                                IN THE
              ARIZONA COURT OF APPEALS
                              DIVISION TWO


                       THE STATE OF ARIZONA,
                              Appellee,

                                   v.

                     TYWAN DEMETRIUS WOODS,
                            Appellant.

                       No. 2 CA-CR 2014-0020
                         Filed May 4, 2015


         Appeal from the Superior Court in Cochise County
                         No. CR201000870
               The Honorable Ann R. Littrell, Judge
             The Honorable John F. Kelliher Jr., Judge

     REVERSED AND REMANDED WITH INSTRUCTIONS


                               COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee

Harriette P. Levitt, Tucson
Counsel for Appellant


                               OPINION

Presiding Judge Kelly authored the opinion of the Court, in which
Judge Howard concurred and Judge Vásquez dissented.
                           STATE v. WOODS
                          Opinion of the Court


K E L L Y, Presiding Judge:

¶1            Following a jury trial, Tywan Woods was convicted of
eight counts of aggravated assault, six counts of kidnapping, and
two counts each of aggravated robbery and armed robbery. The
trial court sentenced him to concurrent and consecutive prison terms
totaling 78.5 years. On appeal, Woods argues the court violated his
right not to be twice placed in jeopardy when it granted the state’s
motion for a mistrial without prejudice, permitting the state to try
him again. Woods also argues the court erred by allowing an in-
court identification of Woods and his vehicle. For the following
reasons, we reverse Woods’s convictions and sentences.

                   Factual and Procedural Background

¶2            We view the facts in the light most favorable to
sustaining Woods’s convictions and sentences.1 See State v. Haight-
Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In November
2009, L.C., her four daughters, her boyfriend, W.W., and three of his
friends were held captive at gunpoint by Woods and two other men
who had entered L.C.’s home purportedly to engage in a drug
transaction with W.W. and one of his friends. Woods and his
companions stole the marijuana that they were supposed to have
purchased. They also took L.C.’s car keys and driver’s license, as
well as electronic items, cash, and jewelry. Woods was charged with
multiple counts of armed robbery, aggravated robbery, kidnapping,
and aggravated assault.2 The first trial resulted in a hung jury, and
the trial court apparently declared a mistrial and ordered a new trial.



      1Woods’s   opening brief contains nearly twenty pages of facts,
most of which are wholly irrelevant to the issues presented for our
review. See Ariz. R. Crim. P. 31.13(c)(1)(iv) (appellant’s brief shall
include “[a] statement of facts relevant to the issues presented for
review”).
      2 The     state dismissed a number of counts before Woods’s
second trial.


                                   2
                           STATE v. WOODS
                          Opinion of the Court

¶3            During Woods’s second trial, 3 L.C. disrupted the
proceedings, directed profanity and a racial epithet toward Woods
in the presence of the jury, and apparently was stopped by police at
or near the courthouse and arrested shortly thereafter. After the
prosecutor informed the court that some jurors could have seen
police activity outside the courthouse and may have known L.C. had
been arrested, and the court reporter affirmed that two jurors had
been overheard discussing the arrest, the court granted the state’s
motion for a mistrial. Following a third trial,4 Woods was convicted
and sentenced as set forth above. He timely appealed.

                               Discussion

¶4           Woods argues “[t]he trial court erred in declaring a
mistrial following the second trial and, therefore, the third trial
violated [his] right against double jeopardy.” He did not object to
the third trial on double jeopardy grounds; therefore, we review
only for fundamental error. See State v. Henderson, 210 Ariz. 561,
¶ 19, 115 P.3d 601, 607 (2005). A double jeopardy violation
constitutes fundamental error. State v. Price, 218 Ariz. 311, ¶ 4, 183
P.3d 1279, 1281 (App. 2008). “In evaluating a double jeopardy claim,
we review the trial court’s decision to declare a mistrial for an abuse
of discretion.” State v. Aguilar, 217 Ariz. 235, ¶ 7, 172 P.3d 423, 426
(App. 2007).

¶5           Declaring a mistrial “is the most drastic remedy for trial
error” and should be granted “only when justice will be thwarted if
the current jury is allowed to consider the case.” State v. Nordstrom,
200 Ariz. 229, ¶ 68, 25 P.3d 717, 738 (2001). “[T]he state ‘must
demonstrate manifest necessity for any mistrial declared over the
objection of the defendant,’ and the burden ‘is a heavy one.’” Gusler
v. Wilkinson, 199 Ariz. 391, ¶ 18, 18 P.3d 702, 706 (2001), quoting
Arizona v. Washington, 434 U.S. 497, 505 (1978).



