Supreme Court of the United States

No. ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- STATE OF MINNESOTA, v. Petitioner, MICHAEL WILLIAM SAHR, Respondent. --------------------------------- --------------------------------- On Petition For Writ Of Certiorari To The Supreme Court Of The State Of Minnesota --------------------------------- --------------------------------- PETITION FOR WRIT OF CERTIORARI --------------------------------- --------------------------------- JANELLE P. KENDALL Stearns County Attorney MICHAEL J. LIEBERG Chief Criminal Division WILL BROST Assistant Stearns County Attorney LORI SWANSON Minnesota Attorney General 1800 Bremer Tower 445 Minnesota St. St. Paul, MN 55101 (651) 296-6196 THOMAS J. HARBINSON SCOTT BURNS Counsel of Record NATIONAL DISTRICT Assistant Stearns ATTORNEYS ASSOCIATION County Attorney 44 Canal Center Plaza, #110 Stearns County Attorney s Office Alexandria, VA 22314 Administration Center, Rm. 448 (703) 549-9222 705 Courthouse Sq. St. Cloud, MN 56303 (320) 656-3854 tom.harbinson@co.stearns.mn.us Attorneys for Petitioner ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

i QUESTION PRESENTED Should this Court address an issue it reserved in Serfass v. United States, 420 U.S. 377, 394 (1975) and Sanabria v. United States, 437 U.S. 54, 77-78 (1978), whether a defendant who is afforded an opportunity to obtain a determination of a legal defense prior to trial and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense forfeits or waives his double jeopardy protections?

ii TABLE OF CONTENTS Page Question Presented... i Table of Contents... ii Table of Authorities... iv Opinion Below... 1 Jurisdiction... 1 Constitutional Provision... 1 Statement of the Case... 2 Reasons for Granting the Petition... 9 I. THE COURT SHOULD GRANT THE PETITION BECAUSE A STATE COURT OF LAST RESORT HAS DECIDED AN IMPORTANT QUESTION OF FEDERAL LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT... 9 II. THE COURT SHOULD GRANT THE PETITION BECAUSE A STATE COURT OF LAST RESORT HAS DECIDED AN IMPORTANT QUESTION OF FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE DECISIONS OF OTHER STATE COURTS OF LAST RESORT AND OF A UNITED STATES COURT OF APPEALS... 15

iii TABLE OF CONTENTS Continued Page III. THE COURT SHOULD GRANT THE PETITION BECAUSE THIS CASE REP- RESENTS AN EXCELLENT VEHICLE TO ADDRESS THE ISSUE RESERVED IN SERFASS AND SANABRIA... 20 Conclusion... 21 INDEX OF APPENDICES May 23, 2012, Final Judgment of the Minnesota Supreme Court... App. 1 April 25, 2012, Minnesota Supreme Court Opinion... App. 3 July 20, 2010, Minnesota Court of Appeals Opinion... App. 55 January 4, 2010, Minnesota District Court Order... App. 74 April 7, 2009, Minnesota Court of Appeals Order... App. 82 February 20, 2009, Minnesota District Court Order... App. 87 February 19, 2009, Minnesota District Court Order... App. 90 February 18, 2009, Minnesota District Court Order... App. 95

iv TABLE OF AUTHORITIES Page UNITED STATES SUPREME COURT CASES Arizona v. Rumsey, 467 U.S. 203 (1984)... 16 Arizona v. Washington, 434 U.S. 497 (1978)... 18 Burks v. United States, 437 U.S. 1 (1978)... 18 Evans v. Michigan, 132 S.Ct. 2753, cert. granted, 80 U.S.L.W. 3675 (June 11, 2012) (No. 11-1327)... 6, 7 Finch v. United States, 433 U.S. 676 (1977)... 15 Fong Foo v. United States, 369 U.S. 141 (1962)... 18 Illinois v. Sommerville, 410 U.S. 458 (1973)... 18 Jeffers v. United States, 432 U.S.137 (1977)... 20 Lee v. United States, 432 U.S. 23 (1973)... 8 Sanabria v. United States, 437 U.S. 54 (1978)... passim Serfass v. United States, 420 U.S. 377 (1975)... passim United States v. Martin Linen Supply Co., 430 U.S. 564 (1977)... 9, 15 United States v. Scott, 437 U.S. 82 (1978)... 8, 12, 13, 15 United States v. Wilson, 420 U.S. 332 (1975)... 20 Wade v. Hunter, 336 U.S. 684 (1949)... 18

