                                                                          FILED BY CLERK
                                                                             DEC 19 2007
                             IN THE COURT OF APPEALS                          COURT OF APPEALS
                                 STATE OF ARIZONA                               DIVISION TWO
                                   DIVISION TWO


THE STATE OF ARIZONA,                          )
                                               )          2 CA-CR 2006-0226
                                 Appellee,     )          DEPARTMENT A
                                               )
                      v.                       )          OPINION
                                               )
HIGINIO AGUILAR,                               )
                                               )
                                Appellant.     )
                                               )


            APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                                Cause No. CR200501268

                             Honorable David M. Roer, Judge

                             VACATED AND REMANDED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Joseph L. Parkhurst                                        Tucson
                                                                    Attorneys for Appellee

Harriette P. Levitt                                                                Tucson
                                                                    Attorney for Appellant


H O W A R D, Presiding Judge.


¶1            Appellant Higinio Aguilar challenges his convictions of aggravated assault with

a deadly weapon and various other criminal offenses, contending his second trial was barred
by the Fifth Amendment’s protection against double jeopardy.1 We agree and therefore

vacate the convictions and sentences entered at the conclusion of Aguilar’s second trial and

instruct the trial court to dismiss the charges against Aguilar with prejudice.

                           Facts and Procedural Background

¶2            The relevant facts are undisputed. The state charged Aguilar with aggravated

assault with a deadly weapon and other offenses arising out of his attempt to elude arrest.

During the first day of testimony in the first trial, one of the state’s witnesses, a state-

employed Forensic Services Coordinator, informed the prosecutor that she had obtained a

ballistics report, prepared by the Department of Public Safety crime lab, evaluating whether

a bullet casing found by investigating officers had come from a weapon also found by the

officers in the course of their investigation. The report was dated April 4, about one week

before the trial. Although the prosecutor had requested the report, he did not know it had

been prepared and, consequently, had never disclosed it or the name of the criminalist who

had prepared it to Aguilar.

¶3            The state indicated it intended to have the criminalist testify regarding the

report. It suggested that Aguilar be given twenty-four hours to review the report and

interview the criminalist. In the alternative, the state suggested a mistrial in order to give

Aguilar time to hire his own expert to evaluate the ballistics evidence. Aguilar requested



       1
       Aguilar raises two additional claims on appeal, but we decline to address them
because the question of double jeopardy is dispositive in this case.

                                              2
that the court preclude the evidence pursuant to Rule 15.7, Ariz. R. Crim. P., arguing the

state had been dilatory in failing to obtain and disclose the report until after trial had begun.

The court considered continuing the trial and polled the jurors in writing to determine if they

could reconvene the following week. Four jurors indicated they could not and Aguilar

would not stipulate to a jury of fewer than twelve persons. The court declared a mistrial and

the trial was reset for approximately two and a half weeks later. The second jury found

Aguilar guilty of aggravated assault and other charges.

                             Timeliness of Motion to Dismiss

¶4            Before his second trial, Aguilar moved to dismiss the case based on double

jeopardy grounds. The court refused to hear the motion, finding the motion was not timely.

We review the trial court’s order concerning timeliness of a motion to dismiss for an abuse

of discretion. See State v. Vincent, 147 Ariz. 6, 8-9, 708 P.2d 97, 99-100 (App. 1985).

¶5            Rule 16.1(b), Ariz. R. Crim. P., provides that all motions must be “made no

later than 20 days prior to trial.” Rule 16.1(c) states: “Any motion, defense, objection, or

request not timely raised under Rule 16.1(b) shall be precluded, unless the basis therefor

was not then known, and by the exercise of reasonable diligence could not then have been

known, and the party raises it promptly upon learning of it.”

¶6            Aguilar could not have known the basis for the motion before the mistrial,

which occurred fewer than twenty days before the second trial. Approximately two weeks

after the mistrial, Aguilar moved to vacate the new trial date, indicating that he would be


                                               3
filing a motion to dismiss based on double jeopardy grounds. Four days later, a few hours

before the second trial was to begin, Aguilar moved to dismiss the case. Thus, under these

circumstances, Aguilar filed both motions promptly after the court declared a mistrial and

before the second trial commenced. Additionally, the motion sought to protect Aguilar’s

fundamental constitutional right to be free from double jeopardy. And, as we will explain,

Aguilar’s second trial was indeed barred by double jeopardy. Therefore, the state did not

suffer any prejudice because the motion was not filed earlier. Accordingly, the trial court

abused its discretion in denying Aguilar’s motion to dismiss on the ground that it was

untimely filed. See Vincent, 147 Ariz. at 8, 708 P.2d at 99 (finding it contrary to “sound

judicial administration” to preclude an untimely motion “so as to proceed to a trial in which

a conviction would be defeasible” on the merits of that motion).

