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Friday, February 3, 2006
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Arson case misfires After second mistrial is declared, plea agreement reached Staff Writers A second mistrial was declared Thursday in the arson trial of a 31-year-old Pequot Lakes man accused of setting a Jan. 9, 2005, fire at Whalen Woods in Pequot Lakes.
But unlike after Andrew Lynn Utter's March 31 mistrial, a plea agreement worked out between defense and prosecuting attorneys Thursday was accepted by the court.
Utter's arson trial started Wednesday in Crow Wing County District Court. After jury selection and two days of witness testimony, Judge David Ten Eyck granted the defense attorney's motion for a mistrial because one witness, former Pequot Lakes police officer Travis Loeffler, failed to inform the prosecuting and defense attorneys that he had an intern riding in his squad the night of the Whalen Woods fire and Utter's arrest.
Following Thursday's mistrial, Utter's attorneys, Brook Mallak and Brad Rhodes of the Crow Wing County public defender's office, and Crow Wing Assistant County Attorney Rockwell Wells reached an agreement in which Utter pleaded guilty to felony first-degree arson in exchange for the dismissal of charges of felony second-degree arson, gross misdemeanor DWI and driving after license cancellation.
Under the plea agreement, which was accepted by Ten Eyck, Utter will serve no jail time but will be placed on supervised probation for 20 years. He also was ordered to comply with all treatment requirements, attend Alcoholics Anonymous meetings, complete an anger management program and not buy or use alcohol or enter any establishment in which alcohol is served or consumed.
Utter also was sentenced on a second gross misdemeanor DWI charge to three years supervised probation.
"I want to be clear to you, Mr. Utter, that that includes restaurants that serve alcohol," Ten Eyck told Utter.
"It does?" Utter replied.
"It does," said Ten Eyck.
Utter also was ordered to have no contact with the owners of Whalen Woods, James and Judy Whalen, their family, their businesses or anyone he knows to be an employee of Whalen Woods, a log furniture manufacturing and retail company. Ten Eyck also ordered restitution to be determined within 90 days.
Crow Wing County Attorney Don Ryan said he and Wells met on Thursday with the Whalens after a mistrial was declared and the couple agreed to the plea agreement.
Ryan said it was "extremely rare" for two mistrials to be declared in one case, both for incidences of nondisclosure.
"Obviously this is not how the criminal justice system from the state's perspective is supposed to function," said Ryan. "The system let the Whalens down, there's no way to sugarcoat it."
Ryan said he was not "pointing fingers" at anyone involved in the case that resulted in two mistrials. Mistakes happen, the county attorney said.
"We all make mistakes," Ryan said. "We all hope we don't make them in crucial situations."
Utter and Mallak declined comment following the hearing. Family members of Utter attended each day of the trial.
Utter, 31, Pequot Lakes, was arrested in the early morning hours of Jan. 9 as law enforcement officers responded to the fire and saw Utter's pickup leaving a business across from Whalen Woods without its headlights on.
Answering "yes" and "no" during a series of questions from Mallak Thursday, Utter admitted that on the day of the Whalen Woods fire he had been ice fishing on Sibley Lake and then went drinking at Pestello's and the American Legion in Pequot Lakes. After that, Utter said he doesn't remember anything until the next day when he woke up in the Crow Wing County jail.
James Whalen previously said the fire at the log furniture manufacturing company caused more than $1 million in property damage and loss of business.
Thursday was the second time a mistrial had been declared in the Utter case. Following a March 31 mistrial because of an improper disclosure of discovery, a plea agreement was reached between Wells and Mallak. However, on May 23 Crow Wing County Judge Richard Zimmerman rejected the plea agreement after victim impact statements were made by James and Judy Whalen, who at the time opposed the plea agreement.
Wells and Mallak both said Utter appears to be making progress in his treatment programs and there had been no allegations of violations since his June 4 release from jail.
MATT ERICKSON can be reached at matt.erickson@brainerddispatch.com or 855-5857
JODIE TWEED can be reached at jodie.tweed@brainerddispatch.com or 855-5858.
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