State v. Leon-Simaj , 913 N.W.2d 722 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/22/2018 08:15 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. LEON-SIMAJ
Cite as 300 Neb. 317
State of Nebraska, appellee, v. A ntonio Leon-Simaj,
also known as A ntonio Leon-Batz, appellant.
___ N.W.2d ___
Filed June 22, 2018. No. S-17-540.
1. Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
tions of law.
2. Evidence: Appeal and Error. On a question of law, an appellate court
reaches a conclusion independent of the court below.
3. Double Jeopardy. The Double Jeopardy Clauses of both the federal
and Nebraska Constitutions protect against three distinct abuses: (1) a
second prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple pun-
ishments for the same offense.
4. Constitutional Law: Motions for Mistrial. When the defendant objects
to the declaration of a mistrial, the defendant’s right to have a trial
completed by a particular tribunal will be subordinated to the public’s
interest in fair trials ending in just judgments, when there was a manifest
necessity for the mistrial.
5. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys.
When a mistrial is declared at the defendant’s request or with the
defendant’s consent, reprosecution is barred only when the prosecution’s
conduct was intended to provoke the defendant into moving for or con-
senting to the mistrial.
6. Double Jeopardy: Motions for Mistrial: Appeal and Error. When
a mistrial is declared, the important consideration for purposes of the
Double Jeopardy Clause is that the defendant retains primary control
over the course to be followed in the event of an error.
7. Motions for Mistrial. When a mistrial is declared, it is fair to expect
the defendant to participate in preserving his or her right to have the trial
completed by a particular tribunal.
8. ____. When a court suggests a mistrial, if silence were not construed as
consent, attorneys could lull the court into taking actions that could not
later be undone.
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STATE v. LEON-SIMAJ
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9. Double Jeopardy: Motions for Mistrial. Requiring the defendant to
make an affirmative choice concerning a mistrial avoids transforming
the protection against double jeopardy into an abusive weapon used by
a defendant to avoid prosecution.
10. Motions for Mistrial. It is not too onerous to require defense counsel
to clearly state whether he or she objects to the court’s consideration of
a mistrial.
11. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys.
Where a mistrial is under sua sponte consideration by the court and
the defendant is given the opportunity to object, but fails to timely and
explicitly do so, that defendant will be held to have impliedly consented
to the mistrial, and double jeopardy will not bar a retrial unless the
defendant demonstrates such consent was procured through the pros-
ecutorial conduct intended to provoke the defendant into moving for or
consenting to a mistrial.
12. Judgments: Records: Appeal and Error. Where the record adequately
demonstrates that the decision of a trial court is correct—although such
correctness is based on a ground or reason different from that assigned
by the trial court—an appellate court will affirm.
13. Constitutional Law: Motions for Mistrial: Records. Whether the
defendant consented to a mistrial involves the application of a constitu-
tional principle to historic facts that are reflected in the record.
Appeal from the District Court for Colfax County: M ary C.
Gilbride, Judge. Affirmed.
Christopher J. Roth, of Forney Roth, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and R iedmann, Judge, and M artinez, District Judge.
M artinez, District Judge.
NATURE OF CASE
The defendant appeals from the denial of his plea in bar,
alleging that retrial following a mistrial would violate pro-
hibitions against double jeopardy.1 The mistrial was declared
by the trial court following the court’s determination that
1
See U.S. Const. amend. V; Neb. Const. art. I, § 12.
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defense counsel’s questioning of the witness, a minor child
and hereinafter referred to as “E.Z.,” was improper and that
the prejudice could not be remedied by a curative jury instruc-
tion. Defense counsel did not explicitly object to a mistrial
when given the opportunity to do so, but apologized for the
improper questioning and, at the court’s request, presented
case law wherein curative instructions were held to be suf-
ficient to remedy improper references at trial to inadmissible
evidence. At issue is whether the defendant implicitly con-
sented to the mistrial and, if not, whether there was a manifest
necessity for a mistrial.
BACKGROUND
Antonio Leon-Simaj, also known as Antonio Leon-Batz, was
charged with one count of first degree sexual assault and two
counts of possession of child pornography stemming from his
relationship with E.Z. E.Z. was 14 years old at the time of trial
and 13 years old at the time of the events in question.
