               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 119,270

                 In the Matter of the Petition for a Writ of Habeas Corpus
                                   by RICTOR BOWMAN.


                               SYLLABUS BY THE COURT

1.
       A writ of habeas corpus filed under K.S.A. 2018 Supp. 60-1501 is a proper
remedy for challenging a district judge's pretrial denial of a claim of double jeopardy.


2.
       A petitioner in a habeas corpus proceeding under K.S.A. 2018 Supp. 60-1501 has
the burden of establishing a right to relief.


3.
       The fundamental rule of statutory interpretation is that legislative intent governs.
And the best avenue for discerning that intent is to read the language of the statute, giving
common words their ordinary meaning. If the statute contains plain and unambiguous
language, courts do not look to extrinsic aids for guidance on legislative history because
the statutory language is the best and only safe rule for determining the intent of the
creators of written law. If, however, the statute's text is unclear or ambiguous, courts turn
to tools of statutory construction such as canons of construction and legislative history to
determine the Legislature's intent.




                                                1
4.
        The plain language of the mistrial statute, K.S.A. 22-3423, does not permit a
mistrial to be declared over a defendant's objection when the prosecutor chooses to open
the State's case with hearsay evidence; a proper defense objection to that evidence is
overruled; and anticipated testimony from a child hearsay declarant fails to materialize
because the child refuses to take the oath when called to the witness stand.


5.
        The plain language of the Kansas double jeopardy statute, K.S.A. 2018 Supp. 21-
5110(a)(3), bars a second trial when (1) the State formerly prosecuted a defendant for the
same crime, based on the same facts; (2) the previous prosecution was terminated without
the consent of the defendant after having been placed in jeopardy; and (3) no exception
listed in the statute applies. An improperly declared mistrial under K.S.A. 22-3423 is not
one of the exceptions in the double jeopardy statute; thus it does not permit a second trial.


        Original proceeding in habeas corpus. Opinion filed May 17, 2019. Writ is granted.


        Mark J. Dinkel, public defender, argued the cause and was on the briefs for petitioner.


        Christine M. T. Ladner, assistant county attorney, argued the cause, and Ellen Mitchell, county
attorney, and Derek Schmidt, attorney general, were with her on the brief for respondent.


        PER CURIAM: Rictor Bowman seeks habeas relief, challenging whether the State
can pursue a second trial against him on criminal charges. His first trial ended after the
district judge declared a mistrial because the alleged victim, a young child, did not
respond when asked to take the oath required of all witnesses. Bowman now argues a
second trial would violate the double jeopardy protections of the United States
Constitution, the Kansas Constitution Bill of Rights, and Kansas statutes.


                                                    2
       We resolve this case by applying the plain language of K.S.A. 22-3423 and K.S.A.
2018 Supp. 21-5110. K.S.A. 22-3423 identifies situations in which a district judge has the
discretion to grant a mistrial. K.S.A. 2018 Supp. 21-5110 allows a second trial of a
criminal defendant only in certain circumstances. We conclude that the declaration of
mistrial in this case was error and that none of the circumstances allowing a second trial
under K.S.A. 2018 Supp. 21-5110 applies. Bowman is therefore entitled to the habeas
relief he seeks, and this court hereby orders dismissal of this case and Bowman's release
from any confinement arising out of it.


                           FACTS AND PROCEDURAL HISTORY


       The State charged Bowman with rape in violation of K.S.A. 2016 Supp. 21-
5503(a)(3); aggravated criminal sodomy in violation of K.S.A. 2016 Supp. 21-
5504(b)(1); and four counts of intimidation of a witness or victim under K.S.A. 2016
Supp. 21-5909(a)(2)(B). The charges stemmed from Bowman's alleged sexual abuse of
his three-year-old granddaughter.


       The State filed charges after the Salina Police Department investigated a report
made by the alleged victim's mother. The mother related that she had been shopping with
her daughter when, in the middle of a store, her daughter blurted out that Bowman had
put his hands down the child's pants. Reportedly, without prompting, the child then
showed how Bowman had touched her.


       As part of the investigation, a detective conducted and recorded an interview of
the child. The child relayed information about sexual contact between her and Bowman,
including more contact than the reported touching. Her statements and the remainder of
the investigation led to Bowman being charged with rape and aggravated criminal
sodomy. At the preliminary hearing on the charges, the district judge watched a video
                                             3
recording of the child's forensic interview at the Child Advocacy Center. The judge found
probable cause to believe the felonies had been committed and that Bowman had
committed them.


       Before trial, the State moved to present the child's testimony through closed circuit
television broadcast under K.S.A. 22-3434 (video testimony of child victim admissible in
specified cases) and asked that a comfort person be allowed to sit with the child while she
testified. See State v. Rochelle, 297 Kan. 32, 33, 298 P.3d 293 (2013) (district judge has
discretion to determine whether a comfort person may accompany a child witness). The
judge granted both requests.


       Fourteen days before Bowman's trial began, the judge held a competency hearing
to determine if the child could testify at trial. By then the child was four years old. See
State v. Radke, 168 Kan. 334, 340-41, 212 P.2d 296 (1949) (district judge may determine
witness' capacity, meaning witness has capacity to understand oath and can "receiv[e] just
impressions of the facts respecting which he is examined"; incompetent witness cannot
testify). At the competency hearing, the child took the witness stand and responded
appropriately to the oath, as modified for a child witness. Although the child initially
showed hesitance that the district judge later labeled as "shyness," she answered
questions that probed her ability to distinguish a true statement from a lie. She was not
asked questions about the facts underlying the criminal charges. At the end of the
hearing, the district judge found the child competent to testify.


       When the trial began, the prosecutor's opening statement laid out the State's
anticipated evidence against Bowman, including the substance of the child's pretrial
statements to the detective in her forensic interview. This anticipated evidence included
descriptions of specific sex acts.


                                              4
       The State then began its case by introducing evidence of how the child's
allegations against Bowman came to light. This included an audiotape of a call to police
and descriptions of out-of-court statements made by the child to her mother and
grandmother. Bowman objected to this evidence, arguing that the district judge should
not allow witnesses to testify about the child's statements until after the child had
testified, that the statements were inadmissible hearsay, and that admitting the evidence
would violate Bowman's constitutional right to confront witnesses against him. The judge
overruled Bowman's objections under K.S.A. 60-460(a) (hearsay exception for "[a]
statement previously made by a person who is present at the hearing and available for
cross-examination with respect to the statement and its subject matter, provided the
statement would be admissible if made by declarant while testifying as a witness").


       The State then called the child as a witness. The judge, jury, and the defendant
watched by closed-circuit television in one courtroom while, in another courtroom, the
State called the child to the stand and the court reporter tried to administer the oath
required of all witnesses. See K.S.A. 22-3434 (establishing closed circuit procedure for
certain child witnesses); K.S.A. 60-418 ("Every witness before testifying shall be
required to express his or her purpose to testify by the oath or affirmation required by
law."). Although the court reporter repeatedly asked the child to raise her hand, the child
did not react. The court reporter then simply asked, "Do you promise to tell the truth
today when you answer questions?" The child did not respond to the initial question or
when the reporter repeated the question four times. At that point, Bowman's counsel
asked for a bench conference.


       The court reporter and counsel returned to the other courtroom where the jury and
Bowman were and, at the bench, Bowman's counsel argued the witness was "being forced
basically to say something that apparently she doesn't care to say. . . . She is not a
competent witness to testify." The judge responded, "What the Court has seen is 30
                                              5
seconds, maybe at most a minute, of counsel getting her up there to try and get her to take
the oath. It is apparent to the Court that she is shy." Bowman's counsel expanded on his
argument that the witness was being coerced and was not a competent witness, and the
State responded. The judge found that the child was "shy in a very intimidating
environment" and said he had not "heard anything that would give the Court [reason] to
believe she is being coerced." The judge stated he would allow the State some leeway in
trying to get the child to respond to the administration of the oath.


       The attorneys and the court reporter returned to the courtroom where the child
witness waited with her comfort person. Again, the reporter twice asked the child to raise
her hand, but the child did not respond. The reporter then twice asked the child whether
she promised to tell the truth. Again, the child did not respond.


       Bowman again objected. Back in the courtroom where Bowman was present but
the jury had been excused, the judge remarked that "the witness is not giving the Court
any indication that she is going to take the oath." The judge then observed that the
witness had to take the oath before she could testify and that the parties had "a hearsay
issue with anything admitted prior." The judge asked the State how it wanted to proceed,
and the State responded that it could not continue with the trial. Bowman's counsel then
argued, "[I]f the State cannot produce the evidence consistent with hearsay and
confrontation rules jeopardy has already attached and this case should be dismissed with
prejudice." The State countered with a request for mistrial rather than dismissal with
prejudice.