      3Judge Ann R. Littrell presided over Woods’s second trial and
entered the mistrial ruling that is at issue here.
      4Judge   John F. Kelliher Jr., presided over the third trial.


                                     3
                          STATE v. WOODS
                         Opinion of the Court

¶6            At Woods’s second trial, L.C. frequently used profanity
in her testimony and expressed extreme contempt for the men who
had held her children captive. While one of her daughters was
testifying, L.C. interrupted the questioning. Woods’s counsel asked
the court to admonish L.C., and the court told her, “You need to
keep quiet.” L.C. responded that she would leave the courtroom,
but before leaving, accused Woods of holding her children
“hostage,” and directed profanity and a racial epithet toward him.

¶7          Woods moved for a mistrial, arguing that what L.C. had
said was “totally inflammatory” and “very prejudicial.” The state
responded that L.C. had not said “anything different than what she
said on the stand.” The trial court agreed that “[i]t was very much
in keeping with her angry outbursts during her testimony” and
denied the motion for a mistrial.

¶8           The court admonished the jury to “disregard [L.C.’s]
angry outbursts and what she said on her way out of this
courtroom.”      Woods then asked the court to remove the
admonishment because L.C. was a witness and “the jury can
consider her demeanor as she is going out as part of her testimony in
this case.” The court told the jury it was “withdrawing [its] prior
instruction to you, and allowing you to consider what [L.C.] said as
she left the courtroom, to the extent that you deem it relevant and
appropriate to do so.”

¶9            The next day, before the jury was brought in, the trial
court stated there had been “matters that happened outside of the
presence of the jury that are of concern.” Woods’s counsel told the
court there had been “commotions going on outside” the courtroom
after L.C. left.5 The trial court commented that after L.C. had left the
courtroom the day before, “one could hear from inside the
courtroom the sound of a woman yelling,” although the specific
words could not be heard. The court also noted there had been a

      5 Although  Woods’s counsel reported to the trial court that
L.C. and some spectators had made threats against Woods, his
counsel, and the prosecutor, these alleged threats were made outside
the courtroom and not in the presence of the jury.


                                   4
                          STATE v. WOODS
                         Opinion of the Court

“banging” and then “some sound, commotion outside of the court.”
The court stated it believed the jury “could probably also hear
yelling and banging and some noise from outside.”

¶10         The prosecutor told the trial court he had seen “law
enforcement officers . . . clearing the scene” and “they were still
present when the jury was allowed to exit the front of the court.”
According to the court, the jurors “certainly knew that [L.C.] had
been stopped.” The prosecutor told the court he “had some concern
about the fact that they were seeing what was still being cleaned up
or cleared out in front of the courthouse.” The court stated it
understood L.C. had been arrested later near the courthouse, and the
court reporter nodded affirmatively when asked whether she had
heard two jurors “discussing that the person being arrested . . . was
[L.C.].”

¶11          The state moved for a mistrial, citing concerns about
“the defendant’s ability to receive a fair trial from this jury at this
point,” but it did not articulate how Woods might have been
prejudiced by L.C.’s behavior. Woods stated that he “would prefer
to continue with the trial.” The trial court explained that one of the
incidents the day before would not alone have been sufficient for a
mistrial, “[b]ut, cumulatively, I am concerned that the defendant,
well, and the State for that matter, would be denied a fair trial, that
the jury would not be making decisions based on the evidence
presented here in court, but extraneous matters.” The court did not
explain the basis for its concern that Woods would be denied a fair
trial based on L.C.’s outburst. The court then granted without
prejudice the state’s motion for a mistrial without making a specific
finding that there was manifest necessity for its ruling.

¶12          As noted above, the state bears the burden of
“demonstrat[ing] ‘manifest necessity’ for any mistrial declared over
the objection of the defendant,” and the burden “is a heavy one.”
Washington, 434 U.S. at 505. Indeed, “the words ‘manifest necessity’
appropriately characterize the magnitude of the prosecutor’s
burden.” Id. Although the trial court here did not make a specific
finding of manifest necessity, if there is “sufficient justification” for
the court’s ruling, “the failure to explain that ruling more completely
does not render it constitutionally defective.” See id. at 516-17.