                                    Double Jeopardy

¶7            On appeal, Aguilar argues the trial court erred in declaring a mistrial and

therefore the second trial violated his right against double jeopardy. In evaluating a double

jeopardy claim, we review the trial court’s decision to declare a mistrial for an abuse of

discretion. State v. Givens, 161 Ariz. 278, 279, 778 P.2d 643, 644 (App. 1989).

¶8            The Double Jeopardy Clause of the Fifth Amendment, among other

protections, protects a defendant from being tried multiple times for the same criminal

offense and is applicable to the states through the Fourteenth Amendment. Benton v.

Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969). The Arizona Constitution


                                             4
provides double jeopardy protection against multiple trials through an analogous clause. See

Ariz. Const. art. II, § 10; see also Jones v. Kiger, 194 Ariz. 523, ¶ 6, 984 P.2d 1161, 1163

(App. 1999). Jeopardy attaches once the jury is empaneled. See Crist v. Bretz, 437 U.S.

28, 37-38, 98 S. Ct. 2156, 2162 (1978); State v. Soloman, 125 Ariz. 18, 21, 607 P.2d 1,

4 (1980).

¶9            The general principle behind double jeopardy is that,

              the State with all its resources and power should not be allowed
              to make repeated attempts to convict an individual for an
              alleged offense, thereby subjecting him to embarrassment,
              expense and ordeal and compelling him to live in a continuing
              state of anxiety and insecurity, as well as enhancing the
              possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 223 (1957). The clause also

“embraces the defendant’s ‘valued right to have his trial completed by a particular

tribunal.’” Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 829 (1978), quoting

Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837 (1949).

¶10           Nevertheless, the 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.” Wade,

336 U.S. at 689, 69 S. Ct. at 837. Thus, when a mistrial is granted, retrial of the defendant

is not always precluded. Id. at 688, 69 S. Ct. at 837. When a defendant moves for a

mistrial, the state may generally reprosecute unless the mistrial was the product of

prosecutorial misconduct or judicial overreaching. See United States v. Dinitz, 424 U.S.

600, 611, 96 S. Ct. 1075, 1081 (1976); State v. Marquez, 113 Ariz. 540, 542, 558 P.2d

                                              5
692, 694 (1976). When the court declares a mistrial sua sponte, retrial will not be barred

if there was a “manifest necessity for the mistrial or . . . the ends of public justice will

otherwise be defeated.” McLaughlin v. Fahringer, 150 Ariz. 274, 277, 723 P.2d 92, 95

(1986).

A. Prosecutorial Misconduct or Judicial Overreaching

¶11           Aguilar first argues that the mistrial was declared as a result of prosecutorial

misconduct. Prosecutorial misconduct “is not merely the result of legal error, negligence,

mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct

which the prosecutor knows to be improper and prejudicial, and which he pursues for any

improper purpose with indifference to a significant resulting danger of mistrial.” Pool v.

Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984) (footnote omitted).

During a discussion outside the presence of the jury, after the existence of the ballistics

report had become known, the prosecutor explained to the court that the attorney originally

assigned to this case had requested the ballistics report in October 2005, three months after

the date Aguilar allegedly committed the charged offenses. The prosecutor who tried the

case took over in March 2006, and submitted a second request for the ballistics report. This

prosecutor then proceeded to trial without the report and apparently without inquiring about

it. The report was disclosed after the trial had commenced and close to the end of the

prosecutor’s case. As Aguilar notes, the prosecutor then suggested a short continuance or

a mistrial to cure the lack of disclosure problem. Aguilar also points out that the


                                              6
prosecutor’s argument concerning the report was legally incorrect in several respects.

Although the failure to timely discover and disclose the report was entirely attributable to

the state, and the prosecutor’s argument was erroneous, the prosecutor’s actions do not

amount to prosecutorial misconduct.

¶12           We also reject Aguilar’s suggestion that the mistrial was the result of judicial

overreaching. We can find nothing in the record to indicate the court’s action “was

motivated by bad faith or undertaken to harass or prejudice [Aguilar].” Dinitz, 424 U.S. at

611, 96 S. Ct. at 1081-82.