       After additional argument, the judge ruled, "The child did not take the oath,
therefore she is not competent to testify and she cannot provide testimony." The judge
found the State would not be able to prove certain of the sex offense counts without the
child's testimony, but the child's testimony was unnecessary to the State's prosecution of
                                              6
intimidation counts. Still, the judge said, the jury had heard "inadmissible hearsay
evidence regarding that child that would bleed over" to the intimidation counts. The
judge therefore granted a mistrial on the entire case. The judge took under advisement
whether any or all counts should be dismissed with prejudice and asked counsel to brief
the issue. The judge then discharged the jury.


       Within a few weeks, the district judge heard additional arguments on Bowman's
motion to dismiss with prejudice on double jeopardy grounds. Defense counsel began his
remarks, arguing that manifest necessity evaluated under strictest scrutiny was needed to
justify a mistrial due to a failure of prosecution evidence. Had Bowman's trial continued,
counsel asserted, either with an incompetent witness or without the child's testimony,
Bowman would have been acquitted on the sex crime charges.


       The judge raised the possibility of proceeding in another trial under K.S.A. 60-
460(dd) if the child remained unavailable. See K.S.A. 60-460(dd) (allowing admission of
child's pretrial statement in some cases, including if "the trial judge finds, after a hearing
on the matter, that the child is disqualified or unavailable as a witness, the statement is
apparently reliable and the child was not induced to make the statement falsely by use of
threats or promises"). Bowman's counsel objected that admission of the child's out-of-
court statements would nevertheless violate Bowman's constitutional right to confront the
witness, and the judge observed that certain of the child's out-of-court statements might
not qualify as testimonial and thus would be admissible. Bowman's counsel also argued
that the State could have chosen to attempt admission of the child's pretrial statements
under K.S.A. 60-460(dd) in the first trial, which would mean "there wouldn't have been
manifest necessity for calling the closure to the proceedings." Counsel observed that the
State had said it was in a "no-win" situation when the child refused to take the oath, but
the "Constitution and this Court [are] not in the business of guaranteeing the State a win."


                                               7
           As the hearing continued, the judge said that Bowman's jury had been polluted by
the prosecutor's opening statement as well as the hearsay evidence admitted, but defense
counsel pointed out that the jury would have been told statements of counsel were not
evidence and must be disregarded. When Bowman's counsel mentioned that the judge
had granted the mistrial on the ground that the child witness was not competent to testify,
the judge said that perhaps "unavailable" was a more accurate description of the child.
The judge asked, apparently rhetorically, "Are we just using two different words to
describe the same thing, a four year old who wouldn't take the oath, isn't that essentially
what happened?"


           This prompted defense counsel to argue that the "fragility" of the child witness had
been foreseeable, given her initial reticence about testifying during the pretrial
competency hearing. He closed his argument by again saying that the prosecution's
reference to the trial as a "no win" demonstrated "a concession that they knew this would
head to acquittal if the trial continued and acquittal would be an absolute bar to [a second
trial]."


           For her part, the prosecutor agreed that the strictest scrutiny should be applied to
determine whether manifest necessity for the mistrial existed and a second trial was
permitted. She characterized caselaw on mistrial and double jeopardy as "nuanced,"
allowing a second trial when there was a failure of critical State evidence unless there
was misconduct or negligence on the part of prosecutors "in failing to recognize the risk
of witness unavailability." She said that the district judge had had no alternative other
than to declare mistrial in Bowman's case and said the child witness was unavailable
because she froze on the witness stand, not that she was incompetent to testify. She
described the jury as irreparably tainted, including on the intimidation counts, and said
the trial could not have been fair to Bowman because of the content of her opening


                                                  8
statement. In her view, the strictest scrutiny test for manifest necessity was met by the
circumstances in Bowman's case.


       Defense counsel's brief response to the prosecutor's argument was limited to
emphasizing that the reason the child did not take the oath and testify was legally
irrelevant and not in evidence. He also said again that the defense had not sought a
mistrial and would have been content to move forward with an admonition to the jury to
disregard the admitted hearsay evidence and the prosecutor's opening statement regarding
the child's out-of-court statements.


       The district judge began his ruling by reviewing the proceedings to date. In doing
so, he described the child's behavior at the competency hearing after her initial hesitation:


       "She was energetic, almost bubbly as far as just bounding in the chair, swiveling, I
       believe playing with the microphone, et cetera. She was very active. She was shy in that
       she was hesitant in the beginning and then ultimately opened up and answered questions
       regarding the difference between truth and a lie and the consequences thereof."


The judge distinguished the child's "normal four-year-old behavior" at the competency
hearing from her demeanor at trial:


       "Her head was down, she was not moving, [and] she was not bouncing back and
       forth. . . . She didn't play with the microphone. She didn't crawl. She simply, as I recall,
       chin was down into her chest and she was looking down and unresponsive. She was
       frozen. I do not know why."


       The judge then noted the State's pretrial motions practice and opening statement
made it clear the State intended to rely on the child appearing and testifying at trial. The
judge next explained that he had failed to turn off the microphone that transmitted sound

                                                     9
between the two courtrooms where Bowman and the jury sat during the bench conference
when the lawyers and he discussed the child's first refusal to take the oath. This failure,
he said, meant the child might have overheard the discussion, including defense counsel's
argument that the court should not allow her testimony. At one point during this
discussion, the child had left the witness stand.


       Finally, the judge commented on the child's conduct after he allowed the court
reporter to try to administer the child witness' oath again:


       "She was again chin down, looking downward focused, not responsive, not making any
       movement. She appeared frozen, not just shy. Much more so than at the prior hearing. To
       the extent that it readily became apparent that this child was not going to testify and that
       that was not a situation similar to the competency hearing [14] days prior where she had
       eventually opened up and was willing to discuss both with [the prosecutor] and with
       [Bowman's counsel] during cross-examination."


       The judge said he had granted the mistrial over the defense's objection "based
upon . . . what I saw as a witness who was not available or competent. I don't recall what
word I used. But it was because she refused to take the child-friendly oath and refused to
respond and I didn't see that changing in the foreseeable future."


       The judge then said that most of the testimony heard by the jury before the child
was called as a witness was "inadmissible evidence without her testimony being present."
The judge rejected the possibility of admitting some of the child's statements under
K.S.A. 60-460(dd), when the process of sorting admissible from inadmissible material
would have needed to take place midtrial. The judge also said that a curative admonition
to the jury to disregard the prosecutor's opening statement would have been ineffective.
The child's forensic interview detailed in the prosecutor's opening statement "was highly


                                                    10
prejudicial in that circumstance as it related to oral sex, details of penetration of a three-
year-old child."


       The judge ultimately concluded that the mistrial was appropriately granted under
two subsections of the mistrial statute—because it was "physically impossible to proceed
with the trial in conformity with law" and because "[p]rejudicial conduct, in . . . the
courtroom, [made] it impossible to proceed with the trial without injustice to either the
defendant or the prosecution." See K.S.A. 22-3423(1)(a), (c). The "[p]rejudicial conduct
in the courtroom" that the judge referred to was his failure to turn off the microphone,
which may have permitted the child to overhear his bench conference with counsel; he
did not cite the admission of inadmissible hearsay as "prejudicial conduct."


       The judge then turned to the constitutional question of whether the standard of
manifest necessity to permit a second trial had been met. The judge commented on his
struggle with whether the mistrial was of an "essentially . . . unforeseen nature" given the
"inherent risk in a four year old testifying even if this Court finds her competent ten
minutes before she gets up on the stand and testifies because it is a four year old." The
judge concluded he could "fairly say the State relied upon [the judge's pretrial
competency ruling] in crafting its case," and he distinguished the circumstances before
him from those in cases in which an adult witness refused to testify: "This is a four-year-
old child who froze." The judge concluded, "I considered alternatives . . . and I still see
no way other than to discharge that jury." He reiterated that the statutory mistrial
provisions of K.S.A. 22-3423(1)(a) and (1)(c) applied and held that manifest necessity
under the strictest scrutiny supported granting the mistrial and allowing the case against
Bowman to be tried a second time.




                                              11
                                         ANALYSIS


       As we turn to our analysis of Bowman's request for a determination that the State
not be allowed to twice place him in jeopardy on the criminal charges, we first consider
whether we have jurisdiction. Bowman pursues relief under Kansas' habeas corpus
statute, K.S.A. 2018 Supp. 60-1501. That statute allows an individual "who is detained,
confined or restrained of liberty on any pretense whatsoever, . . . physically present in
this state [to] prosecute a writ of habeas corpus in the supreme court, court of appeals or
the district court of the county in which such restraint is taking place." K.S.A. 2018 Supp.
60-1501(a).


