STATE v. AGUIRRE (2025)

OPINION

¶1 This appeal involves the Double Jeopardy Clause. U.S. Const. amend. V. It prohibits a criminal defendant from being tried twice for the same offense, including when the trial court declares a mistrial. But it does not bar a new trial when a mistrial is manifestly necessary or the defendant consents. As is often true with constitutional protections, the devil is in the details.

¶2 The superior court inadvertently vouched for the prosecution's evidence on the primary issue between the parties, but it then declared a mistrial without considering manifest necessity. We must decide whether, in that situation, we may independently review the record to determine whether it supports manifest necessity. We conclude we can, and manifest necessity existed here. We vacate the judgment dismissing the charges with prejudice and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶3 One evening in July 2021, 14-year-old D.G. and her older brother used D.G.’s phone to videochat with their father. During that chat, a text from “George” appeared on the screen. It read, “So what you want to do with me tomorrow? We might be alone for a little while. But it's cool if you don't want to. Good night.” D.G.’s brother reported this to their mother, who took D.G.’s phone and discovered D.G. exchanged sexually explicit text messages and photos with a phone number ending in 4856 with the contact name “George.” D.G. admitted “George” was her uncle, George Aguirre, the defendant here. D.G.’s mother called the police.

¶4 D.G. told the police that, while visiting Aguirre's upholstery shop days before, Aguirre engaged in sexual conduct with her. After interviewing D.G.’s mother and reviewing D.G.’s phone, the police arrested Aguirre. The State charged him with luring a minor, molesting a child, sexual abuse, and assault.

¶5 Police obtained records from Aguirre's Instagram account. The State disclosed them but did not say it would use them during trial.

¶6 In opening argument, defense counsel challenged D.G.’s credibility, suggesting she falsely accused Aguirre. Referring to texts and photos found on D.G.’s phone, he predicted the State could not prove Aguirre exchanged illicit texts and photos with D.G. Aguirre would show, he asserted, that the police never contacted the service provider about who owns the phone number ending in 4856.

¶7 On day four of trial, the State disclosed new evidence showing Aguirre owned that phone number. The State said it would use Instagram records and records from a 2019 traffic accident involving Aguirre. The State disclosed that a detective reviewed a Surprise Police Department database known as the “Spillman database,” which houses information about people with whom the Surprise Police Department had contact. During that review, the detective found an entry made after the 2019 traffic accident, listing Aguirre's phone number as ending in 4856.

¶8 Aguirre objected based on untimely disclosure, hearsay, and lack of foundation. The court precluded much, but not all, the evidence. Aguirre moved for a mistrial, explaining he needed to investigate the Spillman database. The court denied that motion. Aguirre said he would file additional motions but needed a recess. The court granted that request.

¶9 When everyone reconvened, defense counsel again moved for a mistrial, citing the need for more time to gather information to rebut “the untimely disclosed material.” The court again denied the motion.

¶10 The State clarified it would not use the Instagram records or the Spillman database to establish that Aguirre owned the phone number ending in 4856. Instead, it would use the records and database to explain why the detective did not subpoena the service provider to prove who owned the 4856 number. The State explained the detective would testify about obtaining a search warrant for the Instagram records and that the Spillman database raised no doubt about who owned the phone number. The court allowed that testimony but ruled the detective could not testify that the Instagram records and the Spillman database listed Aguirre's phone number as ending in 4856.

¶11 During direct testimony, the detective explained that D.G.’s mother provided her with Aguirre's phone number, which ended in 4856 and matched a number in D.G.’s phone for “George.” The detective said she reviewed the Instagram records and the Spillman database but neither raised doubt that the number in D.G.’s phone for “George” belonged to Aguirre. As the State had indicated, the detective explained she did not seek subscriber records for the 4856 number because she did not believe that number was incorrect. And, on cross-examination, the detective acknowledged she did not serve a search warrant on the service provider to verify the account holder's identity.

¶12 When asked on re-direct examination to “[t]ell the jury what steps [she] took to verify that this phone number belonged to [Aguirre],” the detective reiterated that she spoke with Aguirre's family. But the detective did not stop there. In evident reference to the Spillman database, she said she determined “that same phone number was already associated with [Aguirre's] name file, presumably from previous police contacts.” And she stated that Aguirre's “account information for his Instagram account had the same phone number.”

¶13 Outside the jury's presence, defense counsel asked for “dismissal with prejudice,” asserting the detective's testimony intentionally violated the court's order. Deferring any ruling on that motion, the court struck the detective's testimony and instructed the jury to disregard it.

¶14 The next day, the parties argued Aguirre's motion to dismiss. Defense counsel reiterated that the detective's testimony “was a willful and deliberate violation of the court order.” The “only” appropriate remedy, he maintained, was “dismissal with prejudice.”

¶15 The court concluded that the detective's testimony was “inappropriate” but it did not believe “that she acted willfully.” Explaining that a curative instruction could eliminate any prejudice from the improper testimony, the court denied Aguirre's motion.

¶16 But the court did not confer with counsel before giving a curative instruction. Instead, the court instructed the jury as follows:

At some point yesterday during the testimony, you may recall or may not, the detective made some reference to knowing that the defendant's number was in [an] independent database or system. I want to make it really clear that all of us likely have our phone numbers in some sort of law enforcement database. If you have ever been a witness to an offense, if you have ever had a call for service because someone, you know, broke the window of your car while it was parked in your driveway, traffic tickets. There are all sorts of reasons why. And I want to make sure that there was no connotation to you that the defendant had any prior criminal involvement with law enforcement. Like I said, I am sure my number is in all sorts of databases because of, like I said, traffic accidents, call for service, you know when my house got vandalized, those sorts of things. So I just want to put that on the record.

¶17 Defense counsel asked for a sidebar and then protested,

What just happened? You did not discuss that with us. And what—oh, my God, Judge. You just affirmed that the number that they frickin heard is now in the database and is somehow valid because it's in a database. Oh, my God. And then you said basically disregard, but you just said, well, we all have our numbers in a database. Oh, my God, Judge.

¶18 The court offered to add to its curative instruction, which defense counsel immediately rejected. Here is the exchange:

Court: I can add one additional thing.

Defense counsel: The damage is so done. Whatever.

State: Any remedial measure to clarify what the Court means, the State is okay if –if it involves a suggestion by [defense counsel] and the Court just to clarify that this is not an endorsement that it's the number, it's testimony about –

Defense counsel: The more we talk about this, the deeper we are digging a—I'm just sitting here and taking it. I'm done.