E.Z.’s Testimony
There are no pretrial motions in the record. Trial began with
the testimony of E.Z., who testified that she and Leon-Simaj
engaged in sexual intercourse on approximately 10 differ-
ent occasions.
E.Z. was questioned about exhibits containing text messages
between Leon-Simaj and E.Z. She confirmed that several text
messages sent to Leon-Simaj contained pictures of her breasts
and vagina.
E.Z. testified that at one point, she thought she might be
pregnant. She read out loud text messages in which she asked
Leon-Simaj to buy her a pregnancy test and in which Leon-
Simaj said he would do so if she sent him a picture of herself
without her underwear on. She did, and Leon-Simaj purchased
a pregnancy test for her. E.Z. was not pregnant.
After E.Z.’s father discovered the relationship between
E.Z. and Leon-Simaj, the matter was reported to law enforce-
ment and E.Z. was taken to a hospital, where she was
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STATE v. LEON-SIMAJ
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interviewed. During cross-examination, E.Z. admitted that
she deleted all social media messages from Leon-Simaj the
day before being interviewed. She also admitted that she had
lied at the hospital by telling the interviewer that she had not
called Leon-Simaj. E.Z. admitted, further, that she had falsely
told the interviewer that she did not have Leon-Simaj’s tele-
phone number.
E.Z. initially denied that she lied to the interviewer when
she had said she was no longer texting Leon-Simaj. But when
confronted with text messages, E.Z. admitted she had lied to
the interviewer and had, in effect, just lied to the jury.
Defense counsel elicited testimony from E.Z. in which she
described how she had told Leon-Simaj she was pregnant, even
though she knew at that point that she was not. E.Z. read for
the jury text messages in which she told Leon-Simaj that her
pregnancy “hurt” and that she no longer wished to see Leon-
Simaj or for him to have a relationship with the baby. In other
text messages, E.Z. made reference to Leon-Simaj’s having a
wife and told Leon-Simaj it was his fault “[m]y baby will not
be with his daddy . . . .”
Defense counsel pointed out that a total of 10 text messages
referred to a baby that E.Z. knew did not exist. E.Z. admitted
that, thus, she had lied 10 times.
At that point, defense counsel moved on to E.Z.’s possible
past criminal behavior. Defense counsel asked E.Z., “Now . . .
you’ve been arrested before; correct?” E.Z. answered, “Yes.”
Defense counsel immediately asked, “For breaking into peo-
ple’s yards and stealing bicycles?”
Objection and Declaration
of Mistrial
The prosecution objected to this line of questioning as
involving improper character evidence.
Defense counsel initially responded that he wished to make
an offer of proof. Outside the presence of the jury, the court
expressed its opinion that the line of questioning was improper
and asked defense counsel for further explanation as to what
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defense counsel’s offer of proof was and why it should come
in. Defense counsel withdrew the request.
After a short recess to confer with the guardian ad litem, the
prosecutor asked for a curative instruction. But when further
pressed by the district court whether the prosecutor thought
a curative instruction was “enough,” it was at that point she
responded, “No.”
The court thereafter asked the prosecutor what the other
option would be. The prosecutor responded that the other
option would be to call for a mistrial.
The court asked defense counsel for his argument. Defense
counsel conceded that it was improper to ask E.Z. if she had
been arrested. Defense counsel apologized and explained that
he had thought it was proper under Neb. Rev. Stat. § 27-608
(Reissue 2016) to elicit testimony as to specific instances
of conduct.
The prosecutor pointed out that she had prosecuted E.Z. in
the case that defense counsel was referencing and stated, “I
can personally tell you no one was robbed, no one was stolen
from, with regard to that. That is an absolute fabrication, the
facts of that case, and I know it personally.”
The court directed the parties to research whether an
instruction could cure the error, granting them a short recess
to do so.
After the recess, the prosecutor presented case law and
argued that it would be appropriate for the court to call for a
mistrial. The prosecutor also stated, “There is a mechanism if
the defense wishes to object to a mistrial.”
Defense counsel did not respond with an objection to the
court’s declaring a mistrial. Instead, defense counsel apolo-
gized, explaining that he had believed he was “within 608,” but
that he “was wrong,” at least inasmuch as he failed to under-
stand the applicability of Neb. Rev. Stat. § 27-404 (Reissue
2016). Defense counsel presented for the court’s consideration
three cases where curative instructions were held to be suf-
ficient to remedy improper references at trial to inadmis-
sible evidence.