                                   5
                         STATE v. WOODS
                        Opinion of the Court

¶13           We agree with the trial court’s assessment that no
information was conveyed during L.C.’s outburst other than her
belief that Woods had held her children hostage and that she
harbored animosity toward Woods, which already were apparent to
the jury from L.C.’s testimony. In a similar context, the jury in State
v. Bible heard the victim’s father refer to the defendant as “[t]hat
f[***]ing a[**]hole.” 175 Ariz. 549, 597, 858 P.2d 1152, 1200 (1993)
(second and third alteration added, remaining alteration in Bible).
The trial court admonished the jury to disregard the outburst and
excluded the victim’s father from the courtroom for the remainder of
the trial. Id. The court denied Bible’s motion for a mistrial, stating,
“I don’t think it’s really the substance for a mistrial. I don’t think
there is any doubt in the jury’s mind about how [the victim’s father]
feels about Mr. Bible. That’s certainly been clear for days.” Id. at
597-98, 858 P.2d at 1200-01 (alteration in Bible). Our supreme court
noted that “[n]o information was conveyed other than the father’s
animosity toward Defendant, a feeling that could hardly have
surprised the jurors.” Id. at 598, 858 P.2d at 1201. The court
concluded that the trial court did not abuse its discretion in denying
Bible’s motion for a mistrial. Id.

¶14          In addition to observing L.C.’s outburst in the
courtroom, the jurors presumably heard commotion outside the
courtroom after she left. They also might have seen police vehicles
outside the courthouse and at least two may have known L.C. had
been arrested. But, as the trial court acknowledged, much of the
commotion took place outside the presence of the jury. According to
the court, it was the cumulative effect of L.C.’s outburst and the
events that followed that led it to grant the state’s motion for a
mistrial.

¶15          Our supreme court has stated that when the trial court
fails to make a “real effort to determine whether there were any
feasible alternatives to declaring a mistrial,” there is no manifest
necessity for a mistrial. McLaughlin v. Fahringer, 150 Ariz. 274,
277-78, 723 P.2d 92, 95-96 (1986). Here, the court could have but did
not ask the jurors whether any extraneous information might have
come to their attention. In Evans v. Abbey, a juror engaged a witness
in conversation about the case. 130 Ariz. 157, 158, 634 P.2d 969, 970


                                  6
                          STATE v. WOODS
                         Opinion of the Court

(App. 1981). We concluded the trial court had abused its discretion
in declaring a mistrial over the defendant’s objection when the court
“did not attempt to determine whether the jury was prejudiced by
the alleged misconduct and where such inquiry might have led the
court to correct the situation with the mere dismissal of the
individual juror.” Id. at 160, 634 P.2d at 972.

¶16           Importantly, the trial court made no findings regarding
what the jurors saw or heard after L.C. left the courtroom. Instead,
the court simply asked Woods’s attorney to repeat what he
apparently had told the court in chambers. The court also described
what it had heard after L.C. left and stated it “believe[d] . . . the jury
could probably also hear” the commotion. Even if we assume the
jurors heard the commotion in the hall outside the courtroom, we do
not know whether they connected the police presence outside the
courthouse to L.C.’s conduct. And, although the court assumed the
jurors knew L.C. had been stopped, the only information the court
had was the prosecutor’s statement that there was still a police
presence outside the courthouse when the jurors were allowed to
leave. There is no indication L.C. was still at the courthouse when
the jurors left; the court stated the police had addressed the situation
and had “allowed her to drive away.”

¶17          Moreover, we cannot be certain, even from the court
reporter’s account, why any jurors might have believed L.C. had
been arrested, since she apparently had been permitted to leave the
courthouse and was arrested elsewhere some time later. Although
the court stated it understood that L.C. “was later arrested just up
the canyon,” there was no explanation of the reason for her arrest.
Nor do we know whether the two jurors the court reporter
overheard “discussing that the person being arrested . . . was [L.C.]”
shared that information with any of the other jurors.

¶18          In this case, had any jurors responded affirmatively
when asked whether they had seen or heard L.C.’s outburst and the
ensuing commotion, the trial court could have inquired whether that
information affected their ability to remain impartial. See Evans, 130
Ariz. at 160, 634 P.2d at 972 (approving inquiry into whether jury
prejudiced by alleged misconduct before ordering mistrial). By
failing to do so, the court was unable to consider whether any jurors

                                    7
                          STATE v. WOODS
                         Opinion of the Court

who could no longer be impartial could be dismissed with alternate
jurors seated in their place—an option potentially available because
the fourteen-juror panel provided for two alternates.

