State v. Todd , 296 Neb. 424 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/16/2017 01:13 AM CDT
- 424 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
State of Nebraska, appellee, v.
Dawnelle C. Todd, appellant.
___ N.W.2d ___
Filed April 14, 2017. No. S-16-621.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Judgments: Appeal and Error. Both the district court and a
higher appellate court generally review appeals from the county court
for error appearing on the record. When reviewing a judgment for
errors appearing on the record, an appellate court’s inquiry is whether
the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable. But an appel-
late court independently reviews questions of law in appeals from the
county court.
3. Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
tions of law.
4. Judgments: Appeal and Error. On a question of law, an appellate court
reaches a conclusion independent of the court below.
5. Motions for Mistrial: Juries: Appeal and Error. A trial court’s
determination to declare a mistrial based on its finding that a mani-
fest necessity exists for discharging the jury is reviewed for an abuse
of discretion.
6. Constitutional Law: Double Jeopardy. The Double Jeopardy Clauses
of both the federal and the Nebraska Constitutions protect a defendant
against a second prosecution for the same offense after an acquittal
or conviction.
7. Double Jeopardy: Motions for Mistrial. A mistrial does not auto-
matically terminate jeopardy, because a trial can be discontinued when
particular circumstances manifest a necessity for doing so, and when
failure to discontinue would defeat the ends of justice.
- 425 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
8. ____: ____. Double jeopardy does not arise if the State can demon-
strate manifest necessity for a mistrial declared over the objection of
the defendant.
9. Double Jeopardy: Motions for Mistrial: Records. A specific find-
ing of manifest necessity is not necessary to prevent termination of
jeopardy if the record provides sufficient justification for the mis-
trial ruling.
10. Motions for Mistrial: Records. Where the reason for a mistrial is not
clear from the record, the uncertainty with respect to manifest necessity
must be resolved in favor of the defendant.
Appeal from the District Court for Dodge County, Geoffrey
C. H all, Judge, on appeal thereto from the County Court
for Dodge County, K enneth Vampola, Judge. Judgment of
District Court affirmed.
Adam J. Sipple, of Johnson & Mock, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman,
and, on brief, George R. Love for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Dawnelle C. Todd appeals the decision of the district court
for Dodge County affirming the order of the Dodge County
Court which denied Todd’s plea in bar. The county court had
found that events at trial amounted to a manifest necessity
to declare a mistrial and that therefore, the Double Jeopardy
Clause did not prohibit a new trial. We affirm the district
court’s decision.
STATEMENT OF FACTS
In the early hours of September 3, 2014, a police officer
stopped the vehicle driven by Todd because she failed to stop
at a sign and was driving on the painted median. After the
officer noted signs of intoxication, the officer administered a
- 426 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
preliminary breath test, which Todd failed. The officer arrested
Todd and administered a chemical breath test that showed a
result of .132 blood alcohol content. The State filed a com-
plaint in the Dodge County Court charging Todd with driving
under the influence in violation of Neb. Rev. Stat. § 60-6,196
(Reissue 2010), a Class W misdemeanor under Neb. Rev. Stat.
§ 60-6,197.03(1) (Cum. Supp. 2014).
Prior to trial, the State filed a motion for an order in limine
in the county court. In its motion, the State sought to prohibit
Todd from “offering evidence, argument or comment in the
presence of the jury [regarding a] choice of evils defense pur-
suant to Neb. Rev. Stat. § 28-1407.” Todd wished to present
a “choice of evils” defense in which she sought to claim that
when she was stopped by the officer, she was attempting to
escape from a frightening situation and driving was her only
means to reach a place of safety. Todd offered a proposed jury
instruction to the effect that the jury must find her not guilty if
it found she had acted to avoid a greater harm.
At a hearing on the State’s motion in limine, Todd testi-
fied regarding the circumstances that she claimed supported
a choice of evils defense. She testified that on the night of
September 2, 2014, she was drinking at her brother’s residence
in Fremont, Nebraska, and that she intended to stay the night
there because she had been drinking and “was not safe to
drive.” Todd decided to go out to get some food, and she gave
her car keys to Paige Bjorklund, a woman Todd had met that
night. Todd rode in the passenger seat, while Bjorklund drove
Todd’s car. Todd could not remember everything that hap-
pened, but at some point, she woke up and found herself alone
in her vehicle on a dark residential street. Todd noticed that
she was no longer wearing the tank tops she had previously
been wearing and that from the waist up, she was wearing only
her bra. She could not find her car keys or cell phone, and so
she climbed into the back seat to look for them. Not finding
them there, she covered herself in a blanket and went to sleep
in the back seat.