v TABLE OF AUTHORITIES Continued Page OTHER FEDERAL CASES United States v. Hunt, 212 F.3d 539 (10th Cir. 1975)... 17 United States v. Kehoe, 516 F.2d 78 (5th Cir. 1975)... 16 United States v. Miles, 327 Fed. Appx. 797 (C.A.10 Okla.)... 16 CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Const. amend. V... passim 28 U.S.C. 1257(a)... 1 MINNESOTA STATUTES Minn. Stat. 609.04 (2010)... 11, 12 Minn. Stat. 609.342, Subd. 1(a) (2010)... 2 Minn. Stat. 609.343, Subd. 1(a) (2010)... 2 Minn. Stat. 631.21 (2010)... 5 MINNESOTA RULES OF CRIMINAL PROCEDURE Minn. R. Crim. P. 10.01, Subd. 2... 3, 5 Minn. R. Crim. P. 17.06, Subd. 2... 5, 6 Minn. R. Crim. P. 26.01, Subd. 4(e)... 14 Minn. R. Crim. P. 26.03, Subd. 18(1)... 5 Minn. R. Crim. P. 28.04, Subd. 1(1)... 11

vi TABLE OF AUTHORITIES Continued Page MINNESOTA DECISIONS State v. Fuller, 374 N.W.2d 722 (Minn. 1985)... 12 State v. Giesege, 561 N.W.2d 152 (Minn. 1997)... 6 State v. Large, 607 N.W.2d 774 (Minn. 2000)... 11, 12 State v. Sahr, 812 N.W.2d 83 (Minn. 2012)... passim State v. Sahr, 2010 WL 2813564, A10-0074, (Minn. Ct. App. July 20, 2010) (unpublished opinion)... 2, 7, 8 In re State of Minnesota, Petitioner, State of Minnesota, Petitioner v. Michael William Sahr, Order, A09-375, (Minn. Ct. App. April 7, 2009)... 6 OTHER STATE CASES Com. v. Gibbons, 784 A.2d 776 (Pa. 2001)... 17 County v. Tapia, 700 P.2d 1017 (N.M. 1990)... 17 People v. Deems, 410 N.E.2d 8 (Ill. 1980)... 15, 19 Santucci v. Kohn, 526 N.Y.S.2d 187 (N.Y. 1988)... 17 State v. Key, 391 N.Y.S.2d 781 (N.Y. 1976)... 16 State v. White, 800 S.W.2d 805 (Mo. 1993)... 17 State v. Wright, 7 S.C.L. (2 Tread.) 517 (S.C. Ct. App. 1814)... 19

vii TABLE OF AUTHORITIES Continued Page ENGLISH CASE LAW Rex v. Furser, Say. 90, 96 Eng. Rep. 813 (K.B. 1753)... 19 TREATISES W. Blackstone, Commentaries on the Law of England, 329 (Univ. of Chi. Press facsimile ed. 1979) (1769)... 19 Wayne R. LaFave, Jerald H. Israel, Nancy J. King & Orring S. Kerr, Criminal Procedure, 25.3, sec. 633-637 (3rd ed. 2007)... 12, 13

1 PETITION FOR WRIT OF CERTIORARI Petitioner State of Minnesota respectfully prays that a writ of certiorari issue to review the judgment below. --------------------------------- --------------------------------- OPINION BELOW The opinion of the Minnesota Supreme Court appears at App. 2, to this petition. The court s opinion is at 812 N.W.2d 83 (Minn. 2012). --------------------------------- --------------------------------- JURISDICTION The Minnesota Supreme Court issued its opinion on April 25, 2012. The Minnesota Supreme Court entered its final judgment on the appeal on May 23, 2012. A copy of the judgment is attached at App. 1-2. The jurisdiction of this Court is invoked under 28 U.S.C. 1257(a). --------------------------------- --------------------------------- CONSTITUTIONAL PROVISION U.S. Const. Amend. V: No person... shall be subject for the same offence to be twice put in jeopardy of life or limb.... --------------------------------- ---------------------------------

2 STATEMENT OF THE CASE This appeal is from a decision of a divided Minnesota Supreme Court, which reversed the state court of appeals and reinstated a trial court ruling dismissing the State s case on double jeopardy grounds. See State v. Sahr, 812 N.W.2d 83 (Minn. 2012); App. 6. The state supreme court held that since the trial court s dismissal was characterized as an acquittal on the merits, double jeopardy precluded its exercise of appellate jurisdiction. Id. at 90-92. Accordingly, it could not consider whether the defendant forfeited his double jeopardy protections by knowingly allowing jeopardy to attach before raising the legal defense that the complaint charged the wrong offense. Id. at 92; App. 20-21. The complaint in this case was filed on May 13, 2008, citing the statute for criminal sexual conduct in the first degree, under Minn. Stat. 609.342, Subd. 1(a), with the title of criminal sexual conduct in the first degree. But the probable cause portion of the complaint and the count stated the facts and the elements for criminal sexual conduct in the second degree under Minn. Stat. 609.343, Subd. 1(a). See Sahr, at 86-87. The probable cause portion of the complaint stated that the respondent had touched the six year old victim on her genitals. See id; State v. Sahr, 2010 WL 2813564, at *1, A10-0074, Minn. Ct. App. July 20, 2010) (unpublished opinion); App. 57.

