Jardines v. Hon. ryan-touhill/state

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ELTON JARDINES, Petitioner,

v.

THE HONORABLE JENNIFER RYAN-TOUHILL, Judge of the
SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County
of MARICOPA, Respondent Judge,

STATE OF ARIZONA, Real Party in Interest.

No. 1 CA-SA 21-0073
FILED 7-1-2021

Petition for Special Action from the Superior Court in Maricopa County
No. CR2009-136653-001
The Honorable Jennifer Ryan-Touhill, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Alcock & Associates, P.C., Phoenix
By David Le Lievre
Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By Jeffrey Duvendack, M. Desi Rubalcaba
Counsel for Real Party in Interest
 JARDINES v. HON. RYAN-TOUHILL/STATE
Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie joined. Judge Cynthia J. Bailey
dissented.

W I N T H R O P, Judge:

¶1 The State charged Elton Jardines with two counts of first-
degree murder and two counts of aggravated assault. See Ariz. Rev. Stat.
(“A.R.S.”) §§ 13-1105, -1203, -1204. Jardines’ trial ended after the
respondent judge sua sponte declared a mistrial over Jardines’ objection.
Jardines then moved to dismiss the charges against him, claiming that a
retrial would violate the constitutional prohibition against double jeopardy.
The trial court denied the motion. Jardines petitioned this court for special
action relief, arguing double jeopardy bars his retrial. For the following
reasons, we accept jurisdiction and grant relief.

FACTS AND PROCEDURAL HISTORY1

¶2 In May 2009, a fight between two groups of people outside a
convenience store became deadly when someone pulled a gun and began
shooting. Four people were shot, and two died. Jardines was present at the
scene.

¶3 As part of their investigation, police interviewed witnesses
and victims to identify the shooter. Two witnesses/victims, A.B. and S.M.,

1 We agree with our dissenting colleague that the record provided this
court is sparse. Nevertheless, we do not believe the lack of additional
record in this case precludes us from accepting jurisdiction and granting
relief. At oral argument, this court questioned Jardines’ counsel about the
meager record provided, and counsel avowed that no material facts were
in dispute. Counsel for the State did not quarrel with this avowal and
affirmatively stated that the State did not dispute the facts as set forth in
Jardines’ petition. Further, even after this court raised the issue, neither
side offered, either at oral argument or subsequently, to supplement the
record before this court, indicating that both sides believed all material facts
before the trial court for consideration had been presented to this court as
well.

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stated in part that they believed a person who had been identified as “Alex”
was the shooter and the shooter had “Biggums” or “something with a B”
tattooed on one of his arms or right bicep. Neither witness picked Jardines
out of a photo lineup at the time, although A.B. came close, stating “I want
to say [Jardines’ photo],” before ultimately rejecting all the photos shown
to her.

¶4 The State eventually charged Jardines with the crimes, but
Jardines fled to Mexico. After several years, Jardines was located and
arrested, and his trial began in March 2021.

¶5 Jardines’ primary defense was misidentification, and he
sought to impeach the testimony of both A.B. and S.M. by showing the
tattoo on his right arm was different from the shooter’s tattoo as previously
described by either A.B. or S.M. During opening statements, defense
counsel told the jury that witnesses would testify about a tattoo that was on
the shooter, and that Jardines had no such tattoo.

¶6 On the afternoon of the first day of testimony, the second
witness called by the State was S.M. For the first time, S.M. described the
shooter’s tattoo as having identifying characteristics much the same as the
tattoo on Jardines’ right arm.

¶7 Defense counsel asked for a sidebar conference, explained he
believed this information had not previously been disclosed,2 and asked to
voir dire S.M. outside the jury’s presence. The trial court agreed. S.M. then
explained no one had ever thoroughly questioned her about the shooter’s
tattoo before, and she denied receiving any further information about the
tattoo before her testimony. She conceded she had been to court once
before, although “it was a long time ago,” and had previously seen Jardines
in court. She also stated she had previously spoken to someone about the
case but was unsure if that person was a prosecutor.

¶8 The trial recessed for the evening, and defense counsel then
emailed the prosecutor asking if S.M. had been allowed to see photographs
of Jardines’ tattoos in advance of trial. The prosecutor denied allowing that
to happen.

