               This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2014 UT 7

                                   IN THE

       S UPREME C OURT OF THE S TATE OF U TAH
                            STATE OF UTAH ,
                         Plaintiff and Appellee,
                                    v.
                          AFUHIA MANATAU ,
                        Defendant and Appellant.

                             No. 20100908
                          Filed March 7, 2014

                     Third District, Salt Lake
              The Honorable Michele M. Christiansen
                  The Honorable Robin W. Reese
                          No. 01904368

                                Attorneys:
            Sean D. Reyes, Att’y Gen., Jeanne B. Inouye,
            Asst. Att’y Gen., Salt Lake City, for plaintiff
             Lori J. Seppi, Salt Lake City, for defendant

   JUSTICE DURHAM authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,
             JUSTICE PARRISH , and JUSTICE LEE joined.

JUSTICE DURHAM , opinion of the Court:
                           INTRODUCTION
    ¶1 In this appeal, we address whether the trial court erred by
denying defendant Afuhia Manatau’s motion to dismiss the charges
against him on double jeopardy grounds. We specifically address
whether the double jeopardy clause of the Utah Constitution barred
Mr. Manatau’s retrial when a trial judge declared a mistrial without
establishing legal necessity to do so. We conclude that the burden to
create a record for and sufficiently justify the mistrial fell on the trial
court and the State, not the defendant. We further conclude that
legal necessity was not established on the record and hold that
Utah’s constitutional protections against double jeopardy prohibited
Mr. Manatau’s retrial.
                            BACKGROUND
   ¶2 On May 24, 2009, Mr. Manatau beat his wife in their
apartment and pursued her as she fled to two different apartments
                        State v. Manatau
                       Opinion of the Court

in their neighborhood. At the third apartment, Mr. Manatau threw
a baby gate through a window into the residence, spraying shattered
glass on the apartment’s occupants, and persisted in pounding on
the front door until shortly before the police arrived.
    ¶3 The State charged Mr. Manatau with various crimes,
including aggravated burglary, aggravated assault, burglary,
criminal mischief, and reckless endangerment. Mr. Manatau’s case
went to trial on March 2, 2010. Prior to jury selection, bailiffs
discovered a pocket knife in the pocket of a suit jacket
Mr. Manatau’s wife had brought for him to wear in court.
Mrs. Manatau claimed she borrowed the suit jacket from her brother
and was unaware that he had left a pocket knife he used for Boy
Scout activities in the pocket. Because of security concerns caused by
this incident, the trial judge excluded Mrs. Manatau from the
courtroom for the remainder of the trial.1 Thereafter the jury was
selected, empaneled, and sworn, and the trial proceeded.
    ¶4 On the second day of trial, after several witnesses had
testified and the trial judge had ruled on several objections,
Mrs. Manatau’s attorney asked the court to allow her to reenter the
courtroom to observe the proceedings against her husband.
Mrs. Manatau’s attorney argued that courtroom security could be
maintained if Mrs. Manatau were subjected to a search before
entering the courtroom and if a bailiff sat next to her. The State
opposed the request, arguing that Mrs. Manatau had attempted to
smuggle a knife to her violent husband, was wearing an ankle
monitor for unspecified charges against her, and had attempted to
intimidate witnesses against her husband. After hearing argument,
the judge ruled that Mrs. Manatau could reenter the courtroom if
additional security measures were followed. The judge then took a
recess.
    ¶5 Following the recess, the trial judge announced sua sponte
that she was recusing herself and declaring a mistrial. The judge
explained that during the recess she had had an opportunity to
reflect on the knife incident, and had concluded that it was affecting
her more than she had previously thought. The judge announced
that her prior rulings in the case were not biased, but stated that in
anticipation of future rulings, she had decided to recuse herself:



  1
    Shortly after the knife incident, but before the jury was sworn,
Mrs. Manatau formally invoked her privilege not to testify against
her husband.