3 On February 17, 2009, immediately after the jury was empanelled and sworn, respondent s attorney asked for a recess and argued that the complaint was defective in that it cited criminal sexual conduct in the first degree, but was substantively alleged to be a violation of criminal sexual conduct in the second degree. State v. Sahr, 812 N.W.2d at 85. Respondent s counsel did not dispute that he had stated that he had known for some time that Count I was defective because the statute it cited alleged bare genital-togenital contact. Id. at 85 n.2; App. 4-5, 95. On February 18, 2009, the State brought a motion to amend the complaint by adding a second count for criminal sexual conduct in the second degree, which is a lesser included offense of count one. Id. at 85; App. 4-5, 90-91, 98; see transcript, hereafter T., of hearing of February 18, 2009, at 3-12. The prosecutor argued that the defense had an obligation to raise the known legal defect in the complaint before jeopardy attached, because the defense had been afforded an opportunity to obtain a determination of a legal defense prior to trial and nevertheless knowingly allowed himself to be placed in jeopardy. See Sahr, 812 N.W.2d at 87; see T. of hearing of February 18, 2009, at 27-29, 35; App. 7-8, 98. 1 1 The prosecutor argued that defense counsel had an obligation to raise the legal defect in the complaint but waited to raise it until after jeopardy attached, so instead of following the Rules of Criminal Procedure, especially 10.01, he waited until jeopardy attached and then he brought it to the Court s attention that (Continued on following page)

4 The trial court denied the motion to amend the complaint to add a second count for criminal sexual conduct in the second degree on grounds that it was a different offense than count one of the complaint. See Sahr, 812 N.W.2d at 87; App. 96-97. 2 The State then requested emergency extraordinary writs of prohibition and mandamus from the state appellate courts, and those courts denied the State s request. See Sahr, 812 N.W.2d at 87-88; App. 9-10. The following day, February 19th, 2009, the State made a formal motion for a lesser included instruction for criminal sexual conduct in second degree, which the defense opposed. App. 90-91. The trial court declined to rule on the State s motion stating that it would be premature to do so. See Sahr, 812 N.W.2d at 87; App. 9, 99. After the State made its motion, respondent s attorney opposed the State presenting any evidence arguing that the State s case was no longer viable and moved for the trial court to Count 1 had a problem, so he intended all along to raise the issue. This isn t a situation where he didn t intend to raise it and then all of a sudden he discovered it, and I think he acknowledges this, he intended to do this all along, and it would have been easily curable by the State before the jury, before this whole process of double jeopardy.... T. of hearing of February 18, 2009, at 28. 2 As the dissenting opinion below correctly notes, the trial court s ruling denying the State s amendment motion is erroneous, as a lesser included offense is not a different offense from that contained in count one. See State v. Sahr, 812 N.W.2d at 98 n.2 (Dietzen, J., dissenting); App. 35.

5 dismiss the State s case in the furtherance of justice pursuant to Minn. Stat. 631.21 (2008). See Sahr, 812 N.W.2d at 88; see T. of hearing of February 19, 2009, at 4-20; App. 10, 91, 93. The defense made this motion even though it had earlier waived a challenge to probable cause, never raised the issue of the miscitation of the statute in any pretrial hearing, and had waived all pretrial issues. See Transcript of hearing of August 4, 2008, at 1-2. 3 The trial court ruled that the defense had no obligation to raise the issue of a legal defect in the complaint before jeopardy attaches even though Minn. R. Crim P. 17.06 and 10.01, Subd. 2, require that all known defenses that can be determined without trial on the merits must be made before trial. See Sahr, 812 N.W.2d at 87; App. 8-9, 98; see T. of hearing of February 18, 2009, at 35. The trial court granted respondent s motion and dismissed the case in the furtherance of justice ruling that the one count 3 The defense attorney did not bring a motion for judgment of acquittal because such motions can only be brought after the State has presented its case-in-chief. See Minn. R. Crim P. 26.03, Subd. 18(1). Respondent asked the trial court to dismiss the State s case under Minn. Stat. 631.21, in order to flout the requirement of the rules that motions for judgment of acquittal can only be brought after the State has had an opportunity to present evidence in its case-in-chief. The very reason the State is given an opportunity to present its case-in-chief before a motion for judgment of acquittal can be brought is because of the double jeopardy consequences of an acquittal. Under Minnesota s rules motions for directed verdicts have been abolished and replaced with motions for judgment of acquittal.

