GRANADA-RUIZ (GAMBINO) VS. DIST. CT. (STATE)

                                                       134 Nev., Advance Opinion    67
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                   GAMBINO GRANADA-RUIZ,                                  No. 72446
                   Petitioner,
                   vs.
                   THE EIGHTH JUDICIAL DISTRICT                                          ED
                   COURT OF THE STATE OF NEVADA,
                   IN AND FOR THE COUNTY OF                                     AUG 0 22018
                   CLARK; AND THE HONORABLE                                        /4 r21/
                                                                            CLETTI1k
                                                                                             BROWN


                   KATHLEEN E. DELANEY, DISTRICT                           BY
                   JUDGE,
                   Respondents,
                      and
                   THE STATE OF NEVADA,
                   Real Party in Interest.



                               Original petition for a writ of mandamus, or in the alternative,
                   prohibition in a criminal matter.
                               Petition denied.


                   David M. Schieck, Special Public Defender, and Robert Arroyo, Alzora B.
                   Jackson, and JoNell Thomas, Deputy Special Public Defenders, Clark
                   County,
                   for Petitioner.

                   Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                   District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
                   Nicole J. Cannizzaro and Kenneth N. Portz, Deputy District Attorneys,
                   Clark County,
                   for Real Party in Interest.




                   BEFORE THE COURT EN BANC.

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                                                    OPINION

                   By the Court, CHERRY, J.:
                               Petitioner Gambino Granada-Ruiz stood trial on charges of
                   murder and battery with substantial bodily harm. During a weekend recess
                   in jury deliberations, one juror conducted extrinsic legal research and
                   shared that information with other jurors when deliberations resumed.
                   After considering argument from counsel and canvassing two jurors, the
                   district court declared a mistrial. Granada-Ruiz moved to dismiss the
                   charges based on a constitutional double jeopardy theory. The district court
                   denied the motion and set the matter for a new trial. Granada-Ruiz
                   petitions this court for a writ of mandamus' directing the district court to
                   grant his motion to dismiss and bar his re-prosecution following the
                   mistrial. We conclude that double jeopardy does not prohibit Granada-
                   Ruiz's retrial under the totality of the circumstances because he impliedly
                   consented to the district court's declaration of a mistrial, and the district
                   court did not abuse its discretion in finding manifest necessity to declare a
                   mistrial. Therefore, we deny Granada-Ruiz's petition on the merits.
                                    FACTS AND PROCEDURAL HISTORY
                               The State charged Granada-Ruiz with murder and battery
                   resulting in substantial bodily harm Whether Granada-Ruiz and the
                   victim had a physical altercation was not at issue, and the trial hinged on
                   whether Granada-Ruiz acted in self-defense. The trial proceeded to jury


                          'Granada-Ruiz alternatively seeks a writ of prohibition; however, a
                   writ of prohibition serves to arrest the proceedings of a court outside of its
                   jurisdiction. NRS 34.320. Because he seeks a writ compelling the district
                   court to grant his motion to dismiss on grounds that the double jeopardy
                   principles mandate such an outcome, we consider his petition under the
                   mandamus standard.
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                deliberations without incident. On the second day of deliberations,
                however, the district court received two notes from jurors. The first note
                was from Juror No. 12 and claimed that Juror No. 3 had performed external
                legal research on the internet the previous weekend. The second note was
                from Juror No. 3 and stated that he had researched legal definitions and
                was unwilling to disregard what he had found.
                            The district court summoned both parties and, before Granada-
                Ruiz arrived, informed counsel for both sides of the developments and that
                the district court would need to determine if further deliberations were
                possible. The district court stated that it would canvass the jurors to
                determine whether the information had been shared, the nature and scope
                of the taint, and whether the deliberative process had been so compromised
                to necessitate a mistrial.
                            The State suggested that the district court conduct a two-part
                inquiry to determine whether the information had been shared and whether
                the remaining jurors would be able to disregard it. It further posited that,
                because Juror No. 3 had separated himself from the other jurors, his
                research may not have affected their deliberations. Granada-Ruiz's counsel
                disagreed, stating that external research entering the deliberation room
                was inherently a problem, creating the possibility that it "infect[ed] the
                jury." The district court again indicated that if canvassing revealed the
                external research had been shared amongst the jurors, deliberations may
                be irreparably tainted and whether the trial continued would ultimately be
                up to the court.
                             Upon Granada-Ruiz's arrival, the district court apprised him of
                what had occurred and allowed the parties to present the caselaw they had