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STATE v. LEON-SIMAJ
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The court announced that it would be declaring a mistrial.
The court reasoned that the proverbial “bell . . . cannot be
unrung.” The court explained that in the middle of impeach-
ment, defense counsel elicited improper testimony that E.Z.
had been arrested, as well as details of an offense that “had
nothing to do with truthfulness and was not, obviously, a
felony.” Defense counsel was silent and at no point objected to
the court’s expressed intention to declare a mistrial.
The court brought the jurors back into the courtroom and
discharged them.
Plea in Bar
Approximately 1 month later, defense counsel filed a plea
in bar. Defense counsel alleged that the court’s evidentiary rul-
ing was erroneous; therefore, there was no manifest necessity
to declare a mistrial.
The State responded that despite having the opportunity,
defense counsel did not object to a mistrial. The State also
pointed out that defense counsel never offered into evidence
E.Z.’s deposition or evidence of E.Z.’s alleged conviction.
Further, any “crime” would be an inadmissible juvenile adju-
dication, as well as “petit larceny,” which would not qualify
as a crime of dishonesty under Neb. Rev. Stat. § 27-609
(Reissue 2016). Finally, the State asserted the testimony was
excludable under Neb. Rev. Stat. § 27-403 (Reissue 2016) and
§ 27-404.
At the hearing on the plea in bar, defense counsel stated
he realized that “the defense never did specifically say
we objected to a mistrial at the hearing.” Defense counsel
explained he still agreed with the prosecutor that the line of
questioning was not permitted by § 27-609. But he did not
research “the 608 issue” during the time they were given
“to research the issues” before the court decided whether to
declare a mistrial.
Defense counsel said, “So that’s why we didn’t specifically
object, but we did submit three cases to the case [sic] saying a
curative instruction was more proper.”
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STATE v. LEON-SIMAJ
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Defense counsel explained that after the mistrial, he con-
ducted more research and concluded that his line of question-
ing had been proper under § 27-608. Therefore, defense coun-
sel believed there was no manifest necessity for the mistrial.
Defense counsel expressed to the court that the “test really is
whether the defendant consents to the mistrial,” and “we would
submit that the cases we submitted, argument for the curative
objection, were, in effect, our objection to the mistrial.”
Defense counsel also asserted that E.Z.’s deposition testi-
mony had supported the factual basis for his questioning.
The record does not contain any exhibits. And the record
indicates that no exhibits were offered at trial, during the pro-
ceedings outside the presence of the jury, or at the hearing on
the plea in bar.
Order Denying Plea in Bar
The court denied Leon-Simaj’s plea in bar. The court did
not address whether Leon-Simaj had consented to the mistrial.
Rather, the court concluded that jeopardy was not terminated
when improper questioning by defense counsel resulted in
unfair prejudice to the State, which could not be cured by a
limiting instruction.
The court elaborated that the proper procedure under
§ 27-609 would have been to simply ask E.Z. if she had been
convicted of a felony or a crime of dishonesty. Instead, defense
counsel asked questions about an “‘arrest’” and “spread details
of the alleged crime before the jury.”
Moreover, given the age of E.Z., the court stated that “[a]ny
‘arrest’ or conviction she might have is, in all likelihood, a
juvenile adjudication,” inadmissible under § 27-609.
Finally, the court explained that to the extent defense coun-
sel was attempting to elicit evidence of prior bad acts in order
to show conformity therewith, such evidence was inadmissible
and should have been considered during a hearing outside the
presence of the jury.
Leon-Simaj appeals the denial of his plea in bar.
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STATE v. LEON-SIMAJ
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ASSIGNMENTS OF ERROR
Leon-Simaj assigns that the district court erred in (1)
determining that defense counsel’s question to E.Z. regard-
ing her prior act of burglary was an improper question under
§ 27-609, without giving regard or analysis to whether the
question was proper under § 27-608, both at the mistrial hear-
ing and at the plea in bar hearing, and (2) finding manifest
necessity for a mistrial given that there was no violation of
the evidence rules.