6 complaint was not viable and because jeopardy had attached. The trial court found there was no bad faith on the part of the State. App. 10, 91, 94; see T. of hearing of February 19, 2009, at 20-26. 4 The next day, the State filed a new complaint pursuant to Minn. R. Crim P. 17.06, Subd. 3, which allows for a prosecution to continue if the defect in a complaint is curable. The trial court held that it could not sign the new complaint because double jeopardy prevented it from doing so. See Sahr, 812 N.W.2d at 88-89; App. 5, 12, 87-89. The State appealed. The court of appeals ordered the trial court to make additional findings on the sufficiency of evidence to convict and whether the new complaint was the same offense for double jeopardy purposes. See In re State of Minnesota, Petitioner, State of Minnesota, Petitioner v. Michael William Sahr, Order, A09-375 (Minn. Ct. App. April 7, 2009); App. 82-86. On remand, the trial court ruled that there was insufficient evidence to convict respondent of criminal sexual conduct in the first degree. App. 74-76. 5 4 The trial court erred as the State s case was viable. See State v. Giesege, 561 N.W.2d 152, 157 (Minn. 1997) (indicating jury can convict on a lesser included offense whether or not the lesser included offense was charged in the complaint). 5 The trial court s ruling in this case is not dissimilar from that of the trial court in Evans v. Michigan, 132 S.Ct. 2753, cert. granted, 80 U.S.L.W. 3675 (June 11, 2012) (No. 11-1327). In (Continued on following page)

7 The trial court also ruled that based on its review of the elements for criminal sexual conduct in the second degree the new complaint, which it had declined to sign previously, was the same offense for double jeopardy purposes. App. 75. This ruling was contrary to its initial ruling when it denied the State s amendment motion to add a count for criminal sexual conduct in the second degree, because the trial court ruled it constituted a different offense. App. 96-97, 99. The trial court then dismissed the State s case with prejudice. App. 76. The State appealed. The Minnesota Court of Appeals reversed the trial court s decision, holding that double jeopardy did not apply and the trial court s dismissal was the functional equivalent of a mistrial and issued a writ of mandamus directing the trial court to sign the new complaint. See State v. Sahr, 2010 WL 2813564, No. A10-0074, (Minn. Ct. App. July 20, 2010), (unpublished opinion); App. 55-73. Evans, the question is whether the Double Jeopardy Clause bars retrial after a trial court erroneously holds a fact to be an element of the offense and grants a directed verdict motion because the prosecution failed to prove that fact. In this case, the State acknowledged that it had no evidence that bare genital-to-genital touching occurred, criminal sexual conduct in the first degree, and did not intend to prosecute a case for which there was no evidence, but did have evidence to prosecute criminal sexual conduct in the second degree, hand-to-genital contact, a lesser included offense of count one, and wanted the trial to continue so it could present its evidence. The probable cause portion of the complaint alleged facts constituting criminal sexual conduct in the second degree.

8 It held that because Sahr had sought dismissal on grounds unrelated to factual guilt or innocence, United States v. Scott, 437 U.S. 82 (1978) and Lee v. United States, 432 U.S. 23 (1973), supported its holding that double jeopardy did not apply. The Court of Appeals noted another issue the State raised: whether the defense can forfeit double jeopardy by not raising a known legal defect in the complaint before jeopardy attaches. It stated, that we would never condone such a tactic, and further noted that the record in this case reflects that defense counsel appeared to have engaged in just such a tactic. See State v. Sahr, 2010 WL 2813564, at *7; App. 72. Respondent appealed the court of appeals decision to the state supreme court. The Minnesota Supreme Court asked the parties to brief the issue of whether a defendant waives or forfeits his double jeopardy rights if he fails to raise a known defect in the complaint before jeopardy attached. App. 14-15. The state supreme court reversed and affirmed the trial court s decision dismissing the State s case on double jeopardy grounds. State v. Sahr, 812 N.W.2d 83, at 90-91; App. 23. The court held that the trial court made clear, consistent, and explicit findings that its dismissal of the original complaint was based on the State s concession that the State could not prove all the elements necessary to support a first degree criminal sexual conduct conviction. Id. Based on the trial court s characterization or findings, the state supreme court held that the trial court s dismissal of the complaint was based on a