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                found in the meantime. 2 To determine the nature and extent of the taint,
                the district court called the foreperson for canvassing. The foreperson
                stated that although multiple jurors had informed Juror No. 3 that he
                should not attempt to discuss his external research, the deliberations
                throughout the day included discussions about Juror No. 3's external
                research concerning the definitions of premeditation and self-defense. The
                foreperson further stated that Juror No. 3 perceived a difference in what
                was stated during closing argument about premeditation and what his
                research revealed, and the deliberations never meaningfully returned to the
                jury instructions on either issue because "the conversation really got bent
                more on what Juror No. 3 was saying about premeditation."
                            After dismissing the foreperson, the district court told both
                parties that it would question Juror No. 3 but that it appeared external
                research concerning the central issues presented to the jury had permeated
                deliberations and led to the exclusion of the jury instructions on two points
                of law. The district court stated that it struggled to see how deliberations
                could be untainted, even if the remaining jurors offered assurances that
                they could disregard the improper research. The district court requested
                both parties' thoughts on proceeding. The State maintained that the
                district court could disregard the external research so long as the remaining
                jurors rejected it and canvassing revealed that the external research did not
                affect deliberations. Granada-Ruiz's counsel stated that she wanted to hear
                from Juror No. 3 but that she tended to agree with the court's initial



                      2We  note here that the best practice is to wait for the defendant's
                arrival before discussing crucial issues at trial, however, the district court
                acted responsibly here by repeating the information upon Granada-Ruiz's
                arrival.
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                impression that the external research both permeated the deliberations and
                concerned the central issue of trial.
                            The district court then canvassed Juror No. 3. Juror No. 3
                stated that he had been confused by something the State had said in closing
                arguments and decided to research premeditation and self-defense on his
                own for clarity as to sufficient time lapse for forming a premeditated intent
                and continuing danger for purposes of self-defense. Juror No. 3 stated that
                he perceived the other jurors comments about outside research being
                impermissible to mean that he was not allowed to consider the law and that
                the law was "stricken from the record." He further stated, "I don't know
                what I am doing. I don't know what is going on to be honest with you."
                After Juror No. 3 returned to the deliberation room, the district court stated
                that Juror No. 3's incoherent statements and fundamental
                misunderstanding of his duty demonstrate his inability to serve on the jury,
                and the district court reiterated its concern over the nature and length of
                discussion involving external research. Counsel for Granada-Ruiz then
                expressed Granada-Ruiz's frustration after two weeks of trial and said, "[s]
                it's my understanding that the Court is going to declare a mistrial. I don't
                know if we are going to try to go down that road of trying to discuss it."
                Defense counsel and co-counsel asked the court to "find out [the results of]
                the 11 to 1" preliminary jury vote, and stated, "I think based on that, we
                have our opinion. We would just like to know." Not hearing any objections,
                the district court ordered a mistrial, finding a manifest necessity as there
                could be no assurances that any further product of deliberations would be
                fair and impartial and unaffected by the external research. The district
                court informed the foreperson that it was declaring a mistrial and asked the
                foreperson about his earlier note indicating that the jury had voted and
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                deliberations were not moving toward unanimous decision. The foreperson
                stated that the vote stood at 11 to 1 not guilty. The court then dismissed
                the jury.
                            Granada-Ruiz moved to dismiss the charges, arguing that there
                was no manifest necessity for a mistrial, such that re-prosecution was
                barred by constitutional double jeopardy principles. The State opposed the
                motion, arguing that the court acted within its discretion in declaring a
                mistrial, and Granada-Ruiz did not object to it. After oral arguments, the
                district court denied the motion and issued the following findings of facts
                and conclusions of law: (1) neither party requested a mistrial, (2) the court
                considered alternatives to declaring a mistrial, (3) it had canvassed the jury
                in order to determine whether a mistrial was necessary, (4) the jurors had
                discussed the substance of Juror No. 3's research for a lengthy period,
                (5) the jury never returned to the statements of law in the jury instructions,
                (6) the court found manifest necessity to order a mistrial because the
                research pertained to material facts and issues and the jury's deliberation
                on this research made it impossible to determine what constituted proper
                deliberation, and (7) that a sua sponte mistrial was necessary in light of the
                permeation of the extrinsic research. Granada-Ruiz now petitions this court
                for extraordinary writ relief.
                                                 DISCUSSION
                            Entertaining a petition for a writ of mandamus is within this
                court's discretion. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677,
                818 P.2d 849, 851 (1991). A writ of mandamus serves to compel an act
                required by law or to control the arbitrary exercise of discretion.    State v.
                Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d
                777, 779-80 (2011). We will not entertain such a petition if there is an

