dissenting:
Judge Wilkinson, placed in the difficult position of assessing the wilfulness of prose-cutorial misconduct that occurred before Judge Dunevant, found no evidence that the prosecutor acted for an “improper purpose with indifference to a significant resulting danger of mistrial or reversal.” Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 217-72 (1984). He found instead that the prosecutor’s misconduct was “invited” by corresponding misconduct of counsel for defendant. The majority upholds these findings. I would reverse.
It is useful to begin by searching for the invitation that defense counsel extended when she said that a recanting victim had come from Massachusetts to stop Defendant *132from being convicted for something he didn’t do. The sole impropriety attributed to this argument was the reference to Massachusetts; the jury had not heard precisely where the victim lived. Judge Wilkinson described the prosecutor’s response as “initiated” by this comment and, indeed, found that “the cause of the mistrial was initially the comments made by Defendant’s counsel.” Yet defense counsel could apparently have made the same argument without complaint if only she had described the victim as coming from “the east coast.” What about the attribution of Massachusetts residency so appealed to the passion and prejudice of the jury as to “initiate” an improper response and “cause” a mistrial? The court did not explain.
We next come to the more general question what if anything is “invited” when one’s adversary steps outside the record in final argument. Judge Dunevant correctly suggested at the new trial hearing that what is invited is a timely objection. The prosecutor disagreed. This discussion followed:
The Court: Did I understand you to say that you do not believe that you have a duty to object during the closing arguments of counsel if you believe that counsel is making argument which is not based upon the evidence?
Kane: Your honor, I believe that I can answer it two ways. I can object, which I don’t like to do because I think that that is undignified, and I usually don’t ... or I could point it out, as I did to the jury, and cure that argument.
I don’t believe that I have an absolute duty. I think that that is one of the options that I have, but I don’t believe that I have to take that option. I believe when you make an argument, you make an argument at your own risk____
The prosecutor also maintained that no case law required him to object rather than respond in kind. There is, however, precisely such case law. In State v. Vincent, 159 Ariz. 418, 424, 768 P.2d 150, 156 (1989), our supreme court rejected the assertion that the “invited response” doctrine “condone[s] withholding objection in favor of improper self help.” The court described as “wholly inappropriate” the tactic of withholding objection, denying the trial court the chance for prompt corrective action, and awaiting rebuttal to respond. Id.; see also State v. Woods, 141 Ariz. 446, 455, 687 P.2d 1201, 1210 (1984).
In light of Vincent and Woods, I believe Judge Wilkinson abused his discretion in concluding that the mistrial was “initially caused by the comments made by Defendant’s counsel,” and I believe my colleagues likewise err in echoing “that an ‘invited error’ factor does exist here.” The most that was invited by defense counsel’s innocuous reference to Massachusetts1 was a timely objection. The mistrial was caused by the prosecutor’s deliberate decision not to object and to await rebuttal to improperly respond.
Stripping away the shield of invited error, the question remains whether the prosecutor acted for an “improper purpose with indifference to a significant resulting danger of mistrial or reversal.” Pool, 139 Ariz. at 108-09, 677 P.2d at 217-72. But this question was answered in the new trial hearing before Judge Dunevant.
It was answered in part by the prosecutor himself, when he acknowledged that he had deliberately withheld objection in favor of stepping outside the record with a prejudicial response. It was answered in further part by Judge Dunevant. Although the prosecutor professed to believe his rebuttal tactic permissible, Judge Dunevant rejected the bona fides of that contention, twice stating that the prosecutor’s argument “was devoid of any good faith basis” and “not based upon any good faith belief.” Judge Dunevant also pointedly included among his findings the following description of a prosecutor’s duty:
[While a prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to pro*133duce a wrongful conviction as it is to use every legitimate means to bring about a just one.
State v. Bible, 175 Ariz. 549, 600, 858 P.2d 1152, 1203 (1993), quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
This court customarily gives great deference to assessments of trial judges based on personal observation. Judge Wilkinson made no assessments based on personal observation; he merely ruled on a motion to dismiss. Judge Dunevant, in contrast, witnessed the misconduct, conducted a hearing, and rejected the offending prosecutor’s explanation. After invoking the prosecutor’s “duty to refrain from improper methods calculated to produce a wrongful conviction,” Judge Dunevant found that the prosecutor had acted “without any good faith basis” in a manner that had “manifestly affected the Defendant’s right to a fair trial.” Judge Dunevant’s findings, in my opinion, established both improper purpose and indifference to the risk of mistrial or reversal. Pool, 139 Ariz. at 108-09, 677 P.2d at 217-72.
The State might attack the element of indifference, I suppose, by arguing that its prosecutor foresaw no “significant ” risk of mistrial or reversal, id. That is, the State might argue that its prosecutor calculated from past judicial tolerance of misconduct that he could get away with it and that the trial or appellate judges who confronted his misconduct would do no more than ventilate about its impropriety and pass it off as harmless error. The State has not made this argument, however; nor am I prepared to accept it as a safe harbor from Pool.
My colleagues in the majority find two of three Pool factors present in this case. For the reasons stated, I would find all three and conclude that double jeopardy bars retrial.
. Reference to Massachusetts may not have been innocuous to the prosecutor; because he could not recall mentioning the victim's residence to defense counsel, he claimed to have suspected that the victim had been in private contact with the defense. This was wholly extraneous to the jury, however, which had no evidentiary basis for attributing any significance or implication to defense counsel’s reference to Massachusetts.