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                        Opinion of the Court

      [I]n an abundance of caution and to avoid any question
      of either impropriety or biased decision-making on my
      part, I am actually going to call a mistrial and recuse
      myself from the case. As you can probably tell, I’m
      feeling quite emotional about this, and I think just for
      the benefit . . . of the state, and all of the witnesses in
      this case, I think it’s best that I recuse myself from this
      case. So I am going to call a mistrial and we’ll have the
      case assigned to a different judge.
    ¶6 Both defense counsel and the prosecutor objected to the
mistrial. Defense counsel objected on double jeopardy grounds. The
judge overruled these objections, stating that in a mistrial case,
“jeopardy doesn’t attach and so we can go forward with a new jury.”
    ¶7 The case was reassigned for retrial under a new judge. At
the retrial, Mr. Manatau moved to dismiss the charges against him
on the grounds of double jeopardy. Mr. Manatau argued that
because jeopardy had attached when the first jury was empaneled,
the mistrial acted as an acquittal. The trial court denied this motion,
ruling that the mistrial did not act as an acquittal because the
mistrial was legally necessary. At the conclusion of the second trial,
Mr. Manatau was convicted of aggravated burglary, aggravated
assault, burglary, criminal mischief, and four counts of reckless
endangerment. Mr. Manatau appealed.
                    STANDARD OF REVIEW
    ¶8 In this case, we review the rulings of two separate trial
courts. First, we review the second trial court’s (Judge Reese’s)
ruling that Mr. Manatau’s retrial was not barred on double jeopardy
grounds. We afford no deference to the trial court’s double jeopardy
ruling because the trial judge was in “no better position than this
court to determine the necessity of a mistrial.” State v. Harris, 2004
UT 103, ¶ 21, 104 P.3d 1250. Second, we review the initial trial
court’s (Judge Christiansen’s) sua sponte order declaring a mistrial
to determine whether the mistrial was legally necessary. If a court
articulates on the record a factual basis for its determination that a
new trial is legally necessary, we review that court’s determination
for abuse of discretion. Id. ¶ 29. Absent record findings, however, we
independently assess whether the mistrial was legally necessary. Id.
¶ 30.




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                        Opinion of the Court

                             ANALYSIS
             I. UTAH’S DOUBLE JEOPARDY CLAUSE
   ¶9 In a jury trial, jeopardy attaches when a jury has been sworn
and empaneled. State v. Ambrose, 598 P.2d 354, 358 (Utah 1979).
Declaring a mistrial after jeopardy has attached automatically
invokes the double jeopardy clauses of the United States
Constitution and the Utah Constitution. U.S. CONST . amend. V (“nor
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb”); UTAH CONST . art. I, § 12 (“nor shall any
person be twice put in jeopardy for the same offense”). The
declaration of a mistrial before a verdict is entered, as a general rule,
operates as an acquittal. State v. Harris, 2004 UT 103, ¶ 24, 104 P.3d
1250; State v. Whitman, 74 P.2d 696, 697–98 (Utah 1937).
    ¶10 Once a mistrial has been declared, a retrial may proceed
without offending Utah’s constitutional double jeopardy provision
only if one of two exceptions applies: (1) the defendant consents to
the mistrial or (2) there is “legal necessity” for the mistrial.2 Harris,
2004 UT 103, ¶ 24. If, as in this case, the defendant has not consented
to the mistrial legal necessity is established only if a mistrial is the
“only reasonable alternative to insure justice under the
circumstances.” Ambrose, 598 P.2d at 358. In order to show that a
mistrial is the only reasonable alternative, two elements must be
met.
    ¶11 First, the trial judge has a duty to carefully evaluate the
circumstances of the particular case and determine that legal
necessity requires the discharge of the jury. Harris, 2004 UT 103,
¶ 27; Whitman, 74 P.2d at 697–98. As part of that inquiry, the judge
must “afford the parties adequate opportunity to object to the
declaration of a mistrial.” Harris, 2004 UT 103, ¶ 27. The judge also
must consider possible alternatives to terminating the proceeding
and determine that none of the proposed alternatives are reasonable.
Id.
   ¶12 While the trial judge must ultimately bear the burden of
making the determination that none of the alternatives are
reasonable, “the prosecutor must shoulder the burden of justifying
the mistrial if he is to avoid the double jeopardy bar.” Ambrose, 598

  2
    Mr. Manatau references the double jeopardy provisions of both
the federal Constitution and Utah’s Constitution in his appellate
briefing, but principally relies on case law interpreting the Utah
Constitution. Because we find Utah’s Double Jeopardy Clause to be
dispositive, we confine our analysis to the Utah Constitution.