       We have recognized that a writ of habeas corpus is "a proper remedy for
challenging a trial court's pretrial denial of a claim of double jeopardy [because a]
defendant would otherwise have no appellate forum in this state in which to assert a valid
double jeopardy claim before being subjected to such jeopardy." In re Habeas Corpus
Petition of Mason, 245 Kan. 111, 112-13, 775 P.2d 179 (1989). We therefore conclude
we have jurisdiction over this proceeding under K.S.A. 2018 Supp. 60-1501.


       Bowman has the burden of establishing his right to relief under this statute. See
Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505 (1999).


       Bowman relies on three sources of law to support his contention that a second trial
would violate double jeopardy protections: the United States Constitution, the Kansas
Constitution Bill of Rights, and Kansas statutes. But we need not decide today whether a
second trial would violate the federal or state constitutions if we can resolve Bowman's
case based on statutory interpretation. See State v. Wetrich, 307 Kan. 552, 558-59, 412
P.3d 984 (2018). "Appellate courts generally avoid making unnecessary constitutional
decisions." Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 (2003); see State ex rel.
                                             12
Schmidt v. City of Wichita, 303 Kan. 650, 658, 367 P.3d 282 (2016) ("Here, by first
deciding the issue of compliance with statutory procedures, we eliminate the need to
determine whether the proposed ordinance is constitutional.").


       Bowman cited both the Kansas mistrial statute and the Kansas double jeopardy
statute in his brief to this court. The State's brief relied exclusively on the mistrial statute
to justify a second trial for Bowman, adhering to caselaw suggesting that the statutory
bases for mistrial also serve as exceptions to a double jeopardy bar of a second
prosecution. See State v. Johnson, 261 Kan. 496, 499, 932 P.2d 380 (1997) (mistrial,
double jeopardy statutes provide complementary bases for second trial).


       Like the constitutional arguments advanced by the parties, the question of the
soundness of any such precedent need not be reached today if our interpretation of the
plain language of the mistrial statute leads us to conclude that the district judge erred in
declaring the mistrial. Even under the State's view of the governing law, an improperly
declared mistrial does not permit a second trial that would conflict with the plain
language of the double jeopardy statute.


Mistrial Statute


       We begin our statutory interpretation with its most fundamental rule: Legislative
intent governs. And the best avenue for discerning that intent is to read the language of
the statute, giving common words their ordinary meaning. If the statute contains plain
and unambiguous language, we do not look to extrinsic aids for guidance on legislative
intent because the statutory language is "'the best and only safe rule for determining the
intent of the creators of written law' . . . . [Citation omitted.]" State v. Spencer Gifts, 304
Kan. 755, 761, 374 P.3d 680 (2016). If, however, the statute's text is unclear or
ambiguous, we turn to tools of statutory construction such as canons of construction and
                                               13
legislative history to determine the Legislature's intent. Ambrosier v. Brownback, 304
Kan. 907, 911, 375 P.3d 1007 (2016).


       We review a district judge's decision to grant a mistrial for abuse of discretion.
State v. Barlett, 308 Kan. 78, 88, 418 P.3d 1253 (2018). Judicial discretion may be
abused in three ways: by exercising discretion based on an error of law, an error of fact,
or in an otherwise arbitrary, fanciful, or unreasonable manner. State v. Gonzalez-
Sandoval, 309 Kan. 113, 126-27, 431 P.3d 850 (2018).


       Kansas' mistrial statute reads:


               "(1) The trial court may terminate the trial and order a mistrial at any time that
       [it] finds termination is necessary because:


               (a) It is physically impossible to proceed with the trial in conformity with law; or


               (b) There is a legal defect in the proceedings which would make any judgment
       entered upon a verdict reversible as a matter of law and the defendant requests or
       consents to the declaration of a mistrial; or


               (c) Prejudicial conduct, in or outside the courtroom, makes it impossible to
       proceed with the trial without injustice to either the defendant or the prosecution.


               ....


               "(2) When a mistrial is ordered, the court shall direct that the case be retained on
       the docket for trial or such other proceedings as may be proper and that the defendant be
       held in custody pending such further proceedings, unless he is released pursuant to the
       terms of an appearance bond." K.S.A. 22-3423.




                                                       14
       Again, the district judge relied on subsections (1)(a) and (1)(c) in granting the
State's motion for mistrial in this case.


       As to subsection (1)(a), the State agreed with defense counsel at oral argument
before this court that the child's refusal to take the oath and testify did not make it
"physically impossible" to continue Bowman's trial. This was a sensible, and wise,
concession. Giving the common words in the phrase "physically impossible" their
ordinary meaning, failure of even a critical portion of the State's proof because of a
recalcitrant witness of any age and for any reason does not make trial a physical
impossibility. See Webster's New World College Dictionary 1101 (5th ed. 2014)
("physical" defined as "1 of nature and all matter; natural; material . . . 5 a) of the body as
opposed to the mind"); Webster's New World College Dictionary 731 (5th ed. 2014)
("impossible" defined as "not capable of being, being done, or happening"). The child's
refusal to take the oath certainly made it more difficult for the State to obtain a conviction
on the rape and sodomy counts in the same way it is harder for any lawyer to obtain a
desired result when evidence heralded in earlier testimony or the lawyer's own opening
statement fails to materialize.


       In addition, the circumstances of Bowman's case also did not meet the subsection
(1)(a) requirement that any continuation of the trial would not be in conformity with the
law. Although the judge was correct that the child's inability to testify meant that at least
some of the testimony he had admitted earlier over defense counsel's objection could not
be considered by the jury on any count, jurors could have been instructed to disregard it.
See State v. Logsdon, 304 Kan. 3, 39, 371 P.3d 836 (2016) (any prejudice from hearsay
statements admitted before declarant refused to testify removed by curative instruction to
jury to disregard hearsay testimony). And jurors, as defense counsel observed, are
routinely instructed that the statements of counsel, such as those in the prosecutor's
opening, are not evidence in and of themselves. See PIK Crim. 4th 50.070 (statements,
                                              15
arguments, remarks of counsel not evidence). This means that it was within the judge's
power to neutralize the ill effects to either party from the collapse of the prosecutor's trial
strategy; it is commonplace for us, as appellate judges, to assume jurors follow such
instructions, including those designed to cure problems that arise during trial. Logsdon,
304 Kan. at 39 (jury presumed to follow court's curative instruction); State v. Williams,
299 Kan. 509, 548, 324 P.3d 1078 (2014).


        We conclude that the plain language of subsection (1)(a) of the mistrial statute
could not support the mistrial declared in this case. The district judge abused his
discretion in ruling otherwise because he based that ruling on an erroneous interpretation
of the law.


        On subsection (1)(c), we again start with plain language. That language permitted
a mistrial only in the event that "[p]rejudicial conduct, in or outside the courtroom,
[made] it impossible to proceed with the trial without injustice to either the defendant or
the prosecution." In the State's brief and later, at oral argument, the prosecutor agreed
with our reading of the record: The district judge regarded his neglect to turn off the
microphone enabling audio transmission from courtroom to courtroom as the
"[p]rejudicial conduct in . . . the courtroom" that justified the mistrial declaration under
subsection (1)(c).


        The first problem with this argument is that the district judge's expressed concern,
on the record before us, qualifies as mere conjecture. No sworn testimony or other
evidence exists to demonstrate that the child heard or understood any of what was said
during the bench conference or that whatever she heard or understood caused her to leave
the witness stand or rebuff the court reporter's second series of efforts to administer the
oath.


                                              16
       The second problem is that, even if we assume that the child accidentally
overheard the bench conference and did understand counsel's arguments to be prompted
by her behavior and, as a result, refused again to take the oath, the State faces the same
difficulty in relying on subsection (1)(c) that it faced in relying on subsection (1)(a). It
simply was not "impossible," as that common word is ordinarily understood, to proceed
with the trial "without injustice to either the defendant or the prosecution."


       Continuing the trial would not have led to injustice to Bowman. We must
remember that Bowman opposed the mistrial; he wanted to continue and take his chances
on the proof the State was ultimately able to muster. Rather than starting over with a new
jury, Bowman wanted the judge to attempt to cure any prejudice arising from the earlier
admission of hearsay testimony and the prosecutor's opening statement. Had the judge
made reasonable efforts along those lines, and Bowman been convicted, the defense
could not have complained successfully on appeal that the hearsay or opening statement
were so harmful that Bowman deserved a reversal. Bowman and his counsel would have
invited any error in failing to grant a mistrial. They would be stuck with the consequences
of the risk they embraced.


       Likewise, the State embraced risk in this case when the prosecutor chose to build
her sex crime case around live trial testimony from a very young witness who might or
might not be able to follow through on her pretrial promise. The consequences were
harsh but not unforeseeable. Regardless of whether the child witness in this case was
found to be competent to testify approximately two weeks before the trial, as the district
judge acknowledged, a four year old is unpredictable. Common sense dictated that the
prosecutor exercise caution.


