United States District Court, D. Minnesota
Russell J. Fenstermaker, Petitioner,
Kathy Halvorson, Warden, MCF-Faribault,  Respondent.
Spurbeck, Esq., Minnesota State Public Defender, counsel for
B. Early, Esq., Minnesota Attorney General's Office, and
James P. Spencer, Esq., Olmstead County Attorney's
Office, counsel for Respondent.
REPORT AND RECOMMENDATION
R. THORSON United States Magistrate Judge.
matter is before the Court on Russell J. Fenstermaker's
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Doc. No. 1.) Fenstermaker was charged with one
count of first-degree criminal sexual assault and two counts
of third-degree sexual assault in Olmstead County District
Court. See State v. Fenstermaker, No. A13- 1082,
2014 WL 4290318, at *1 (Minn.Ct.App. Sept. 2,
2014). After a jury was chosen and sworn, the
trial court declared a mistrial due to a back injury suffered
by the prosecutor. Id. at *2. A different,
newly-empaneled jury acquitted Petitioner on the first-degree
assault charge, but convicted on both third-degree charges.
Id. at *3. The trial court sentenced Petitioner to
concurrent sentences of 117 months and 131 months. (Doc. No.
1, Habeas Pet. 2.) On appeal, the Minnesota Court of Appeals
acknowledged that this was “a close case, ” but
found that the “district court did not abuse its
discretion in declaring a mistrial due to a manifest
necessity over appellant's objection, where the assigned
prosecutor suffered an unanticipated and disabling back
injury after the jury had been sworn and where the district
court saw no reasonable alternative after careful
consideration of the overall facts and circumstances.”
2014 WL 4290318, at *6.
brings one claim in this action under 28 U.S.C. § 2254;
he argues that his second trial and conviction violates the
Double Jeopardy Clause of the United States Constitution.
(Habeas Pet. 6.) For the reasons stated below, this Court
recommends that the petition be denied.
early 2004, Petitioner started dating a woman named J.R.
(Doc. No. 10-4 at 13.) J.R. had three children, including R.,
who was born on July 4, 1991. (Id.) Petitioner and
J.R. were married in 2006. (Id. at 13.) In 2010,
Petitioner and J.R. were separated. (Id. at 14.) In
2011, R. told her boyfriend that she and Petitioner
previously had a sexual relationship which started in 2006
when she was fifteen. (Id. at 13-14.) R.'s
boyfriend told the police, and R. confirmed her
boyfriend's report. (Id. at 14.) The state
brought charges against Petitioner in early 2012 for
first-degree and third-degree criminal sexual assault.
trial began on November 14, 2012. Fenstermaker, 2014
WL 4290318 at *1. After a full day of voir dire, a jury of
twelve and two alternates were selected and sworn.
Id. Opening arguments were scheduled to begin on
Friday, November 16, 2012, but the trial did not continue as
planned because the assigned prosecutor was
“unexpectedly incapacitated by a back injury.”
Id. The matter was continued to Monday, November 19,
the week of Thanksgiving. Id.
morning of November 19, an attorney for the state sent an
email to the district court, stating: “Unfortunately,
[the assigned prosecutor's] condition has not improved
sufficiently to allow her to conduct a trial this week.
Accordingly, the state will be asking the court to continue
the trial currently scheduled to recommence this morning. I
will appear at 9:00 to request a continuance and answer any
questions the court may have.” Id. The state
attorney appeared and explained to the court that “the
pain of sitting in a chair like this in the courtroom . . .
was such that really she wouldn't be able to concentrate
on the proceedings.” Id. Moreover, to the
extent it was “bearable, ” it was only so
“because of pain medication that she's on which
affects her thought processes and really would prevent her
from litigating a jury trial, especially in a serious case
like this.” Id. The state attorney went on to
explain that no other attorney in the office had time to
prepare as substitute counsel, and argued that having a
different prosecutor try the case would be unfair since the
assigned prosecutor had developed a rapport with the
witnesses and jurors. Id. Given that the case
involved criminal sexual conduct, he argued that “the
relationship that the prosecutor builds with witnesses,
particularly the alleged victim, is very important.”
Id. The state attorney argued that there was a
“manifest necessity” in justifying a mistrial,
but he suggested in the alternative that the state was
willing to discuss other options, including continuing the
trial until the following week. Id. Petitioner's
counsel did not object to a continuance, but did object to a
district court declared a mistrial, stating as follows:
First of all, this jury's time of service ends this week,
which is Wednesday of this week because of the Thanksgiving
holiday. We did look at my calendar for next week, and I have
matters that need to be attended to next week that are not
jury trial related, so it creates some scheduling
difficulties. I'm reasonably certain those could be
overcome, but it strikes me that a mistrial should be
granted, and I guess I would take [the state's] comments
as a motion to declare a mistrial. The court was prepared in
the absence of such a motion to declare a mistrial sua sponte
for a couple of reasons: Number one, those enumerated by the
state I think are valid. [The assigned prosecutor] is an
experienced trial lawyer. She handles these types of cases.
She has established rapport with the alleged victim and the
alleged victim's family and also established rapport with
the 14 jurors who have been sworn, and I think given the
nature of this particular case, and the seriousness of it,
that to require the state to have somebody simply jump in at
this stage and try the case would not be fair to the State of
Minnesota. I would take the same position if something had
happened to [defense counsel]. I don't think that either
one of those circumstances would be fair, given the nature of
these alleged offenses and also the significant punishment
that's attendant to any conviction.
I think the high degree standard relative to the manifest
necessity is satisfied in this case because [the assigned
prosecutor's] back issue arose unexpectedly and suddenly,
and she is simply unable to continue, and as I indicated, I
think under the circumstances it is virtually impossible for
another prosecutor to conduct the trial in this matter, and
as I already indicated, I think the impact of a change in the
prosecutors would be an unjust burden on the State of
Minnesota . . .
Id. at *2. Retrial was scheduled for January 22,
January 11, 2013, Petitioner moved to dismiss the charges on
the grounds of double jeopardy, arguing that jeopardy
attached because the jury was sworn after the first day of
trial. Petitioner urged the district court to reconsider its
finding of manifest necessity because there were two
reasonable alternatives to a mistrial that the district court
failed to adequately consider. Id. First, the state
could have substituted a different prosecutor because it was
a “straightforward simple case.” Id.
Second, the district court could have continued the trial one
week. Id. The assigned prosecutor, recovered from
her back injury, argued that having substitute counsel try
the case would have been unfair since she had a rapport with
the victim and the jurors; that a continuance would not have
been viable because the jury's term of service was ending
when the trial would have resumed on November 26; and that
there was no way of knowing at the time when she could have
returned to work, “so the court would have been
speculating whether or not I could have gone on the next
week.” Id. at *3. The district court denied
the motion to dismiss for the following reasons:
I didn't undertake my decision [on November 19] lightly.
I did take into consideration the arguments that
[appellant's attorney] made at the time and restates here
today, and given the circumstances and what we knew about
[the assigned prosecutor's] condition on November 19,
along with all the other circumstances that I stated on the
record, it would simply have been patently unfair to have
required the state to proceed under those circumstances, and
as I indicated on the record, had the situation been
reversed, I would have determined that it was equally
patently unfair for the defense to have had to continue. And
with respect to the hindsight argument [that the assigned
prosecutor was back at work on November 26], I didn't
have that hindsight . . . on November 19, 2012. I had the