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                adequate remedy in the ordinary course of law. NRS 34.170. However, a
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                petitioner's ability to raise a double jeopardy argument on appeal from a
                final judgment following a retrial is not an adequate remedy, as it still
                subjects the accused to being placed in jeopardy twice. Gonzalez v. Eighth
                Judicial Dist. Court, 129 Nev. 215, 217-18, 298 P.3d 448, 449-50 (2013). As
                such, we exercise our discretion to consider the merits of Granada-Ruiz's
                petition.
                The Double Jeopardy Clause does not bar the re-prosecution of Granada-
                Ruiz
                            The guarantee against double jeopardy provided by the Fifth
                Amendment of the United States Constitution, which is applicable to the
                states through the Fourteenth Amendment's Due Process Clause, prevents
                a defendant from being tried more than once for the same offense.       Oregon
                v. Kennedy, 456 U.S. 667, 671 (1982). Where a mistrial that has not been
                requested by the defendant prevents the return of a verdict, re-prosecution
                violates the Double Jeopardy Clause unless the defendant has either
                consented to the mistrial or the court determines that a mistrial was a
                manifest necessity. Glover v. Eighth Judicial Dist. Court, 125 Nev. 691,
                709, 220 P.3d 684, 696 (2009).
                      The totality of the circumstances demonstrate that Granada-Ruiz
                      impliedly consented to mistrial
                            Granada-Ruiz argues that he never expressly consented to a
                mistrial and never had an opportunity to object because the district court
                stated that the decision of whether a mistrial was necessary was within the
                court's sole discretion. Citing Benson v. State, he also asserts that when
                looking to the totality of the circumstances, he did not impliedly consent to
                a mistrial. 111 Nev. 692, 895 P.2d 1323 (1995). We disagree.




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                             Consent to mistrial need not come in the form of a motion from
                 the defendant or verbal approval, but may be implied from the totality of
                 the circumstances.    Benson, 111 Nev. at 696-97, 895 P.2d at 1326-27
                 (determining that the totality of the circumstances did not demonstrate the
                 defendant's implied consent where the defendant disputed the prosecution's
                 basis for seeking a mistrial, defense counsel's initial statement that he
                 would not oppose a mistrial was made without consulting the defendant and
                 while under attack from the prosecutor and under threat of contempt, the
                 court did not explore other options before declaring a mistrial, and there
                 was no manifest necessity for a mistrial). Among the facts we look to in
                 considering the totality of the circumstances under Benson, this court has
                 previously recognized a defendant's failure to object or argue against a
                 court's declaration of a mistrial as a circumstance that may indicate implied
                 consent. See Gaitor v. State, 106 Nev. 785, 788, 801 P.2d 1372, 1374 (1990)
                 (holding that "[t]he failure of defense counsel to object or express an opinion
                 to the district court regarding the propriety of the mistrial implied consent
                 and indicated tacit approval" when the circumstances otherwise supported
                 the district court's conclusion that there was a manifest necessity for a
                 mistrial), overruled on other grounds by Barone v. State, 109 Nev. 1168, 866
                 P.2d 291 (1993). However, consent cannot be implied based on a failure to
                 object where the defendant was not given an opportunity to object or where
                 the circumstances made objection an impracticability.         United States v.
                 Jam, 400 U.S. 470, 487 (1971); Benson, 111 Nev. at 698, 895 P.2d at 1327-
                 28.
                             Here, it is clear that Granada-Ruiz never expressly consented
                 to the declaration of mistrial. However, the totality of the circumstances
                 support the conclusion that Granada-Ruiz impliedly consented to a mistrial.