       Indeed, precedent from this court has warned about exactly what ultimately
happened in Bowman's trial—a hearsay declarant's failure to back up earlier witnesses
                                              17
who have already discussed the declarant's out-of-court statements. This is why we have
suggested that the better practice is for counsel to order witness testimony so that the
hearsay declarant takes the stand first. See State v. Davis, 236 Kan. 538, 541, 694 P.2d
418 (1985) ("While it may be better practice . . . to call the declarants prior to the
admission of their out-of-court statements by other witnesses, the failure to do so when
the declarants are available and actually testify does not violate the confrontation
clause."). For whatever reason, despite a contrary example in a child sex crime
prosecution with a child victim from her own county, see State v. Miller, 293 Kan. 535,
540, 264 P.3d 461 (2011), the prosecutor in this case decided to do the opposite.
Accepting that she did so in "utmost good faith," as she asserted at oral argument, we still
cannot excuse her from the consequences of the risk she took or from the district judge's
doubling down on that risk when he overruled defense objections to the hearsay
testimony. The prosecutor's choice and the district judge's ruling on the defense
objections were at the root of the predicament in which all parties found themselves when
the child would not take the oath. "Injustice" to the prosecution does not arise when a
result follows from the risky but voluntary trial strategy choices of its counsel.


       The plain language of subsection (1)(c) of the mistrial statute could not support the
mistrial declared in this case. Again, the district judge abused his discretion in ruling
otherwise because he based that ruling on an erroneous interpretation of the law.


Double Jeopardy Statute


       In its brief, as stated above, the State argued only the applicability of the mistrial
statute, without addressing the applicability of the double jeopardy statute. The district
judge also relied only upon the mistrial statute. At oral argument, the prosecutor realized,
as this court has, that we must also contend with the effects of the double jeopardy statute
cited in Bowman's brief.
                                              18
       That statute, K.S.A. 2018 Supp. 21-5110, prohibits a second trial if a defendant
has been "formerly prosecuted for the same crime, based upon the same facts," and a
specific set of circumstances enumerated in the statute exists. Bowman argues that the set
of circumstances set out in subsection (a)(3) of the statute fits his case. It applies if the
former prosecution


               "(3) was terminated without the consent of the defendant after the defendant had
       been placed in jeopardy, except where such termination shall have occurred by reason of:


               (A) The illness or death of an indispensable party;


               (B) the inability of the jury to agree; or


               (C) the impossibility of the jury arriving at a verdict." K.S.A. 2018 Supp. 21-
       5110(a).


       The State acknowledges, as it must, that Bowman opposed the mistrial and
immediately and continuously sought a dismissal with prejudice. It is equally clear that
jeopardy attached in the first proceeding under K.S.A. 2018 Supp. 21-5110(f), which
reads: "A defendant is in jeopardy when such defendant is put on trial in a court of
competent jurisdiction upon an indictment, information or complaint sufficient in form
and substance to sustain a conviction, and in the case of trial by jury, when the jury has
been impaneled and sworn." See Mason, 245 Kan. at 114; see also Martinez v. Illinois,
572 U.S. 833, 839-40, 134 S. Ct. 2070, 188 L. Ed. 2d 1112 (2014).


       The State's only argument under the double jeopardy statute is that application of
the third exception to the double jeopardy bar to a second trial laid out in K.S.A. 2018
Supp. 21-5110(a)(3)(C) is coextensive with application of K.S.A. 22-3423(1)(a) and

                                                     19
(1)(c) of the mistrial statute. In short, the State believes that the district judge correctly
applied the two subsections of the mistrial statute; thus the district judge must have
correctly applied K.S.A. 2018 Supp. 21-5110(a)(3)(C) of the double jeopardy statute as
well. The State relies on the appearance of the word "impossible" in all three provisions.


       The first and most obvious reason that this argument is unavailing is that, as
established above, the plain language of the two subsections of the mistrial statute on
which the State attempts to rely is inapplicable in this case. The mistrial declared here
was improper.


       The second reason the State cannot rely successfully on (a)(3)(C) is that its plain
language requires that it be impossible for the jury to arrive at a verdict. Giving the
common words "impossible" and "verdict" their ordinary meaning, the child's refusal to
take the oath did not inevitably and irrevocably prevent the jury from deciding the
question of his guilt. "[A] verdict" is not synonymous with "a conviction"; an acquittal
also qualifies as a verdict. See Black's Law Dictionary 28 (10th ed. 2014) ("acquittal" is
"legal certification, usu. by jury verdict, that an accused person is not guilty of the
charged offense"). The State's argument essentially ignores this reality.


                                         CONCLUSION

       The plain language of K.S.A. 22-3423 does not permit a mistrial to be declared
over a defendant's objection when the prosecutor chooses to open the State's case with
hearsay evidence; a proper defense objection to that evidence is overruled; and
anticipated testimony from a child hearsay declarant fails to materialize because the child
refuses to take the oath when called to the witness stand.




                                               20
       The plain language of the Kansas double jeopardy statute, K.S.A. 2018 Supp. 21-
5110(a)(3), bars a second trial when (1) the State formerly prosecuted a defendant for the
same crime, based on the same facts; (2) the previous prosecution was terminated without
the consent of the defendant after having been placed in jeopardy; and (3) no exception
listed in the statute applies. An improperly declared mistrial under K.S.A. 22-3423 is not
one of the exceptions in the double jeopardy statute; thus it does not permit a second trial.


       In this case, Bowman has successfully established that the district judge
improperly declared a mistrial and that no exception to the statutory bar to a second trial
applies. We therefore grant the petition for writ of habeas corpus. Bowman's criminal
case is dismissed, and Bowman must be released from any confinement arising out of it.


                                             ***


       LUCKERT, J., dissenting: I disagree with the majority's conclusion that the trial
judge presiding over Rictor Bowman's first prosecution abused his discretion when he
declared a mistrial. The judge terminated the proceedings on all counts because
comments made by the prosecutor during opening statements caused a level of prejudice
that made a fair and impartial verdict impossible. The trial judge, in the exercise of his
discretion, assessed the circumstances, evaluated the prejudice, considered alternatives to
a mistrial, and made the considered judgment that the parties would not have a full and
fair opportunity to present their evidence to an impartial jury. In doing so, the trial judge
made no error of law or fact, and his assessment was not arbitrary, fanciful, or
unreasonable. In other words, he did not abuse his discretion. The majority, in reaching
the holding that the trial judge erred, focuses on the unavailability of the child witness.
While the child's unavailability set off a chain of circumstances that made the
prosecutor's statement prejudicial, the trial judge did not declare the mistrial because the


                                              21
child failed to take the witness' oath. The majority has thus shifted the focus from the trial
judge's ruling, and this shift skews its analysis.


       I also disagree with the majority's conclusion that a second prosecution is barred
by K.S.A. 2018 Supp. 21-5110, which protects against being placed in double jeopardy.
The statute provides exceptions, and the trial judge's determination that the jury could not
reach a fair and impartial verdict meets the exception in K.S.A. 2018 Supp. 21-
5110(a)(3)(C). Thus, the statute does not bar a second prosecution.


       Finally, because I reach those conclusions, I must consider an issue the majority
did not have to address: Would a second prosecution violate the double jeopardy
protections in either the United States or the Kansas Constitutions? Because the mistrial
was a manifest necessity, I conclude neither constitution prohibits a second trial. I would
thus deny Bowman's request for a writ of habeas corpus.


1.     The trial judge did not abuse his discretion in granting a mistrial.


       After the child had been called to the witness stand but did not take the witness'
oath, the judge made a series of findings. As relevant to the reasons for the mistrial,
during remarks at trial and the later hearing, the trial judge found:


            The child was "shy in a very intimidating environment," Bowman's
              objection to the witness competence (made after long argument) was
              overruled, and the court reporter was allowed to continue to ask the child to
              take the oath;
            The microphone had been inadvertently left on during those arguments
              about the child's competency;


                                              22
           It was apparent after additional attempts to administer the oath that the
              witness was "frozen" and "not giving the Court any indication that she
              [was] going to take the oath";
           The witness was "not competent to testify and she cannot provide
              testimony" because she failed to take the oath;
           The child's testimony was unnecessary to the State's prosecution of some
              counts;
           The prosecutor's opening statement had included details about Bowman's
              alleged conduct as revealed by the child during a forensic interview that
              would not be admissible without the child's testimony;
           The State's opening statement "was highly prejudicial in that circumstance
              as it related to oral sex, details of penetration of a three-year-old child and
              the Court does not view a curative instruction as being effective in that
              circumstance" because the prejudice would "bleed over" to all counts.