9 finding of insufficient evidence to convict Sahr of first degree criminal sexual conduct and was an acquittal on the merits, precluding further appellate review. Id. at 91-92. The court held that it could not address whether double jeopardy could be forfeited because double jeopardy prevented it from exercising its appellate jurisdiction. Id. at 92; App. 20-23. This petition now follows. --------------------------------- --------------------------------- REASONS FOR GRANTING THE PETITION I. THE COURT SHOULD GRANT THE PETITION BECAUSE A STATE COURT OF LAST RESORT HAS DECIDED AN IMPORTANT QUESTION OF FEDERAL LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT. [T]the most fundamental rule in the history of double jeopardy jurisprudence is that an acquittal may not be reviewed on error or otherwise, without putting the defendant twice in jeopardy Sanabria v. United States, 437 U.S. 54, 64 (1978), quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977) (citation and quotation marks omitted). This Court has indicated that even when the acquittal is based on egregious legal error, once the determination is made by the trial court that the evidence is insufficient to support a conviction, there is no exception permitting retrial. Sanabria, at 75.

10 In addition, however, this Court stated that Sanabria does not present the hypothetical situation on which we reserved judgment in Serfass v. United States, of a defendant who is afforded an opportunity to obtain a determination of a legal defense prior to trial and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense and whether that defendant forfeits or waives his double jeopardy protections. Sanabria, at 77. In Serfass v. United States, 420 U.S. 377, 394 (1975), the Court stated it would not express an opinion on the issue raised by the Solicitor General of whether a defendant, who prevails at trial because of a trial judge s interpretation of substantive criminal law, but who had an opportunity to raise his defense on the merits pretrial, has a right under the Double Jeopardy Clause not to be prosecuted again. Id. The Court should now address the issue it reserved in Serfass v. United States, 420 U.S. 377, 394 (1975) and Sanabria v. United States, 437 U.S. 54, 77-78 (1978). In Sanabria, this Court indicated that it could not address the issue it reserved in Serfass because the dismissal motion in question did not involve a legal defense capable of being resolved before trial. Sanabria v. United States, at 77-78. Unlike Sanabria, the defense motion in this case was capable of being resolved before trial, i.e., whether the conduct set forth in the complaint which constituted criminal sexual conduct in the second degree violated the statute, which was a miscitation for criminal sexual conduct in the first degree, because

11 the defense was alleging the State charged the wrong offense. Here, because the probable cause portion of the complaint alleged conduct that the defendant touched the victim s genitals the conduct alleged in the complaint did not violate the criminal sexual conduct in the first degree statute which required bare genital-to-genital touching. The probable cause portion of the complaint never alleged bare genital-togenital touching, so any variance was between the conduct alleged in the complaint and in the miscitation of the statute in the complaint. As the dissent noted, the alleged error in Sahr s case does not involve an exclusion of evidence that lead to an acquittal for insufficient evidence. State v. Sahr, at 100-01. (Dietzen, J., dissenting). App. 40. If the defense had made its motion before the attachment of jeopardy the State could have cured the defective citation or charge. Id. at 98. If the trial court had denied that pretrial amendment motion the State would have been able to file an appeal. See Minn. R. Crim. P. 28.04, Subd. 1(1). 6 6 It is anticipated that Respondent will argue that the decision below rests on independent state grounds and thus this Court should not grant a petition. Respondent may argue that the Sahr court s holding that an acquittal on the merits occurred, is based on Minn. Stat. 609.04 (Minn. 2010), and State v. Large, 607 N.W.2d 774 (Minn. 2000), and thus, provides an independent state basis for the Sahr court s holding. But the Sahr court s holding is not based on independent state grounds. Sahr stated that if the dismissal does not constitute an acquittal on the merits, then neither double jeopardy nor Minn. Stat. (Continued on following page)