¶9 The next morning, the prosecutor advised defense counsel
that another witness, A.B., may have seen photos of Jardines’ tattoos the
day before. At an in-chambers meeting, the prosecutor noted that during

2 The limited record before us indicates neither S.M. nor A.B. had been
questioned since their 2009 police interviews.

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the lunch hour the previous day, A.B. had reviewed her initial police
interviews on the prosecutor’s laptop in a separate witness room outside
the courtroom. The prosecutor was also in the room but sat on the other
side of the table, social distancing, and was unable to see the laptop screen.
Twice, however, the prosecutor left the room, leaving A.B. alone with the
laptop. After the prosecutor came back the second time, she noticed the
computer screen had “tabs” at the bottom3 and the “tabs” linked to three
photos of Jardines.4 Later, A.B. and S.M. saw, hugged, and spoke to one
another briefly in the witness room before S.M.’s testimony.

¶10 The next day, the trial court interviewed A.B., who confirmed
the prosecutor’s statement that she had been left alone with the laptop on
two occasions. A.B. denied accessing anything or seeing any photos of
Jardines’ tattoos on the computer, stating she had her head down while
listening to her prior recorded statements. She admitted she spoke to S.M.
immediately before S.M. testified but denied giving S.M. or anyone else
information about Jardines’ tattoos. A.B. also admitted S.M. texted her after
S.M.’s testimony concluded. Security video footage showed S.M. and A.B.
left the courthouse together.

¶11 Jardines moved to dismiss the case with prejudice based on
prosecutorial misconduct, arguing the prosecutor’s misconduct had
prejudiced him, and the only remedy was a dismissal with prejudice. He
also argued the prosecutor had made herself a necessary witness, and

3 At oral argument the next day, the prosecutor avowed that shortly
before noticing the “tabs” for the first time, she had turned the computer
around to change the recording for A.B. and “may have bumped [the
computer] and caused the thumbnails [to appear].” The prosecutor also
noted that “both times when I walked in, [A.B.] had her head down. She
wasn’t even looking at the computer.”

4 Jardines argues the photos in question show his tattoos. The State
argues the photos “appeared in thumbnail form,” “none of the potentially
exposed photos even show the full tattoo,” and “the tattoo in question does
not appear at an angle which would make the illustration incorporated into
the tattoo with [Jardines’] name visible.” If the State is correct, then even
had A.B. opened those photos and zoomed in on the tattoo in question, she
would not have been able to describe the tattoo to S.M. so that S.M. could
subsequently testify about it with the detail she provided. After observing
the photos at the bottom of the laptop, the trial court concluded it was
“unlikely” A.B. could have relied on the photos to convey the testified-to
information about the tattoo to S.M.

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alternatively, he moved to compel the prosecutor’s testimony in the event
his motion to dismiss with prejudice was denied. In support of his motion,
he maintained the prosecutor could be called as a witness in her own case.

¶12 The State responded that the motion to dismiss was “not
appropriately before the Court” because the prosecutor’s “lapse in
judgment” did not rise to the level of prosecutorial misconduct, and the trial
should continue. The State further argued that a mistrial should not be
declared, but double jeopardy should not bar a retrial if a mistrial was
declared. As to Jardines’ motion to compel the prosecutor’s testimony, the
State conceded the prosecutor could be called as a witness, but only if a
compelling need could be demonstrated.

¶13 After hearing argument on the motions, the court found
misconduct had occurred, but the misconduct was an unintentional
“mistake” or “inadvertent error,” and denied the motion to dismiss. The
court then concluded a curative instruction would not be sufficient to cure
the prosecutor’s error and proposed a stipulation regarding the facts of the
misconduct as a possible option, but Jardines rejected that proposal. The
court also rejected in part the motion to compel the prosecutor’s testimony,
concluding “you do not call a prosecutor during a case that they’re
currently prosecuting,” but granted the motion to compel the prosecutor’s
testimony in the event of a second trial.5 Neither party suggested, and the
court apparently did not consider, deferring ruling on the motion and
proceeding with the trial to see whether the need for testimony by the
prosecutor could be obviated.