¶19           Another option available to the trial court was a
curative instruction and admonishment to the jury to disregard any
commotion or conduct by L.C. after she left the courtroom. In Jones
v. Kiger, 194 Ariz. 523, ¶ 4, 984 P.2d 1161, 1163 (App. 1999), a witness
gave hearsay testimony that a defendant asserted “was prejudicial
and antagonistic to her defense.” Her co-defendant “insisted that
the hearsay testimony was not prejudicial to his case and requested
that the trial continue.” Id. ¶ 5. In concluding that the trial court
had abused its discretion in granting a mistrial over the
co-defendant’s objection, we noted that the court “could have . . .
admonished the jury not to consider” the testimony. Id. ¶ 12. Here,
although Woods had indicated the day before that he did not want a
curative instruction, it appears the court did not consider the
possibility of giving another curative instruction when the state
moved for a mistrial and Woods objected.

¶20           Perhaps most importantly, the court did not address
Woods’s desire to continue with the trial despite the disruption.
See id. ¶ 9. In Jones, we pointed out that the trial court “ignored
defense counsel’s assertion that his case was not damaged [by the
hearsay testimony] without considering why that might be true.”
Id. ¶ 10. We stated that, although “[t]he trial court is usually in the
best position to determine whether manifest necessity requires a
mistrial,” the court “must recognize that the defendant has a
significant interest in deciding whether to take the case from the jury
and ‘retains primary control over the course to be followed in the
event of such error.’” Id. ¶ 9, quoting United States v. Dinitz, 424 U.S.
600, 609 (1976) (alteration in Jones). We further observed that “‘a
defendant may have valid personal reasons to prefer going ahead
with the trial rather than beginning the entire process anew,’” and
we stated the trial judge “‘must avoid depriving the defendant of his
constitutionally protected freedom of choice in the name of a
paternalistic concern for his welfare.’” Id. ¶ 9, quoting Curry v.
Superior Court, 470 P.2d 345, 351 (Cal. 1970).




                                   8
                         STATE v. WOODS
                        Opinion of the Court

¶21          Here, Woods stated he “want[ed] to resolve the issue”
because he had “been going through this already for two-and-a half
years” and that the multiple trials were “affecting [him] with [his]
jobs” and “supporting [his] family.” The court made no further
inquiry after Woods stated he preferred to continue with the trial.
See Barton v. Commonwealth, 432 N.E.2d 524, 526 (Mass. 1982), citing
Washington, 434 U.S. at 516-17 (“An appellate court will be
deferential to the judge’s discretionary determination that manifest
necessity exists only if it is clear from the record that the judge has
given careful consideration to the available alternatives and to the
defendant’s interest in having the trial concluded in a single
proceeding.”).

¶22         We conclude the trial court abused its discretion by
granting a mistrial, and Woods’s third trial violated his right to be
free from double jeopardy and was fundamental error.

                             The Dissent

¶23          Our dissenting colleague disagrees with our conclusion
that the trial court failed to make a “real effort” to determine
whether there were feasible alternatives to ordering a mistrial,
asserting that the court did not need to poll the jurors to determine
how much of the commotion following L.C.’s outburst they had
observed and whether they nevertheless could remain impartial.
But because the court did not poll the jurors, we are left to speculate
as to what they might have seen or heard after L.C. left the
courtroom. As detailed above, the record does not establish that the
jurors saw police arresting L.C. or that the two jurors the court
reporter overheard discussing L.C.’s arrest shared that information
with any other jurors.

¶24         Our dissenting colleague acknowledges the trial court
“could have polled the jurors about their ability to remain impartial
despite their observations of L.C.’s outburst and the ensuing
commotion” but states polling the jury was unnecessary because
“absolute necessity is not required” before declaring a mistrial. But
a “high degree” of necessity is required, see Washington, 434 U.S. at
506, and polling the jury would have established whether any jurors
could no longer be impartial as a result of events that occurred


                                  9
                           STATE v. WOODS
                          Opinion of the Court

outside the courtroom. Under any standard, the court is required to
consider alternatives. Because the court did not pursue the
alternative of polling the jurors, and therefore did not know what
they might have seen or heard, we cannot agree there was a “high
degree” of necessity for a mistrial.6