12 Although this Court has held that the defense cannot be faulted for not raising an issue concerning the admissibility of evidence before jeopardy has attached, the Court has not yet addressed the issue of whether the defense can purposefully fail to object to the charging instrument before trial and then, after the jury is sworn, object only to the alleged lack of proof for one of the elements, rather than to the deficiency of the pleading. See 6 Wayne R. Lafave, Jerald H. Israel, Nancy J. King & Orrin S. Kerr, Criminal Procedure, 25.3(c), 633-37 (3rd ed. 2007) (hereafter 6 Lafave, Criminal Procedure). The forfeiture or waiver of the double jeopardy issue is a vitally important question of federal law, which will affect every court in this country and should be settled by this Court. In cases where the defense knows the complaint is defective and does not state an offense, a question exists whether conduct set forth in the complaint violates the statute, the defense induces the trial court to commit legal error, 609.04, Subd. 2, will preclude an amendment of a new complaint and a retrial of Sahr. State v. Sahr, 812 N.W.2d at 90. In Minnesota, due to the identical text of the federal and state provisions of the Double Jeopardy Clause, interpretations of federal protection against double jeopardy are inherently persuasive. State v. Fuller, 374 N.W.2d 722, 727 (Minn. 1985). In analyzing whether a trial court s dismissal constitutes an acquittal on the merits for double jeopardy purposes, the Minnesota Supreme Court relies on federal law for its analysis of what constitutes an acquittal. See State v. Large, 607 N.W.2d 774, 779 (Minn. 2000), citing, United States v. Scott, 437 U.S. 82, 97 (1978) and Sanabria v. United States, 437 U.S. 54, 59, 68-69 (1978).

13 and the defense waits as a matter of trial tactics to raise the curable defect until after jeopardy attaches, the rule should be that the defense has forfeited or waived his double jeopardy claim. See Sanabria, at 77; 6 LaFave, Criminal Procedure, at 635-36, 636 n.28 (indicating that the Court s rationale in Sanabria leaves open the possibility that a forfeiture or waiver will be found where the legal interpretation that leads to the directed acquittal could have been resolved before trial, as on a motion to dismiss the indictment, which would have given the prosecution the opportunity to appeal an adverse interpretation). See also Serfass v. United States, at 394. As the dissenting opinion below notes, forfeiture should occur in such situations because: [t]he underlying double jeopardy principle is not implicated when the defense chooses to avoid conviction and imprisonment, not because of an assertion that the government has failed to make a case out against him, but because of a legal claim that the Government s case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt. State v. Sahr, 812 N.W.2d at 102, quoting United States v. Scott, 437 U.S. 82, at 96. (Dietzen, J., dissenting). App. 44. The dismissal in this case resulted not from an erroneous district court ruling on the merits, but instead from defense counsel s intentional and improper manipulation of the court proceedings by failing to challenge the defective complaint before trial as required by court rule.... State v. Sahr, at

14 103 (Dietzen, J., dissenting). App. 43. The procedural ruling that allowed Sahr to move for dismissal after the jury was sworn did not exclude or otherwise limit the State s evidence and therefore did not lead to an acquittal for insufficient evidence. State v. Sahr, at 100. (Dietzen, J., dissenting). Moreover, the parties did not ask the district court to evaluate the State s evidence and resolve a dispute regarding the evidence. Instead, there was no factual dispute regarding the bare genital-to-genital contact element of the charge for the district court to resolve. Id. at 104; App. 49. The dissent also correctly noted, absent a risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy, Id. at 101, quoting Serfass v. United States, 420 U.S. 377, 391-92 (1975). 7 App. 43. 7 The court below indicated that in its view, the State made a concession that it lacked sufficient evidence to prove an element of first-degree criminal sexual conduct, State v. Sahr, at 90, but this reasoning ignores that the State was prepared to proceed with the trial and present its evidence which showed respondent touched the victim s genital area with his hand. Neither party stipulated that the evidence was lacking, nor did the parties submit the matter for a ruling based on stipulated facts. The defense did not agree that the trial court could enter a finding of guilt based on any evidence, see Minn. R. Crim. P. 26.01, Subd. 4(e), and did not waive the jury. The defense opposed the State presenting any evidence. See T. of hearing of February 19, 2009, at 3, 5-6, 10-12, 14-15, 17-18. Under these facts, there was no risk of a determination of guilt, and the dissent correctly noted, because the circumstances in Sahr s case do not represent a factual resolution [in the defendant s favor] (Continued on following page)

15 There was no risk of a conviction here because the trial court did not review the State s evidence, and denied the State s request to present evidence in its case-in-chief. App. 47, 49. See also, e.g., People v. Deems, 410 N.E.2d 8 (Ill. 1980) (double jeopardy does not apply when State acknowledged it charged the wrong offense and State had no evidence to convict for the wrongfully charged offense even though judge entered acquittal ), cert. denied, 450 U.S. 925 (1981). II. THE COURT SHOULD GRANT THE PETITION BECAUSE A STATE COURT OF LAST RESORT HAS DECIDED AN IMPORTANT QUESTION OF FEDERAL LAW IN A WAY THAT CON- FLICTS WITH THE DECISIONS OF OTHER STATE COURTS OF LAST RESORT AND OF A UNITED STATES COURT OF APPEALS. There is a large and intractable split of authority between decisions below that are similar to that of correct or not, of some or all of the factual elements of the offenses charged, see United States v. Scott (alterations in original) (citations omitted) (quoting United States v. Martin Linen Supply Co. (citations omitted)), the dismissal order does not constitute an acquittal on the merits. See also Finch v. United States, 433 U.S. 676, 677-78 (1977) (indicating that this Court has never passed on any claim of double jeopardy where the issues were submitted to the District Court on an agreed statement of facts, rather than to a jury for its verdict or to the court for a finding of guilt or innocence after hearing witnesses.... ) (Rhenquist, C.J., dissenting from summary disposition of case).