      The trial judge then ruled a mistrial was necessary under K.S.A. 22-3423(1)(a) and
(c), which provide:


              "(1) The trial court may terminate the trial and order a mistrial at any time that he
      finds termination is necessary because:


              (a) It is physically impossible to proceed with the trial in conformity with law; or


              ....


              (c) Prejudicial conduct, in or outside the courtroom, makes it impossible to
      proceed with the trial without injustice to either the defendant or the prosecution."




                                                   23
       I agree with the majority that the facts here do not present circumstances that made
it physically impossible to proceed with a trial. But I disagree with the holding that
subsection (c) does not apply.


       To determine if a mistrial provision applies, a trial judge follows a two-step
analysis. First, the trial judge must determine if there was a fundamental failure in the
proceeding. Second, the judge must consider whether the failure will necessarily result in
an injustice or whether the judge can cure or mitigate it through a jury admonition or by
another method. The trial judge has wide discretion at each step. Judicial discretion is
abused if judicial action (1) is based on an error of law, (2) is based on an error of fact, or
(3) is arbitrary, fanciful, or unreasonable. See State v. Ward, 292 Kan. 541, 550-51, 256
P.3d 801 (2011).


       As to the first step, a failure occurred in Bowman's trial. The prosecutor told the
jury about information that ultimately did not come into evidence. This failure is not
uncommon. On occasion, evidence at trial will not match an attorney's representations
during opening statements about what he or she expects to prove. Judges thus routinely
instruct jurors that "[s]tatements, arguments, and remarks of counsel . . . are not evidence.
If any statements are made that are not supported by evidence, they should be
disregarded." PIK Crim. 4th 50.070. At times, however, the discrepancy is so prejudicial
the error becomes a fundamental failure that necessarily must lead to a mistrial. Such a
circumstance arose in Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d
717 (1978), one of the leading decisions of the United States Supreme Court discussing
the implications of a mistrial on a defendant's constitutional protection against double
jeopardy.


       In Washington, the trial judge granted a mistrial in a second prosecution after
defense counsel, during his opening statement, informed the jury the first trial ended in a
                                              24
mistrial because the prosecutor had withheld potentially exculpatory information. The
prosecutor moved for a mistrial, but the judge denied the motion, pointing out he had not
yet ruled on whether he would admit into evidence the reasons for the first mistrial. The
prosecutor renewed the motion the following morning. This time the trial judge ruled on
the evidentiary question and granted the mistrial motion. The United States Supreme
Court accepted the state court trial and appellate court determinations that defense
counsel had erred. The Supreme Court then held the mistrial was a manifest necessity.
434 U.S. at 511-13.


       Many cases from this court likewise establish that error—a fundamental failure—
may occur when an attorney tells the jury about facts that are not and will not be admitted
into evidence. And this error can arise from statements made at any point from voir dire
to closing argument. See, e.g., State v. Simmons, 292 Kan. 406, 412-15, 254 P.3d 97
(2011) (discussing rules of ethics prohibiting attorneys from telling jury about evidence
that is not or will not be in evidence and cases finding that doing so is error).


       Here, in determining if a fundamental failure occurred because of the prejudicial
nature of the child's allegations of rape and oral sex that would not be supported by
evidence, the trial judge made no error of law or fact. And reasonable people could agree
with this determination. In sum, the trial judge did not abuse his discretion by finding a
fundamental failure had occurred.


       At the second step of a mistrial analysis, the trial judge must assess whether the
failure in the proceeding will necessarily result in an injustice or whether the judge can
cure or mitigate it through a jury admonition or another method. As noted above, trial
judges routinely instruct juries to disregard statements of counsel that are unsupported by
evidence. And, as the majority points out, this court generally presumes a jury will follow
an admonition or instruction. But we have qualified that rule. In State v. Angelo, 287 Kan.
                                              25
262, 285, 197 P.3d 337 (2008), for example, we stated: "[W]here the trial court sustains
an objection and admonishes the jury to disregard the objectionable testimony, reversal is
not required unless the remarks are so prejudicial as to be incurable." (Emphasis added.)
This court has even instructed that "[w]hen an event of prejudicial misconduct, the
damaging effect of which cannot be removed by admonition and instruction, is presented
to the jury, the trial judge must declare a mistrial." (Emphasis added.) State v. Lewis, 238
Kan. 94, 97, 708 P.2d 196 (1985). The Lewis case presented just such a situation.
"Neither admonition nor instruction by the trial judge could insure that the defendants
would receive a fair trial." 238 Kan. at 99.


       The United States Supreme Court reached a similar conclusion in Washington. It
held the trial judge's determination that such an instruction would not cure the prejudice
should not be second guessed. The Supreme Court stated:


               "We recognize that the extent of the possible bias cannot be measured, and that
       the District Court was quite correct in believing that some trial judges might have
       proceeded with the trial after giving the jury appropriate cautionary instructions. In a
       strict, literal sense, the mistrial was not 'necessary.' Nevertheless, the overriding interest
       in the evenhanded administration of justice requires that we accord the highest degree of
       respect to the trial judge's evaluation of the likelihood that the impartiality of one or more
       jurors may have been affected by the improper comment." Washington, 434 U.S. at 511.


This court likewise grants broad discretion to a trial judge making the assessment of
prejudice. See Ward, 292 Kan. at 550. The situation in Bowman's trial was one where the
trial judge was in the best situation to assess the impact on the jury.


       The majority applies a different rule because, in part, continuing with the trial was
not an absolute impossibility. See K.S.A. 22-3423(1)(c) (allowing a mistrial if
"[p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with

                                                     26
the trial without injustice to either the defendant or the prosecution."). But impossibility
in this context does not mean absolute impossibility. Webster's New World College
Dictionary 731 (5th ed. 2014) defines "impossibility" as "the fact or quality of being
impossible." In turn, it defines "impossible" as one of three alternatives: "not capable of
being, being done, or happening"; "not capable of being done easily or conveniently";
"not capable of being endured, used, agreed to, etc. because disagreeable or unsuitable."
These definitions suggest "impossibility" does not mean something absolutely cannot be
done. Instead, impossible can mean something cannot be done easily or conveniently or
cannot happen in a suitable manner.


       Caselaw and commentary document that the Legislature intended courts to use a
test of suitability—phrased in terms of suitable for achieving a fair and impartial
verdict—when applying K.S.A. 22-3423(1)(c). This court's statements in Angelo and
Lewis suggest as much. Also, around the time the Kansas Legislature enacted K.S.A. 22-
3423 and the mistrial statute—both of which refer to the "impossibility" of a verdict—
Washburn University School of Law Professor Raymond Spring wrote that the
Legislature intended to codify caselaw. Spring, The Effect of Former Prosecutions:
Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 Washburn L.J.
179, 180 (1970). As to the use of the word "impossibility," he explained:


       "The impossibility of the jury arriving at a verdict would seem to encompass the various
       circumstances which could occur during trial which would render it physically
       impossible to continue with the trial (such as the destruction of the courthouse by a
       tornado in the midst of the trial) or legally impossible for the jury to render a viable
       verdict (such as belated discovery that a juror is disqualified)." 9 Washburn L.J. at 189.


Spring cited State v. Hansford, 76 Kan. 678, 92 P. 551 (1907), overruled on other
grounds as stated in State v. Foster, 290 Kan. 696, 718, 233 P.3d 265 (2010), as support


                                                     27
for the interpretation that an impossibility of the jury arriving at a verdict includes legal
impossibilities.


       In Hansford, a juror asked the judge to excuse him after the judge had sworn the
jury and heard some testimony. The juror felt he could not be impartial because his
family had experienced a crime much like the one at issue in the trial. The Hansford court
held a mistrial was a necessity because a fair and impartial verdict was an impossibility:


       "When a juror, as in this case, confesses to an incurable prejudice which disqualifies him
       from exercising the functions of a juror or acting impartially as between the parties a
       continuance of the trial would be a farce, as the object of a trial—a fair and impartial
       verdict—becomes an impossibility. After learning of this situation by a judicial inquiry
       nothing was left for the court except to discharge that jury and impanel another." 76 Kan.
       at 682-83.


       Likewise, in State v. Gray, 189 Kan. 398, 369 P.2d 330 (1962), a juror advised the
trial judge he felt he could not render a fair and impartial verdict. The Gray court quoted
Hansford and recognized the authority of trial courts to declare a mistrial and order a
second trial without violating the double jeopardy doctrine:


       "'"[C]ourts of justice are invested with the authority to 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,
       and to order a trial by another jury; and a defendant is not thereby twice put in jeopardy."'
       [Citation omitted.]" 189 Kan. at 400.