¶14 Because there was no agreement on a lesser remedy, the court,
on its own motion, ordered a mistrial over both Jardines’ and the State’s
objections after concluding the misconduct made the prosecutor a
necessary witness to impeach S.M.’s testimony and the prosecutor could
not testify before the impaneled jury:

IT IS ORDERED, sua sponte, declaring a mistrial. THE
COURT FINDS that a manifest necessity exists. The manifest
necessity is that [Jardines] has a right to question [S.M.],
[A.B.], and, most specifically, the State about the photographs
on the laptop, which go to the identification issue, which is a
key fact in dispute in this case that impacts [Jardines’] ability
to a fair trial. Jardines, while objecting to the Court’s sua

5 The court did not formally disqualify the prosecutor, who
announced she was set to retire soon anyway.

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sponte motion for mistrial, does not agree to stipulate to any
actions by the State that would eliminate the need to call the
prosecutor as a witness.

¶15 Jardines moved to bar retrial based on double jeopardy
grounds, arguing a manifest necessity did not exist to sua sponte declare a
mistrial over his objection because the prosecutor could have testified at
trial while continuing her role as prosecutor. After responsive briefing, the
trial court denied the motion. Jardines then filed this special action.

ANALYSIS

I. Special Action Jurisdiction

¶16 Although a special action petition is not the exclusive way for
a defendant to obtain appellate review of a double jeopardy claim, see State
v. Felix, 214 Ariz. 110, 111-12, ¶ 8 (App. 2006), it “is the appropriate vehicle
for a defendant to obtain judicial appellate review of an interlocutory
double jeopardy claim,” State v. Moody, 208 Ariz. 424, 438, ¶ 22 (2004)
(quoting Nalbandian v. Superior Court, 163 Ariz. 126, 130 (App. 1989)).
“Because the Double Jeopardy Clause guarantees the right to be free from
subsequent prosecution, the clause is violated by the mere commencement
of retrial.” Id. (citing Abney v. United States, 431 U.S. 651, 660-61 (1977)).

¶17 Here, special action review is Jardines’ only method of relief
before a second trial commences. If he is correct in his argument, the
constitutional prohibition against double jeopardy would be violated by the
mere commencement of a second trial. See id. Accordingly, we accept
jurisdiction of his petition. See Ariz. R.P. Spec. Act. 1(a), 3(b)-(c).

II. Manifest Necessity and Double Jeopardy

¶18 The only issue presented is whether the trial court’s sua sponte
declaration of a mistrial over Jardines’ objection bars retrial on double
jeopardy grounds. Jardines argues no manifest necessity existed for the sua
sponte declaration of a mistrial over his objection because the prosecutor
could have testified about the limited facts necessary to impeach S.M. while
retaining her role as the prosecutor.

¶19 The Fifth Amendment, which protects a criminal defendant
against multiple punishments or repeated prosecutions for the same
offense, applies to individual states through the Fourteenth Amendment.
State v. Solomon, 125 Ariz. 18, 21 (1980); U.S. Const. amend. V; XIV, § 1. The
Arizona Constitution also affords “double jeopardy” protection to criminal

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defendants. See Ariz. Const. art. 2, § 10 (“No person shall . . . be twice put
in jeopardy for the same offense.”).

¶20 “Jeopardy attaches as soon as the jury is impaneled and
sworn.” McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986) (citing Crist v.
Bretz, 437 U.S. 28 (1978); Solomon, 125 Ariz. at 21; State v. Riggins, 111 Ariz.
281, 283 (1974)). Once jeopardy attaches, a defendant generally may not be
subject to a second trial for the same offense. See Arizona v. Washington, 434
U.S. 497, 505 (1978); United States v. Jorn, 400 U.S. 470, 479 (1971). Because
jeopardy attached in this case, we must consider whether Jardines would
be twice placed in jeopardy if his case proceeds to a second trial.

¶21 We review a trial court’s decision to declare a mistrial and its
ruling on manifest necessity for an abuse of discretion. State v. Adamson,
136 Ariz. 250, 263 (1983); State v. Dickinson, 242 Ariz. 120, 123, ¶ 12 (App.
2017). However, “[w]hether double jeopardy bars retrial is a question of
law, which we review de novo.” Moody, 208 Ariz. at 437, ¶ 18 (citing State
v. Siddle, 202 Ariz. 512, 515, ¶ 7 (App. 2002)).

¶22 The declaration of a mistrial negates “the defendant’s ‘valued
right to have his trial completed by a particular tribunal.’” United States v.
Dinitz, 424 U.S. 600, 606 (1976) (citations omitted); accord State v. Marquez,
113 Ariz. 540, 541-42 (1976). Thus, when considering ordering a mistrial, a
trial judge must be aware a defendant has a “significant interest” in
deciding whether to take the case from the impaneled jury and retains
primary control over the course to follow. Jones v. Kiger, 194 Ariz. 523, 526,
¶ 9 (App. 1999) (citations omitted).