- 427 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
Sometime later, Todd awoke when Bjorklund and another
woman approached the vehicle. Todd opened the door, and
Bjorklund tossed her car keys to her and walked away. Todd
asked about her cell phone, but the women did not reply.
Todd moved up to the driver’s seat and, after waiting a
while, decided to “drive away to find a lighted area, a public
place.” Todd testified that she “did not feel safe” and that she
felt “very disoriented” and thought that her condition was
the result of more than the effects of alcohol. She did not
know why she was no longer wearing her tank tops or why
her cell phone was missing, and she thought she might have
been assaulted. Todd testified that she wanted to get away
from Bjorklund and that she thought driving away from the
scene was the least harmful way to avoid being assaulted
again. She drove about two blocks before the officer stopped
her vehicle.
The county court sustained the State’s motion in limine
and refused Todd’s proposed instruction. The court found that
the proposed instruction was not warranted by the evidence.
The court cited precedent to the effect that the choice of
evils defense requires, inter alia, that the defendant reasonably
believed that his or her action was necessary to avoid a specific
and immediate harm. The court noted that although Todd iden-
tified Bjorklund, “the facts presented in this case are based on
generalized belief and conjecture, and are insufficient to supply
a factual basis of an immediate harm, either actual or reason-
ably believed by Todd to be certain to occur.”
Todd testified in her own defense at the trial. She testi-
fied regarding the events that led to her being stopped by
the police officer, including drinking at her brother’s house,
leaving to get food with Bjorklund, waking up alone in the
car on a residential street with her tank tops off, Bjorklund’s
approaching the car and throwing Todd’s keys into the car,
and Bjorklund’s walking away with the other woman. Todd
also testified that she was scared when she woke up in the
car; however, the court sustained the State’s objections when
- 428 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
defense counsel asked Todd why she felt scared, disoriented,
and confused when the police officer stopped her. In addi-
tion, the court sustained the State’s objections to various other
questions defense counsel posed to Todd regarding her fears
and her reasons for driving the car away from the scene where
she woke up. The court also struck certain answers that Todd
gave before the court’s ruling sustaining the State’s objections.
Such answers included Todd’s testimony to the effect that get-
ting the car keys back took some of her fear away because
“[i]t was an escape route” and that her purpose for driving was
“[t]o get away.”
After the court sustained multiple objections and struck
multiple answers in a short period of time, the State requested
to be heard outside the jury’s presence. After the jury left the
courtroom, the State asserted that “despite a specific order
from this Court not to ask questions, elicit testimony, make
argument regarding justification or this being necessary or a
necessity, defense counsel continues down the line of question-
ing.” The State noted that Todd had “testified that this was
necessary for her to escape.” After argument by both parties,
the State moved for a mistrial. After further argument, the court
stated that it had “specifically told [Todd] to wait to answer —
questions were asked and to answer the questions and to not
volunteer [but s]he volunteered this term, escape route.” The
court sustained the State’s motion and declared a mistrial. The
court stated that it would “set this down for further trial on [a
later date]” and “[s]tart all over again.”
Todd thereafter filed a plea in bar asking that the case be
dismissed with prejudice. She argued that a retrial would
violate constitutional protections against double jeopardy,
because jeopardy had attached when the jury was sworn in
at the first trial and jeopardy had terminated when the court
declared a mistrial without finding a manifest necessity to
do so.
After a hearing, the county court ruled on Todd’s plea in
bar. In its order, the county court stated that the record was
- 429 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
clear that it had “previously and specifically deemed as inad-
missible” evidence which would support Todd’s justification
theory, and it rejected Todd’s argument that the State had
opened the door to such evidence. The court also rejected
Todd’s argument that “‘strictest scrutiny’” of manifest neces-
sity should apply to the court’s analysis, because the State had
used its superior resources to harass or achieve a technical
advantage over Todd or because the State moved for a mis-
trial in order to buttress weaknesses in its evidence. The court
stated that the evidence presented by the State was sufficient
to overcome any motion to dismiss that might have been filed
when the State rested its case.