16 the Minnesota Supreme Court and other courts on this issue. The dissenting opinion below, correctly notes that the majority opinion s expansive rule precluding any appellate review, represents a departure from existing Supreme Court precedent, including Rumsey [Arizona v. Rumsey, 467 U.S. 203 (1984)] and Sanabria. Id. at 100. App. 39. Since this Court has identified but not addressed the issue it reserved in Serfass and Sanabria it is highly unlikely that federal circuit courts of appeal or state courts of last resort can resolve this issue. This split of authority can only be resolved by this Court. Most courts that have ruled on this issue with similar facts have held that a defendant can forfeit or waive double jeopardy and an appellate court is not automatically deprived of jurisdiction based on the trial court s characterization of its actions as being an acquittal. See, e.g., United States v. Kehoe, 516 F.2d 78, 86 (5th Cir. 1975) (holding defense not entitled to double jeopardy protection when it moved for a dismissal after government presented case-in-chief, even though trial court labeled its actions an acquittal ); United States v. Miles, 327 Fed. Appx. 797, 802-03 (C.A.10 Okla.) (unpublished opinion) (indicating dismissal of indictment after jury empanelled but before presentation of evidence was not an acquittal because it was based on a legal issue that could have been raised before trial, and not for lack of proof of a necessary element of an unlawful sexual act (stipulated or otherwise)); State v. Key, 391 N.Y.S.2d 781, 784-85 (N.Y. 1976) (holding failure to bring motion to dismiss for known defect in the complaint before

17 trial, as required by state rules, but waiting until after jeopardy attached, results in defendant waiving double jeopardy); County v. Tapia, 700 P.2d 1017, 1023-25 (N.M. 1990) (holding the orderly administration of justice requires litigants be encouraged to raise objections at the earliest possible time, and a defendant who waits until after jeopardy has attached and then argues evidence of an illegal arrest should be suppressed and the case dismissed, waives double jeopardy protection); State v. White, 800 S.W.2d 805, 806 (Mo. 1993) (holding after jury sworn, but before introduction of any evidence, defendant who deliberately chooses to wait until jeopardy attaches to raise defect in complaint waives any double jeopardy protection). Other courts that have looked at similar situations appear to have adopted a position somewhat similar to that of the Minnesota Supreme Court. See, e.g., United States v. Hunt, 212 F.3d 539 (10th Cir. 2000) (indicating double jeopardy applies where the indictment alleged mail theft and the proof only established theft because the discrepancy in the complaint involved an element of the offense and factual insufficiency precluded an appeal); Com. v. Gibbons, 784 A.2d 776, 780-81 (Pa. 2001) (holding where a defect existed in the proof, and after State presented case-in-chief, trial court s ruling failure to state the date of the crime constituted a ruling that evidence was insufficient to convict and double jeopardy applied precluding appeal); Santucci v. Kohn, 526 N.Y.S.2d 187, 188-89 (N.Y. 1988) (holding when defense moved for dismissal after State s case was

18 presented, because trial court s ruling involved insufficiency of the evidence, double jeopardy precluded an appeal). This Court has indicated that the public interest in the finality of criminal judgments is so strong that the acquitted defendant may not be retried even though the acquittal was based on an egregiously erroneous foundation. Arizona v. Washington, 434 U.S. 497, 503 (1978), quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962). But this Court has not addressed why the finality of criminal judgments requires that one accused of a crime go free when the defense knows of a curable legal defect in a complaint, purposefully waits to raise it until after jeopardy attaches, induces the trial court to issue an acquittal, without allowing the State any opportunity to present any evidence, and does so in a manner that precludes the prosecution from any opportunity for appeal. This Court has allowed retrials and interpreted the Double Jeopardy Clause to accommodate both the interest in finality and the public s interest in fair trials designed to end in just judgments. Wade v. Hunter, 336 U.S. 684, 698 (1949). See also Illinois v. Sommerville, 410 U.S. 458 (1973). The defense should not be allowed to use the interest in the finality of judgments to prevent the State from having at least one full, fair and complete opportunity to prove the defendant guilty.... See, e.g., Burks v. United States, 437 U.S. 1, 16 (1978). The lack of a forfeiture or waiver exception to double jeopardy in such situations