¶19 Counsel returned to their tables and the court told the jury that it “wish[ed] to add, numbers change over time, and so, like I said, it is not an endorsement from the court of any testimony provided.” The parties presented no further evidence. Instead, the court gave the final jury instructions, and the State gave its closing argument. During closing, the prosecutor stated that, during her investigation, the detective “orders Instagram records from a search warrant, reviews the contact information there.” Then he added, “She believes this is George Aguirre's number.”

¶20 The court excused the jury for lunch. The court then explained to the parties,

Upon reflection on my limiting instruction, I do find it was inappropriate. And at this point, I will declare a mistrial in this matter. I sincerely apologize, especially to the victim in this matter. But I do want to make sure that there is a level playing field in this matter going forward. So with that, we'll have a mistrial.

The court then dismissed the jury. Moments later, defense counsel stated: “I would actually like to make a motion, and I think the Court knows where I'm going with this. I'm asking— I'm asking for a mistrial, but I'm asking that it be dismissed with prejudice.” Defense counsel argued the State deliberately violated the court's order about using the detective's improper testimony about the Instagram records. Defense counsel continued, “the State got up there in closing arguments and referenced the inadmissible information. ․ What they did up there in closing is prosecutorial misconduct. It's no longer the detective who should know better. It was the State.” Claiming a new trial would be “a windfall for the State,” counsel asked the court to dismiss the charges with prejudice.

¶21 The court declined to address the motion to dismiss on the spot, asking defense counsel to “[p]ut it in writing ․ so that we have an appropriate record.” Trial then ended.

¶22 Aguirre later moved in writing to dismiss with prejudice. Aguirre, however, did not argue that prosecutorial misconduct justified dismissal with prejudice. Instead, noting the court “sua sponte declared a mistrial without request from either party,” Aguirre argued that double jeopardy barred a new trial because the court did not find “manifest necessity.”

¶23 In its subsequent ruling, the court acknowledged that “it failed to make the requisite manifest necessity analysis” when declaring a mistrial. And the court concluded that doing so after the fact “would be improper.” So the court did not determine either way whether there was manifest necessity for a mistrial before dismissing the charges with prejudice.

¶24 The State timely appealed; we have jurisdiction. See Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4032(1).

DISCUSSION

¶25 The federal Constitution prohibits prosecuting someone more than once for a single offense. U.S. Const. amend. V.¹ “Jeopardy attaches” when “the jury is impaneled and sworn.” McLaughlin v. Fahringer, 150 Ariz. 274, 277, 723 P.2d 92, 95 (1986) (citations omitted). Declaring a mistrial after selecting a jury implicates double jeopardy. See id. After a mistrial, a defendant may be retried only if (1) there was “a manifest necessity for the mistrial or ․ the ends of public justice will otherwise be defeated” or (2) the defendant consented to the mistrial. Id. (citations omitted).

¶26 The State argues it may retry Aguirre because a mistrial was “manifestly necessary.” The court's curative instruction “inadvertently vouched for the fact that the phone number belonged to him,” and, without a mistrial, “there was no undoing the damage.” The State acknowledges the court made no manifest necessity determination, but it says the record “clearly supports” one. Aguirre denies manifest necessity existed, asserting the court “fail[ed] to consider any alternatives at all” before declaring a mistrial.

¶27 The parties’ arguments raise two issues: (1) whether an appellate court may review the record for manifest necessity when the trial court makes no manifest necessity determination; and (2) whether, on this record, there was manifest necessity for a mistrial.

I.

¶28 What should an appellate court do when a trial court declares a mistrial without making a manifest necessity determination? We conclude we may independently review the record for manifest necessity.

A.

¶29 The U.S. Supreme Court has not required trial courts to make a manifest necessity determination while declaring a mistrial. The Court has, instead, explained that “a trial judge declaring a mistrial is not required to make explicit findings of manifest necessity nor to articulate on the record all the factors which informed the deliberate exercise of his discretion.” Renico v. Lett, 559 U.S. 766, 775, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (citation modified) (quoting Arizona v. Washington, 434 U.S. 497, 517, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)).

¶30 The Court explained in Washington that “[t]he absence of an explicit finding of ‘manifest necessity’ appears to have been determinative [on double jeopardy] for the District Court and may have been so for the Court of Appeals.” 434 U.S. at 516, 98 S.Ct. 824. If true, those courts “required too much.” Id. “[O]f course,” appellate review is “facilitated by findings and by an explanation of the reasons supporting the decision.” Id. at 517, 98 S.Ct. 824. But even if such assistance is “desirable,” “it is not constitutionally mandated.” Id. Rather, because “the record provide[d] sufficient justification for the state-court ruling, the failure to explain that ruling more completely [did] not render it constitutionally defective.” Id. at 516–17, 98 S.Ct. 824.

¶31 Relying on Washington, we later explained that a trial court need not expressly find manifest necessity for us to review whether the record sufficiently justifies a mistrial. State v. Woods, 237 Ariz. 214, 218 ¶ 12, 348 P.3d 910, 914 (App. 2015). In Woods, we acknowledged that “the trial court here did not make a specific finding of manifest necessity.” Id. That did not stop our review. Instead, we said that “if there is ‘sufficient justification’ for the court's ruling, ‘the failure to explain that ruling more completely does not render it constitutionally defective.’ ” Id. (quoting Washington, 434 U.S. at 516–17, 98 S.Ct. 824). Other courts agree—appellate review is available even when a trial court does not first make a manifest necessity determination. See, e.g., United States v. Smith, 621 F.2d 350, 351 (9th Cir. 1980); Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. 1981); Woods v. State, 367 So.2d 982, 984 (Ala. 1978); Bruce v. State, 302 Ga.App. 810, 692 S.E.2d 13, 15 n.5 (2010).

B.

¶32 A trial court's failure to make a manifest necessity determination still matters:—it changes our standard of review. We usually defer to manifest necessity determinations: “We will not disturb the trial court's ruling on manifest necessity absent an abuse of discretion.” State v. Aguilar, 217 Ariz. 235, 239 ¶ 13, 172 P.3d 423, 427 (App. 2007). But, without such a determination, there is nothing to which we can defer.

¶33 Instead, we independently review the record for manifest necessity. Doing so tracks our supreme court's directive that “[w]hether double jeopardy bars retrial is a question of law” we “review de novo.” State v. Moody, 208 Ariz. 424, 437 ¶ 18, 94 P.3d 1119, 1132 (2004). De novo review requires answering a legal question independently, without deferring to the trial court. It would be circular to say we independently review whether double jeopardy applies but only when the trial court makes an express determination—to which we would then defer. We conclude we can review the record for manifest necessity.

II.

¶34 “[A] defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). Two centuries ago, Justice Story articulated the manifest necessity test still used today. He explained that courts may “discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. 579, 580, 9 Wheat. 579, 6 L.Ed. 165 (1824).

