State of Maine v. Kenneth A. Jandreau — 2017 ME 44

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