¶25           Moreover, neither the state nor the trial court
articulated any prejudice to Woods resulting from L.C.’s conduct. In
denying Woods’s motion for a mistrial the day before, the court
noted that L.C.’s behavior as she left the courtroom was no different
from her behavior during her testimony, in which she used
obscenities to refer to Woods. In granting the state’s motion for a
mistrial, the court made no assessment of the prejudice to Woods as
a result of L.C.’s conduct after she left the courtroom. And although
the court indicated it also was concerned about the state’s ability to
receive a fair trial, neither the court nor the state articulated any
prejudice to the state resulting from L.C.’s behavior. The outburst
might have damaged L.C.’s credibility, but any damage to her
credibility would have been done by the time she had finished
testifying, and we do not see how L.C.’s further damaging her own
credibility can be said to deprive the state of a fair trial. Moreover,
L.C. was not the only witness who identified Woods as one of the
assailants. Thus, her testimony was not essential, and any damage
to her credibility did not significantly prejudice the state’s case.
See Morris v. Livote, 962 N.Y.S.2d 59, 62 (App. Div. 2013).

¶26          Our dissenting colleague states that the record
“suggests the court was aware of the option of giving an instruction
but implicitly chose not to do so” because it had given a curative
instruction the day before after denying Woods’s motion for a

      6 As   our dissenting colleague correctly points out, the state
made clear it wanted the trial court to order a mistrial only if it could
re-try Woods. But the state’s equivocal position indicates it may
have had some concern about whether there was manifest necessity
for a mistrial. And the state claimed to be concerned about Woods’s
ability to receive a fair trial, not its own. Finally, the dissent does not
explain how the state’s position below affects the double jeopardy
analysis.


                                    10
                           STATE v. WOODS
                          Opinion of the Court

mistrial. But the situation had changed and alternatives needed to
be re-considered. Although it is correct that “[a] trial court has acted
within its sound discretion in rejecting possible alternatives and in
granting a mistrial, if reasonable judges could differ about the
proper disposition, even though ‘[i]n a strict literal sense, the
mistrial [is] not necessary,’” State v. Givens, 161 Ariz. 278, 281, 778
P.2d 643, 646 (App. 1989), quoting Washington, 434 U.S. at 511 (first
alteration added, remaining alterations in Givens), that principle
assumes that the trial court in fact first considered and then rejected
alternatives. But we are not willing to assume that the court here
considered alternatives in response to the state’s motion for a
mistrial when it states its reasons for the mistrial on the record and
does not indicate it considered them. See Barton, 432 N.E.2d at 526,
citing Washington, 434 U.S. at 516-17.

¶27            The trial court had no reasoned basis to reject the
obvious alternative of polling the jurors to determine what their
exposure to L.C.’s misconduct had been and how it had affected
them, if at all. Indeed, courts commonly require trial judges to poll
jurors when their impartiality is called into question. See, e.g., State
v. Phillips, 656 N.E.2d 643, 660-61 (Ohio 1995) (trial court that learns
of improper outside communication with juror must hold hearing to
determine whether communication biased juror); Artisst v. United
States, 554 A.2d 327, 331 (D.C. 1989) (holding that trial court “was
under an obligation to investigate the possibility of juror prejudice
by more than a perfunctory poll of the jury”); People v. McNeal, 90
Cal. App. 3d 830, 838 (1979) (“Once the court is alerted to the
possibility that a juror cannot properly perform his duty to render
an impartial and unbiased verdict, it is obligated to make reasonable
inquiry into the factual explanation for that possibility.”); cf. People v.
Castillo, 534 N.Y.S.2d 188, 189 (App. Div. 1988) (denial of defendant’s
motion for mistrial not an abuse of discretion where trial court
“conducted a painstakingly thorough and searching inquiry of each
juror individually, thereby discovering the nature and extent of the
misconduct and its effect upon the members of the jury”).

¶28          Washington and Simmons v. United States, 142 U.S. 148
(1891), do not persuade us that the trial court here did not abuse its
discretion by failing to poll the jury because in both of those cases,


                                    11
                          STATE v. WOODS
                         Opinion of the Court

the jury’s exposure to potentially prejudicial information was
evident. In Washington, the trial court ordered a mistrial because the
defendant’s counsel “made improper and prejudicial remarks
during his opening statement to the jury.” 434 U.S. at 510. In
Simmons, the defendant’s counsel sent to the newspapers a copy of a
letter denying the truth of statements made by an individual who
claimed a juror was acquainted with the defendant. 142 U.S. at 149.
The substance of the letter was published in the newspapers, and the
jurors stated they had read the letter. Id. at 149-50. In both cases, the
trial court could be certain the jurors had received information that
could affect their ability to remain impartial. Here, as discussed
above, there was no way for the trial court to know, without polling
the jury, exactly what the jurors had heard or observed.