Regarding whether there was a manifest necessity to declare
a mistrial, the county court stated that it “ultimately granted
the mistrial due to the accumulated effect of statements and
questions, whether objected to or not, the likelihood of which
could affect the impartiality of one or more jurors.” The
court cited specific statements made and questions asked by
defense counsel during voir dire, opening statements, and
cross-­examination of the officer during the State’s case, which
statements and questions related to the disallowed defense.
The court determined that following these earlier violations
of its order in limine, two statements Todd made during her
testimony in her own defense—in which she justified her driv-
ing as “‘an escape route’” and an attempt to “‘get away’”—
had “tipped the scale toward a mistrial.” The county court
acknowledged that at the time it declared a mistrial, it did not
explicitly state that there was a “‘manifest necessity’” to do
so. However, the court concluded that the record in this case
provided sufficient justification for its declaration of a mistrial
and that therefore, jeopardy had not terminated. The county
court denied Todd’s plea in bar.
Todd appealed to the district court and claimed that the
county court erred when it denied her plea in bar and when
it sustained the State’s motion in limine. The district court
rejected Todd’s arguments and affirmed the county court’s
- 430 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
rulings. In its order, the district court cited precedent of this
court to the effect that the decision to grant a motion for
mistrial is within the discretion of the trial court and will
not be disturbed on appeal in the absence of an abuse of
discretion. The district court stated that the “question as to
whether or not jeopardy terminated upon the granting of the
mistrial is a separate and different question.” After reviewing
the county court record, the district court stated that, “sitting
in a position of appellate review,” the district court would
“not disturb the holding of the Dodge County Court that the
‘entire record’ supports a finding of manifest necessity for the
mistrial absent an abuse of discretion.” The district court con-
cluded that “[w]hen the entire record is considered, no such
abuse can be found.” The district court then stated, “[T]his
Court affirms the decision of the Dodge County Court regard-
ing its ruling on [Todd’s] Plea in Bar and the State’s Motion
in Limine.”
Todd appeals the district court’s order affirming the county
court’s rulings.
ASSIGNMENT OF ERROR
Todd claims, restated, that the district court erred when it
applied an incorrect standard of review and affirmed the denial
of her plea in bar. Todd does not assign error to the district
court’s affirmance of the county court’s order sustaining the
State’s motion in limine.
STANDARDS OF REVIEW
[1,2] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion. State v. Pester, 294 Neb. 995, 885
N.W.2d 713 (2016). Both the district court and a higher appel-
late court generally review appeals from the county court for
error appearing on the record. Id. When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
- 431 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id. But we independently review questions of
law in appeals from the county court. Id.
[3,4] Issues regarding the grant or denial of a plea in bar are
questions of law. State v. Arizola, 295 Neb. 477, 890 N.W.2d
770 (2017). On a question of law, an appellate court reaches a
conclusion independent of the court below. Id.
[5] A trial court’s determination to declare a mistrial based
on its finding that a manifest necessity exists for discharging
the jury is reviewed for an abuse of discretion. See State v.
Williams, 278 Neb. 841, 774 N.W.2d 384 (2009).
ANALYSIS
Standards of Review: District Court
Properly Reviewed County Court’s
Ruling Declaring a Mistrial Based
on Manifest Necessity for
Abuse of Discretion.
Todd contends that the district court used the wrong standard
of review when it affirmed the county court’s denial of her plea
in bar. Todd specifically argues that the district court reviewed
the county court’s denial of her plea in bar for an abuse of dis-
cretion, whereas the ruling on the plea in bar should have been
reviewed as a question of law. As set forth below, although
the ultimate ruling on a plea in bar is a question of law, to
the extent the issue raised by the plea in bar involves a trial
court’s declaration of a mistrial based on its determination that
a manifest necessity requires it to do so, such trial court ruling
is reviewed for an abuse of discretion.
Todd relies on State v. Williams, supra, wherein we recited
the proposition that issues regarding the grant or denial of a
plea in bar are questions of law and that on a question of law,
an appellate court is obligated to reach a conclusion indepen-
dent of the determination reached by the court below. Todd
appears to overlook the fact that in Williams, we also stated
- 432 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
the proposition that a trial court’s determination of whether a
manifest necessity existed for discharging the jury and declar-
ing a mistrial is reviewed for an abuse of discretion. Id.
