                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellant,

                                         v.

                   WILLIAM GEORGE PISTOLE, Appellee.

                              No. 1 CA-CR 16-0011
                                FILED 10-6-2016


            Appeal from the Superior Court in Yavapai County
                         No. P1300CR201401223
                The Honorable David L. Mackey, Judge

                                   VACATED


                                    COUNSEL

Yavapai County Attorney’s Office, Prescott
By Dana E. Owens
Counsel for Appellant

C. Kenneth Ray, II, P.L.L.C., Prescott
By C. Kenneth Ray II
Counsel for Appellee
                            STATE v. PISTOLE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge John C. Gemmill1 joined.


W I N T H R O P, Judge:

¶1            The state appeals the superior court’s order dismissing this
case with prejudice. For the reasons that follow, we vacate the court’s order
and remand for further proceedings.

                FACTS AND PROCEDURAL HISTORY

¶2            A grand jury indicted William George Pistole on one count of
aggravated driving under the influence, a class 4 felony. The state alleged
that Pistole committed the offense while on felony release in two other
cases. Three days were allotted for trial, which was set to begin September
2, 2015.

¶3            On September 4, 2015, during trial and over the state’s
objection, the superior court granted defense counsel’s request for an
instruction pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964),
based on the state’s failure to preserve a jail video recording of Pistole’s
blood draw, which defense counsel argued could have supported his
defense of tampering. Trial was set to resume September 9 with any
rebuttal witnesses, jury instructions, and closing arguments.

¶4            On September 8, the state filed a petition for special action
with the Court of Appeals challenging the Willits ruling. On September 9,
after hearing telephonic argument, the Court of Appeals granted the state’s
request for a stay, agreed to expedite the briefing schedule, and deferred a
ruling on the merits to allow defense counsel to prepare a written response.

¶5            Pistole’s attorney reminded the superior court at a hearing
later that morning that she was scheduled to begin a new job at the Yavapai
County Public Defender’s Office on September 14, the following Monday.
Yavapai County Public Defender John Napper asked the court to


1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


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                             Decision of the Court
immediately appoint his office as co-counsel. Minutes later, however,
Napper informed the court that other conflicts prevented the Public
Defender’s Office from representing Pistole in this case, but the office might
be able to institute a screening process to allow present defense counsel to
continue to represent Pistole.

¶6             After consulting with the jury on availability, the court set
trial to resume on September 29, ordered defense counsel to continue to
represent Pistole, and ordered the Public Defender’s Office to institute
appropriate screening. On September 18, however, Napper informed the
court that, after reviewing the ethical rules and consulting with the State
Bar, he had determined that screening was not possible. Pistole’s attorney
formally moved to withdraw as counsel.

¶7             At a hearing on September 28 to discuss whether the conflict
required a mistrial, defense counsel told the court after consulting with her
client that she believed “Mr. Pistole would be willing to waive a conflict to
have me stay on the case with the reality that that doesn’t take care of the
other conflicts that we have.” At the same time, the parties were notified
electronically that the Court of Appeals had accepted jurisdiction of the
special action and granted relief, holding that a Willits instruction was not
warranted. Although defense counsel argued that the presence of new
counsel at this stage of trial “would be confusing as heck to the jury,” the
Public Defender offered to find Pistole independent counsel before 9 a.m.
the following day, the date trial was set to resume. The court instead asked
Pistole if he wanted to proceed to trial with his current defense counsel, or
have the court grant defense counsel’s motion to withdraw, declare a
mistrial, and set a date for retrial. Pistole said he did not know what to do:
“I need to have a lawyer that doesn’t have a conflict I guess. I don’t know
what to do.”

¶8             The court subsequently granted defense counsel’s motion to
withdraw, ordered the Public Defender’s Office to assign counsel with no
conflict, and without objection, sua sponte declared a mistrial. The court
found the withdrawal necessary because Pistole was unable to consult
independent counsel on whether he should waive the conflict. The court
also found, however, that “the County Attorney’s Office was well aware of
this impending conflict when they chose to take action with respect to a
[s]pecial [a]ction”; special action relief “is not a right, but is an option”; and
the state’s lack of understanding and empathy with defense counsel, the
court’s schedule, and the jury “aggravated me substantially.”