B. Manifest Necessity

¶13           Aguilar further argues that he could not be retried without violating his double

jeopardy rights because the mistrial was not the result of manifest necessity. We will not

disturb the trial court’s ruling on manifest necessity absent an abuse of discretion. See

Givens, 161 Ariz. at 279, 778 P.2d at 644. But, the United States Supreme Court has noted

that, when evaluating the trial court’s decision regarding manifest necessity, the degree of

deference a reviewing court should accord the trial court depends on the circumstances that

gave rise to the mistrial. See Washington, 434 U.S. at 506-07, 98 S. Ct. at 831. When a

mistrial is declared because the jury is deadlocked, we should give great deference to the

court’s decision. Id. at 509-10, 98 S. Ct. at 832. The trial court is in the best position to

determine whether the jury is at a true impasse and whether further deliberations are

appropriate. Id. at 510 n.28, 98 S. Ct. at 832 n.28. On the other end of the spectrum, when


                                              7
a mistrial is declared because critical evidence for the prosecution is unavailable, we should

apply the “strictest scrutiny.” Id. at 507-08, 98 S. Ct. at 831-32.

               Although there was a time when English judges served the
               Stuart monarchs by exercising a power to discharge a jury
               whenever it appeared that the Crown’s evidence would be
               insufficient to convict, the prohibition against double jeopardy
               as it evolved in this country was plainly intended to condemn
               this “abhorrent” practice.

Id. at 507-08, 98 S. Ct. at 831; see also Gori v. United States, 367 U.S. 364, 369, 81 S. Ct.

1523, 1526-27 (1961) (Fifth Amendment protects defendants when “a judge exercises his

authority to help the prosecution, at a trial in which its case is going badly, by affording it

another, more favorable opportunity to convict the accused.”). Accordingly, we must apply

the strictest scrutiny here.

¶14            “Manifest necessity” can arise in many different situations and the courts have

not attempted to adopt a single, all encompassing definition. See McLaughlin, 150 Ariz.

at 277, 723 P.2d at 95 (listing various examples of manifest necessity). Although absolute

necessity is not required, Givens, 161 Ariz. at 281, 778 P.2d at 646, 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.” Washington, 434 U.S. at 506, 98

S. Ct. at 831. And, in Gusler v. Wilkinson, 199 Ariz. 391, ¶ 18, 18 P.3d 702, 706 (2001),

our own supreme court stated that the prosecutor’s “burden ‘is a heavy one.’ Indeed, the

very term ‘manifest necessity’ emphasizes ‘the magnitude of the prosecutor’s burden.’” Id.,

quoting Washington, 434 U.S. at 505, 98 S. Ct. at 830; see also Evans v. Abbey, 130 Ariz.

                                              8
157, 159, 634 P.2d 969, 971 (App. 1981) (“A mistrial is not warranted when the court ha[s]

the ability to prevent its necessity.”).

¶15            The parties have not cited any Arizona case directly on point. But, other

jurisdictions have generally held that the state’s inability to use a piece of evidence does not

constitute manifest necessity for a mistrial. See Long v. Humphrey, 184 F.3d 758, 759, 761

(8th Cir. 1999) (habeas relief granted because no manifest necessity where tape of

defendant’s interview with police discovered after trial began); Fanning v. Superior Court,

320 A.2d 343, 344-45 (Del. 1974) (no manifest necessity where prosecution failed to

produce two requested toxicology reports until after trial had begun); Parce v. Byrd, 533

So. 2d 812, 813, 815 (Fla. Dist. Ct. App. 1988) (no manifest necessity where new evidence

discovered after jury had been sworn); State v. Carney, 714 P.2d 532, 533, 535-36 (Mont.

1986) (no manifest necessity after court ruled blood alcohol tests inadmissible for failure to

prove chain of custody); State v. Fiske, 526 A.2d 1273, 1274-75 (R.I. 1987) (no manifest

necessity where prosecution sought to call undisclosed witness and defense requested time

to review proposed testimony); see also Washington, 434 U.S. at 508 n.24, 98 S. Ct. at 832

n.24 (“If, for example, a prosecutor proceeds to trial aware that key witnesses are not

available to give testimony and a mistrial is later granted for that reason, a second

prosecution is barred.”), citing Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033

(1963).




                                               9
¶16           Those cases in which the reviewing court has upheld a determination of

manifest necessity have generally involved different or additional factors. See Illinois v.