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                     Granada-Ruiz did not object to the declaration of a mistrial. Instead, when
                     informed about the juror's notes to the district court, defense counsel stated
                     that external research entering the deliberation room was an inherent
                     problem, which may have "infect [ed] the jury." When asked by the district
                     court to express an opinion on the appropriateness of declaring a mistrial,
                     Granada-Ruiz and defense counsel seemed amenable to it, and after the
                     canvassing of the foreperson, defense counsel stated that she tended to
                     agree with the district court that the juror's external research both
                     permeated and derailed the deliberations and concerned issues central to
                     trial. Implied consent to a mistrial has serious implications and we do not
                     presume it lightly, Benson, 111 Nev. at 696-97, 895 P.2d at 1327, and thus,
                     while some indication of opposition would have weighed on our analysis in
                     considering the totality of the circumstances, it was not present here.
                                 Further, the facts here bear no similarity to situations in which
                     the trial court declared a mistrial without warning and defendants were not
                     given an opportunity to object or in which objection was impracticable.
                     Unlike Jorn, in which the United States Supreme Court held that finding
                     implied consent was inappropriate because the defendant was not given an
                     opportunity to object where the trial judge declared a mistrial with no prior
                     warning or consultation with the parties, 400 U.S. at 487, Granada-Ruiz
                     was invited to present his views on whether a mistrial was appropriate, and
                     the district court took steps to investigate the impact of the improper
                     research. Additionally, unlike Benson, in which this court concluded that it
                     was inappropriate to interpret defense counsel's acquiescence to a mistrial
                     as consent because defense counsel had previously argued against the
                     State's motion for a mistrial, and his continued opposition was made
                     impracticable by the openly hostile exchanges between defense counsel,
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                     prosecution, and the court, 111 Nev. at 698, 895 P.2d at 1328, the basis for
                     a mistrial here was jury misconduct that was brought to the district court's
                     attention by the jury, not a prosecution motion, and the proceedings to
                     resolve that issue were not hostile, but instead driven by appropriate
                     inquiry regarding the integrity of jury deliberations. 3
                                 Finally, the district court's statement that the decision
                     regarding whether to declare a mistrial would be within its own discretion
                     did not absolve Granada-Ruiz from objecting to the mistrial. The power to
                     order a mistrial rests with the district court but that does not mean counsel
                     need not advocate its positions, and concluding otherwise would contradict
                     this court's holding that it is appropriate to consider a defendant's failure
                     to voice any opposition when• determining whether a defendant consented
                     to a mistrial. See Gaitor, 106 Nev. at 788, 801 P.2d at 1374. Here, the
                     district court asked for the parties' opinions on whether the• juror
                     misconduct permeated the deliberations and impacted the jury's ability to
                     render an impartial decision, and defense counsel stated that she tended to
                     agree with the district court's assessment that it did. Granada-Ruiz was in
                     the courtroom when the jury was canvassed on the matter, and the district
                     court informed him of the misconduct and the possibility of a mistrial.