19 results in defendants receiving a windfall and gives them an incentive to bring untimely motions for dismissal after jeopardy has attached, to misstate the law and use legal error to induce trial courts to acquit defendants by using any and all means to obtain such acquittals, and prevent the State from being able to present any evidence and preclude any appellate review. See State v. Sahr, 812 N.W.2d at 102-04. (Dietzen, J., dissenting); App. 38-39, 44-48. Allowing at least one full, fair, and complete opportunity to prove the defendant has broken the law is consistent with the constitutional command of the Double Jeopardy Clause because double jeopardy should not be used to prevent the State from being allowed to present evidence or to prevent fair trial procedures which are necessary for the fair administration of justice. See, e.g., W. Blackstone, Commentaries on the Law of England, 329 (1769) (indicating that double jeopardy, or a plea of autrefois acquit, applies when a man is fairly found not guilty.... ) (Univ. of Chi. Press ed. 1979) (1765); Rex v. Furser, Say. 90, 96 Eng. Rep. 813 (K.B. 1753) (new trial after acquittal upon an indictment allowed when defendant removed indictment in office book and did not give proper notice to prosecutor); State v. Wright, 7 S.C.L. (2 Tread.) 517, 519-20 (S.C. Ct. App. 1814 (after acquittal new trial should not be granted unless defendant has been guilty of an unfair practice ); People v. Deems, 410 N.W.2d 8 (Ill. 1980), cert. denied, 450 U.S. 925 (1981) (indicating where defendant charged with wrong offense, State acknowledged

20 it had no evidence to convict defendant for wrongly charged crime, trial court s acquittal does not prevent new trial). 8 The defendant s double jeopardy protections, including avoiding successive prosecutions for the same offense, can be preserved without allowing defendants to manipulate the rule of finality of judgments to trump the public interest in fair trials designed to end in just judgments. III. THE COURT SHOULD GRANT THE PETITION BECAUSE THIS CASE REPRESENTS AN EX- CELLENT VEHICLE TO ADDRESS THE ISSUE RESERVED IN SERFASS AND SANABRIA. Petitioner s case squarely presents the question presented and has no confounding facts. It is undisputed 8 An exception to the one trial rule, allowing defense appeals after a conviction at the trial court level, a subsequent reversal, and then a new trial has been explained on the theories that the defendant waives his double jeopardy claim by appealing his conviction, or that the jeopardy continues until his acquittal or conviction becomes final. See United States v. Wilson, 420 U.S. 332, 343 (1975). The Court has indicated, however, that the practical justification for the exception is simply that it is fairer to both the defendant and the government. Id. Forfeiture or waiver appears to be the basis of the exception in Jeffers v. United States, 432 U.S. 137, 152 (1977) (if defendant opposes trying greater and lesser offenses together or fails to raise issue that one offense might be the lesser offense to another then another exception may apply).

21 that the State argued to the trial court that the defense had an obligation to raise a known legal defect in a complaint, when it had been afforded an opportunity to obtain a legal determination of that defense prior to trial. The trial judge unambiguously held that even when the defense knows of a legal defect in the complaint and purposefully waits until after jeopardy attaches to bring a dismissal motion the defense of double jeopardy applies. Petitioner s case is an excellent vehicle for this Court to decide the issue it reserved in Serfass and Sanabria, whether a defendant who is afforded an opportunity to obtain a legal determination of a legal defense prior to trial and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense forfeits or waives double jeopardy protections. --------------------------------- --------------------------------- CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, JANELLE P. KENDALL Stearns County Attorney MICHAEL J. LIEBERG Chief Criminal Division WILL BROST Assistant Stearns County Attorney

22 THOMAS J. HARBINSON Counsel of Record Assistant Stearns County Attorney Stearns County Attorney s Office Administration Center, Rm. 448 705 Courthouse Sq. St. Cloud, MN 56303 (320) 656-3854 tom.harbinson@co.stearns.mn.us LORI SWANSON Minnesota Attorney General 1800 Bremer Tower 445 Minnesota St. St. Paul, MN 55101 (651) 296-6196 SCOTT BURNS NATIONAL DISTRICT ATTORNEYS ASSOCIATION 44 Canal Center Plaza, #110 Alexandria, VA 22314 (703) 549-9222 Attorneys for Petitioner