Somerville, 410 U.S. 458, 459-60, 471, 93 S. Ct. 1066, 1068, 1073-74 (1973) (manifest

necessity to declare mistrial when court discovered no jurisdiction under state law due to

fatal defect in indictment); State in Interest of D.P., 556 A.2d 335, 337, 341 (N.J. Super.

Ct. App. Div. 1989) (manifest necessity to declare mistrial where surprise testimony showed

prosecutor would have to be called as witness); State v. Carter, 890 S.W.2d 449, 451, 453-

54 (Tenn. Crim. App. 1994) (manifest necessity where, inter alia, both defense and

prosecution disclosed new witnesses at or immediately prior to trial). But see People v.

Bagley, 789 N.E.2d 860, 862, 865 (Ill. App. Ct. 2003) (mistrial to allow state to use

videotape discovered during trial based on manifest necessity).

¶17           Additionally, our supreme court has found that when a trial court fails to

consider viable alternatives to a mistrial, manifest necessity has not been shown.

McLaughlin, 150 Ariz. at 277-78, 723 P.2d at 95-96. In McLaughlin the trial court

considered whether the trial could proceed after the prosecutor had referred to potentially

inadmissible evidence during her opening statement. Id. at 276, 723 P.2d at 94. The trial

court found it was necessary to hold evidentiary hearings on the issue before proceeding and

declared a mistrial. Id. Our supreme court concluded that the trial court had not adequately

considered alternatives such as a short recess to resolve the evidentiary issue and thus there

was no manifest necessity to declare a mistrial. Id. at 277-78, 723 P.2d at 95-96.


                                             10
¶18           Here, the trial court considered continuing the trial as an alternative to

declaring a mistrial but found this was not feasible because four jurors indicated they would

not be available the following week. The court polled the jurors using a paper ballot on

which the jurors indicated affirmatively or negatively whether they “could appear in court”

the following week. The court did not question the jurors who had indicated they were

unable to return, nor is there any record of the reasons for their claimed unavailability. We

find the court in this case failed to sufficiently investigate whether the four jurors had

legitimate reasons for their unavailability or whether it was simply more convenient to have

their duties concluded immediately. To the extent the court based its declaration of a

mistrial on its finding that the jury could not reconvene after a week-long recess, the record

does not support a finding of manifest necessity under the strictest scrutiny.            See

Washington, 434 U.S. at 507-08, 98 S. Ct. at 831-32.

¶19           Moreover, the prosecutor in this case suggested the alternative of ordering a

twenty-four-hour recess to allow Aguilar’s counsel to review the ballistics report and

interview the criminalist who had prepared it before deciding whether he wanted to hire his

own expert to conduct an independent evaluation of the underlying evidence. Given the

opportunity, Aguilar may have chosen not to seek another expert’s opinion. Because a short

recess could have cured the problem, the court’s declaration of mistrial was, at least,

premature. See McLaughlin, 150 Ariz. at 277-78, 723 P.2d at 95-96 (recess of twenty-four




                                             11
to forty-eight hours to hold evidentiary hearings feasible alternative to mistrial and thus no

manifest necessity).

¶20           Finally, the alternative urged by the defense—to preclude the ballistics report

and proceed with the first trial—was entirely feasible. Rule 15.1(c), Ariz. R. Crim. P.,

requires the state to disclose all reports thirty days after arraignment and Rule 15.6(c), Ariz.

R. Crim. P., requires all disclosures to be complete seven days before trial. Rule 15.6(d)

then states what is to occur when the final disclosure deadline has been violated:

              A party seeking to use material and information not disclosed at
              least seven days prior to trial shall obtain leave of court by
              motion, supported by affidavit, to extend the time for disclosure
              and use the material or information. If the court finds that the
              material or information could not have been discovered or
              disclosed earlier even with due diligence and the material or
              information was disclosed immediately upon its discovery, the
              court shall grant a reasonable extension to complete the
              disclosure and grant leave to use the material or information.
              Absent such a finding, the court may either deny leave or grant
              a reasonable extension to complete the disclosure and leave to
              use the material or information, and if granted the court may
              impose any sanction other than preclusion or dismissal listed in
              Rule 15.7.

Rule 15.6(e) also provides for an extension of the disclosure deadline for scientific evidence

if the expert avows that additional time is needed and the court does not find that the

“request for extension resulted from dilatory conduct, neglect, or other improper reason on

the part of the moving party.” A motion under Rule 15.6(e) must be filed “prior to the final

deadline for disclosure” of seven days before trial. Finally, Rule 15.7(a)(1), Ariz. R. Crim.