[6-8] In Williams, as in the present case, the ruling appealed
was the denial of a plea in bar in which the defendant sought
dismissal on the basis that jeopardy had terminated when the
court declared a mistrial and a retrial would violate constitu-
tional protections against double jeopardy. In Williams, we set
forth the law regarding double jeopardy after declaration of a
mistrial as follows:
The Double Jeopardy Clauses of both the federal and
the Nebraska Constitutions protect a defendant against a
second prosecution for the same offense after an acquit-
tal or conviction. Stated another way, “[a] State may not
put a defendant in jeopardy twice for the same offense.”
In Arizona v. Washington, [434 U.S. 497, 503, 98 S. Ct.
824, 54 L. Ed. 2d 717 (1978),] the U.S. Supreme Court
explained why the declaration of a mistrial in a crimi-
nal prosecution may trigger the constitutional protection
afforded by the Double Jeopardy Clause:
“Because jeopardy attaches before the judgment
becomes final, the constitutional protection also embraces
the defendant’s ‘valued right to have his trial completed
by a particular tribunal.’ The reasons why this ‘valued
right’ merits constitutional protection are worthy of rep-
etition. Even if the first trial is not completed, a second
prosecution may be grossly unfair. It increases the finan-
cial and emotional burden on the accused, prolongs the
period in which he is stigmatized by an unresolved accu-
sation of wrongdoing, and may even enhance the risk that
an innocent defendant may be convicted. The danger of
such unfairness to the defendant exists whenever a trial
is aborted before it is completed. Consequently, as a gen-
eral rule, the prosecutor is entitled to one, and only one,
opportunity to require an accused to stand trial.” [Id., 434
U.S. at 503-05.]
- 433 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
In a case tried to a jury, jeopardy attaches when the
jury is impaneled and sworn. However, a mistrial does
not automatically terminate jeopardy, because “‘a trial
can be discontinued when particular circumstances mani-
fest a necessity for doing so, and when failure to discon-
tinue would defeat the ends of justice.’” Double jeopardy
does not arise if the State can demonstrate manifest
necessity for a mistrial declared over the objection of
the defendant.
278 Neb. at 846-47, 774 N.W.2d at 389.
In State v. Williams, 278 Neb. 841, 774 N.W.2d 384 (2009),
having determined as a matter of law the circumstances under
which the declaration of a mistrial does or does not implicate
double jeopardy concerns, we turned to consider whether there
was a manifest necessity for a mistrial in that specific case. In
reviewing the decision of the trial court to declare a mistrial,
we again cited Arizona v. Washington, 434 U.S. 497, 98 S.
Ct. 824, 54 L. Ed. 2d 717 (1978), to note that a trial judge’s
decision to declare a mistrial is accorded great deference by a
reviewing court, which has an obligation to satisfy itself that
the trial judge exercised sound discretion in declaring a mis-
trial. State v. Williams, supra. We ultimately concluded that the
trial court “did not abuse its discretion in ordering the mistrial”
and that “[a]ccordingly, jeopardy did not terminate and retrial
is not barred by principles of double jeopardy.” Id. at 854, 774
N.W.2d at 394.
Thus, in State v. Williams, supra, we decided the ultimate
question raised by the plea in bar, i.e., whether retrial was
barred by principles of double jeopardy, as a question of law.
However, as a preliminary step to deciding that question of
law, we needed to review the trial court’s declaration of a
mistrial based on its determination that there was a manifest
necessity to do so. Because a trial court’s determination of a
manifest necessity for a mistrial is to be accorded great defer-
ence, we reviewed that specific determination for an abuse of
discretion. Id.
- 434 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
We have applied two-level standards of review in other
cases challenging the denial of a plea in bar. In State v.
Muhannad, 290 Neb. 59, 858 N.W.2d 598 (2015), the defend­
ant claimed that the prosecutor provoked the defendant to
move for a mistrial and that because of the prosecutor’s con-
duct, it would be unfair under double jeopardy principles to
conduct a second trial. In that circumstance, we stated that
“[w]hile the denial of a plea in bar generally involves a ques-
tion of law, we review under a clearly erroneous standard a
finding concerning the presence or absence of prosecutorial
intent to provoke the defendant into moving for a mistrial.”
State v. Muhannad, 290 Neb. at 64, 858 N.W.2d at 603. In
that case—as in this case—the ultimate determination was a
question of law, but a part of the analysis required a different
standard of review.