Indeed, even when a palpably prejudicial error has been
committed a defendant may have valid personal reasons to
prefer going ahead with the trial rather than beginning the
entire process anew, such as a desire to minimize the
embarrassment, expense, and anxiety [of a second trial].
These considerations are peculiarly within the knowledge of
the defendant, not the judge, and the latter must avoid
depriving the defendant of his constitutionally protected
freedom of choice in the name of a paternalistic concern for
his welfare.

Id. (quoting Curry v. Superior Court, 470 P.2d 345, 351 (Cal. 1970)). See also
Klinefelter v. Superior Court, 108 Ariz. 494, 496 (1972) (recognizing a
defendant may seek “to go to the first jury and, perhaps, end the dispute
then and there with an acquittal” (quoting Jorn, 400 U.S. at 484)).

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¶23 Arizona law generally distinguishes between mistrials
declared with a defendant’s consent, and mistrials declared over a
defendant’s objection. In most cases, a mistrial declared upon a defendant’s
motion or with his consent will remove any bar to re-prosecution. Marquez,
113 Ariz. at 542 (citations omitted). In contrast, a mistrial declared without
the defendant’s consent is a bar to retrial when improperly declared.
McLaughlin, 150 Ariz. at 277 (citing State v. Fenton, 19 Ariz. App. 274, 276
(1973)). “In instances where the trial court declares a mistrial sua sponte,
whether the Double Jeopardy Clause permits retrial without the
defendant’s consent depends on whether there is a manifest necessity for
the mistrial or whether the ends of public justice will otherwise be
defeated.” Id. (citations omitted); see also United States v. Perez, 22 U.S. (9
Wheat) 579, 580 (1824).

¶24 Ordinarily, the trial court is in the best position to determine
when manifest necessity demands that a mistrial be declared. McLaughlin,
150 Ariz. at 277 (citing Klinefelter, 108 Ariz. at 496). Courts have previously
found such a manifest necessity when, for example, the jury was unable to
reach a verdict after lengthy deliberation, when the trial judge became too
ill to proceed, when newspaper coverage indicating the court had held the
defendant in contempt was read by jurors and rendered impartiality
suspect, and when a military court martial was discharged due to tactical
necessity. Id. (citing Klinefelter, 108 Ariz. at 496-97; Riggins, 111 Ariz. at 284);
see also Jones, 194 Ariz. at 526, ¶ 8 (including “when the prosecutor engaged
in misconduct”).

¶25 The burden of demonstrating a manifest necessity, however,
is “a heavy one,” Arizona v. Washington, 434 U.S. at 505, and the record here
does not reveal the existence of any of the traditional examples of manifest
necessity. Although the trial court found some level of misconduct had
occurred in the form of an unintentional “mistake” or “inadvertent error,”
the court did not base its finding of manifest necessity directly on that
conduct. Instead, the court explained that the manifest necessity behind the
mistrial was the need for the assigned prosecutor to testify and the belief
that she could not testify before the impaneled jury while acting as the
assigned prosecutor.

¶26 In Arizona, the rules of professional conduct generally
prohibit trial counsel from testifying as a witness. See Ariz. R. Sup. Ct. 42,
ER 3.7(a). Because calling a prosecutor as a witness for the defendant
inevitably confuses the distinctions between advocate and witness, and
argument and testimony, the practice should be permitted only if required
by a compelling need. State v. Tuzon, 118 Ariz. 205, 208 (1978) (citing United

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Decision of the Court

States v. Schwartzbaum, 527 F.2d 249, 253 (2nd Cir. 1975)). “[A] witness is
‘necessary’ in this context only when the witness will offer ‘relevant and
material’ testimony that ‘could not be obtained from other witnesses.’”
State v. Georgini, 2 CA-SA 2015-0069, 2016 WL 1298279, at *1, ¶ 2 (Ariz. App.
Apr. 1, 2016) (mem. decision) (quoting Sec. Gen. Life Ins. Co. v. Superior Court,
149 Ariz. 332, 335 (1986)). Thus, there are rare circumstances in which a
prosecutor may testify in a case that he or she actively prosecutes. See State
v. Williams, 136 Ariz. 52, 57 (1983); State v. Howard, 27 Ariz. App. 339, 341
(1976) (“Although it is generally held that a prosecutor is competent to
testify in a criminal case for the State even though he is engaged in the
prosecution of the case, courts have generally disapproved the practice
except in the extraordinary circumstances.” (citation omitted)).