STANDARD OF REVIEW
[1,2] Issues regarding the grant or denial of a plea in bar
are questions of law.2 On a question of law, an appellate court
reaches a conclusion independent of the court below.3
ANALYSIS
[3] The issue in this appeal is whether retrial of Leon-Simaj,
after his first trial ended in a mistrial, would violate his Fifth
Amendment right not to be placed twice in jeopardy. The
Double Jeopardy Clause of the U.S. Constitution provides that
no person shall “be subject for the same offence to be twice
put in jeopardy of life or limb.”4 The Double Jeopardy Clauses
of both the federal and Nebraska Constitutions protect against
three distinct abuses: (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the
same offense.5
Underlying this constitutional safeguard is the belief that
“the State with all its resources and power should not be
allowed to make repeated attempts to convict an indi-
vidual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him
2
State v. Bedolla, 298 Neb. 736, 905 N.W.2d 629 (2018).
3
Id.
4
U.S. Const. amend. V. Accord Neb. Const. art. I, § 12.
5
State v. Lavalleur, 298 Neb. 237, 903 N.W.2d 464 (2017).
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to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though inno-
cent he may be found guilty.”6
In addition, the defendant has a right to have his trial com-
pleted by a particular tribunal.7
On the other hand, “retrial is not automatically barred when
a criminal proceeding is terminated without finally resolving
the merits of the charges against the accused.”8 “[I]t is clear
beyond question that the Double Jeopardy Clause does not
guarantee a defendant that the Government will be prepared,
in all circumstances, to vindicate the social interest in law
enforcement through the vehicle of a single proceeding for a
given offense.”9
[4] Society, for its part, has a strong interest in giving the
prosecution one complete opportunity to convict those who
have violated its laws.10 And a criminal trial is, “even in the
best of circumstances, a complicated affair to manage.”11 Thus,
“a mechanical rule prohibiting retrial whenever circumstances
compel the discharge of a jury without the defendant’s consent
would be too high a price to pay for the added assurance of
personal security and freedom from governmental harassment
which such a mechanical rule would provide.”12 When the
defendant objects to the declaration of a mistrial, the defend­
ant’s right to have a trial completed by a particular tribunal
will be subordinated to the public’s interest in fair trials
6
United States v. Dinitz, 424 U.S. 600, 606, 96 S. Ct. 1075, 47 L. Ed. 2d
267 (1976).
7
See id.
8
Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct. 824, 54 L. Ed. 2d 717
(1978).
9
United States v. Jorn, 400 U.S. 470, 483-84, 91 S. Ct. 547, 27 L. Ed. 2d
543 (1971). See, also, e.g., Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct.
2083, 72 L. Ed. 2d 416 (1982).
10
See Arizona v. Washington, supra note 8.
11
United States v. Jorn, supra note 9, 400 U.S. at 479.
12
Id., 400 U.S. at 480.
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ending in just judgments, when there was a manifest necessity
for a mistrial.13
[5] But the analysis is different when a mistrial was
granted at the defendant’s request or with the defendant’s
consent. Where “the defendant himself has elected to termi-
nate the proceedings against him . . . the ‘manifest neces-
sity’ standard has no place in the application of the Double
Jeopardy Clause.”14 When a mistrial is declared at the defend­
ant’s request or with the defendant’s consent, reprosecution
is barred only when the prosecution’s conduct was intended
to provoke the defendant into moving for or consenting to
the mistrial.15
The U.S. Supreme Court has also rejected any contention
that the defendant’s consent to a mistrial depends on demon-
strating a knowing, voluntary, and intelligent waiver of the
right to be free from double jeopardy.16 Rather, a mistrial “at
the defendant’s request or with his consent is wholly consistent
with the protections of the Double Jeopardy Clause.”17
[6] The important consideration for purposes of the Double
Jeopardy Clause, the U.S. Supreme Court has said, is that the
defendant retains primary control over the course to be fol-
lowed in the event of an error.18 The defendant retains primary
control when he or she exercises the option whether or not
to take the case from the jury, when circumstances occur
that may be thought to warrant a declaration of a mistrial.19
13
See, e.g., id.; State v. Todd, 296 Neb. 424, 894 N.W.2d 255 (2017).
Compare Gori v. United States, 367 U.S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d
901 (1961).
14
Oregon v. Kennedy, supra note 9, 456 U.S. at 672.