¶35 “Nevertheless, those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge.” Washington, 434 U.S. at 506, 98 S.Ct. 824. Or, as we have explained, “[m]anifest necessity” does not have “a single, all encompassing definition,” but “can arise in many different situations.” Aguilar, 217 Ariz. at 239, 172 P.3d at 427 (citation omitted).

¶36 Those situations usually fall on a spectrum. At one end, “critical prosecution evidence” is unavailable or the prosecutor uses state resources “to harass or to achieve a tactical advantage over the accused.” Washington, 434 U.S. at 508, 98 S.Ct. 824. There, “the strictest scrutiny is appropriate[.]” Id. At the other, the jury could not reach a verdict or “the defendant's lawyer made improper and prejudicial remarks ․ to the jury.” Id. at 509–10, 98 S.Ct. 824. There, we afford the trial court “special respect.” Id. at 510, 98 S.Ct. 824.

¶37 Other situations fall between those ends. One is where “an impartial verdict cannot be reached” or “a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error.” Illinois v. Somerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); see also Simmons v. United States, 142 U.S. 148, 154, 12 S.Ct. 171, 35 L.Ed. 968 (1891) (a mistrial is manifestly necessary when jurors “are subject to such bias or prejudice as not to stand impartial between the government and the accused”); State v. Madison, 114 Ariz. 221, 224, 560 P.2d 405, 408 (1977) (applying the Somerville standard). When “reversal on appeal [is] a certainty,” double jeopardy does not “require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.” Somerville, 410 U.S. at 464, 93 S.Ct. 1066. Rather, when a mistrial “aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant's interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice.” Id. at 471, 93 S.Ct. 1066.

III.

¶38 Here, a mistrial was necessary “or the ends of public justice would otherwise be defeated.” Perez, 22 U.S. at 580. And that need was manifest. A court cannot comment on evidence and, by doing so, contradict a party's defense. See Ariz. Const., art. 6, § 27 (“Judges shall not charge juries with respect to matters of fact, nor comment thereon[.]”). When the court puts its imprimatur on evidence relevant to a key issue in dispute—even inadvertently—it undermines the jury's independent evaluation and the trial's fairness. See State v. Acuna Valenzuela, 245 Ariz. 197, 213, ¶ 48, 426 P.3d 1176, 1192 (2018) (the Arizona constitution prohibits a judge from “expressing an opinion as to what the evidence proves, in a way that interferes with the jury's independent evaluation”).

¶39 That happened here. As defense counsel argued, the court's instruction “affirmed” the number ending in 4856 was “in the database and is somehow valid because it's in a database.” And the curative instruction came after the evidence closed and right before jury instructions and closing arguments began. The instruction vaporized Aguirre's defense that the State could not show he owned the number ending in 4856. See Simmons v. State, 803 So.2d 787, 789 (Fla. Dist. Ct. App. 2001) (noting that a “comment” by a trial judge that “demonstrated disapproval of the defense argument” was “particularly harmful, as the judge's position of neutrality is essential to the proper functioning of the justice system”). The court did not just put its thumb on the scale; it put its full weight on the scale. The court acknowledged as much, explaining a mistrial was needed “to make sure there is a level playing field in this matter moving forward.” Once the court vouched for the State's evidence, “reversal on appeal [became] a certainty.” Somerville, 410 U.S. at 464, 93 S.Ct. 1066; see also Acuna Valenzuela, 245 Ariz. at 213 ¶ 48, 426 P.3d at 1192. And, at that point, public justice did not require the court to complete the trial knowing any conviction would not survive appeal. See Somerville, 410 U.S. at 471, 93 S.Ct. 1066.

¶40 Instead of declaring a mistrial, Aguirre argues the court “could have given” the jury a “more assertive” instruction. Aguirre asserts the court could have “explained in detail what the jury could have considered with regard to the ․ evidence and exhibits that had ․ been introduced at trial.” Aguirre maintains the court could “have clarified and emphasized ․ that the testimony of the detective the trial court had ordered stricken was not to be considered evidence in any way.”

¶41 Both those suggested instructions address Aguirre's trial argument that the court allowed prejudicial testimony. But that is not the issue here. The issue is the court's instruction to the jury that Aguirre's phone number was in the Spillman database. Neither of Aguirre's proposed instructions addresses that error, so neither would have cured the prejudice. Indeed, defense counsel's vigorous objection to the instruction undermines Aguirre's appellate argument that something short of a mistrial could have sufficed. See Jones v. Kiger, 194 Ariz. 523, 528 ¶ 15, 984 P.2d 1161, 1166 (App. 1999) (“[T]he defendant's evaluation of the prejudice that has been injected into the case” is entitled to “weight” when considering whether to declare a mistrial). Defense counsel was correct—after the court gave its instruction, the damage was done.

¶42 In any event, Aguirre strenuously objected to the very solution he now proposes on appeal. At sidebar, the court offered to “add one additional thing” and the prosecutor suggested that a “remedial” instruction could clarify things. Defense counsel was not having it. He responded that the court's instruction was uncurable—“[t]he more we talk about this, the deeper we are digging a—I'm just sitting here and taking it. I'm done.” Having strongly opposed adding to the curative instruction, Aguirre's argument that the court should have done exactly that falls flat.

¶43 Aguirre also contends “manifest necessity” cannot exist “where the trial court itself caused the problem.” That is incorrect. Judicial error does not automatically trigger double jeopardy. See United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality op.) (retrial is permitted when a defendant's mistrial request is “necessitated by prosecutorial or judicial error.” (emphasis added)). The court's impromptu curative instruction put the court's imprimatur on the State's evidence, making an impartial verdict impossible. So the record demonstrates manifest necessity for a mistrial and double jeopardy does not apply. See McLaughlin, 150 Ariz. at 277, 723 P.2d at 95; Somerville, 410 U.S. at 471, 93 S.Ct. 1066.

IV.

¶44 The dissent faults us for allowing a new trial. It would bar retrial without the superior court making a manifest necessity determination or expressly considering alternatives to a mistrial. But the dissent gives short shrift to Washington and other case law concluding that double jeopardy does not apply when the record shows—as it does here—that the trial court had to declare a mistrial.

¶45 The dissent relies on Jorn and McLaughlin, maintaining they limit our review to the trial court's “decisional process.” Dissent ¶ 68. Neither does so.

¶46 The dissent relies on a sentence in Jorn concluding double jeopardy applied because the trial judge “made no effort to exercise a sound discretion to assure that ․ there was manifest necessity for” a sua sponte mistrial. Dissent ¶ 66 (quoting Jorn, 400 U.S. at 487, 91 S.Ct. 547). But that sentence comes from a plurality opinion. See Jorn, 400 U.S. at 472, 91 S.Ct. 547.

