. Colbert
double jeopardy principles is the right of a defendant to have the charges against him or
her resolved by a particular tribunal. Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974,
69 S. Ct. 834 (1949). Where a jury is discharged without rendering a verdict and without
the consent of the defendant, retrial is constitutionally impermissible unless the trial
ended due to a "manifest necessity." State v. Wright, 165 Wn.2d 783, 793, 203 P.3d
1027 (2009). Manifest necessity exists where "extraordinary and striking" circumstances
indicate that substantial justice cannot be obtained without discontinuing the trial. State
v. Juarez, 115 Wn. App. 881, 889, 64 P.3d 83 (2003).
Reviewing courts have determined several guidelines for consideration of a
mistrial. State v. Melton, 97 Wn. App. 327, 332, 983 P.2d 699 (1999). These include:
(1) whether the trial court acted hastily, or gave both parties an opportunity to explain
their positions, (2) whether it carefully considered the defendant's interest in a single
proceeding, and (3) whether it considered less drastic alternatives. Id.
Here, the record shows that the trial court did not give the parties an opportunity to
discuss the merits of a mistrial, nor did it carefully consider Mr. Colbert's interest in a
single proceeding. On the contrary, it quickly declared a mistrial once it determined that
there had been a significant discovery violation.
Ordinarily, where the defense is surprised by evidence in violation of CrR 4.7, the
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No. 29894-9-III
State v. Colbert
appropriate remedy is a continuance in order to permit the defense to examine the
evidence. E.g., State v. Hutchinson, 135 Wn.2d 863, 881, 959 P.2d 1061 (1998); State v.
Linden, 89 Wn. App. 184, 195-196, 947 P.2d 1284 (1997), review denied, 136 Wn.2d
1018 (1998). Where the State's error is of a serious enough nature, a mistrial or dismissal
may be appropriate. Hutchinson, 135 Wn.2d at 881. While we agree with the trial court
that the defense expert needed time to examine the data, a continuance would have
achieved that goal without resorting to the drastic remedy of a mistrial.1 Since an
alternative, less drastic remedy was available, there was no manifest necessity. A second
trial would therefore place Mr. Colbert in double jeopardy. Accordingly we reverse and
remand for dismissal.
Reversed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Korsmo, J.
WE CONCUR:
1 If defense counsel does not request a mistrial when one would be merited, the
trial court can confirm with counsel on the record that the defense is foregoing a mistrial
and/or address the issue post-verdict rather than interfere with the constitutional right to
have the case decided by the chosen jury.
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No. 29894-9-III
State v. Colbert
______________________________
Kulik, C.J.
______________________________
Brown, J.
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