dissenting.
Although I agree with the dissenting opinion of Wathen, J. that the laboratory report was inadmissible under M.R.Evid. 803(6), it is my opinion that the judgment should be vacated and an order entered dismissing the indictment because of a violation of the defendant’s right not to be twice placed in jeopardy.
The court’s opinion gives short shrift to the issue of double jeopardy. It does not consider whether the trial justice acted within his discretion in declaring a mistrial at the defendant’s first trial. Instead it finds that the defendant consented to the mistrial, and thus waived his right not to be retried. This record shows neither manifest necessity for, nor the defendant’s consent to, a mistrial.
There is no question that “the trial court may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial.” Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978). It is also clear that the trial court has “broad discretion in deciding whether or not ‘manifest necessity’ ” for a mistrial, viz., a genuinely deadlocked jury, exists in a particular case. Id.; State v. McConvey, 459 A.2d 562, 566 (Me.1983). But the court’s discretion is not unbounded. It may be exercised only within the parameters of the policy governing the defendant’s “valued right to have his trial completed by a particular tribunal.” Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832. Specifically, the court’s discretion is limited to ensuring that the verdict ultimately rendered derives from the “considered judgment of all the jurors,” and not from other “pressures inherent in the situation.” Id. A reviewing court is required to show deference to the trial court’s determination that a jury could not have reached a verdict with more deliberation only as long as the trial court acted within those boundaries. Id. at 510, n. 28, 98 S.Ct. at 832-33, n. 28; State v. Linscott, 416 A.2d 255, 260 (Me.1980).
Because of the importance of the defendant’s right to be free from double jeopardy, “the trial justice has a duty to assure himself that the jury is genuinely deadlocked *1000before declaring a mistrial....” State v. Mahaney, 437 A.2d 613, 619, n. 4 (Me.1981) (emphasis added). This Court has listed standards that it deems relevant to the trial court’s decision. See State v. McConvey, 459 A.2d at 566-67; State v. Linscott, 416 A.2d at 260. These standards are objective factors that enable the Law Court to assess whether the trial court properly exercised its discretion. No single factor, except that the jury be allowed adequate time for deliberation, is mandatory, but, taken together, they have the force of “guidelines” that the trial court may not disregard. See State v. McConvey, 459 A.2d at 566-67; State v. Commeau, 438 A.2d 454, 456 (Me. 1981); State v. Henderson, 435 A.2d 1106, 1108 (Me.1981); State v. Linscott, 416 A.2d at 260. The Law Court’s evaluation of the trial courts’ decisions under these guidelines was determinative in those four cases. See also State v. Fredette, 462 A.2d 17, 20 (Me.1983) (alternative holding).
We require that the trial justice allow the jury adequate time for deliberation (which may in part depend on the length of the trial), and suggest that he inquire of the foreman whether there exists a reasonable probability of a unanimous verdict. Beyond that we have looked to the extent of the disagreement reported, the number of communications from the jury indicating a deadlock, whether the judge gave the jurors additional instructions to aid in breaking the impasse, the number of times the judge sent the jurors back for more deliberation, whether he questioned each juror about the probability of a verdict, and whether the defense counsel was given the opportunity to participate in the decision to declare a mistrial.
After a two-day trial, the court in this case dismissed the jury after four and one half hours of deliberation. Unlike Linscott, Henderson, Commeau, McConvey, and Fredette, the jury in this case did not on its own initiative communicate to the trial court that it could not agree. The only communications from the jury requested a “readback” of certain testimony and the repetition of the reasonable doubt instruction. With the consent of counsel, the trial justice originated a written inquiry about the probability of agreement that was delivered to the jury. It was not in response to any message from the jury. Once they were in the court room, the justice neither gave the jurors additional instructions regarding their duty to reach a verdict (as in Henderson, Commeau, and Fredette), nor returned them to the jury room after their first indication of inability to agree (as in Henderson, Commeau, McConvey, and Fredette). The justice did not question each juror individually (as in Commeau and McConvey, and suggested by Linscott), nor did he solicit defense counsel’s participation in the decision to declare the jury “genuinely deadlocked.” (See Linscott and McConvey.)