¶47 Seven years later, a majority in Washington took a different tact. In Washington, the trial court declared a mistrial with this terse explanation: “Based upon defense counsel's remarks in his opening statement concerning the Arizona Supreme Court opinion and its effect for the reasons for the new trial, the motion for mistrial will be granted.” Arizona v. Washington, 546 F.2d 829, 831 (9th Cir. 1976), rev'd, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The trial court made no manifest necessity determination and considered no alternative to a mistrial. See id. at 832 (explaining that the trial court “at no time ․ indicates the reason(s) why he granted the mistrial” and “his short order ․ is not susceptible to any inference that will fill this void”). The Ninth Circuit held—like the dissent would here—that double jeopardy applied because there had been no “finding by the trial court or any indication that the court considered the efficacy of alternatives[.]” Id.

¶48 If the plurality opinion in Jorn had carried the day, the Court in Washington would have affirmed the Ninth Circuit. See Jorn, 400 U.S. at 487, 91 S.Ct. 547. That did not happen. The Court instead held that a new trial could occur even without the trial court conducting a manifest necessity analysis. Washington, 434 U.S. at 517, 98 S.Ct. 824. The Court reasoned that “[t]he basis for the trial judge's mistrial order is adequately disclosed by the record, which includes the extensive argument of counsel prior to the judge's ruling.” Id. The same is true here—we know the court declared a mistrial because, after its erroneous instruction and defense counsel's arguments, it “want[ed] to make sure there is a level playing field in this matter moving forward.”

¶49 In McLaughlin, our supreme court also reviewed the record without the trial court making a manifest necessity determination. See McLaughlin, 150 Ariz. at 277–78, 723 P.2d at 95–96. The supreme court commented that “[t]he trial court is ordinarily in a superior position to determine when manifest necessity demands that a mistrial be declared.” Id. at 277, 723 P.2d at 95 (emphasis added). But the supreme court then reviewed the trial record for manifest necessity. See id. at 277–78, 723 P.2d at 95–96. It ultimately concluded “[t]he record ․ does not reveal any circumstances” justifying a mistrial. Id. at 277, 723 P.2d at 95. The key here is not that conclusion, but that the supreme court independently reviewed the record for manifest necessity. We do too.

¶50 The dissent criticizes four out-of-state opinions supporting that “appellate review may proceed without a manifest necessity finding.” Supra ¶ 31; Dissent ¶¶ 75–77. The dissent says two of those opinions found double jeopardy barred retrial, and, in the other two, the trial court implicitly found manifest necessity. So what? The opinions still support that we can independently review the record for manifest necessity—the only proposition for which we cite them. See Smith, 621 F.2d at 351 (reviewing the record for manifest necessity absent an express manifest necessity finding from the trial court); Torres, 614 S.W.2d at 442 (“There is no constitutional violation if the trial judge fails to expressly state these considerations in the record so long as his basis for the mistrial order is adequately disclosed by the record.”); Woods, 367 So.2d at 983–84 (reviewing the record for manifest necessity when the sole reason for the mistrial was “due to conduct of juror”); Bruce, 692 S.E.2d at 15 n.5 (“[A] trial court's failure to explicitly find ‘manifest necessity’ does not render its ruling constitutionally defective.”).

¶51 The dissent does not contest that the trial court's curative instruction required a mistrial. It does not dispute that reversal was certain after the superior court vouched for the State's evidence in the key dispute between the parties. See Somerville, 410 U.S. at 464, 471, 93 S.Ct. 1066. And it does not identify any viable alternative to a mistrial. But the dissent would still apply double jeopardy because the superior court did not consider some unidentified alternative and expressly find that manifest necessity existed.

¶52 Even the dissenting justices in Washington—Justices Marshall and Brennan—would not go so far. They admitted they did “not propose that the Constitution invariably requires a trial judge to make findings of necessity on the record to justify the declaration of a mistrial over a defendant's objections.” Washington, 434 U.S. at 524, 98 S.Ct. 824 (Marshall, J., dissenting). “For example, where the nature of the error is one that ‘would make reversal of any conviction on appeal a certainty,’ the appropriate finding may be implied from the declaration of a mistrial.” Id. at 525, 98 S.Ct. 824 (quoting Somerville, 410 U.S. at 464, 93 S.Ct. 1066). In that situation, “the ‘high degree of necessity’ required by the Perez doctrine is present[ ] and may be implied from the record if not expressed thereon[.]” Id. at 525 n.11, 98 S.Ct. 824. “What the ‘manifest necessity’ doctrine does require,” in the dissenters’ view, “is that the record make clear either that there were no meaningful and practical alternatives to a mistrial, or that the trial court scrupulously considered available alternatives and found all wanting but a termination of the proceedings.” Id. (emphasis added).

¶53 We agree. Often there are viable alternatives to declaring a mistrial. When that is so, a trial court should consider them first or risk that double jeopardy will apply. But sometimes there is no viable alternative to a mistrial and that reality will jump off the record. And when that happens, we may find manifest necessity on appeal even if the trial court does not adequately document its determination.

¶54 There is no suggestion that the superior court, which was trying its level best, acted in bad faith. But judges, like all humans, make mistakes. The Double Jeopardy Clause accounts for human fallibility (even in judges) by allowing a new trial when “the ends of public justice would otherwise be defeated.” Perez, 22 U.S. at 580; United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) (“[T]he practice of retrial serves defendants’ rights as well as society's interest.”). When trial judges make good-faith mistakes preventing a fair trial, they can declare a mistrial without triggering double jeopardy, even without incanting magic words. As the Court has explained, “It would hark back to the formalistic artificialities of seventeenth century criminal procedure so to confine our ․ trial courts by compelling them to navigate a narrow compass between Scylla and Charybdis.” Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). To avoid doing so, the Double Jeopardy Clause allows a new trial when the court accurately finds, or the record implicitly supports, that the jury can no longer return a fair verdict and reversal is certain. See Somerville, 410 U.S. at 471, 93 S.Ct. 1066; Washington, 434 U.S. at 525, 98 S.Ct. 824 (Marshall, J. dissenting).

¶55 The record here establishes—and Aguirre conceded at oral argument—that the superior court had no choice but to declare a mistrial. And that necessity was manifest. The trial court's only alternative was accepting verdicts doomed on appeal. But it was not required to do so. It could instead declare a mistrial without triggering double jeopardy because Aguirre's “interest in proceeding to verdict [was] outweighed by the competing and equally legitimate demand for public justice.” Somerville, 410 U.S. at 471, 93 S.Ct. 1066.