¶29           Our dissenting colleague does not address the fact that
the trial court ordered a mistrial over Woods’s objection, thereby
depriving him of his “‘valued right to have his trial completed by a
particular tribunal.’” United States v. Jorn, 400 U.S. 470, 484 (1971),
quoting Wade v. Hunter, 336 U.S. 684, 689 (1949). It is true, as the
dissent points out, that the defendant’s “valued right . . . must in
some instances be subordinated to the public’s interest in fair trials
designed to end in just judgments.” Id. at 480. But the trial court
“must always temper the decision whether or not to abort the trial
by considering the importance to the defendant of being able, once
and for all, to conclude his confrontation with society through the
verdict of a tribunal he might believe to be favorably disposed to his
fate.” Id. at 486. This, we conclude, the trial court did not do.

                              Disposition

¶30          For the foregoing reasons, we reverse Woods’s
convictions and sentences and remand to the trial court with
instructions to dismiss the case with prejudice.7



      7Becausewe reverse Woods’s convictions and sentences, we
need not address his argument that the trial court in his third trial
erred by allowing an in-court identification of Woods and his
vehicle.


                                   12
                          STATE v. WOODS
                         Opinion of the Court

V Á S Q U E Z, Judge, dissenting:

¶31          As the majority points out, our supreme court has
stated that when a trial court fails to make a “real effort to determine
whether there were any feasible alternatives to declaring a mistrial,”
there is no manifest necessity for a mistrial. McLaughlin v. Fahringer,
150 Ariz. 274, 277, 723 P.2d 92, 95 (1986). Relying on this principle,
the majority reverses Woods’s convictions with prejudice,
concluding the trial court did not consider the alternatives of polling
the jury and giving a curative instruction. I respectfully dissent
because I disagree that the court in this case failed to make a “real
effort” to consider feasible alternatives to a mistrial and the record
establishes manifest necessity.

¶32          Because “[t]he trial court is usually in the best position
to determine whether manifest necessity requires a mistrial,” we
review its decision for an abuse of discretion. Jones v. Kiger, 194
Ariz. 523, ¶¶ 9-10, 984 P.2d 1161, 1164 (App. 1999). “The words
‘manifest necessity’ . . . do not describe a standard that can be
applied mechanically or without attention to the particular problem
confronting the trial judge.” Arizona v. Washington, 434 U.S. 497,
505-06 (1978). Thus, “the degree of deference [we] should accord the
trial court depends on the circumstances that gave rise to the
mistrial.” State v. Aguilar, 217 Ariz. 235, ¶ 13, 172 P.3d 423, 427
(App. 2007). At one extreme, “the strictest scrutiny is appropriate
when the basis for the mistrial is the unavailability of critical
prosecution evidence.” Washington, 434 U.S. at 508. “At the other
extreme is the mistrial premised upon the trial judge’s belief that the
jury is unable to reach a verdict.” Id. at 509.

¶33           In Washington, the Supreme Court stated that defense
counsel’s improper and prejudicial arguments to the jury “may have
affected the impartiality of the jury” and “the overriding interest in
the evenhanded administration of justice requires that we accord the
highest degree of respect to the trial judge’s evaluation.” Id. at
510-11; see also United States v. Chapman, 524 F.3d 1073, 1082 (9th Cir.
2008) (when trial court’s decision based on “own observations and
personal assessment,” we must give special deference). Similarly,
here, L.C.’s outbursts and subsequent commotion clearly were
improper and may have affected the impartiality of the jury.

                                  13
                           STATE v. WOODS
                          Opinion of the Court

Although nothing in the record suggests that either party caused or
provoked the outbursts and commotion, in my view, the majority
nevertheless improperly applies the strictest scrutiny in evaluating
the trial court’s decision.

¶34         Notably, the state’s motion for a mistrial was content
neutral. The prosecutor stated:

                  With everything that has been said,
            your Honor, and everything that, that has
            gone before, even the events of yesterday
            afternoon, or last evening, I now become
            concerned that we have a jury that, that
            may have a reduced ability to be fair and
            impartial in this matter.

The prosecutor made the motion “in the interest of justice and out of
concern for the defendant’s right to a fair trial,” but he also stated
that he was inclined to withdraw it if Woods did not join. When the
trial court asked, “are you inclined to, or are you,” the prosecutor
made clear:

            I don’t want there to be any confusion
            about the State’s intention to bring this
            matter to verdict, whether it be this jury or
            a subsequent jury. So if the Court believes
            that the State’s motion may be a waiver of
            that right, or result in a situation where the
            State would be precluded from retrying the
            defendant, I can’t allow that to be the end
            result.