¶9           New defense counsel moved to dismiss the case with
prejudice on grounds that Pistole could not be retried without violating his


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                             Decision of the Court
double jeopardy rights, because the mistrial resulted from the prosecution’s
calculated decision to seek a stay from the Court of Appeals “to obtain a
tactical advantage,” knowing that “the stay would have a detrimental
impact on Mr. Pistole’s right to counsel.” The state responded that “the
[s]pecial [a]ction was not filed for an improper purpose, but instead to
ensure that both parties received a fair trial”; neither party was aware of the
potential conflict at the time the state filed its petition for special action; and
retrial was permissible because Pistole did not object to the mistrial, and
because of defense counsel’s conflict, “[t]here were no feasible alternatives
that would have allowed the trial to continue, making the mistrial a
manifest necessity.”

¶10           After hearing testimony from former defense counsel and the
prosecutor, the court dismissed the case with prejudice. The court
reasoned, “I cannot find that the State’s actions in this case warranted or
warrant a finding that jeopardy had attached and that dismissal with
prejudice is warranted. However, the case law that’s been cited talks about
not only the State’s obligation to guarantee a Defendant a fair trial on one
occasion and not subject a Defendant to double jeopardy, but also talks
about the Court’s obligation in that regard. . . . [T]he Court finds that its
own conduct falls short of what is required constitutionally of the Court
hearing a criminal matter and finds that based upon the errors made by the
Court that this Court is unable to find a manifest necessity for the mistrial.”

¶11           Specifically, the court found: 1) it made a mistake of law in
deciding to give a Willits instruction, which triggered the filing of the
special action petition, causing the delay that resulted in Pistole losing trial
counsel and a declaration of mistrial; 2) it failed to “fully examine the
Court’s ability to set this very important criminal trial on another date and
time and vacate other matters on the Court’s calendar”; 3) “it erred in not
ordering that the Public Defender assign independent advisory counsel
when the issue of a conflict was first raised on September 9th, 2015”; and 4)
“it erred when it misunderstood the representation of State’s counsel . . .
during the September 28th, 2015 [h]earing . . . I thought the state was
[]conceding knowledge of a conflict with witnesses that they intended to
call at the Aggravation Phase,” prompting the court to declare a mistrial
when its inclination up until then was “to require that [Pistole’s defense
counsel] complete the trial the next day through the argument as well as
through any Aggravation Phase.”

¶12          The state filed a timely notice of appeal of the order
dismissing the case with prejudice. We have jurisdiction pursuant to
Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031, and 13-4032(1).



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                            Decision of the Court
                                 ANALYSIS

¶13          The state argues that the trial court abused its discretion in
dismissing this case with prejudice, because, under these circumstances,
manifest necessity required the mistrial. We agree.

¶14           The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution provides a person may not “be subject for the
same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend.
V. Arizona’s constitution provides similar protection. See Ariz. Const. art.
2, § 10 (“No person shall be compelled in any criminal case to . . . be twice
put in jeopardy for the same offense.”).

¶15             The Double Jeopardy Clause not only protects a defendant’s
right to be free from multiple prosecutions, but also “embraces the
defendant’s valued right to have his trial completed by a particular
tribunal.” Arizona v. Washington, 434 U.S. 497, 503 (1978) (internal
punctuation and citation omitted). The defendant’s right to a single trial,
however, “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 (1949). When the court declares a mistrial sua sponte, retrial will
not be barred if “taking all the circumstances into consideration, there is a
manifest necessity for the act, or the ends of public justice will otherwise be
defeated.” Washington, 434 U.S. at 506 n.18.

¶16           We review a court’s decision to grant a mistrial for abuse of
discretion. McLaughlin v. Fahringer, 150 Ariz. 274, 277, 723 P.2d 92, 95 (1986).
We similarly review a trial court’s ruling on manifest necessity for abuse of
discretion. State v. Aguilar, 217 Ariz. 235, 239, ¶ 13, 172 P.3d 423, 427 (App.
2007). A court abuses its discretion when it makes an error of law or when
there is no substantial evidence to support its conclusion. See State v. Green,
200 Ariz. 496, 502, ¶ 28, 29 P.3d 271, 277 (2001).