V.

¶56 The State also argues Aguirre consented to a mistrial. The State asserts Aguirre “did not object” and “even affirmed” that he too “wanted a mistrial.” That, to the State, “removes any bar to retrial that double jeopardy may impose.” Our dissenting colleague disagrees. But, because the record supports manifest necessity, we need not (and do not) address the consent issue.

CONCLUSION

¶57 When a trial court grants a mistrial without making a manifest necessity determination, an appellate court can still review the record for manifest necessity. The record in this case shows there was a manifest necessity for a mistrial. We vacate the judgment dismissing the charges with prejudice and remand for further proceedings.

¶58 After the counsel presented closing argument and the jurors retired to deliberate, the trial court sua sponte declared a mistrial without asking Aguirre if he consented and without considering whether it was manifestly necessary. The Majority now holds that the prosecution is free to start over, subjecting Aguirre to a second trial. Because I believe that this result is precisely what the Double Jeopardy Clause was intended to prevent, I respectfully dissent.²

¶59 Jeopardy attaches in a criminal jury trial as soon as the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) (citations omitted). From that moment on, the constitutional prohibition against double jeopardy applies to protect the defendant's “valued right” to “have his trial completed before the first jury empaneled to try him.” Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); see Crist, 437 U.S. at 35, 98 S.Ct. 2156 (“The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury.”). “The defendant's valued right to have his trial completed” by the first empaneled jury not only spares the defendant “the financial and emotional burden” of successive trials, Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (citation modified), but avoids the “unfair[ness]” that would result if the prosecution were permitted to “tailor its case” on retrial “based on what it learned the first time around,” United States v. Chapman, 524 F.3d 1073, 1081 (9th Cir. 2008) (citing Washington, 434 U.S. at 503-04 n.14, 98 S.Ct. 824). “Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Washington, 434 U.S. at 505, 98 S.Ct. 824; see United States v. Bates, 917 F.2d 388, 392 (9th Cir. 1990) (“Criminal defendants have a right to have the jury first impaneled to try them reach a verdict.” (citation omitted)).

¶60 “[R]etrial is not,” of course, “automatically barred” every time “a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.” Washington, 434 U.S. at 505, 98 S.Ct. 824. If, for example, “the defendant successfully moves for or consents to a mistrial,” double jeopardy generally does not bar a retrial. State v. Minnitt, 203 Ariz. 431, 437-38, ¶ 28, 55 P.3d 774, 780-81 (2002) (citations omitted); see Kennedy, 456 U.S. at 676, 102 S.Ct. 2083 (“A defendant's motion for a mistrial constitutes a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” (citation modified)).

¶61 But following a mistrial declared without the defendant's consent, retrial is permitted only if “taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” Washington, 434 U.S. at 506 n.18, 98 S.Ct. 824 (quotation omitted).

¶62 As the Majority correctly observes, “[m]anifest necessity” does not have “a single, all encompassing definition,” State v. Aguilar, 217 Ariz. 235, 239, ¶ 14, 172 P.3d 423, 427 (App. 2007) (citation omitted). In every case, however, a “manifest necessity” analysis requires a balancing of the interests of the defendant, the prosecution, and the public as a whole. See Dickinson, 242 Ariz. at 123, ¶ 11, 393 P.3d at 464 (“A defendant's right to a single trial must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.” (citing Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). When balancing the competing interests, the trial court must always strive to avoid denying the defendant his constitutionally-protected right to have his fate determined by the first empaneled jury. See Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (“The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one.” (citation omitted)); see also State v. Martin, 247 Ariz. 101, 103, ¶ 8, 446 P.3d 806, 808 (2019) (observing that the “protection” afforded by the Double Jeopardy Clause “embraces a defendant's valued right to have his trial completed by a particular tribunal wherever possible to prevent prolonged or repeated proceedings.” (citation omitted)). And, in my view, case law is clear that the competing interests must be weighed before, not after, the judge aborts the trial. See United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality op.) (“[T]he ․ doctrine of manifest necessity stands as a command to trial judges not to” declare a mistrial without the defendant's consent unless “a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” (citation omitted)).

¶63 Here, in its post-trial ruling dismissing the charges with prejudice, the superior court expressly acknowledged that “it failed to make the requisite manifest necessity analysis” before it declared the mistrial. Because the court declared a mistrial without soliciting input from the parties, the court necessarily disregarded Aguirre's rights under the Double Jeopardy Clause. See Jones v. Kiger, 194 Ariz. 523, 526, ¶ 9, 984 P.2d 1161, 1164 (App. 1999), citing United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) (“[W]hen considering a mistrial, the trial judge must recognize that the defendant has a significant interest in deciding whether to take the case from the jury and retains primary control over the course to be followed in the event of such error.”). Although the trial court's mistrial decision was motivated by its desire to protect Aguirre from potential prejudice caused by its improper comment about the Spillman database, the court's benign intentions are no substitute for the manifest necessity analysis that must precede every mistrial declared without the defendant's consent. See Jones, 194 Ariz. at 526, ¶ 9, 984 P.2d at 1164 (“[E]ven when a palpably prejudicial error has been committed a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the entire process anew,” and the court “must avoid depriving the defendant of his constitutionally protected freedom of choice in the name of a paternalistic concern for his welfare.” (citation omitted)).

¶64 This is where the Majority and I part ways. Although, by its own admission, the superior court did not conduct a manifest necessity analysis before declaring a mistrial, the Majority holds that it can cure the superior court's error by conducting one for the first time on appeal.

¶65 I find nothing in case law to support the Majority's view that an appellate court can properly find manifest necessity when the trial court never even looked for it. On the contrary, binding case law compels us to conclude that the Double Jeopardy Clause bars a retrial when, as here, the trial court declared a mistrial sua sponte without first considering whether it was manifestly necessary. See Jorn, 400 U.S. at 486-87, 91 S.Ct. 547; McLaughlin v. Fahringer, 150 Ariz. 274, 276-77, 723 P.2d 92, 94-95 (1986).