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P.2d at 359 (internal quotation marks omitted). A defendant,
however, does not bear a burden to show a mistrial is legally
necessary if the defendant objects to the mistrial. As we noted in
Ambrose, a defendant may often have many “valid personal reasons
to prefer going ahead with the trial”; the burden is placed on the
trial judge to “avoid depriving the defendant of his constitutionally
protected freedom of choice in the name of a paternalistic concern
for his welfare.” Id. at 360 (internal quotation marks omitted).
    ¶13 Second, the trial court must establish a record of the factual
basis for its conclusion that a mistrial is necessary, as well as the
reasons why there is no reasonable alternative under the
circumstances. Id. If a trial court makes these findings on the record,
we afford substantial deference to its determination that legal
necessity warrants a mistrial. Harris, 2004 UT 103, ¶ 29. In the
absence of an adequate record, however, the mistrial will operate as
an acquittal if we are unable to find a readily apparent factual basis
for the mistrial on the face of the record. Id. ¶ 30. Additionally, if the
trial court fails to articulate why no reasonable alternatives existed,
“the mistrial will operate as an acquittal if we find, based on our
own independent assessment, that one or more of the proposed
alternatives presented to the trial judge was reasonable under the
circumstances.” Id. Absent an adequate record, we resolve
uncertainties as to the existence of legal necessity in favor of the
defendant. W. Valley City v. Patten, 1999 UT App 149, ¶¶ 13, 15, 981
P.2d 420.
    ¶14 There are sound reasons for strongly encouraging trial
judges to consider all of the alternatives before subjecting a
defendant to a second trial. The Supreme Court in United States v.
Perez stated that a judge should dismiss a jury only “under urgent
circumstances, and for very plain and obvious causes.” 22 U.S. 579,
580 (1824). As we discussed in Ambrose, double jeopardy protections
are robust rather than “ephemeral” because they protect a defendant
not only from being punished twice for the same offense, but also
from having to endure another trial. 598 P.2d at 357, 360. There is
“strain, embarrassment, anxiety and expense” involved in a criminal
trial, and these are concerns that cannot be vindicated once a retrial
has commenced and proceeded. Id. at 357.
       II. MR. MANATAU’S RETRIAL VIOLATED UTAH’S
                 DOUBLE JEOPARDY CLAUSE
    A. The Trial Court Did Not Consider Alternatives to a Mistrial
   ¶15 In the present proceeding, there is no question that at the
time the trial judge declared a mistrial, jeopardy had attached. The

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                         Opinion of the Court

jury had been sworn and empaneled the previous day. Further, the
record is clear that Mr. Manatau did not consent to the retrial; both
Mr. Manatau and the State objected to the mistrial. Therefore, only
legal necessity could preclude the mistrial from operating as an
acquittal.
    ¶16 Trial judges must fulfill two distinct requirements in order
to establish the legal necessity of a mistrial; the court must
(1) consider alternatives to a mistrial and determine no reasonable
alternative exists and (2) create a record disclosing the factual basis
for the court’s determinations that a mistrial is legally necessary and
that no reasonable alternative exists. State v. Harris, 2004 UT 103,
¶¶ 27–28, 104 P.3d 1250. The record here demonstrates that the trial
court did not satisfy its first obligation. The trial court did not
consider any alternatives to a mistrial, nor did it determine that none
existed because the judge mistakenly believed that jeopardy had not
attached. As noted above, when defense counsel objected to the
mistrial on double jeopardy grounds, the trial judge erroneously
stated that “in mistrial case[s], jeopardy doesn’t attach and so we can
go forward with a new jury.” Thus the judge did not apprehend the
necessity of considering alternatives to a mistrial.
    ¶17 In this situation, the State—not the defendant—bore the
burden of alerting the trial court to the need for a determination that
no reasonable alternatives existed in order to establish the legal
necessity of a mistrial. It was in the State’s interest to do so because
absent such a determination, a mistrial acts as an acquittal. Harris,
2004 UT 103, ¶ 27. Defense counsel is not required to assist the State
in rendering the case eligible for retrial by either offering alternatives
to be considered or, as especially pertinent in this case, alerting the
trial judge to a mistake of law. We do not require defense counsel to
help pave the way for their clients to be subjected to jeopardy for a
second time.
    ¶18 We therefore conclude that the trial court failed to meet the
first requirement to establish that a mistrial was the “only reasonable
alternative.” Id. (internal quotation marks omitted). Because the trial
court mistakenly believed that jeopardy had not attached, the court
failed to “carefully evaluate all of the circumstances and conclude
that legal necessity mandate[d] the discharge of the jury.” Id. Absent
such an analysis, a mistrial acts as an acquittal.
            B. The Trial Court Did Not Create a Record of a
                    Legal Necessity Determination
    ¶19 The mistrial also acted as an acquittal in this case because
the trial court did not satisfy its second obligation to create a record