¶17           We conclude that under the circumstances of this case,
manifest necessity required a mistrial, and the court accordingly abused its
discretion in dismissing the case with prejudice. As the trial court found
and appellee’s counsel concedes, this is not a case where the prosecutor
engaged in misconduct intended to provoke a mistrial. Nor does the record
support the court’s conclusion that its conduct fell “short of what is
required constitutionally of the Court,” thereby implicating Pistole’s
double jeopardy rights. Under the doctrine of manifest necessity, a trial
judge should not foreclose a defendant’s option to continue a trial 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


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                            Decision of the Court
proceedings.” United States v. Jorn, 400 U.S. 470, 485 (1971). The court in
this case scrupulously exercised its discretion and explored all reasonable
alternatives before finally determining that a mistrial was necessary.

¶18            Although in hindsight the court made a mistake of law in
deciding to give a Willits instruction, this is not the type of trial error that
implicates double jeopardy. As the Supreme Court has recognized, “a
criminal trial is, even in the best of circumstances, a complicated affair to
manage.” Id. at 479. The relevant question is not whether the judge erred
in deciding to give a Willits instruction, but rather whether the judge
scrupulously exercised judicial discretion in addressing the subsequent
events that threatened to derail the on-going trial. See id. at 485.

¶19            The court did not err, much less infringe on Pistole’s double
jeopardy rights, by failing to set aside other matters so trial could resume
earlier. The Court of Appeals had granted a stay to allow defense counsel
to respond to the State’s special action petition on the Willits instruction,
and defense counsel had informed the court she needed time to obtain trial
transcripts and had been given until the following Thursday to respond to
the petition, three days after she was to start with the Public Defender’s
Office. Under these circumstances, the court’s decision to delay resumption
of trial was necessitated by the stay, and had no impact on defense counsel’s
conflict, which ultimately prompted the declaration of a mistrial.
Accordingly, the court’s decision to delay resumption of trial for two and
half weeks was not improper.

¶20            Nor did the court err by failing to immediately appoint
independent counsel on September 9 to advise Pistole on whether he
should waive the impending conflict. The court ordered defense counsel to
continue to represent Pistole in this case, ordered the Public Defender’s
Office to “screen her off from contact with other attorneys regarding this
matter,” and set a schedule to brief “whether or not that creates such a
conflict that I should remove you from the case.” It was not until after
defense counsel had already joined the Public Defender’s Office that Public
Defender John Napper notified the court that the State Bar had advised of
its view that the screening he had offered to undertake to remedy the
conflict was not adequate under the circumstances, and defense counsel
formally moved to withdraw from representing Pistole. The measures the
court took prior to declaring the mistrial were reasonable under the
circumstances and did not violate Pistole’s double jeopardy rights.

¶21          Finally, before granting the request to withdraw and
declaring a mistrial, the trial court made a “real effort to determine whether
there were any feasible alternatives to declaring a mistrial.” McLaughlin,


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                            Decision of the Court
150 Ariz. at 277, 723 P.2d at 95. At the hearing the day before trial was
scheduled to resume, the court reiterated its prior order directing defense
counsel to continue representing Pistole notwithstanding the State Bar’s
advice to the contrary, and attempted to ascertain whether Pistole wanted
to waive any conflict and resume trial with the same jury and defense
counsel. After consulting with her client, defense counsel told the court, “I
believe that Mr. Pistole would be willing to waive a conflict to have me stay
on the case with the reality that that doesn’t take care of the other conflicts
that we have.” After being informed that no Willits instruction would be
given pursuant to the recent order from the Court of Appeals, however,
Pistole was less certain: “Well, Your Honor, I guess I kind of said that I
don’t know what to do. I need to have a lawyer that doesn’t have a conflict
I guess. I don’t know what to do.”

¶22            Although the court could have, at this stage, appointed
independent advisory counsel to allow Pistole to make a more informed
decision on whether to waive the conflict and proceed with trial before the
same jury, as defense counsel had noted, Pistole could not execute a waiver
on behalf of the other parties to the conflict, and thus the conflict would
remain. Under these circumstances, the court did not abuse its discretion
by allowing defense counsel to withdraw and by sua sponte declaring a
mistrial—even if it did so in part based on a misunderstanding that a more
direct conflict would arise in other proceedings.

¶23           Taking all these circumstances into consideration, we
conclude that the court did not abuse its discretion in declaring a mistrial,
but did err in later finding that the court’s perceived failures required
dismissal of the charges with prejudice.

                               CONCLUSION

¶24           For the foregoing reasons, we vacate the order dismissing this
case with prejudice and remand for further proceedings.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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