                                              12
P., provides that one of the sanctions available to the court for a party’s failure to disclose

evidence is preclusion of that evidence.

¶21           In this case, Aguilar had been arrested ten months prior to trial. The report

was dated seven days before trial, but it was first disclosed during trial. The record does not

contain a proper request to permit untimely disclosure based on the workload of the expert

or the DPS lab. Nor does it contain a proper motion or affidavit by the prosecutor

explaining why the report could not have been discovered earlier by the exercise of due

diligence. Thus, under the rules, the trial court would have been within its discretion to

deny the state’s request to introduce the untimely disclosed evidence. See State v. Scott, 24

Ariz. App. 203, 205, 537 P.2d 40, 42 (1975) (court within its discretion ordering preclusion

for untimely disclosure of defense witnesses). But see State v. Roque, 213 Ariz. 193, ¶¶ 48,

50-51, 141 P.3d 368, 385-86 (2006) (no abuse of discretion in refusing to order preclusion

for discovery violation involving scope of expert testimony).

¶22           The trial court expressed concern over the state being deprived of the report

as evidence. But the trial court could not elevate this concern over the defendant’s right to

be protected from double jeopardy. See Washington, 434 U.S. at 503-04, 98 S. Ct. at 829-

30. Moreover, the prosecutor, rather than requesting a pretrial continuance, chose to move

forward, despite the fact that he had requested a ballistics report that was not forthcoming.

“The prohibition against double jeopardy unquestionably ‘forbids the prosecutor to use the

first proceeding as a trial run of his case.’” Id. at 508 n.24, 98 S. Ct. at 832 n.24, quoting


                                              13
Note, Twice in Jeopardy, 75 Yale L.J. 262, 287-88 (1965). Because the trial court had

feasible alternatives to declaring a mistrial, under the strictest scrutiny, there was no manifest

necessity to declare the mistrial. See id. at 507-08, 98 S. Ct. at 831-32.

¶23            The state cites Givens in support of its claim of manifest necessity, but that

case does not support the state’s position. There, this court observed that “the mere

availability of another alternative does not render a mistrial order an abuse of discretion.”

Givens, 161 Ariz. at 281, 778 P.2d at 646. We concluded that the trial court acted within

its discretion in finding manifest necessity “where [the] defendant’s own conduct gave rise

to the declaration of mistrial,” and we assumed that the court had first considered its

possible alternatives. Id. at 281-82, 778 P.2d at 646-47. Here, the defendant’s conduct was

not at issue and the problem that gave rise to the mistrial was entirely within the prosecutor’s

control.

¶24            At oral argument, the state emphasized that the mistrial benefited Aguilar

because the trial court intended to allow in the new evidence and the mistrial gave Aguilar

time to prepare for it. But having additional evidence admitted against him clearly was not

to Aguilar’s benefit. The mistrial was intended to and clearly did benefit the prosecution.

Unless the mistrial was at Aguilar’s request or due to his actions, see id. at 280-82, 778

P.2d at 645-47, or unless the “mistrial has been granted in the sole interest of the

defendant,” Gori, 367 U.S. at 369, 81 S. Ct. at 1527 (emphasis added), double jeopardy

bars a mistrial. Furthermore, as the state conceded, the trial court was not under a legal


                                               14
obligation to admit the new evidence but rather had the discretion to decide whether or not

to admit it.

¶25            We conclude that “along the spectrum of trial problems which may warrant

a mistrial and which vary in their amenability to appellate scrutiny,” Washington, 434 U.S.

at 510, 98 S. Ct. at 833, the failure of a prosecutor to discover and disclose evidence

requires an exacting inquiry. Under such circumstances, we are required to strike the

balance in favor of the defendant. See Downum, 372 U.S. at 738, 83 S. Ct. at 1035-36.

                                        Conclusion

¶26            There was no manifest necessity and thus the trial court abused its discretion

in declaring a mistrial. For this reason, retrial was barred by double jeopardy. We vacate

the convictions and sentences entered at the conclusion of Aguilar’s second trial and remand

this matter to the trial court with instructions to dismiss the charges against Aguilar, with

prejudice. See State v. Minnitt, 203 Ariz. 431, ¶ 45, 55 P.3d 774, 783 (2002).




                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge


CONCURRING:



____________________________________
JOHN PELANDER, Chief Judge


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____________________________________
PETER J. ECKERSTROM, Judge




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