                   ....

                  So, again, if the Court has any
            concern about the State’s right to retry this
            matter if a mistrial is granted, then I’ll
            withdraw the motion.

Thus, contrary to the majority’s assertion, the prosecutor’s position
was not equivocal. Supra, n.6. And, given that position, it is clear

                                  14
                          STATE v. WOODS
                         Opinion of the Court

the court considered whether Woods could be retried in making its
determination and believed it had no other option but to declare a
mistrial. In contrast, the majority’s decision punishes the state in the
exact way the prosecutor sought to avoid.

¶35           Both the defendant and the state have a right to a trial
decided by a fair and impartial jury. Washington, 434 U.S. at 516;
State v. Reynolds, 11 Ariz. App. 532, 534, 466 P.2d 405, 408 (1970).
“[T]he defendant’s right to a single trial ‘must in some instances be
subordinated to the public’s interest in fair trials designed to end in
just judgments.’” Aguilar, 217 Ariz. 235, ¶ 10, 172 P.3d at 426,
quoting Wade v. Hunter, 336 U.S. 684, 689 (1949). In this case, the trial
court perceived an escalating series of events involving L.C. that
culminated in its determination that the process was unfair to both
Woods and the state.8 Although Woods opposed the state’s motion
for a mistrial, this is nonetheless a determination to which we owe
great deference. See Washington, 434 U.S. at 510-11. “In short, [the
trial court] is far more ‘conversant with the factors relevant to the
determination’ than any reviewing court can possibly be.” Id. at 514,
quoting Wade, 336 U.S. at 689.

¶36           I recognize our inquiry does not end with a
determination that the trial court is entitled to great deference. We
must be satisfied the court has “exercised ‘sound discretion’ in
declaring a mistrial.” Id. As the Supreme Court stated in
Washington, a trial court’s decision cannot be upheld if it “acts
irrationally or irresponsibly.” Id. In this case, the court did not act
irrationally or irresponsibly.


      8The   majority acknowledges that some of the trial spectators
had made threats against Woods and the attorneys outside the jury’s
presence. Supra, n.5. However, the spectators also made comments
that at least one individual “pretty strongly [thought] w[ere] heard
by the jury.” The spectators also engaged in “inappropriate
behavior,” which included one spectator “changing [his] shirt in the
middle of [the] jury proceeding.” These incidents presumably
added to the escalating series of events with which the trial court
was concerned.


                                   15
                          STATE v. WOODS
                         Opinion of the Court

¶37           The majority first concludes the trial court “could have
but did not ask the jurors whether any extraneous information
might have come to their attention.” Supra, ¶ 15. But the record
shows that polling the jury on this issue was not necessary because it
is evident that the jurors were exposed to potentially prejudicial
information. When discussing the incident with counsel, the court
noted that after L.C. had left the courtroom, “one could hear from
inside the courtroom the sound of a woman yelling,” “banging,”
and “commotion outside of the court.” The court further stated the
jury “could probably also hear [the] noise from outside.” The
prosecutor informed the court that law enforcement officers were
still outside “clearing the scene . . . when the jury was allowed to exit
the front of the courthouse.” The court thus reasonably concluded
that the jury “knew . . . [L.C.] had been stopped” by police. And, the
court’s belief was confirmed when the court reporter indicated she
had heard two jurors “discussing that the person being arrested . . .
was [L.C.].” Woods does not dispute any of this on appeal. Because
the record already contained sufficient evidence that the jurors had
witnessed the commotion involving L.C., polling the jury on this
issue would have served little purpose.

¶38           Ideally, as the majority points out, the trial court also
could have polled the jurors about their ability to remain impartial
despite their observations of L.C.’s outburst and the ensuing
commotion. Supra, ¶ 18. Because there were two alternate jurors,
the court potentially could have dismissed only those who could not
proceed. But, although the record does not show a mistrial was
absolutely necessary, “absolute necessity is not required” before
declaring a mistrial. Aguilar, 217 Ariz. 235, ¶ 14, 172 P.3d at 427. “A
trial court has acted within its sound discretion in rejecting possible
alternatives and in granting a mistrial, if reasonable judges could
differ about the proper disposition, even though ‘[i]n a strict literal
sense, the mistrial [is] not necessary.’” State v. Givens, 161 Ariz. 278,
281, 778 P.2d 643, 646 (App. 1989), quoting Washington, 434 U.S. at
511 (alterations in Givens). Indeed, the Supreme Court has cautioned
against a “mechanical,” per se rule, instead adopting a “flexible
standard,” which gives the trial court “broad discretion.” Illinois v.
Somerville, 410 U.S. 458, 462 (1973).



                                   16
                           STATE v. WOODS
                          Opinion of the Court

¶39          The majority also concludes the trial court could have
given “a curative instruction and admonishment to the jury to
disregard any commotion or conduct by L.C. after she left the
courtroom.” Supra, ¶ 19. The record does not show that the court
explicitly considered giving a curative instruction in response to the
state’s request for a mistrial. But explicit findings on alternatives to
a mistrial are not required, see Washington, 434 U.S. at 501, 516-17;
Givens, 161 Ariz. at 281-82, 778 P.2d at 646-47, and the record
suggests the court was aware of the option of giving an instruction
but implicitly chose not to do so.

¶40            In denying Woods’s earlier motion for a mistrial based
on L.C.’s in-court outburst, the trial court instead decided to give a
curative instruction, admonishing the jury to disregard L.C.’s
statements. But, at Woods’s urging, the court later withdrew that
instruction. Thus, the record shows the court was fully aware of this
alternative—and Woods’s opposition to it—when it granted the
state’s motion for a mistrial the following day. See State v. Williams,
220 Ariz. 331, ¶ 9, 206 P.3d 780, 783 (App. 2008) (we assume trial
court knows and applies law). Moreover, “curative instructions . . .
‘will not necessarily remove the risk of bias.’” State v. Gallardo, 225
Ariz. 560, ¶ 6, 242 P.3d 159, 163 (2010), quoting Washington, 434 U.S.
at 513; see also State v. Runningeagle, 176 Ariz. 59, 68, 859 P.2d 169, 178
(1993) (“[T]here could be instances where a curative instruction may
be inadequate . . . .”). And, the trial court was in the best position to
make that determination based on the escalating circumstances.
See Jones, 194 Ariz. 523, ¶ 9, 984 P.2d at 1164.

¶41           Based on the record before us, I cannot agree that the
trial court abused its discretion by declaring a mistrial. See id. ¶ 10.
The circumstances leading to the court’s declaration of a mistrial
spanned two days. Notably, Woods considered L.C.’s outburst the
first day to be so egregious that he moved for a mistrial. Woods
clearly believed he was prejudiced by L.C.’s conduct to merit
requesting a mistrial at that point. As to the state’s motion for a
mistrial made on the second day, the majority takes issue with the
fact that neither the state nor the court articulated any prejudice to
Woods or the state resulting from L.C.’s conduct. Supra, ¶ 25. But,
given Woods’s own motion for a mistrial, and the escalating


                                    17
                          STATE v. WOODS
                         Opinion of the Court

circumstances leading to the court’s determination, I do not believe
such articulation was necessary. See Washington, 434 U.S. at 516-17
(trial court did not need to articulate on record all factors influencing
decision to grant mistrial where basis for decision was “adequately
disclosed by the record”). It is undisputed that the jury observed
L.C.’s outburst as she was leaving the courtroom, that the jury
presumably heard the commotion outside, and that the court
reporter informed the court that at least two of the jurors had
discussed L.C.’s arrest. Any prejudice thus became that much more
apparent from the record. In addition, the state’s ability to receive a
fair trial was equally implicated by these events.

¶42          The trial court “gave both defense counsel and the
prosecutor full opportunity to explain their positions on the
propriety of a mistrial.” Id. at 515-16. In addition, there were
multiple in-chambers and off-the-record conversations among the
court and counsel, further demonstrating that the court “acted
deliberately,” not “abruptly.” Chapman, 524 F.3d at 1082. Given
Woods’s own request for a mistrial for similar but less egregious
circumstances, the court’s decision is “entitled to special respect,”
Washington, 434 U.S. at 510, 515-16, because it was in the best
position, having just heard counsel’s arguments and assessed the
situation over a two-day period, see also Jones, 194 Ariz. 523, ¶¶ 9-10,
984 P.2d at 1164. I thus cannot agree the court abused its discretion
by declaring a mistrial. And, based on the foregoing, I conclude
Woods’s right against being twice placed in jeopardy was not
violated and dismissing the charges against him with prejudice is
unwarranted and does not serve the interests of justice.




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