There was, in short, nothing in this record on which the trial court could have based a conclusion that the jury, if required to deliberate longer, would have decided on the basis of improper considerations. Indeed, this court has approved the use of the A.B.A. approved instructions regarding the jurors’ duty to consult with one another with a view to reaching a verdict because, “the jury should not be permitted to avoid a reasonable period of deliberations merely by repeated indications that it is unable to agree.” State v. Mahaney, 437 A.2d at 618, quoting from the 1968 Commentary to the A.B.A. Standards Relating to the Administration of Criminal Justice, Trial by Jury, § 5.4. That this jury did not initiate the communication regarding deadlock is highly significant in assessing whether they were “suffering [in] mind or body.” Arizona v. Washington, 434 U.S. at 510, n. 27, 98 S.Ct. at 832, n. 27 (quoting from Regina v. Charlesworth, 1 B. & S. 460, 504, 121 Eng.Rep. 786, 802 (Q.B.1861)).
Before this court can conclude that the defendant has not been subjected to double jeopardy, it must find that the trial court properly exercised its discretion under the Linscott standards. The factors indicating manifest necessity for a mistrial must af*1001firmatively appear in the record. In this case the record discloses no basis on which the trial court could have decided that the public interest in fair judgments had been infringed. It thus abused its discretion in declaring a mistrial.
Nor is it constitutionally permissible to hold in this case that the defendant waived his right to claim double jeopardy by failing to object to the mistrial. While that would be the correct result if the defendant had consented (United States v. Dinitz, 424 U.S. 600, 606-08, 96 S.Ct. 1075, 1079-80, 47 L.Ed.2d 267 (1976); State v. McConvey, 459 A.2d at 566, n. 2), the transcript discloses no affirmative agreement to the mistrial.
The court relies on State v. Fredette, 462 A.2d 17, but the facts in Fredette are clearly distinguishable. In Fredette,
The trial justice sought the views of defense counsel, and defense counsel actively participated in the decision whether to grant a mistrial. At the point when the trial justice decided he would discharge the jury if they felt they could not reach a verdict, he made this known to defense counsel who offered no objection.
Id. at 20. The record in the present case discloses no such active participation by counsel in the mistrial decision. Unlike Fredette, the court did not advise counsel in advance that it would declare a mistrial if the jury indicated no reasonable probability of reaching a verdict. This court’s opinion states only that the defense counsel did not object. The question here is not whether a defendant has failed to preserve an error for appellate review. It is whether he has waived his right not to be twice put in jeopardy by failing affirmatively to protect it.
It is true that a defendant may be retried after a mistrial without a knowing, voluntary, and intelligent waiver of his right to be free from double jeopardy. United States v. Dinitz, 424 U.S. at 609, n. 11, 96 S.Ct. at 1080-81, n. 11. However, this is because “the protection against the burden of multiple prosecutions underlying the constitutional prohibition against double jeopardy” is satisfied when manifest necessity exists to declare a mistrial. Id. Where, as in this case, there has been no proper finding of manifest necessity for a mistrial, the reason for holding an affirmative waiver unnecessary disappears. The defendant here did not consent to the mistrial. His right not to be twice put in jeopardy is too important for this court, sua sponte in review, to find as a fact that the defendant manifested his consent by his silence.
That the defendant continued to engage in plea bargaining after the mistrial lends no support to this court’s finding of consent. While a negotiated guilty plea may constitute a waiver of a defendant’s right to trial and related constitutional privileges (e.g. Shorette v. State, 402 A.2d 450, 459 (Me.1979)), the mere participation in negotiations on the day following his first trial was in no way inconsistent with his assertion of double jeopardy, and does not support a finding of consent to mistrial or waiver of his right not to be twice placed in jeopardy.
Accordingly, I conclude that, without even minimal compliance with the Linscott standards, there was insufficient basis for the trial justice to find that the jury was genuinely deadlocked. Without manifest necessity to do so, it was an abuse of discretion to declare a mistrial. I would vacate the judgment and enter an order dismissing the indictment.