       The Gray court explained a trial judge can exercise discretion to declare a mistrial
when "there is a real, absolute, and unequivocal necessity for discharge of a jury in order
that the ends of justice will not be defeated." 189 Kan. at 401. The Gray court found no
abuse of discretion when the trial court found a mistrial necessary because neither the
                                                    28
defendant nor the State could receive a fair trial. 189 Kan. at 401. A similar analysis was
applied in State v. Howard, 221 Kan. 51, 55-57, 557 P.2d 1280 (1976). And, as
previously noted, in the more recent case of Lewis, this court directed trial judges to
declare a mistrial when an admonition would not cure prejudice caused by a trial error.
See 238 Kan. at 97.


       Thus, Kansas' caselaw agrees with Washington. To paraphrase, the word
"impossible" is not to be read in the strict, literal sense. Instead, courts apply it in the
legal sense of whether it is possible to achieve a fair and impartial verdict. And appellate
courts "accord the highest degree of respect to the trial judge's evaluation of the
likelihood that the impartiality of one or more jurors may have been affected by the
improper comment." Washington, 434 U.S. at 511.


       The majority refused to give deference to the trial judge's assessment, however,
because Bowman had objected to the mistrial. In essence, the majority concludes the
defendant's objection suspends a trial judge's duty to assure a defendant receives a fair
trial. In my view, the objection does not determine whether a mistrial is necessary,
although it is important in the analysis of which provisions in the Kansas double jeopardy
statute apply. See K.S.A. 2018 Supp. 21-5110.


       The reason the objection is not determinative rests in the public's interest in a fair
trial. As the United States Supreme Court held in Washington, a defendant's "valued right
to have the trial concluded by a particular tribunal is sometimes subordinate to the public
interest in affording the prosecutor one full and fair opportunity to present his evidence to
an impartial jury." Washington, 434 U.S. at 505. The Court elaborated on this conclusion:


               "An improper opening statement unquestionably tends to frustrate the public
       interest in having a just judgment reached by an impartial tribunal. Indeed, such

                                                   29
       statements create a risk, often not present in the individual juror bias situation, that the
       entire panel may be tainted. The trial judge, of course, may instruct the jury to disregard
       the improper comment. In extreme cases, he may discipline counsel, or even remove him
       from the trial as he did in United States v. Dinitz, 424 U.S. 600[, 96 S. Ct. 1075, 47 L. Ed.
       2d 267 (1976)]. Those actions, however, will not necessarily remove the risk of bias that
       may be created by improper argument. Unless unscrupulous defense counsel are to be
       allowed an unfair advantage, the trial judge must have the power to declare a mistrial in
       appropriate cases." Washington, 434 U.S. at 512-13.


       Here, there is no suggestion defense counsel acted unscrupulously. The roles were
flipped from Washington, and here it was the prosecutor who made the prejudicial
argument. In objecting, Bowman's counsel was seeking to protect Bowman's rights. But
neither did the prosecutor act unscrupulously when she disclosed information that would
not be admitted at trial—the same action as committed by defense counsel in
Washington. The trial judge made extensive findings and concluded the prosecutor had
acted in good faith. The motivation and the actor do not matter, however. Ultimately, the
rights of the defendant do not trump the public interest in a fair trial.


       Still, the majority concludes the public interest was essentially forfeited because
the prosecutor took a risk in proceeding as if the child would testify. Yet the prosecutor
acted in a manner consistent with Kansas law. K.S.A. 60-460(a) provides: "A statement
previously made by a person who is present at the hearing and available for cross-
examination with respect to the statement and its subject matter, provided the statement
would be admissible if made by declarant while testifying as a witness." In addition, this
court has not required litigants to call the declarant before introducing hearsay about the
declarant's out-of-court statements. See State v. Davis, 236 Kan. 538, 541, 694 P.2d 418
(1985). We should not now hold the prosecutor to a different rule.




                                                     30
       The witness also had repeatedly revealed a willingness to testify. Shortly before
trial, she testified in the courtroom during the competency hearing. While at first shy, she
answered questions. The judge had also watched the video of the child's forensic
interview. There, she had again seemed shy, but she had provided detailed information.
The judge discussed these points at considerable length, describing the child's demeanor
in the various situations. The trial judge also concluded the prosecutor had acted
reasonably and in good faith. Indeed, the prosecutor took steps to prevent the situation
that unfolded by using the closed circuit procedure and allowing a comfort person to sit
with the child while she testified.


       The State, in assessing the risk, knew how the child had reacted to being
interviewed and to being on the witness stand. And the State knew the steps taken to
create an environment that would make the child more comfortable. This knowledge
reasonably led the State to present its case based on the child testifying. But the
inadvertent failure to turn off the microphone nullified all these steps. The risk
assessment changed significantly. We should not play Monday morning quarterback by
second-guessing that assessment.


       That said, the majority makes a valid point that we do not know the full extent of
the prejudice caused by leaving the microphone on because we cannot know how or if the
arguments affected the child. Indeed, there is no direct evidence the child heard the
exchange or was influenced by it. But direct evidence is unnecessary because plenty of
circumstantial evidence exists. See State v. Lowery, 308 Kan. 1183, Syl. ¶ 13, 427 P.3d
865 (2018) (holding "there is no distinction between direct and circumstantial evidence in
terms of probative value"). And the circumstantial evidence gave the trial judge the
ability to make the assessment that we cannot make on a cold record.




                                             31
       The trial judge could observe the child during the arguments. Near the end of the
exchange between the attorneys and the judge, the prosecutor commented, "We have a
witness on the loose." And defense counsel stated, "[S]he's left the witness stand." Later,
the trial judge also detailed his observations of the child's demeanor. Before the
arguments, he observed a child he described as "shy." After the arguments, he described
the child as "frozen." Significantly, at the pretrial hearing on the State's motion to use the
closed circuit procedure allowed by K.S.A. 22-3434, he cited to the testimony of the
child's therapist and concluded there was a substantial risk she would "essentially shut
down" or "not open up" if she felt threatened. Circumstantial evidence exists to support
the conclusion that is what happened when Bowman's counsel argued she should not be
allowed to testify.


       Granted, the trial judge's findings about the effect of the open microphone on the
child are somewhat vague. Even so, they sufficiently convey the change in the child's
demeanor and the judge's finding that prejudicial conduct occurred in the courtroom
when he inadvertently failed to turn off the microphone. In my view, the trial judge's
findings and the evidence supporting those findings are sufficient. And the trial judge is
in the best position to evaluate the incident, to recognize the chain of circumstances it
triggered that led to the fundamental failure in the proceedings, and to assess the extent of
prejudice that fundamental failure caused.


       Ultimately, the focus must be on the trial judge's assessment that the prosecutor's
statements prejudiced the jury to the point no admonition would provide a cure. I give
full weight to that assessment. As the United States Supreme Court explained in
Washington:


               "There are compelling institutional considerations militating in favor of appellate
       deference to the trial judge's evaluation of the significance of possible juror bias. He has

                                                    32
       seen and heard the jurors during their voir dire examination. He is the judge most familiar
       with the evidence and the background of the case on trial. He has listened to the tone of
       the argument as it was delivered and has observed the apparent reaction of the jurors. In
       short, he is far more 'conversant with the factors relevant to the determination' than any
       reviewing court can possibly be." Washington, 434 U.S. 513-14.


       I thus conclude the judge did not abuse his discretion in granting the mistrial under
K.S.A. 22-3423(1)(c).


2.   K.S.A. 2018 Supp. 21-5110 does not bar a retrial.

       I also disagree with the majority's holding that K.S.A. 2018 Supp. 21-5110
protects Bowman from a second prosecution. Subsection (a)(3) governs whether a second
prosecution is statutorily permissible. It applies if the former prosecution


               "(3) was terminated without the consent of the defendant after the defendant had
       been placed in jeopardy, except where such termination shall have occurred by reason of:


               (A) The illness or death of an indispensable party;


               (B) the inability of the jury to agree; or


               (C) the impossibility of the jury arriving at a verdict." K.S.A. 2018 Supp. 21-
       5110(a).


       The majority holds this provision does not apply because it was possible for
Bowman's first jury to have found him either guilty or to have acquitted him. Certainly,
this is a reality. But more is at stake than the ability to reach a verdict. If it were not,
K.S.A. 22-3423(1)(c), which allows a mistrial when "[p]rejudicial conduct . . . makes it
impossible to proceed with the trial without injustice," would be meaningless as a

                                                     33
practical matter. Such an interpretation is contrary to our rules of statutory interpretation.
See Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 570, 232 P.3d 856 (2010) ("We
presume that the legislature does not intend to enact meaningless legislation."). As I have
discussed, I read our caselaw to make clear that judges applying the concept of
"impossibility," as expressed in the mistrial statute and K.S.A. 2018 Supp. 21-
5110(a)(3)(C), must consider whether the jury could reach a fair and impartial verdict.