¶27 Here, it appears everyone, including the trial court, agreed the
prosecutor was a necessary witness to testify in a limited capacity about
facts surrounding the incident with the laptop. Assuming arguendo the
prosecutor was a necessary witness,6 we agree with Jardines that the
prosecutor could have testified at the time of trial without being
disqualified. See Williams, 136 Ariz. at 57; Howard, 27 Ariz. App. at 342.

¶28 The State relies on Cottonwood Estates, Inc. v. Paradise Builders,
Inc., 128 Ariz. 99 (1981), to argue that because the roles of an advocate and
a witness are inconsistent, the assigned prosecutor should not have
continued to represent the State and therefore manifest necessity existed to
sua sponte declare a mistrial. In Cottonwood Estates, our supreme court
denied special action relief after the trial court ruled the petitioners’
attorney could not try a breach of contract action brought against his client
and testify as a witness in the same proceeding. Id. at 101, 106. In its
analysis, the court quoted Hales v. Pittman, 118 Ariz. 305, 313 (1978), for the
proposition that “[a] fundamental rule of the American system of
jurisprudence prohibits an attorney from testifying in a case he is
handling.” Cottonwood Estates, 128 Ariz. at 102. The court further noted that
“[a] review of cases from other jurisdictions reveals that courts normally
refuse to condone the practice of acting both as advocate and witness in the
same proceeding.” Id. (citations omitted).

6 We agree the prosecutor was potentially a necessary witness. Still,
on the limited record provided by the parties, it appears most if not all her
expected impeachment testimony could have been obtained through the
consistent testimony of A.B., another attorney who could testify as to
practices and procedures in the prosecutor’s office, and possibly a forensic
computer analyst.

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¶29 We do not quarrel with those fundamental tenets. We note,
however, that Cottonwood Estates does not stand for the proposition that an
assigned prosecutor can never testify in his or her case. Cottonwood Estates
is a civil case that involved an attorney advocating as both counsel and a
witness for his client, not a criminal case in which the prosecutor is called
on behalf of the defendant for impeachment purposes against her case. See
id. at 102 n.4 (“While in a criminal proceeding there are similar
considerations militating against an attorney testifying in a trial he is
conducting, there are additional considerations which we are not required
to weigh here.”). Moreover, if our supreme court’s 1981 ruling in
Cottonwood Estates always precluded an attorney from being called as a
witness, the court would not have two years later issued Williams, which
supported, with caution, compelling the use of the prosecutor as a material
witness in limited circumstances. 136 Ariz. at 56-57. Here, unlike
Cottonwood Estates, the trial court did not disqualify the prosecutor, who
could have continued to prosecute the case and been allowed to testify in a
limited capacity as an impeachment witness if necessary. See Howard, 27
Ariz. App. at 342 (“Although a prosecutor, when he finds it necessary to
testify on behalf of the prosecution, should withdraw, he has no such duty
when called on behalf of the defendant.” (citations omitted)). Accordingly,
no manifest necessity existed for declaring a mistrial on this basis.

¶30 Further, even if the trial court desired not to have the
prosecutor testify in a case she was prosecuting, the court did little to
consider other alternatives to declaring a mistrial. Jardines indeed declined
the court’s suggestion of a stipulation, and the court perhaps correctly
summarily rejected the idea of a possible jury instruction. However, there
appears to have been no consideration as to whether other evidence might
obviate any possible need for the prosecutor’s testimony, as to the
availability of another prosecutor with familiarity of the case to take over,
or in inquiring of the jurors whether a delay in the trial until another
prosecutor could take over would inconvenience them. See McLaughlin, 150
Ariz. at 277-78; Jones, 194 Ariz. at 527, ¶ 12. On this record, no manifest
necessity existed for the court’s sua sponte declaration of a mistrial.

¶31 Because it is possible that the prosecutor might not have to
testify or could testify while continuing to prosecute the case without the
need for a mistrial, no manifest necessity existed to sua sponte declare a
mistrial against Jardines’ objection. Accordingly, jeopardy has attached in
this case, and a retrial is barred.