                           3 Granada-Ruiz   also argues that Benson held the failure of defense
                     counsel to discuss the consequences of mistrial with the defendant weighed
                     against a finding of implied consent. While the absence of consultation was
                     a factor supporting the lack of implied consent in Benson, 111 Nev. at 698,
                     895 P.2d at 1328, it was one of several factors considered under the totality
                     of the circumstances. Moreover, it was considered in the context of how
                     hurried and hostile the courtroom atmosphere had become when the court
                     declared a mistrial, id., unlike here, where the district court canvassed
                     jurors, asked for counsel's input, and considered Granada-Ruiz's frustration
                     with the jury misconduct before declaring a mistrial.
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                While counsel and Granada-Ruiz expressed frustration with what had
                transpired at this late stage in the trial, they did not present any objection
                to the declaration of a mistrial despite being given ample opportunity to do
                so. These circumstances support that Granada-Ruiz impliedly consented to
                the district court's declaration of a mistrial, and double jeopardy does not
                bar a second trial.
                      The district court did not abuse its discretion in finding manifest
                      necessity to declare a mistrial
                            Even in the absence of implied consent, the district court did
                not abuse its discretion in finding manifest necessity to declare a mistrial.
                Granada-Ruiz argues that the district court employed an incorrect legal
                standard, as not every exposure to improper research requires a mistrial.
                Granada-Ruiz further submits that less drastic remedies would have been
                appropriate, and there was no support for the district court's conclusion that
                impaneling an alternate juror would not have been adequate. We disagree.
                             A sua sponte declaration of a mistrial does not create a bar to
                re-prosecution on the same charges when there is manifest necessity to
                declare a mistrial.   United States v. Perez, 22 U.S. 579, 580 (1824). The
                finding of manifest necessity is reviewed for an abuse of discretion. Glover,
                125 Nev. at 703, 220 P.3d at 693. In this context, the abuse of discretion
                standard turns on the question of whether the finding of manifest necessity
                is one "a rational jurist could have made based on the record." United States
                v. Chapman, 524 F.3d 1073, 1083 (9th Cir. 2008). The deference extended
                to the trial court varies based on the circumstances of the case, but great
                deference is given when the district court declared a mistrial based on its
                own finding of potential juror bias. Id. at 1082; United States v. Jarvis, 792
                F.2d 767, 769 (9th Cir. 1986). Our purpose on review is to halt irrational
                decisions, thus we "focus on the procedures employed by the judge," and "[a]
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                determination of manifest necessity may be upheld even if other reasonable
                trial judges might have proceeded with the trial despite the error."
                Chapman, 524 F.3d at 1082. In determining whether the trial court
                exercised sound discretion in declaring a mistrial, we consider whether the
                court: (1) allowed both parties to voice their opinions on the necessity of a
                mistrial, (2) considered alternatives to a mistrial, (3) deliberately arrived at
                the decision to declare a mistrial, and (4) declared the mistrial based on
                evidence in the record. Id.; Glover, 125 Nev. at 710, 220 P.3d at 697.
                            The record shows that the district court acted within its sound
                discretion in declaring a mistrial. First, the district court solicited the
                opinions of both parties on three separate occasions following the discovery
                of the juror misconduct. Thus, both parties had multiple opportunities to
                apprise the district court of their positions regarding an appropriate remedy
                and to provide caselaw they found to be instructive.
                             Second, the record demonstrates the district court considered
                alternatives to declaring a mistrial. It expressly stated that its course of
                action would depend on what it discovered while canvassing the jurors. The
                transcript of the canvassing likewise supports the district court's
                determination that Juror No. 3's research had permeated the jury room and
                the jurors did not return to the jury instructions during deliberations, and
                thus also supports the district court's resulting conclusion that employing
                alternate jurors would be inadequate.
                             Third, the district court was deliberate in arriving at its
                decision to declare a mistrial. Implicit in this factor is whether the district
                court applied the appropriate legal standards in arriving at its decision.
                See, e.g., Glover, 125 Nev. at 716, 220 P.3d at 701. The primary indicator of
                behavior that is not deliberate is where the mistrial is declared suddenly,

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                without a hearing, and without giving thought to alternatives. Chapman,
                524 F.3d at 1082 (citing United States v. Bates, 917 F.2d 388, 396 (1990)).
                Here, the district court not only allowed the parties to present arguments
                as to the appropriateness of declaring a mistrial, but canvassed the
                foreperson and the offending juror in order to evaluate the extent to which
                the improper research had tainted deliberations.
                            Relatedly, the record does not support Granada-Ruiz's
                argument that the district court employed an incorrect legal standard in
                which any spread of the improper research would constitute manifest
                necessity. The depth of the district court's investigation into the impact of
                the improper outside influence on the jury's deliberations is reflected in the
                progression of the district court's questioning of the jurors and its findings
                of fact in that regard. The district court's determination that the improper
                research had been shared amongst the jurors and consumed deliberations
                to the extent that the jury never returned to the proper statements of law
                in the jury instructions is supported by the record. 4 Thus, we see no grounds
                on which to conclude that the district court's factual findings were clearly