       Nothing in the language of K.S.A. 2018 Supp. 21-5110 mandates a different
conclusion. The Legislature first adopted an exception for the most obvious situation in
which a verdict is impossible: where the jury cannot agree on the verdict. See K.S.A.
2018 Supp. 21-5110(a)(3)(B). So we know that the impossibility referred to in (a)(3)(C)
must mean something other than this. See Powell, 290 Kan. at 570. But what exactly the
Legislature meant is difficult to discern. The legislative record provides little insight
because the wording of the statute was introduced as an amendment in committee and the
record does not explain why. Minutes, Senate Judiciary Committee, February 10, 1969.


       Still, I find some guidance in the contemporaneous record of Professor Spring's
article. As I have noted before, he reported that the Legislature intended for the new
statute to codify caselaw. See Spring, 9 Washburn L.J. at 180. That caselaw suggests that
the Legislature intended to convey the impossibility of reaching a fair and impartial
verdict, not the absolute impossibility standard the majority imposes. See Howard, 221
Kan. at 55-57; Gray, 189 Kan. at 399-401; Hansford, 76 Kan. at 682-83.


       Consistent with the Kansas Legislature's intent and the caselaw of this and other
courts, this court in State v. Johnson, 261 Kan. 496, 499, 506, 932 P.2d 380 (1997), held
the mistrial and double jeopardy statutes complement each other: "K.S.A. 22-3423 also
lists exceptions to double jeopardy protection." The Johnson court recognized the judge's
duty to conduct a fair trial may create a manifest necessity of a mistrial and, under those
                                              34
circumstances, a later prosecution would not violate Kansas' double jeopardy statute. 261
Kan. at 500; see K.S.A. 22-3423(1)(c) (allowing mistrial when "[p]rejudicial conduct, in
or outside the courtroom, makes it impossible to proceed with the trial without injustice
to either the defendant or the prosecution").


       Under Johnson and the other cases, because the trial judge appropriately
determined the jury could not reach a fair and impartial verdict and a mistrial was
appropriate, K.S.A. 2018 Supp. 21-5110 does not act as a bar to a second prosecution of
Bowman.


3. Constitutional double jeopardy protections do not prevent a retrial.


       The remaining question is the one primarily argued by Bowman: Even if the
mistrial was appropriate and a second prosecution was not statutorily barred, do the
United States and Kansas Constitution Bill of Rights allow a second trial? I conclude they
do.


       The Double Jeopardy Clause in the Fifth Amendment to the United States
Constitution provides: "No person shall . . . be subject for the same offence to be twice
put in jeopardy of life or limb." The Fourteenth Amendment to the United States
Constitution makes this prohibition applicable to the states. Benton v. Maryland, 395 U.S.
784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The Kansas Constitution Bill of Rights
§ 10 also provides: "No person shall . . . be twice put in jeopardy for the same offense."
We have recognized this right to be coextensive with the protections of the Fifth
Amendment to the United States Constitution. See State v. Morton, 283 Kan. 464, 467,
153 P.3d 532 (2007); see also State v. Miller, 293 Kan. 535, 544, 264 P.3d 461 (2011).
As a result, my analysis under the United States Constitution applies with equal force to
Bowman's double jeopardy challenge raised under the Kansas Constitution Bill of Rights.
                                                35
       Under the Double Jeopardy Clause of the United States Constitution, jeopardy
attaches in a jury trial when the court administers the oath to the jurors. The swearing of
the jury is a bright line for when jeopardy attaches. Martinez v. Illinois, 572 U.S. 833,
839-40, 134 S. Ct. 2070, 188 L. Ed. 2d 1112 (2014).


       If jeopardy has attached, the next question is whether jeopardy ended in a way that
allows the State to retry a defendant. Martinez, 572 U.S. at 841 (citing 6 LaFave,
Criminal Procedure § 25.1[g] [3d ed. 2007]). The "fountainhead" case establishing the
standard courts apply when answering this question is United States v. Perez, 22 U.S. (9
Wheat.) 579, 6 L. Ed. 165 (1824). See Illinois v. Somerville, 410 U.S. 458, 461, 93 S. Ct.
1066, 35 L. Ed. 2d 425 (1973).


       The Perez Court considered whether the government could retry Josef Perez for a
capital offense after the first jury could not agree on a verdict. Justice Story writing for
the Court explained defendants may be subject to a second trial if a manifest necessity
prompted the declaration of a mistrial to avoid a defeat of "the ends of justice":


       "We are of [the] opinion, that the facts constitute no legal bar to a future trial. The
       prisoner has not been convicted or acquitted, and may again be put upon his defence. We
       think, that in all cases of this nature, the law has invested Courts of justice with the
       authority to 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. They are to exercise a sound
       discretion on the subject; and it is impossible to define all the circumstances, which
       would render it proper to interfere. To be sure, the power ought to be used with the
       greatest caution, under urgent circumstances, and for very plain and obvious causes; and,
       in capital cases especially, Courts should be extremely careful how they interfere with
       any of the chances of life, in favour of the prisoner. But, after all, they have the right to
       order the discharge; and the security which the public have for the faithful, sound, and
                                                     36
       conscientious exercise of this discretion, rests, in this, as in other cases, upon the
       responsibility of the Judges, under their oaths of office." (Emphases added.) 22 U.S. (9
       Wheat.) at 580.


       Defining the contours of "manifest necessity" and the "ends of public justice" has
led to several cases. Over time, "manifest necessity" has become the focus of the inquiry.
See 6 La Fave, Criminal Procedure § 25.2(c) (4th ed. 2015).


       The United States Supreme Court elaborated on "manifest necessity" in
Washington, 434 U.S. 497. As I have discussed, there, like here, counsel made statements
during opening arguments about inadmissible evidence. The judge found the comments
so prejudicial, he granted a mistrial. The Court upheld the mistrial determination but
explained that holding did not answer whether the defendant was subject to another
prosecution.


       The Washington Court took steps to balance a defendant's right to have the trial
completed by the empaneled jury with the public interest of a fair and impartial verdict
by holding that a prosecutor bears the heavy burden of establishing that manifest
necessity supports a mistrial declared over a defendant's objection. Manifest necessity is a
fact-specific standard that cannot be applied mechanically. And "it is manifest that the
key word 'necessity' cannot be interpreted literally; instead, contrary to the teaching of
Webster, we assume that there are degrees of necessity and we require a 'high degree'
before concluding that a mistrial is appropriate." 434 U.S. at 506.


       The Court identified a sliding scale of scrutiny to be applied by an appellate court
reviewing a trial judge's mistrial declaration. See Colvin v. Sheets, 598 F.3d 242, 253 (6th
Cir. 2010). The lowest level of scrutiny applies when a trial judge declares a mistrial
based on his or her belief the jury cannot reach a legal verdict. See Washington, 434 U.S.

                                                     37
at 506-09. The highest level or "strictest scrutiny is appropriate when the basis for the
mistrial is the unavailability of critical prosecution evidence, or when there is reason to
believe that the prosecutor is using the superior resources of the State to harass or to
achieve a tactical advantage over the accused." 434 U.S. at 508 (citing Downum v. United
States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 [1963]). The Court determined the
issue leading to the mistrial in George Washington, Jr.'s, trial fell "along the spectrum of
trial problems . . . in an area where the trial judge's determination is entitled to special
respect." 434 U.S. at 510. The Court deferred to the trial court's assessment of bias and
reversed the lower federal courts that had found the trial judge's declaration of mistrial
constitutionally flawed. 434 U.S. at 516-17.


       In my view, Washington resolves the double jeopardy issue here. Bowman's trial,
like Washington's, ended in a mistrial because of prejudicial comments in the opening
statement about evidence that would not be admissible at trial. The trial judge's
assessment that these statements were so prejudicial that the jury could not reach a fair
and impartial verdict is entitled to special respect. The mistrial was a manifest necessity
and a subsequent prosecution is not constitutionally prohibited.


       Bowman, however, seizes on Washington to support his argument that the strictest
scrutiny should apply here. He does so because of the Washington Court's recognition
that the strictest scrutiny applies when "the basis for the mistrial is the unavailability of
critical prosecution evidence." 434 U.S. at 508. Bowman, like the majority, focuses on
the child not testifying as the reason for the mistrial. And certainly the child's
unavailability caused the chain reaction that led the trial judge to view the prosecutor's
comments as prejudicial. Perhaps because of this, the trial judge used a strict scrutiny
standard in determining a second prosecution would not violate constitutional double
jeopardy protections. I also recognize some ambiguity about whether two levels of
consideration apply here—one to the counts that did not depend on the child's testimony
                                               38
and the other to those that did. No one has discussed this possibility, and I have found
little guidance. It also is not clear that the strictest level of scrutiny applies in every case
in which a witness is unavailable. But the caselaw of other courts provides some
guidance, and the trial judge's conclusions are consistent with the various factors
considered by those courts.


