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Fenstermaker v. Halvorson

United States District Court, D. Minnesota

March 17, 2017

Russell J. Fenstermaker, Petitioner,
v.
Kathy Halvorson, Warden, MCF-Faribault, [1] Respondent.

          Roy G. Spurbeck, Esq., Minnesota State Public Defender, counsel for Petitioner.

          James B. Early, Esq., Minnesota Attorney General's Office, and James P. Spencer, Esq., Olmstead County Attorney's Office, counsel for Respondent.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON United States Magistrate Judge.

         This 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).[2] 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.

         Petitioner 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.

         I. Background

         In 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.

         Petitioner's 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.

         On the 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 mistrial. Id.

         The 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, 2013. Id.

         On 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 situation ...

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