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CONCLUSION

¶32 We accept jurisdiction of Jardines’ special action petition and
grant relief. We remand to the trial court with instructions to dismiss the
charges with prejudice against Jardines.

B A I L E Y, J., dissenting:

¶33 I respectfully dissent.

¶34 While the parties do not dispute many of the facts, much of
what was presented in the petition comes from the briefing and from
descriptions of the facts in the motions filed in superior court, and not from
the transcripts of the trial. By the time the superior court declared a mistrial,
both parties had presented their opening statements, the state had elicited
S.M.’s testimony on direct, S.M. answered Petitioner’s voir dire questions,
the court had reviewed S.M.’s police interview from 2009 and the photos
referenced on the prosecutor’s computer, and had also considered the
testimony A.B. and the victim advocate had given outside the jury’s
presence. None of this record is before us.

¶35 The Petitioner had the burden to file everything from the
record below necessary for this court to rule. Ariz. R.P. Spec. Act. 7(e) (“All
references to the record shall be supported by an appendix of documents in
the record before the trial court that are necessary for a determination of the
issues raised by the petition.”). Not only did Petitioner decline to file any
of the relevant transcripts, but when the court inquired during oral
argument, he shrugged off their relevance to the issue his petition presents.
In my view, without a full record, we cannot adequately review the facts
and circumstances the superior court necessarily considered when it ruled.
Nor can we fully appreciate the context in which the court found a manifest
necessity existed, or adequately assess the parties’ arguments, including
Petitioner’s assertion here that he would have been in a better position if
trial proceeded.

¶36 As the majority acknowledges, the general rule prohibits a
prosecutor from testifying in a case he or she is prosecuting. Normally,
when the prosecutor must testify, he or she must step down from the
courtroom team or be disqualified. But here the majority concludes that
this case falls into an exception to that rule. In my view, there is no

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Bailey, J., dissenting

precedent for that conclusion. Based on what we know from the parties’
briefing and the court’s minute entries, the prosecutor’s testimony would
have addressed the core issue before the jury—the crux of the defense—the
identification of Petitioner as the shooter. The prosecutor’s testimony
would have either impeached or bolstered the testimony of a key
identification witness or witnesses. Acknowledging that uncertainty, the
superior court could have properly inferred that the prosecutor would be
in the untenable position of vouching for her own credibility in closing
arguments. That argument would not only put the weight of the
government behind the prosecutor’s testimony but could result in the
prosecutor vouching for an eyewitness’s testimony. As such, the cases the
majority cites, which weigh against the finding of a manifest necessity, do
not reflect the circumstances present in the limited record before us.

¶37 I agree with the majority that a court’s sua sponte mistrial
declaration over a defense objection can be highly problematic. But it is
equally rare for a court to conclude that a prosecutor must be allowed to
testify on a matter central to the case. As the majority notes, when that
scenario arises, and the prosecutor declines to step down, the trial judge is
in the best position to determine whether a manifest necessity exists. Here,
because a full transcript of the proceedings is not part of the record, I cannot
conclude the court abused its discretion by sua sponte declaring a mistrial.
See McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986) (citing Klinefelter v.
Superior Court, 108 Ariz. 494, 496-97 (1972)).

¶38 I also disagree with the majority’s conclusion that the trial
court did “little to consider other alternatives to declaring a mistrial.” See
supra ¶ 30. Precedent provides slim guidance on how many alternatives the
trial court must consider before declaring a mistrial. Here, the superior
court considered a curative instruction and would have allowed a
stipulation describing A.B.’s opportunity to view the prosecutor’s
computer if the parties had agreed to one. And unlike the cases upon which
the majority relies, nothing in this record shows the availability of a second-
chair or another prosecutor who could have taken over the prosecution
here.

¶39 Ultimately, without the benefit of knowing everything the
court considered before declaring a mistrial, I would apply the
presumption that the record supports the court’s finding of a manifest
necessity and decline special action jurisdiction. See Baker v. Baker, 183 Ariz.
70, 73 (App. 1995) (“A party is responsible for making certain the record on
appeal contains all transcripts or other documents necessary for us to
consider the issues . . . . When a party fails to include necessary items, we

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Bailey, J., dissenting

assume they would support the court’s findings and conclusions.”) (citation
omitted); see also Ariz. R.P. Spec. Act. 7(e).

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

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