       In citing the strict scrutiny standard, the Washington Court merely characterized
the holding in Downum. The facts of Bowman's first trial differ in kind from those in
Downum, where, before the court empaneled the jury, the State knew one witness was not
present and had not yet been located. The Downum Court "refuse[d] to say that the
absence of witnesses 'can never justify discontinuance of a trial.'" Downum, 372 U.S. at
737 (quoting Wade v. Hunter, 336 U.S. 684, 691, 69 S. Ct. 834, 93 L. Ed. 2d 974 [1949]).


       This statement leaves dangling the questions of whether the strictest scrutiny
always applies when a prosecution witness is unavailable and, even if applied, whether its
application precludes declaring a mistrial depending on the reason the evidence has
become unavailable. The State presents two lines of cases in arguing the trial judge did
not err.


       According to the State, one line supports the conclusion a mistrial is
constitutionally permissible when some fatal defect occurs in the proceedings. It cites
three United States Supreme Court cases for this proposition: Illinois v. Somerville, 410
U.S. 458, 471, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973) (holding manifest necessity
supported granting mistrial when indictment was fatally defective under state law
because the "defendant's interest in proceeding to verdict is outweighed by the competing
and equally legitimate demand for public justice"); Lovato v. New Mexico, 242 U.S. 199,
201-02, 37 S. Ct. 107, 61 L. Ed. 244 (1916) (holding trial judge acted within discretion in
dismissing jury to arraign defendant and take plea before reimpaneling and swearing
                                               39
same jury for trial); and Thompson v. United States, 155 U.S. 271, 274, 15 S. Ct. 73, 39
L. Ed. 146 (1894) (holding manifest necessity supported mistrial when trial judge learned
jury included a juror who had served on indicting grand jury). None involves a witness'
failure to testify. The procedural irregularities that may have supported manifest necessity
in those cases differ from the child witness freezing on the stand here. I, thus, do not find
them helpful when analyzing the circumstances of this case.


       More applicable is the second line of cases cited by the State. In those cases,
courts found manifest necessity justified a mistrial when a prosecution witness became
unavailable. Bowman, on the other hand, highlights four different decisions in which a
prosecution witness was unavailable and argues they support his position. But three of
Bowman's cases do not involve child witnesses. The one that does involves a 15 year old
and very different facts. In addition, each is distinguishable because the prosecution
either took no steps toward securing the witness' testimony or knew the witness was
unavailable but allowed the jury to be sworn in anyway. These circumstances weighed on
each court's decision to apply the strictest scrutiny when reviewing a mistrial order. See
State v. Gutierrez, 333 P.3d 247, 254-55 (N.M. 2014) (recognizing that prosecutor had
substantial reason before the court empaneled jury to question whether defendant's 15-
year-old daughter would appear to testify based on her failure to appear for a pretrial
interview and her repeated attempts to recant her testimony but prosecutor allowed
jeopardy to attach by allowing court to administer oath to jury before determining if
witness was present); Walck v. Edmonson, 472 F.3d 1227, 1238-41 (10th Cir. 2007)
(holding double jeopardy protections applied when prosecution knew during voir dire
that pregnant witness was in labor but still allowed jury to be sworn); United States v.
Stevens, 177 F.3d 579, 587-89 (6th Cir. 1999) (holding double jeopardy protections
applied when government lacked proof because its key witness refused to testify after
repeatedly suggesting he would not do so out of fear for the safety of his family); McNeal
v. Hollowell, 481 F.2d 1145, 1152-53 (5th Cir. 1973) (holding double jeopardy
                                             40
protections applied when government's case lacked proof after witness, who had
participated in the crime, invoked his Fifth Amendment protection against self-
incrimination without government seeking an agreement to secure testimony).


       As the State argues, these cases cited by Bowman establish that manifest necessity
may not support granting a mistrial when the State engages in misconduct, is aware a
witness likely would not be available but proceeds anyway, or fails to take necessary
steps to assure a witness is available. Unlike these cases, the State notes it took
precautionary steps, the witness had given details of the alleged crimes to the detective,
the State did not engage in misconduct, the witness was present at trial, and the witness
had testified at the competency hearing. The State insists these facts allowed it to, in good
faith, believe the witness would testify. The State also argues manifest necessity may
support granting a mistrial when critical evidence becomes unexpectedly unavailable
through circumstances not anticipated and beyond the prosecution's control.


       Many cases support the State's position. In these cases, appellate courts affirmed
trial judges who found manifest necessity supported granting a mistrial in those
circumstances. E.g, United States v. Mastrangelo, 662 F.2d 946, 951-53 (2d Cir. 1981)
(deferring to trial judge's manifest necessity determination after witness killed en route to
court to testify when there was a distinct possibility defendant involved in making
witness unavailable and government had no fault in circumstances); Ogletree v. State,
300 Ga. App. 365, 366-69, 685 S.E.2d 351 (2009) (holding manifest necessity supported
granting mistrial when pregnant witness suffered complications making her unavailable
for an uncertain amount of time and prosecutor did not act in bad faith in requesting
continuance, applying Georgia Constitution); Davis v. State, 170 Ga. App. 748, 748, 318
S.E.2d 202 (1984) (holding manifest necessity supported trial judge's declaration of
mistrial when witness held in secure juvenile shelter escaped and could not be located
during brief continuance); McCorkle v. State, 95 Md. App. 31, 61-62, 619 A.2d 186
                                              41
(1993) (affirming trial judge's exercise of sound discretion in declaring mistrial when key
witness became ill and did not appear during trial and State prosecution was unable to
locate witness despite doing everything it could to get witness to court); State v. Connery,
100 Nev. 256, 258, 679 P.2d 1266 (1984) (holding manifest necessity supported
declaring mistrial when crime victim witness attempted suicide and became unavailable
to testify); State v. Dunns, 266 N.J. Super. 349, 366-79, 629 A.2d 922 (1993) (holding
although manifest necessity supported mistrial declaration where witness refused to
testify even after lengthy period being jailed for civil contempt, dismissal was justified in
unique circumstances of case; distinguishing Downum where the unavailability of the
witness was due in some part to the prosecutor's lack of preparation); State v. Messier,
101 N.M. 582, 586-87, 686 P.2d 272 (Ct. App. 1984) (holding trial judge properly
exercised discretion to declare mistrial when video testimony of child witness was
inaudible and live testimony was not a possibility because of earlier ruling the child could
not testify without suffering harm).


       I find the State's cases more applicable and persuasive. The authors of 6 LaFave,
Criminal Procedure § 25.2(c) assimilated 12 factors employed by courts when
determining if the mistrial was a manifest necessity when a witness became unavailable,
and the State's cases reflect these factors. These factors balance the competing interests of
the defendant and the public. See Washington, 434 U.S. at 503-05. Under the facts here,
these factors tilt toward a determination that the declaration of the mistrial was a manifest
necessity. I will not discuss each factor or the facts supporting the State's position in
detail. Suffice it to say the following circumstances support a conclusion the mistrial was
a manifest necessity: the State proceeded in conformity with Kansas law, the State
moved to present the child's testimony through closed circuit television under K.S.A. 22-
3434(a)(1), a competency hearing occurred, the judge allowed a comfort person, the State
proceeded in good faith, the judge ruled based on indications the child would testify, the
State did not manipulate circumstances so it would gain an advantage in a later
                                              42
prosecution, the judge found the prejudice could not be cured, the judge thoroughly
considered alternatives, the judge believed the jury had heard enough of the case to
formulate some tentative opinions, the trial had not proceeded so far as to give the
prosecution a substantial preview of the defense's tactics and evidence, and, finally, there
was nothing unusual about the jury's composition. See 6 LaFave, Criminal Procedure §
25.2(c).


       On balance, after examining the circumstances and the trial judge's ruling with
strictest scrutiny, I conclude the judge did not abuse his discretion in granting a mistrial
here and the State met its burden in establishing that the mistrial was manifestly
necessary. The Washington Court's words are appropriate here: "[T]he overriding
interest in the evenhanded administration of justice requires that we accord the highest
degree of respect to the trial judge's evaluation of the likelihood that the impartiality of
one or more jurors may have been affected." Washington, 434 U.S. at 511.


                                        CONCLUSION


       In conclusion, I disagree with the majority's interpretation and application of
K.S.A. 2018 Supp. 21-5110. I would read that statute and K.S.A. 22-3423 as providing
complementary grounds for declaring a mistrial without violating the statutory protection
against double jeopardy. And I conclude the trial judge did not abuse his discretion in
declaring a mistrial—a mistrial that was a manifest necessity. So a second prosecution
will not violate K.S.A. 2018 Supp. 21-5110 or the protections against double jeopardy in
the United States and Kansas Constitutions. For these reasons, I would deny Bowman's
request for a writ of habeas corpus.


       NUSS, C.J., and STEGALL, J., join in the foregoing dissent.


                                              43