¶66 In Jorn, after the jury was empaneled and sworn, the trial judge expressed concern that some of the trial witnesses had not been adequately warned of their own potential criminal liability and their constitutional right against self-incrimination. 400 U.S. at 472-73, 91 S.Ct. 547. Despite the prosecutor's assurances on that point, the skeptical judge declared a mistrial to allow the witnesses time to seek legal counsel. Id. at 473, 91 S.Ct. 547. The defendant's subsequent motion to dismiss on double jeopardy grounds was granted. Id. On appeal, the United States Supreme Court held that because the trial judge “abruptly” declared a mistrial without giving the defendant an opportunity to object and without considering potential alternatives, double jeopardy barred the defendant's retrial. Id. at 486-87, 91 S.Ct. 547. Because “the trial judge made no effort to exercise a sound discretion to assure that ․ there was manifest necessity for the sua sponte declaration of this mistrial,” the Jorn court held, “we must conclude” that a “reprosecution [sic] would violate” double jeopardy. Id. at 487, 91 S.Ct. 547 (emphasis added) (citation omitted).³

¶67 Similarly, in McLaughlin, the trial court declared a mistrial after the trial, and without the defendant's consent, to give itself time to resolve the parties’ evidentiary disputes. 150 Ariz. at 276, 723 P.2d at 94. On appeal, the Arizona Supreme Court held that “[n]o manifest necessity existed for the ․ mistrial” because “the trial court made no real effort to determine whether there were any feasible alternatives to declaring a mistrial.” Id. at 277-78, 723 P.2d at 95-96.

¶68 As Jorn and McLaughlin indicate, an appellate court's role in a “manifest necessity” analysis is limited to reviewing the trial court's decisional process. See United States v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 2008) (stating that absent prosecutorial misconduct, appellate court's review of trial court's determination of manifest necessity “focus[es] on the procedures employed by the judge in reaching his determination”). When reviewing the declaration of a mistrial without the defendant's consent, an appellate court's “obligation” is simply to “satisfy [itself] that ․ the trial judge exercised ‘sound discretion’ in declaring a mistrial.” Washington, 434 U.S. at 514, 98 S.Ct. 824; see United States v. Bates, 917 F.2d 388, 394 (9th Cir. 1990) (recognizing the distinction between the roles of the trial court and the appellate court by noting the former's “obligation to exercise sound discretion” in declaring a mistrial and the latter's “obligation to determine whether the trial court exercised sound discretion”). In reviewing the trial court's decisional process, an appellate court considers

whether the trial judge (1) heard the opinions of the parties about the propriety of the mistrial; (2) considered the alternatives to a mistrial; and (3) acted deliberately, instead of abruptly.

Fulton v. Moore, 520 F.3d 522, 529 (6th Cir. 2008) (citing Washington, 434 U.S. at 514-16, 98 S.Ct. 824). As long as the trial court weighed and considered the relevant factors before declaring a mistrial sua sponte, the appellate court will generally defer to the trial court's determination. See United States v. Romero-Lobato, 842 F. App'x 118, 120-21 (9th Cir. 2021) (holding that trial court “exercised sound discretion in declaring the mistrial,” and therefore that double jeopardy did not bar a retrial, because trial court did not act “[a]brupt[ly],” but gave the parties “an opportunity to explain their positions,” and “considered multiple alternatives before declaring a mistrial” (quotation omitted)); Fulton, 520 F.3d at 530 (affirming trial judge's determination of manifest necessity because trial judge “did not act abruptly in declaring the mistrial[,] ․ implicitly considered alternatives to [a] mistrial,” and “consider[ed] the double jeopardy implications of his ruling” (citations omitted)).

¶69 On the other hand, if the trial court declared the mistrial sua sponte without conducting a manifest necessity analysis, the appellate court must hold that double jeopardy bars a retrial. See Aguilar, 217 Ariz. at 240, ¶ 17, 172 P.3d at 428 (“[O]ur supreme court has found that when a trial court fails to consider viable alternatives to a mistrial, manifest necessity has not been shown.” (citation omitted)); see also State v. Woods, 237 Ariz. 214, 220, ¶¶ 22-23, 348 P.3d 910, 916 (App. 2015) (holding that double jeopardy barred retrial because “the trial court failed to make a ‘real effort’ to determine whether there were feasible alternatives to ordering a mistrial”).

¶70 The Majority maintains that the trial court's failure to consider alternatives to a mistrial is of no consequence because there were no viable alternatives anyway. See supra ¶ 55. But we can't possibly know that; we'll never know what alternatives Aguirre's counsel might have suggested, since the trial court never asked. In any event, the availability of alternatives is only one of the three factors that appellate courts look at when determining whether the trial court exercised sound discretion in declaring a mistrial sua sponte. The other two factors, as noted above, see supra ¶ 68, are (1) whether the trial court considered the views of the parties before declaring the mistrial and (2) whether the court acted deliberately and not abruptly. Fulton, 520 F.3d at 529, citing Washington, 434 U.S. at 514-16, 98 S.Ct. 824. The Majority does not address those factors, which weigh heavily against the result the Majority reaches here. See Washington, 434 U.S. at 514-15, 98 S.Ct. 824 (holding that double jeopardy did not bar retrial in part because “[t]he trial judge did not act precipitately” in declaring a mistrial); id. at 515, 98 S.Ct. 824 (holding that double jeopardy did not bar retrial in part because the trial judge “gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial”).

¶71 Relatedly, the Majority states that the court had no choice but to declare a mistrial because its improper comment on the Spillman database made “reversal ․ a certainty.” See supra ¶ 51. The Majority thus assumes that Aguirre would have been convicted if the case proceeded to verdict. Again, we don't know what would have happened if the court hadn't aborted the trial. What we do know, however, is that by declaring a mistrial without first soliciting Aguirre's views, the court failed to recognize Aguirre's “significant interest in deciding whether to take the case from the jury” and deprived Aguirre of his right to “retain[ ] primary control over the course to be followed,” see Jones, 194 Ariz. at 526, ¶ 9, 984 P.2d at 1164, citing Dinitz, 424 U.S. at 611, 96 S.Ct. 1075.

¶72 In support of its position that an appellate court can properly conduct a manifest necessity analysis in the first instance, the Majority cites case law for the proposition that “[w]hether double jeopardy bars retrial is a question of law” we “review de novo.” State v. Moody, 208 Ariz. 424, 437, ¶ 18, 94 P.3d 1119, 1132 (2004) (emphasis added) (citation omitted). The de novo standard of review, the Majority holds, allows the appellate court to conduct a manifest necessity analysis for the first time on appeal. See supra ¶ 33.