In the present case, Todd takes issue with the district court’s
statement in its order to the effect that because there was
“no such abuse,” it would not disturb the county court’s rul-
ing declaring a mistrial based on manifest necessity and then
in the next sentence, that it would affirm the denial of the
plea in bar. We acknowledge that the district court may not
have been entirely clear in making the distinction we made
above regarding the different standards to be applied when
reviewing the ruling on the mistrial as distinguished from
the ruling on the plea in bar. However, as we explain later
in this opinion wherein we affirm the district court’s order,
we find as unavailing Todd’s effort to conflate the district
court’s rulings on the mistrial and plea in bar as though both
had been decided by application of the abuse of discretion
standard. The district court properly reviewed the county
court’s ruling declaring a mistrial based on manifest neces-
sity for abuse of discretion, and its declaration that the plea in
bar “is a separate and different question” satisfies us that the
district court actually evaluated the plea in bar as a question
of law.
- 435 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
District Court Did Not Err When It
Affirmed County Court’s Denial
of Todd’s Plea in Bar.
Having clarified the appropriate standards of reviews, we
apply them to this case. The substance of Todd’s claim is that
the district court erred when it affirmed the county court’s
denial of her plea in bar. We have reviewed the record and
applied the de novo standard of review to the legal question
of whether a plea in bar should have been granted. Finding no
error, we reject this assignment of error.
In her plea in bar, Todd claimed that a retrial after the
county court declared a mistrial based on manifest necessity
would violate her rights against double jeopardy. However, as
noted above, we have held that the bar against double jeopardy
does not arise if the State can demonstrate manifest necessity
for a mistrial declared over the objection of the defendant.
State v. Williams, 278 Neb. 841, 774 N.W.2d 384 (2009). We
emphasize that this proposition applies in situations where a
mistrial is granted over the objection of the defendant; a dif-
ferent standard applies when mistrial is granted at the urging
of the defendant. See State v. Cisneros, 248 Neb. 372, 535
N.W.2d 703 (1995) (noting that absent intentional conduct on
part of prosecutor to goad defendant into moving for mistrial,
defendant cannot raise bar of double jeopardy to second trial
after succeeding in bringing first trial to close on his or her
own motion). See, also, State v. Muhannad, 290 Neb. 59, 858
N.W.2d 598 (2015).
As in State v. Williams, supra, which we have described
above, the instant case is one in which a mistrial was granted
over the defendant’s objections. In Williams, the reason for
granting a mistrial was the “‘“classic basis”’” for mistrial—a
deadlocked jury. 278 Neb. at 851, 774 N.W.2d at 392. The
basis for the mistrial in this case was not a deadlocked jury;
instead, the basis for the mistrial was described by the county
court as “the accumulated effect of statements and ques-
tions” by defense counsel that the court determined were in
- 436 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
violation of its ruling on the motion in limine and which the
court further determined “could affect the impartiality of one
or more jurors.”
[9,10] The county court did not explicitly characterize
its basis for mistrial as “manifest necessity” at the time it
declared a mistrial. However, when it ruled on Todd’s plea
in bar, the county court noted the principles surrounding the
manifest necessity requirement and concluded that the record
provided sufficient justification for its ruling. The county
court’s failure to use the language of manifest necessity at the
time of the ruling declaring a mistrial is not determinative.
We have recognized that a specific finding of manifest neces-
sity is not necessary to prevent termination of jeopardy if the
record provides sufficient justification for the mistrial ruling.
State v. Jackson, 274 Neb. 724, 742 N.W.2d 751 (2007) (cit-
ing Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54
L. Ed. 2d 717 (1978)). We have also stated that “[w]here the
reason for a mistrial is not clear from the record, the uncer-
tainty with respect to manifest necessity must be resolved in
favor of the defendant.” State v. Jackson, 274 Neb. at 731,
742 N.W.2d at 757. Thus, the appropriate inquiry on appellate
review is whether the record provides sufficient justification
of a manifest necessity to declare a mistrial; if the record
is not clear, then uncertainty will be resolved in favor of
the defendant.
In view of the foregoing, we review the county court’s dec-
laration of a mistrial in light of precedent regarding the type
of reasoning that indicates the existence of a manifest neces-
sity for a mistrial. In this case, the record demonstrates a high
degree of necessity to declare a mistrial.
The U.S. Supreme Court has indicated that there is a spec-
trum of degrees of necessity and stated that manifest necessity
requires a “‘high degree’” of necessity. Arizona v. Washington,
434 U.S. at 506. At one end of the range are cases where
“the basis for the mistrial is the unavailability of critical
prosecution evidence, or when there is reason to believe that
- 437 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
the prosecutor is using the superior resources of the State to
harass or to achieve a tactical advantage over the accused.”