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to support a finding that there was no reasonable alternative to a
mistrial. And we cannot say that a mistrial was legally necessary
from our independent review of the record.
    ¶20 Because the trial court mistakenly believed that jeopardy
had not attached, it did not make findings supporting a conclusion
that a mistrial was legally necessary. The absence of a record,
however, does not always require an acquittal. If the trial court does
not make explicit findings regarding legal necessity, we
independently determine whether “the factual basis for the mistrial
is readily apparent from the record” and whether “based on our
own independent assessment, . . . one or more of the proposed
alternatives presented to the trial judge was reasonable under the
circumstances.”3 Harris, 2004 UT 103, ¶ 30.
    ¶21 In this case, the trial judge articulated a factual basis for
declaring the mistrial. The judge stated that events on the first day
of trial had affected her (presumably emotionally) to the point of
causing her to question her impartiality going forward, especially in
light of the need to rule on future objections. The judge further
clarified that the basis for the mistrial was “the security issues that
[had] been raised.”
    ¶22 The trial judge, however, did not consider any alternatives
to a mistrial on the record, nor did either party offer any. Thus,
unlike Harris, where we considered whether alternatives proposed
by the defendant were reasonable, we have no record alternatives to
a mistrial to consider here. See id. ¶¶ 33–38. We therefore must
independently determine whether the trial court had any reasonable
option to a mistrial, resolving all uncertainties caused by gaps in the
record in favor of the defendant. See W. Valley City v. Patten, 1999 UT
App 149, ¶ 15, 981 P.2d 420 (“Because the record lacks support for
the declaration of the mistrial, we resolve this uncertainty in favor
of defendant.”).
  3
     We emphasize that requiring a trial court to record specific
findings regarding mistrial “is not intended to make trial courts
unduly apprehensive of declaring a mistrial.” Harris, 2004 UT 103,
¶ 29. On the contrary, compliance with this requirement requires
appellate courts to afford substantial deference to a trial court’s legal
necessity determination. Id. A decision to call a mistrial is a fact-
intensive, circumstance-dependent inquiry, and the trial court has
the “superior position to determine whether any proposed
alternatives to a mistrial are reasonable in a given situation or
whether legal necessity mandates the termination of the
proceeding.” Id.

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                        Opinion of the Court

    ¶23 We hold that a reasonable alternative did exist. In this case,
no prejudicial or improper statements were made by either party in
the presence of the jury. See Ambrose, 598 P.2d at 356–58. The only
potential prejudice at issue was that of the trial judge. And it was a
prospective concern only; the judge determined that the court’s
rulings prior to declaring a mistrial were not tainted by prejudice,
and the State does not allege any of the court’s rulings were suspect.
In these circumstances, it may have been reasonable for the case to
have been reassigned to another judge. See UTAH R. CRIM . P. 29(a)
(“If, by reason of death, sickness, or other disability, the judge before
whom a trial has begun is unable to continue with the trial, any
other judge of that court or any judge assigned by the presiding
officer of the Judicial Council, upon certifying that the judge is
familiar with the record of the trial, may, unless otherwise
disqualified, proceed with and finish the trial . . . .”). Although we
acknowledge that in some situations this alternative may be
unreasonable—for example, where no other judge is available to
continue the trial within a reasonable amount of time—there is no
evidence of any circumstances that would make reassignment of the
case to another judge unreasonable here. Absent findings that
reassignment was not feasible, we must resolve any uncertainty
caused by this gap in the record in favor of the defendant. Thus, the
insufficiency of the record in this case precludes this court from
making an independent determination that the mistrial was legally
necessary.
    ¶24 In making this determination, we acknowledge the
reprehensible nature of the defendant’s conduct.4 However, because
of the insufficiency of the record we are unable to conclude the
mistrial was legally necessary, and constitutional requirements
preclude a second trial under such circumstances. We therefore find
that the denial of Mr. Manatau’s motion to dismiss on double
jeopardy grounds was erroneous, and reverse his convictions.
                             ____________




  4
    At trial, Mr. Manatau did not dispute the essential facts of the
case. He only argued that the State had overcharged him.

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