¶73 A trial court's ruling on constitutional claims, including whether a prosecution violated the defendant's right to be free from double jeopardy, is reviewed de novo. See, e.g., State v. Young, 258 Ariz. 26, 32, ¶ 16, 552 P.3d 527, 533 (App. 2024) (citation omitted). But a trial court's finding that a mistrial is manifestly necessary is reviewed for abuse of discretion, not de novo. State v. Gallardo, 225 Ariz. 560, 564, ¶ 6, 242 P.3d 159, 163 (2010) (“The decision to grant a mistrial rests within the sound discretion of the trial court.” (citation omitted)); see Aguilar, 217 Ariz. at 239, ¶ 13, 172 P.3d at 427 (“We will not disturb the trial court's ruling on manifest necessity absent an abuse of discretion.” (citation omitted)). Declaring a mistrial without the defendant's consent requires the exercise of “sound discretion.” Washington, 434 U.S. at 514, 98 S.Ct. 824. A trial court's failure to exercise discretion entrusted to it is necessarily an abuse of that discretion. See Garcia v. Butler, 251 Ariz. 191, 196, ¶ 23, 487 P.3d 256, 261 (2021) (setting aside trial court's order granting State's request requiring Garcia to undergo psychosexual evaluation because court erroneously believed it lacked discretion to deny State's request; “Because the court erroneously concluded it lacked discretion to deny the State's request, its failure to exercise discretion constitutes legal error and is an abuse of discretion.” (citation omitted)). Declaring a mistrial sua sponte without first finding manifest necessity — without, in other words, exercising the requisite “sound discretion” — is an abuse of discretion. Jorn, 400 U.S. at 487, 91 S.Ct. 547 (holding that double jeopardy barred retrial because trial court “made no effort to exercise a sound discretion to assure that ․ there was manifest necessity for the sua sponte declaration of [a] mistrial” (citation omitted)). When a trial court abuses its discretion by declaring a mistrial sua sponte without first finding manifest necessity, the mistrial is improper and a retrial is barred. McLaughlin, 150 Ariz. at 277, 723 P.2d at 95 (“An improperly declared mistrial is a bar to retrial, provided, however, that it was not declared with the defendant's consent.” (citing State v. Fenton, 19 Ariz. App. 274, 276, 506 P.2d 665 (1973))).

¶74 The Majority suggests that Washington supports its position that an appellate court may avoid the bar of double jeopardy by making a post hoc finding of manifest necessity analysis in the first instance. See supra ¶¶ 30-31. I disagree. In holding that double jeopardy did not bar the defendant's retrial following a trial that ended in a hung jury, the Washington court noted that, although the trial judge made no “explicit finding of ‘manifest necessity,’ ” the judge nonetheless exercised the requisite “sound discretion” by acting “deliberately” and by “accord[ing] careful consideration to [the defendant's] interest in having the trial concluded in a single proceeding.” 434 U.S. at 516, 98 S.Ct. 824. The Washington court thus determined that the trial judge conducted what amounted to a manifest necessity analysis even though he “failed to find ‘manifest necessity’ in those words.” Id. at 517, 98 S.Ct. 824. The Washington court did not, as the Majority suggests, conduct its own manifest necessity analysis, but instead affirmed the trial judge's implied finding of manifest necessity. Because the trial court here made no manifest necessity finding, either express or implied, Washington does not bolster the Majority's position.

¶75 The Majority also cites several cases from other jurisdictions which, it contends, support its view that an appellate court may conduct a manifest necessity analysis in the first instance. See supra ¶ 31 (first citing United States v. Smith, 621 F.2d 350, 351 (9th Cir. 1980); then citing Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. 1981); then citing Woods v. State, 367 So.2d 982, 984 (Ala. 1978); and then citing Bruce v. State, 302 Ga.App. 810, 692 S.E.2d 13, 15 n.5 (2010)). Respectfully, I believe that the Majority misinterprets those cases.

¶76 In Smith, the Ninth Circuit Court of Appeals held that double jeopardy did not bar a retrial following the trial court's sua sponte declaration of a mistrial due to the illness of a juror's family member. 621 F.2d at 352. Contrary to the Majority's suggestion, however, the Smith court reached its conclusion not because it found that the mistrial was manifestly necessary, but because the defendant “impliedly consented” to it. Id. Indeed, the Smith court expressly held that the mistrial was not manifestly necessary precisely because the trial court failed to undertake the required step of considering alternatives before declaring the mistrial. Id. at 351 (“Since the court did not consider” the possibility of a continuance as an alternative, “we cannot say there was a ‘manifest necessity’ to terminate the trial at that time.” (citations omitted)). Similarly, in Torres, the Texas Court of Criminal Appeals held that double jeopardy barred a retrial after the trial court declared a mistrial sua sponte while giving “no consideration to any less drastic alternatives or to the double jeopardy right of the [defendant].” 614 S.W.2d at 443. Far from supporting the Majority's position, Smith and Torres recognize that double jeopardy bars a retrial if the trial court declares a mistrial without the defendant's consent and without first determining whether manifest necessity exists.

¶77 Bruce and Woods, the remaining cases relied upon by the Majority, stand for the proposition that a trial court's failure to expressly use the term “manifest necessity” does not bar a retrial following a mistrial as long as the record shows that the trial court implicitly found manifest necessity by considering and weighing the appropriate factors. See Bruce, 692 S.E.2d at 15 n.5 (holding that double jeopardy did not bar a retrial because “the trial court's findings” showed that it considered relevant factors; “[A] trial court's failure to explicitly find ‘manifest necessity’ does not render its ruling constitutionally defective.” (citation omitted)); Woods, 367 So.2d at 984 (holding that double jeopardy did not bar a retrial after trial judge declared mistrial because juror failed to disclose her longtime acquaintance with defendant; noting, in affirming trial judge's determination that juror's undisclosed relationship with defendant “made necessary the declaration of [a] mistrial,” that “the finding of manifest necessity” need not “be explicit” (citations omitted)). The courts in Bruce and Woods, in other words, simply applied Washington’s holding that that a “judge's mistrial declaration is not subject to ․ attack ․ simply because he failed to find ‘manifest necessity’ in those words.” Washington, 434 U.S. at 517, 98 S.Ct. 824 (emphasis added). Nothing in any of the cases cited by the Majority supports its view that an appellate court can properly find manifest necessity in the first instance to remove the bar of double jeopardy following an improperly-declared mistrial.

¶78 The Majority identifies no case in which an appellate court held that a retrial was permissible after the trial court declared a mistrial sua sponte without first considering whether it was manifestly necessary. My research indicates that courts from other jurisdictions have consistently held that a retrial is barred under those circumstances. See, e.g., People v. Beck, 510 Mich. 1, 987 N.W.2d 1, 8-9 (2016) (holding that double jeopardy barred retrial because trial court declared mistrial “too abrupt[ly]” and without adequate “consideration of less drastic alternatives”; “To declare a mistrial, the trial court must find the facts justifying the mistrial. When such procedures are not followed, there is no manifest necessity for declaring a mistrial.” (footnote omitted) (citation omitted)); Merchant v. State, 201 So.3d 146, 153, 155 (Fla. Dist. Ct. App. 2016) (holding that double jeopardy barred retrial in part because trial court did not “solicit the parties’ input” or “inquire whether the defendant agreed to a mistrial”; “The trial court's failure to make an inquiry, develop a proper record, and consider alternatives before declaring a mistrial forecloses a conclusion that a mistrial was even warranted, let alone one supported by manifest necessity.”); Jones v. Commonwealth, 379 Mass. 607, 400 N.E.2d 242, 249, 251 (1980) (holding that double jeopardy barred retrial because trial judge “failed to give” parties an opportunity to state their positions or to “explore the alternatives before declaring the mistrial” (citations omitted); “Appellate deference will be accorded the trial judge's ․ determination that ‘manifest necessity’ exists only if the record reflects that the trial judge gave reasoned consideration to the various available alternatives as well as to questions of fairness before declaring a mistrial.” (citation omitted)).

