State v. Burr

• Decision Date: 07 May 2012
• Docket Number: No. 2 CA–CR 2011–0357.,2 CA–CR 2011–0357.
• Parties: The STATE of Arizona, Appellant, v. Alyssa Marie BURR, Appellee.
• Court: Arizona Court of Appeals

229 Ariz. 467

276 P.3d 536

634 Ariz. Adv. Rep. 9

The STATE of Arizona, Appellant,

v.Alyssa Marie BURR, Appellee.

No. 2 CA–CR 2011–0357.

Court of Appeals of Arizona,

Division 2, Department B.

May 7, 2012.

Editor's Note: The opinion of the Court of Appeals of Arizona, Division 2, Department B., in State v. Burr, published in the advance sheet at this citation, 229 Ariz. 467, was withdrawn from the Arizona bound volume because it was ordered depublished on denial of review.Barbara LaWall, Pima County Attorney By Nicolette Kneup, Tucson, Attorneys for Appellant.

Anthony J. Abruzzo, Tucson, Attorney for Appellee.

OPINION

KELLY, Judge.

¶ 1 The State of Arizona appeals from the trial court's ruling dismissing, on grounds of double jeopardy, charges against appellee Alyssa Burr. The state argues the court erred by overruling another superior court judge's finding that manifest necessity required a declaration of mistrial in Burr's previous trial. Because the trial court erred, we vacate its ruling and remand.

Background

¶ 2 We view the facts in the light most favorable to sustaining the trial court's dismissal. State v. Rasch, 188 Ariz. 309, 312, 935 P.2d 887, 890 (App.1996). Burr was charged with four counts of aggravated driving under the influence. The jury was empanelled and sworn on the first day of trial. The following day, the trial court was informed that the assigned prosecutor, who was not present, “had a death in the family and [would] not be able to continue with the prosecution of the case.” After speaking with the prosecutor's supervisor and defense counsel in chambers, the court found that it would not be “fair to the State under the circumstances” to “force another attorney to take the case.” The court then declared a mistrial.

¶ 3 Following the mistrial, the case was reassigned to a new judge and was again set for trial. Prior to trial, Burr filed a motion to dismiss, arguing the trial court had erred in declaring the mistrial and that prosecution, therefore, was barred by the prohibition against double jeopardy. After a hearing, the court issued an under-advisement ruling granting the motion, concluding the declaration of “mistrial was not warranted” and dismissing the charges against Burr with prejudice. This appeal by the state followed.

Discussion

¶ 6 “ ‘Manifest necessity’ can arise in many different situations [,] and the courts have not attempted to adopt a single, all encompassing definition.” Id. ¶ 14. And, “[a]lthough absolute necessity is not required, the United States Supreme Court has said there are various ‘degrees of necessity and we require a “high degree” before concluding that a mistrial is appropriate.’ ” Id. (citation omitted), quoting Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). This “high degree” standard may be satisfied when a key participant in the proceedings is absent unexpectedly and suddenly. See United States v. Holley, 986 F.2d 100, 104 (5th Cir.1993) (sickness of juror or judge manifest necessity for mistrial); United States v. Smith, 390 F.2d 420, 425 (4th Cir.1968) (finding manifest necessity “when a participant in the proceedings dies or becomes ill”); United States v. Stein, 140 F.Supp. 761, 763–65 (S.D.N.Y.1956) (retrial not barred following mistrial due to illness of defendant); Westover v. State, 66 Ariz. 145, 149, 185 P.2d 315, 317 (1947) (jeopardy does not attach following mistrial due to judge's illness); State v. Anderson, 295 Conn. 1, 988 A.2d 276, 278, 283–84 (2010) (mistrial proper when prosecutor suddenly became seriously ill and unable to continue); People v. Portalatin, 105 Misc.2d 725, 433 N.Y.S.2d 57, 57–58 (1980) (mistrial proper when based on illness in juror's family); Ex parte Masonheimer, 220 S.W.3d 494, 512 (Tex.Crim.App.2007) (defense-requested mistrial granted “in the interest of justice” because of death in family of prosecutor). But see United States v. Watson, 28 F.Cas. 499, 500–01 (S.D.N.Y.1868) (mistrial not reasonable when record did not indicate prosecutor's illness occurred after jury sworn or impossible for another prosecutor to conduct trial); People v. McJimson, 135 Cal.App.3d 873, 185 Cal.Rptr. 605, 608–10 (1982) (mistrial not reasonable when prosecutor absent due to short-term illness and substitute prosecutor could have been assigned to case); Girard v. Rossi, 40 A.D.2d 13, 337 N.Y.S.2d 34, 36–37 (1972) (absence of stenographer due to illness not manifest necessity for mistrial).

¶ 7 In ruling on the motion to dismiss in this case, the trial court reviewed the record of the earlier mistrial and the original trial court's finding before concluding that manifest necessity did not exist and that, “[i]n fact, the record amply supports the finding that mistrial was not warranted.” But the new court was not permitted to conduct a de novo review of the original court's finding of manifest necessity; the original court's finding was the law of the case. See Dancing Sunshines Lounge v. Indus. Comm'n, 149 Ariz. 480, 482, 720 P.2d 81, 83 (1986) (“[T]he decision of a court in a case is the law of that case on the issues decided throughout all subsequent proceedings in both the trial and appellate courts, provided the facts, issues and evidence are substantially the same as those upon which the first decision rested.”). Instead, the new court should have determined whether the prior court had stated a reasoned, proper basis for the mistrial based on the circumstances which were evident from the record, see Washington, 434 U.S. at 514–16, 98 S.Ct. 824, and, if so, whether that finding permitted retrial, Aguilar, 217 Ariz. 235, ¶ 10, 172 P.3d at 426.

¶ 8 The basis for the mistrial—the prosecutor's sudden absence due to a death in her family—was documented in the record. The original trial court was told the prosecutor would be unable to continue with the case at that time. Because the court concluded it would be unfair to the state to require another prosecutor to take over the case under these circumstances, the court declared a mistrial. Because defense counsel—who had been present at the in-chambers discussion—did not object to this ruling, we assume counsel agreed with the court's conclusion that it would be unfair and against the interests of justice to force another prosecutor to take over the case mid-trial. The court's decision is “entitled to special respect” because it was in the best position, having just met in chambers with counsel, to assess the impact of a change in prosecutors. Washington, 434 U.S. at 510, 515, 98 S.Ct. 824. Thus, the court had a reasonable basis for its conclusion that the prosecutor's absence constituted a manifest necessity for the mistrial.

¶ 9 Burr counters there was no manifest necessity because the trial court did not consider alternatives to a mistrial. But the transcript of the ruling from the bench belies this assertion; the court's statement, made immediately following its conference with the prosecutor's supervisor and defense counsel, indicates it believed it had few options.¹ The court explained that although it could “force another attorney to take the case,” this measure would be an unjust burden on the state. And “we must assume that the reasons, both articulated and unarticulated, were compelling enough that the ends of substantial justice could not be obtained without discontinuing the trial.” State v. Givens, 161 Ariz. 278, 281–82, 778 P.2d 643, 646–47 (App.1989). Moreover, the “mere availability of another alternative does not render a mistrial order an abuse of discretion.” Id. at 281, 778 P.2d at 646. Because the court...