                      4 Granada-Ruiz    contends that the improper research introduced by
                Juror No. 3 did not differ from the jury instruction, and consequently could
                not have tainted jury deliberations. Juror No. 3, however, was not able to
                articulate the legal conclusions he drew from his research, except to state
                that they differed from what he recalled from trial or understood from the
                jury instructions. Regardless, his outside research led to prolonged
                disagreement in the deliberation room, and the fact that the other jurors
                opposed the introduction of Juror No. 3's improper research does not change
                the fact that the jury discussed it without returning to the jury instructions.
                Thus, Granada-Ruiz's argument in this regard does not warrant a different
                outcome. See Chapman, 524 F.3d at 1082 ("A determination of manifest
                necessity may be upheld even if other reasonable trial judges might have
                proceeded with the trial despite the error.").
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                  erroneous. See Meyer v. State, 119 Nev. 554, 561, 80 P.3d 447,453 (2003)
                  ("Absent clear error, the district court's findings of fact will not be
                  disturbed.").
                                  Finally, the decision to order a mistrial was based on evidence
                  in the record. Two notes from jurors revealed that improper outside
                  research was considered in deliberations and Juror No. 3's stated inability
                  to follow the law. The district court's canvass of the jury revealed that the
                  improper research had replaced the jury instructions as the center of jury
                  deliberations, and the jury did not return to the proper statements of law in
                  deliberating on a verdict. The district court relied on this evidence in
                  finding manifest necessity to declare a mistria1. 5 Accordingly, we conclude
                  that the district court did not abuse its discretion in finding a manifest
                  necessity to declare a mistrial.




                        5Granada-Ruiz also argues that the trial court was required to
                  canvass each of the jurors to determine the improper research was
                  prejudicial and the replacing the offending juror would be an inadequate
                  remedy. While the district court must determine whether the improper
                  research had an effect on the jury, Bowman v. State, 132 Nev., Adv. Op. 74,
                  387 P.3d 202, 206 (2016), we have never held that a court must canvass
                  each of the nonoffending jurors to determine whether each, individually,
                  was effected by the improper research. Here, the district court determined
                  the effect of the improper research on the jury by canvassing Juror No. 3
                  and the foreperson and discovering that the improper research had
                  dominated deliberations and prevented the jury from applying the proper
                  statements of law provided in the jury instructions.
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                                               CONCLUSION
                              We conclude that the district court properly denied Granada-
                Ruiz's motion to dismiss. A second prosecution following the district court's
                declaration of mistrial is not prohibited by double jeopardy as the totality of
                the circumstances, which include (1) Granada-Ruiz's lack of objection to a
                mistrial, despite having the opportunity to raise an objection; (2) his
                agreement with the court's analysis of the juror misconduct; and (3) the
                possibility of mistrial being raised sua sponte, support Granada-Ruiz's
                implied consent to mistrial. Further, the district court did not abuse its
                discretion in finding manifest necessity to declare a mistrial, as the court
                heard the positions of both sides; the record supports that the court explored
                other options, such as replacing Juror No. 3; the district court was
                deliberate in investigating the juror misconduct and evaluating the need for
                mistrial; and the basis for finding manifest necessity was reflected in the
                record. Therefore, re-prosecution is not barred by double jeopardy and
                accordingly we deny Granada-Ruiz's petition _fiv a writ of mandamus.



                                                            Cherry
                We concur:


                          t,cei              c.j.
                Douglas                                       ibbons


                                               J.             / ALA cet-IA. 1             J.
                                                            Hardesty


                                                                  /eksaC4-0
                Parraguirre                                  Stiglich

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