¶79 Case law simply does not support the Majority's view that an appellate court can “undo” an improperly-declared mistrial by conducting a post hoc search of the record for facts that might have supported a finding of manifest necessity. See Dunkerley v. Hogan, 579 F.2d 141, 146 (2d Cir. 1978) (stating that when determining if a retrial is barred following trial court's declaration of a mistrial, appellate court “must know the basis for that decision as ‘disclosed by the record’ ” (citation omitted); “It is not enough that plausible reasons might conceivably exist for the trial judge's action.”). Because I cannot join the Majority's novel holding that an appellate court can remove the bar of double jeopardy after a mistrial is improperly declared by conducting its own after-the-fact manifest necessity analysis, I would hold that a retrial cannot be justified on the basis that the mistrial here was manifestly necessary.

¶80 In the alternative, the State argues that the Double Jeopardy Clause does not bar Aguirre's retrial because, it contends, Aguirre consented to the mistrial. But Aguirre couldn't possibly have consented; he was never asked. Although Aguirre voiced no subsequent objection to the mistrial, the failure to object after the court made its ruling is not the same as consenting to the ruling in the first place. See Fenton, 19 Ariz. App. at 276, 506 P.2d 665 (holding that a defendant's “mere silence or failure to object” to the declaration of a mistrial does not establish consent (citations omitted)); see also Merchant, 201 So. 3d at 155 (“[A] defendant's mere failure to object to a declaration of mistrial is not tantamount to consent.” (citations omitted)); People v. Largent, 337 Ill.App.3d 835, 272 Ill.Dec. 268, 786 N.E.2d 1102, 1108 (2003) (holding that defendant could not be said to have “acquiesced in a proposed declaration of a mistrial, because the trial court did not propose declaring a mistrial before actually declaring it”).

¶81 The State asserts that Aguirre consented to the mistrial because he responded to the court's sua sponte declaration by stating, “I'm asking for a mistrial, but I'm asking that the case be dismissed with prejudice.” According to the State, Aguirre's statement amounted to “a concession to mistrial.”

¶82 Aguirre's statement made clear that he was asking the court to dismiss the charges with prejudice based on what he alleged was intentional prosecutorial misconduct. See State v. Jorgenson, 198 Ariz. 390, 391, ¶ 4, 10 P.3d 1177, 1178 (2000) (recognizing that “the double jeopardy clause bars retrial” after “a mistrial” that “is granted because of intentional prosecutorial misconduct aimed at preventing an acquittal” (citation omitted)). Aguirre's request for a “mistrial ․ [and] dismiss[al] with prejudice” based on alleged misconduct cannot reasonably be construed as the type of consent to a mistrial that removes the bar of double jeopardy. See Minnitt, 203 Ariz. at 437-38, ¶¶ 28-29, 55 P.3d at 780-81 (noting that while retrial is generally “not barred on double jeopardy grounds” if “the defendant successfully moves for or consents to a mistrial,” double jeopardy “will bar re-prosecution” in cases involving “[i]ntentional and pervasive misconduct on the part of the prosecution” (citations omitted)).

¶83 In support of its assertion that Aguirre consented to the mistrial, the State notes that before the trial court sua sponte declared a mistrial, Aguirre had moved for a mistrial “several times throughout the trial.” But because the trial court denied all of Aguirre's prior motions for a mistrial, his unsuccessful motions do not preclude him from later asserting double jeopardy as a bar to a retrial after the court declared a mistrial without his consent. See Torres, 614 S.W.2d at 441 (finding “no merit” to the State's argument that the defendant's prior, unsuccessful mistrial motion precluded him from asserting double jeopardy as a bar to re-prosecution following the trial court's subsequent declaration of a mistrial sua sponte; “The record neither reflects that the trial judge referred to [defendant's] prior motion for mistrial when he subsequently declared a mistrial ․ nor ․ that [defendant's] prior motion for mistrial served as [the judge's] basis for subsequently declaring a mistrial.” (citation omitted)).

¶84 Because the court declared a mistrial without Aguirre's consent and without considering whether it was manifestly necessary, I would hold that the Double Jeopardy Clause bars his retrial, and so would affirm the superior court's order dismissing this case with prejudice.

FOOTNOTES

1.   Aguirre does not argue the Arizona Constitution bars retrial.

2.   The Fifth Amendment to the United States Constitution protects against being “twice put in jeopardy of life or limb” for “the same offense.” U.S. Const. amend. V. Article 2, Section 10 of the Arizona Constitution similarly provides in part that “[n]o person shall ․ be twice put in jeopardy for the same offense.” Ariz. Const. art. 2, § 10. In his briefing, Aguirre does not expressly cite either constitutional provision. He tacitly invokes both, however, by relying on Arizona case law construing both. See, e.g., McLaughlin v. Fahringer, 150 Ariz. 274, 277, 723 P.2d 92, 95 (1986); State v. Dickinson, 242 Ariz. 120, 123, ¶ 10, 393 P.3d 461, 464 (App. 2017). I therefore use the term “Double Jeopardy Clause” to refer to the double jeopardy provisions of both the federal and state constitutions.

3.   As the Majority notes, see supra ¶ 46, Jorn was a plurality opinion joined by only four justices. Two other members of the Court, however, concurred in the judgment because they believed that the trial judge's sua sponte declaration of a mistrial amounted to an acquittal that deprived the Court of jurisdiction to hear the government's appeal. Jorn, 400 U.S. at 488, 91 S.Ct. 547 (Black, J., and Brennan, J., concurring). Another member joined the plurality opinion but wrote separately to emphasize that retrial was barred because the accused bore no responsibility for the mistrial, which was “attributable solely to the conduct of the trial judge.” Id. at 487-88, 91 S.Ct. 547 (Burger, C.J., concurring). As I see it, therefore, a clear majority of the Jorn court endorsed the proposition that a retrial is barred — on either double jeopardy or jurisdictional grounds — when, as here, a trial court declares a mistrial sua sponte due to its own error without undertaking a manifest necessity analysis.

CATLETT, Judge: