                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                          STATE OF ARIZONA,
                              Appellee,

                                   v.

                         PHILIP JOHN MARTIN,
                               Appellant.


                          No. CR-18-0380-PR
                          Filed August 9, 2019


           Appeal from the Superior Court in Mohave County
           The Honorable Billy K. Sipe, Jr., Judge Pro Tempore
                          No. CR201201326
                    VACATED AND REMANDED

             Opinion of the Court of Appeals, Division One
                        245 Ariz. 42 (App. 2018)
                              VACATED



COUNSEL:

Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General,
Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Linley Wilson
(argued), Assistant Attorney General, Phoenix, Attorneys for State of
Arizona

Aaron M. Demke, Mohave County Legal Advocate Attorney, Jill L. Evans
(argued), Deputy Legal Advocate Attorney, Kingman, Attorneys for Philip
John Martin
                             STATE v. MARTIN
                             Opinion of the Court




JUSTICE BOLICK authored the opinion of the Court, in which VICE CHIEF
JUSTICE BRUTINEL, and JUSTICES TIMMER, GOULD, LOPEZ, BALES
(RETIRED), and PELANDER (RETIRED) joined. JUSTICE GOULD filed a
concurring opinion.



JUSTICE BOLICK, opinion of the Court:

¶1            Philip John Martin was tried for first-degree murder in 2013,
but the jury marked the verdict form “[u]nable to agree” on that charge and
instead found him guilty of the lesser-included offense of second-degree
murder. After successfully appealing that conviction, Martin was retried
and convicted of first-degree murder. We hold that double jeopardy barred
Martin’s retrial for first-degree murder because the State had a full and fair
opportunity to try him on that charge in the first trial and the jury, after full
deliberation, refused to convict.

                              BACKGROUND

¶2             Martin shot and killed his neighbor with a single shotgun
blast as the neighbor approached Martin’s house to speak with him. Martin
admitted that he shot his neighbor, contending he believed the victim was
armed and coming to harm him after the victim ignored his demands to
leave. The State charged Martin with premeditated first-degree murder
under A.R.S. § 13-1105(A)(1).

¶3           At Martin’s first trial for first-degree murder, the trial court
provided the jury with a standard instruction on the lesser-included offense




                                       2
                            STATE v. MARTIN
                            Opinion of the Court



of second-degree murder. See State v. LeBlanc, 186 Ariz. 437 (1996). The
court advised:

       You may find the defendant guilty of the less serious crime if
       all of you agree that the state has failed to prove the defendant
       guilty of the more serious crime beyond a reasonable doubt,
       or if after reasonable efforts you are unable to agree
       unanimously on the more serious crime, and you do all agree
       that the state has proven the defendant guilty of the less
       serious crime.

The jury returned the verdict form with the box marked “[u]nable to agree”
on the first-degree murder charge but found Martin guilty of second-degree
murder. He was sentenced to sixteen years in prison.

¶4            Martin appealed on procedural grounds, and the court of
appeals reversed the conviction and remanded for a new trial. State v.
Martin, No. 1 CA-CR 13-0839, 2014 WL 7277831, at *5 ¶ 19 (Ariz. App.
Dec. 23, 2014) (mem. decision).

¶5             Before the second trial, the trial court granted the State’s
motion to retry Martin for first-degree murder, over Martin’s objection that
doing so would violate double jeopardy. The court ruled that no “implied
acquittal” occurred in the first trial, that the jury was genuinely deadlocked,
and that the State demonstrated a “manifest necessity” for continuing
Martin’s jeopardy for first-degree murder. Therefore, jeopardy did not
terminate on the first-degree murder charge. The court expressed its
misgivings over the ruling, however, observing that the State had the
opportunity to convict Martin of first-degree murder and failed, that the
State could not have retried Martin for first-degree murder had he not
appealed the second-degree murder conviction, and that by doing so
Martin essentially forfeited his sixteen-year sentence and was now exposed
to a life sentence by having exercised his appellate rights.

¶6             In the subsequent retrial, the jury found Martin guilty of first-
degree murder and the court sentenced him to natural life in prison. The
court of appeals affirmed Martin’s conviction and sentence. State v. Martin,
245 Ariz. 42, 46 ¶ 18 (App. 2018).




                                       3
                            STATE v. MARTIN
                            Opinion of the Court



¶7              We granted review because whether double jeopardy
prevents a retrial on the greater offense in these circumstances presents a
recurring question of statewide importance. We have jurisdiction under
article 6, section 5(3) of the Arizona Constitution. Whether double jeopardy
bars retrial is a question of law that this Court reviews de novo. State v.
Moody, 208 Ariz. 424, 437 ¶ 18 (2004).

                               DISCUSSION

¶8             “The constitutional prohibition against ‘double jeopardy’ was
designed to protect an individual from being subjected to the hazards of
trial and possible conviction more than once for an alleged offense.” Green
v. United States, 355 U.S. 184, 187 (1957); see U.S. Const. amend. V (“No
person shall . . . be subject for the same offence to be twice put in jeopardy
of life or limb . . . .”). The protection embraces a defendant’s “valued right
to have his trial completed by a particular tribunal” wherever possible to
prevent prolonged or repeated proceedings. Arizona v. Washington, 434 U.S.
497, 503–04 (1978) (internal quotation marks omitted). The “general rule”
is that the prosecution is entitled to only one complete opportunity to prove
the case, but retrial on the same charge may be permissible if the
“proceeding is terminated without finally resolving the merits of the
charges against the accused.” Id. at 505.

¶9               Martin primarily relies on Green v. United States to argue that
the first trial fully resolved his guilt on the first-degree murder charge such
that the State could only retry him for second-degree murder at his
subsequent trial. In Green, the United States Supreme Court barred retrial
on a first-degree murder charge after the first jury was silent on that charge
but returned a guilty verdict on the lesser-included offense of second-
degree murder, and that conviction was overturned on appeal. 355 U.S. at
186, 198. Martin contends that by checking “[u]nable to agree” on the
verdict form here, the jury, as in Green, impliedly acquitted him on the first-
degree murder charge, thus preventing retrial on that charge.

¶10           By contrast, the State cites Richardson v. United States for the
proposition that “a retrial following a ‘hung jury’ does not violate the
Double Jeopardy Clause.” 468 U.S. 317, 324 (1984). In Richardson, the Court
permitted retrial on two narcotics charges when the jury was unable to
reach verdicts and the trial court declared a mistrial on those counts because




                                       4
                            STATE v. MARTIN
                            Opinion of the Court



“a trial court’s declaration of a mistrial following a hung jury is not an event
that terminates the original jeopardy.” Id. at 318–19, 326. When the jury in
Martin’s first trial indicated it was unable to agree on the first-degree
murder charge, the State argues, it reflected a hung jury, thus entitling the
State to retry that offense.

¶11             We agree with Martin that Green guides the analysis here. The
Court observed that it is not “essential that a verdict of guilt or innocence
be returned for a defendant to have once been placed in jeopardy so as to
bar a second trial on the same charge.” Green, 355 U.S. at 188. Granted, the
jury in Green was silent on the first-degree murder charge; whereas here it
specified that it was “[u]nable to agree.” But in Green, as here, there were
no unforeseeable circumstances, such as mistrial, that made completion of
the first trial impossible. Id. Rather, the jury considered both the greater
and lesser offense and “refused to find [the defendant] guilty” of the greater
charge. Id. at 190.

¶12           The Court in Green observed that in such circumstances, “the
great majority of cases in this country have regarded the jury’s verdict as
an implicit acquittal on the charge of first degree murder,” but the Court
concluded that a finding that jeopardy for first-degree murder terminated
upon conviction of the lesser-included offense “need not rest alone” on the
implied-acquittal assumption. Id. at 190–91. Rather, jeopardy ended when
the jury “was given a full opportunity to return a verdict and no
extraordinary circumstances appeared which prevented it from doing so.”
Id. at 191. Thus, the defendant’s jeopardy for first-degree murder “came to
an end when the jury was discharged [after entering a verdict] so that he
could not be retried for that offense.” Id. The rule of Green is that where
the state had a full and fair opportunity to try the defendant on a charge
and the jury refused to convict, jeopardy terminates when the jury is
dismissed following its verdict, and therefore the state may not place the
defendant in jeopardy again for that same charge.

¶13           The Court expressly reaffirmed Green’s holding in Price v.
Georgia, 398 U.S. 323, 329 (1970). The Court acknowledged the “concept of
continuing jeopardy that has application where criminal proceedings
against an accused have not run their full course.” Id. at 326. In Price, the
defendant was indicted for murder, and while remaining silent as to the
charge of murder, the jury returned a guilty verdict on the lesser-included




                                       5
                            STATE v. MARTIN
                            Opinion of the Court



crime of voluntary manslaughter. Id. at 324. As here, the defendant
appealed based on procedural grounds and the conviction was overturned.
Id. He was retried for murder and again found guilty of voluntary
manslaughter. Id. While the Court held that double jeopardy did not bar
retrial on the lesser offense as the defendant had successfully appealed the
conviction, it stated that “the first verdict, limited as it was to the lesser
included offense, required that the retrial be limited to that lesser offense.”
Id. at 327.

¶14             The Court further clarified the applicable principles in Arizona
v. Washington. In that case, the trial judge declared a mistrial because of
defense counsel’s improper remarks during opening statements. 434 U.S.
at 498. The Court rejected the defendant’s argument that another trial
would be barred by double jeopardy. Id. at 515–16. The Court noted the
“general rule” that “the prosecutor is entitled to one, and only one,
opportunity to require an accused to stand trial.” Id. at 505. That rule is
grounded in the defendant’s right to have the trial completed by a
particular tribunal and can apply “[e]ven if the first trial is not completed.”
Id. at 503. However, “retrial is not automatically barred when a criminal
proceeding is terminated without finally resolving the merits of the charges
against the accused.” Id. at 505. Specifically, a prosecutor may seek a
mistrial over a defendant’s objection if a “manifest necessity” exists to do
so, which the Court characterized as a “heavy” burden. Id. The Court
concluded that defense counsel’s inappropriate comments could have led
to a jury “tainted by bias,” which satisfied the prosecutor’s burden and
justified retrial following the mistrial. Id. at 516.

¶15            The Court also observed that the general rule of a single
opportunity to prosecute a charge does not apply where a trial court
declares a mistrial based on a finding of “a genuinely deadlocked jury.” Id.
at 509. In that circumstance, the court may “require the defendant to submit
to a second trial” because of “society’s interest in giving the prosecution one
complete opportunity to convict those who have violated its laws.” Id.; cf.
Richardson, 468 U.S. at 323–24 (emphasizing that “failure of the jury to agree
on a verdict” constitutes a “manifest necessity” justifying a mistrial).

¶16           The State here insists it did not have a full and complete
opportunity to convict Martin of first-degree murder in the first trial
because the jury indicated it was unable to agree to a verdict on that charge.




                                       6
                            STATE v. MARTIN
                            Opinion of the Court



The State correctly notes that “[u]nable to agree” does not equate to an
implicit acquittal. Cf. Richardson, 468 U.S. at 325 (holding a hung jury is not
the equivalent of acquittal). But as Green emphasizes, an implied acquittal
is sufficient but not necessary for jeopardy to terminate. 355 U.S. at 190–91.
Rather, the general rule is that where the state had a complete opportunity
to prosecute the defendant and failed to obtain a conviction on the greater
charge, retrial on that charge is barred. Id. at 191; see also Washington, 434
U.S. at 505. That is exactly what happened in this case as the State fully
prosecuted the first-degree murder charge but was unable to persuade the
jury to convict. See Green, 355 U.S. at 190 (noting that jeopardy terminates
where the jury “refused to find [the defendant] guilty” on the greater charge
and that charge was “in no way involved in his appeal”). Such a situation,
where the jury is unable to agree on one charge and convicts on the lesser
offense, cannot alone justify a finding of “extraordinary circumstances” or
“genuine deadlock” required to meet the state’s heavy burden to continue
jeopardy. See Gusler v. Wilkinson, 199 Ariz. 391, 394–95 ¶¶ 17–18 (2001)
(requiring that the state demonstrate “manifest necessity” to overcome the
defendant’s right to have his fate decided by the impaneled jury).

¶17             The only exception applicable here would be if the State had
demonstrated a “manifest necessity” to support the trial court declaring a
mistrial and discharging the jury because it was deadlocked. See
Washington, 434 U.S. at 509. The absence of that situation here distinguishes
this case from Richardson, on which the State relies, where the prosecutor
successfully sought a mistrial based on a hung jury. 468 U.S. at 326 (“[A]
trial court’s declaration of a mistrial following a hung jury is not an event
that terminates the original jeopardy to which petitioner was subjected.”);
see also Sattazahn v. Pennsylvania, 537 U.S. 101, 114 (2003) (permitting second
capital-sentencing proceeding after defendant moved to discharge
deadlocked jury). Here the jury was not discharged because of a mistrial
based on jury deadlock, but only after it had returned a complete verdict on
the original indictment. See Brazzel v. Washington, 491 F.3d 976, 984 (9th Cir.
2007) (“Genuine deadlock is fundamentally different from a situation in
which jurors are instructed that if they ‘cannot agree,’ they may
compromise by convicting of a lesser alternative crime . . . .”); State v.
Espinoza, 233 Ariz. 176, 179 ¶ 10 (App. 2013) (“[A] jury’s mere statement
that it has been unable to reach a verdict after persistent deliberations—and
after proceeding to consider a lesser offense in the context of a LeBlanc




                                      7
                             STATE v. MARTIN
                             Opinion of the Court



instruction—does not, without further inquiry by the court, demonstrate a
true deadlock.” (footnote omitted)).

¶18             The process for fully and completely prosecuting a criminal
case in Arizona is set forth in LeBlanc, which established a unitary process
for jury consideration of greater and lesser-included offenses. 186 Ariz. 437.
Before LeBlanc, the approved instruction required jurors to first acquit the
defendant on the charged offense before considering lesser-included
offenses. State v. Wussler, 139 Ariz. 428, 430 (1984). LeBlanc changed the
instruction to allow jurors to “render a verdict on a lesser-included offense
if, after full and careful consideration of the evidence, they are unable to
reach agreement with respect to the charged crime.” 186 Ariz. at 438. Thus,
the jury may render a verdict on the lesser-included offense if it either
acquits the defendant on the greater offense or cannot agree on a verdict
after reasonable efforts. Id.

¶19             The Court reasoned that the “reasonable efforts” procedure
“diminishes the likelihood of a hung jury, and the significant costs of retrial,
by providing options that enable the fact finder to better gauge the fit
between the state’s proof and the offenses being considered.” Id. at 438–39.
In other words, following a full and complete presentation of the evidence,
the jury will first consider the greater offense, and if it is not convinced the
evidence supports a guilty verdict, it will consider the lesser-included
offense. The process is calculated to avoid the deadlocked jury that is a
necessary predicate for a mistrial and for a second trial on the greater
offense. The Court emphasized that “because such an instruction would
mandate that the jury give diligent consideration to the most serious crime
first, the state’s interest in a full and fair adjudication of the charged offense
is adequately protected.” Id. at 439. And, as a necessary corollary in
applying Green and Washington, when a verdict is reached on a lesser-
included offense in accord with the LeBlanc instruction, jeopardy terminates
for the greater offense and the defendant may not be retried on the greater
offense.

¶20          The State concedes that the verdict here was reached in accord
with the LeBlanc instruction. The jury was admonished to carefully
consider whether the evidence supported conviction on the greater offense,
and to consider the lesser-included offense only if it acquitted him on the
greater charge or was unable to agree. Either way, the State had a full and




                                        8
                            STATE v. MARTIN
                            Opinion of the Court



complete opportunity to prove its case for first-degree murder, and
jeopardy terminated for that crime following the jury’s guilty verdict for
second-degree murder. See Green, 355 U.S. at 190 (“[The defendant] was in
direct peril of being convicted and punished for first degree murder at his
first trial. He was forced to run the gantlet once on that charge and the jury
refused to convict him.”).

¶21            We recognize that this unitary approach toward jury
deliberation over greater and lesser-included offenses does not lend itself
to a ready opportunity for the prosecution to seek a mistrial based on a
deadlocked jury. See Espinoza, 233 Ariz. at 180 ¶ 12. However, the LeBlanc
instruction is intended to expand jury options and thereby minimize the
prospect of a hung jury. The State here did not ask us to reconsider LeBlanc,
although we do not foreclose the possibility of doing so in a future case or
rule petition.

¶22           Finally, the State argues that it was Martin who extended
jeopardy by deciding to appeal his second-degree murder conviction. The
State acknowledges that if Martin had not appealed his conviction for
second-degree murder, double jeopardy would have prohibited a new trial
on the first-degree murder charge, but it asserts that jeopardy continued
once Martin appealed. The State is wrong. By appealing a conviction on a
lesser-included offense, a defendant does not restart the jeopardy clock on
a greater charge. Green, 355 U.S. at 193.

¶23            Indeed, the Supreme Court expressly rejected as
“paradoxical” and “wholly fictional” the notion that a defendant essentially
waives double jeopardy rights by appealing a conviction on a lesser charge.
Id. at 191–93. The Court observed that “[t]he law should not, and . . . does
not, place the defendant in such an incredible dilemma” that “he must be
willing to barter his constitutional protection against a second prosecution
for an offense punishable by death as the price of a successful appeal from
an erroneous conviction of another offense.” Id. at 193; see also Price, 398
U.S. at 327 (stating that where the first verdict was limited to the lesser-
included offense and that verdict was overturned on appeal, the retrial
must be limited to that offense). That dilemma is particularly pronounced
where, as in Arizona, a defendant has a constitutional right to appeal. Ariz.
Const. art. 2, § 24 (“In criminal prosecutions, the accused shall have . . . the
right to appeal in all cases . . . .”).




                                       9
                            STATE v. MARTIN
                            Opinion of the Court



¶24            For the foregoing reasons, we conclude that trying Martin a
second time for first-degree murder under the circumstances here violated
his constitutional right to be free from double jeopardy.

                               CONCLUSION

¶25             The State alternatively asks us to reinstate Martin’s conviction
for second-degree murder. Martin argues that retrying him for first-degree
murder may have made it more likely for the jury to convict him of the
lesser-included offense than if the jury had considered the second-degree
murder charge alone. See Price, 398 U.S. at 331 (stating “we cannot
determine whether or not the murder charge against petitioner induced the
jury to find him guilty of the less serious offense”). We vacate the court of
appeals decision and remand to the trial court to consider in the first
instance whether to reduce Martin’s conviction to the lesser-included
offense, or, if Martin can show prejudice, to order a new trial. See Morris v.
Mathews, 475 U.S. 237, 246 (1986) (describing Price as suggesting “that a new
trial is required only when the defendant shows a reliable inference of
prejudice”).




                                      10
                           STATE v. MARTIN
                       JUSTICE GOULD, Concurring



GOULD, J., concurring.

¶26           I concur in the Court’s opinion. The Court faithfully applies
the reasonable-efforts framework set out by State v. LeBlanc, 186 Ariz. 437
(1996), and correctly notes that “[t]he State here did not ask us to reconsider
LeBlanc.” Supra ¶ 21. In my view, however, its conclusion that double
jeopardy attaches when a jury enters an “unable to agree” verdict raises
serious concerns about LeBlanc.

¶27           LeBlanc never addressed the double jeopardy consequences of
a jury reaching an “unable to agree” verdict. Generally, when a jury is
hung, double jeopardy does not attach. Richardson v. United States, 468 U.S.
317, 324 (1984) (holding “a retrial following a ‘hung jury’ does not violate
the Double Jeopardy Clause”). However, under LeBlanc, a verdict of
“unable to agree” may, but does not necessarily, mean that the jurors are
hung on the greater offense. See supra ¶ 17.

¶28             Compounding this problem is the fact that LeBlanc’s approach
“does not lend itself to a ready opportunity for the prosecution to seek a
mistrial based on a deadlocked jury.” See supra ¶ 21. As a practical matter,
LeBlanc provides no opportunity for the state to seek a mistrial. For
example, in the typical case, if the jurors are truly hung on a charge, they
can advise the judge that they are at an impasse. However, because LeBlanc
only requires the jurors to engage in “reasonable efforts” in considering the
greater charge (rather than having to actually agree on a verdict of guilty or
not guilty), it seems unlikely that they would advise the judge that they are
at an impasse—particularly when they can simply state they are “unable to
agree” and move on to the lesser charge.