Id., 434 U.S. at 508. The Court stated that these types of cases
should be subject to “strictest scrutiny” and therefore were less
likely to support manifest necessity. Id. The Court stated that
“[a]t the other extreme is the mistrial premised upon the trial
judge’s belief that the jury is unable to reach a verdict . . . .”
Id., 434 U.S. at 509. The Court described this as “the classic
basis for a proper mistrial.” Id. The deadlocked jury circum-
stance illustrates manifest necessity for a mistrial and a second
trial will not be barred by principles of double jeopardy under
this circumstances.
In Arizona v. Washington, 434 U.S. at 510, “the trial judge
[had] ordered a mistrial because the defendant’s lawyer made
improper and prejudicial remarks during his opening statement
to the jury.” The Court found these facts to be somewhere
“along the spectrum” between the extremes mentioned above.
Id. The Court reviewed the trial judge’s declaration of mistrial
and concluded that “the mistrial order [was] supported by the
‘high degree’ of necessity which is required in a case of this
kind.” Id., 434 U.S. at 516. In reaching this conclusion, the
Court noted that the trial judge did not act “irrationally or
irresponsibly,” but instead, the record indicated that “[d]efense
counsel aired improper and highly prejudicial evidence before
the jury, the possible impact of which the trial judge was in
the best position to assess,” and that “the trial judge did not
act precipitately in response to the prosecutor’s request for a
mistrial,” but instead, the judge “gave both defense counsel
and the prosecutor full opportunity to explain their positions on
the propriety of a mistrial.” Id., 434 U.S. at 514-16. The court
was persuaded by a record that indicated “the trial judge acted
responsibly and deliberately, and accorded careful consider-
ation to respondent’s interest in having the trial concluded in a
single proceeding.” Id., 434 U.S. at 516.
As in Arizona v. Washington, 434 U.S. 497, 98 S. Ct.
824, 54 L. Ed. 2d 717 (1978), the county court’s reasons for
- 438 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
declaring a mistrial based on manifest necessity in this case
were found along the spectrum. We do not think that the
record supported Todd’s contrary argument, rejected by the
county court, that “strictest scrutiny” should apply, because
the State was using its superior resources to harass or achieve
a technical advantage over Todd or because the State moved
for a mistrial in order to buttress weaknesses in its evidence.
The county court declared a mistrial because it determined
that defense counsel had repeatedly attempted to present evi-
dence to the jury in violation of the court’s order in limine.
The county court explained that it declared a mistrial because
it determined that defense counsel’s actions could affect the
impartiality of the jurors. As in Arizona v. Washington, the
trial judge in this case was in the best position to assess
the potential impact on the jury. The record shows that the
county court acted responsibly and deliberately rather than
precipitately. The court did not declare mistrial upon the first
violation of the order in limine. Instead, the court initially
attempted the conservative measure of striking answers it
found to have violated its order in limine. After a number of
violations, the court declared a mistrial only after two addi-
tional occurrences that it determined had “tipped the scale
toward a mistrial.” After these occurrences, the court heard
and considered arguments from both sides.
Similar to the reasoning in Arizona v. Washington, supra,
we believe that the record in this case supports a finding of
manifest necessity, and we therefore conclude that the district
court did not err when it determined that the county court
did not abuse its discretion when it declared a mistrial based
on its determination that a manifest necessity required it to
do so.
Referring to Arizona v. Washington, supra, we have stated:
“Double jeopardy does not arise if the State can demonstrate
manifest necessity for a mistrial declared over the objection
of the defendant.” State v. Williams, 278 Neb. 841, 847, 774
N.W.2d 384, 389 (2009). It logically follows that the district
- 439 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. TODD
Cite as 296 Neb. 424
court did not err when it concluded that the county court had
articulated a manifest necessity to declare a mistrial and that
therefore, double jeopardy did not bar a retrial. Consequently,
the district court did not err when it denied Todd’s plea in bar.
We reject Todd’s assignment of error.
CONCLUSION
We conclude that the district court did not err in determin-
ing that the county court did not abuse its discretion when it
found a manifest necessity to declare a mistrial and that the
district court did not err in determining as a matter of law that
double jeopardy did not bar a retrial. We therefore affirm the
district court’s order affirming the order of the county court
which denied Todd’s plea in bar.
A ffirmed.