¶29           Requesting the judge to poll the jury is also not a viable
option. When the LeBlanc verdict form is returned to the court, the jury has
already reached a verdict on the lesser offense. Under these circumstances,
why would the prosecutor request the judge to poll the jury about their
“unable to agree” verdict on the greater charge? Worse yet, what if the jury
responds they are not hung, and they request assistance from the court in
breaking the impasse? See Ariz. R. Crim. P. 22.4 & cmt. (stating the trial
judge may assist a jury at an impasse by “giving additional instructions;
clarifying earlier instructions; directing the attorneys to make additional
closing argument; reopening the evidence for limited purposes; or a




                                      11
                           STATE v. MARTIN
                       JUSTICE GOULD, Concurring



combination of these measures”). Would the judge allow additional
arguments or evidence, and then instruct the jurors to resume their
deliberations on the greater charge? Obviously not. After all, given the fact
that the jury has already reached a verdict on the lesser offense, any new
deliberations on the greater offense are barred by double jeopardy. Brown
v. Ohio, 432 U.S. 161, 168–69 (1977) (holding that double jeopardy bars a
prosecution for a greater offense after a conviction for a lesser-included
offense).

¶30             As the Court notes, jeopardy attaches if the “state had a full
and fair opportunity to try the defendant on a charge and the jury refused
to convict.” Supra ¶ 12; see Green v. United States, 355 U.S. 184, 191 (1957).
However, is this the case when the jury states it is “unable to agree”? With
such an amorphous verdict, how can we conclude the state has indeed had
a full and fair opportunity to try the defendant on the greater charge, or that
the jury refused to convict on that charge? See Arizona v. Washington, 434
U.S. 497, 505 (1978) (holding that the state is entitled to one complete
opportunity to prove the case, but double jeopardy does not bar retrial on
the same charges if the “proceeding is terminated without finally resolving
the merits of the charges against the accused”).

¶31            Before LeBlanc, Arizona used the “acquittal-first” approach
adopted in State v. Wussler, 139 Ariz. 428 (1984). Under that approach, the
jury was required to acquit the defendant on the greater charge before
considering the lesser charge. I understand LeBlanc’s concern with the
“acquittal-first” approach, although in fairness, there are advantages and
disadvantages to both the acquittal-first and reasonable-efforts approaches.
See LeBlanc, 186 Ariz. at 439 (discussing the advantages of the reasonable-
efforts approach over the acquittal-first approach); id. at 440–41 (Martone,
J., concurring in the judgment) (compiling cases and discussing the
advantages of the acquittal-first approach). Indeed, the debate about which
approach is best (as well as other alternatives) existed before LeBlanc and
persists to this day. See United States v. Tsanas, 572 F.2d 340, 344–46 (2d Cir.
1978) (compiling cases and discussing the advantages and disadvantages
for both the government and defendant under the acquittal-first and
reasonable-efforts approaches); State v. Davis, 266 S.W.3d 896, 904–08 (Tenn.
2008) (same); Michael K. Kaiser, Note, Blueford v. Arkansas: Why the United
States Supreme Court’s Construction of Arkansas’s Criminal Transitional Jury
Instructions Is Not Binding on Arkansas Courts, 66 Ark. L. Rev. 1083, 1096–



                                      12
                           STATE v. MARTIN
                       JUSTICE GOULD, Concurring



1101 (2013) (discussing the various approaches to lesser-included offense
instructions and compiling cases regarding the same).

¶32           Although there is room for debate on this issue, in my view
the primary weakness of LeBlanc is that it never addressed the problem we
face today: the double jeopardy consequences of allowing a jury to proceed
to a lesser charge based on a verdict of “unable to agree.” In contrast,
despite its faults, the acquittal-first approach plainly and clearly resolves
the double jeopardy issue.

¶33            The Court states that it does “not foreclose the possibility” of
reexamining LeBlanc’s approach “in a future case or rule petition.” Supra
¶ 21. For the reasons discussed above, I believe the Court’s openness to this
possibility is wise.




                                      13