15
See, Oregon v. Kennedy, supra note 9; Camden v. Circuit Court of Second
Judicial Circuit, 892 F.2d 610 (7th Cir. 1989); State v. Bedolla, supra
note 2.
16
See United States v. Dinitz, supra note 6.
17
Id., 424 U.S. at 608.
18
United States v. Dinitz, supra note 6.
19
United States v. Jorn, supra note 9.
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The U.S. Supreme Court has illustrated that a defendant may
conclude, for instance, that a mistrial would result in less
anxiety, expense, and delay than a potential retrial after a pro-
tracted appeal process if the tainted proceedings continued.20
If the defendant chooses to request or consent to a mistrial, it
would defeat the defendant’s right of primary control to reject
a mistrial motion on the grounds that it was not required by
manifest necessity.21
Consent arises most often when the trial court, as here, sua
sponte declares a mistrial.22 While the U.S. Supreme Court has
yet to squarely address the issue, courts generally agree that
implied consent, just like express consent, removes any double
jeopardy bar to a retrial.23
Courts articulate different standards for determining when
a defendant has implicitly consented to a mistrial. The major-
ity of courts addressing the issue, both federal24 and state,25
have held that a defendant’s failure to object to an expressly
contemplated declaration of a mistrial, when the defendant has
20
See United States v. Dinitz, supra note 6.
21
See id.
22
See Benson v. State, 111 Nev. 692, 895 P.2d 1323 (1995).
23
See U.S. v. You, 382 F.3d 958 (9th Cir. 2004).
24
See, U.S. v. DiPietro, 936 F.2d 6 (1st Cir. 1991); Love v. Morton, 112
F.3d 131 (3d Cir. 1997); U.S. v. Ham, 58 F.3d 78 (4th Cir. 1995); U.S. v.
El-Mezain, 664 F.3d 467 (5th Cir. 2011); U.S. v. Gilmore, 454 F.3d 725
(7th Cir. 2006); United States v. Smith, 621 F.2d 350 (9th Cir. 1980);
United States v. Puleo, 817 F.2d 702 (11th Cir. 1987).
25
See, e.g., People v. Ortiz, 196 Colo. 438, 586 P.2d 227 (1978); Brock
v. State, 955 N.E.2d 195 (Ind. 2011); People v. Dahlberg, 355 Ill. App.
3d 308, 823 N.E.2d 649, 291 Ill. Dec. 357 (2005); State v. Wittsell, 275
Kan. 442, 66 P.3d 831 (2003); State v. Carey, 77 A.3d 471 (Me. 2013);
Pellegrine v. Com., 446 Mass. 1004, 844 N.E.2d 608 (2006); People
v. Ackah-Essien, 311 Mich. App. 13, 874 N.W.2d 172 (2015); State v.
Tolliver, 839 S.W.2d 296 (Mo. 1992); Marte v. Berkman, 16 N.Y.3d 874,
949 N.E.2d 479, 925 N.Y.S.2d 388 (2011); State v. Ellis, 200 N.C. 77, 156
S.E. 157 (1930); State v. Leath, 461 S.W.3d 73 (Tenn. Crim. App. 2013);
State v. Cram, 46 P.3d 230 (Utah 2002); Com. v. Washington, 263 Va. 298,
559 S.E.2d 636 (2002).
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been provided with a sufficient opportunity to object, consti-
tutes consent to the mistrial. The U.S. Supreme Court eluded
to this standard in United States v. Jorn,26 when, in concluding
that retrial was prohibited by the Double Jeopardy Clause, it
noted that the trial judge had acted so abruptly in discharg-
ing the jury that there was no opportunity for the defendant
to object.
Some of these courts will utilize a totality of the circum-
stances test to determine whether the defendant consented to a
mistrial in the event there was no opportunity to raise a timely
objection.27 Other courts articulate a more general totality of
the circumstances test to determine if the defendant has implic-
itly consented to a mistrial.28 But many of those courts declar-
ing a totality of the circumstances test hold that the failure to
object when given the opportunity to do so weighs heavily in
favor of finding consent.29
Finally, a minority of courts hold that consent will not be
inferred from mere silence in the face of a possible mistrial.30
Courts that refuse to imply consent from silence emphasize
the importance of the right to have the trial completed by a
26
United States v. Jorn, supra note 9.
27
See, United States v. Goldstein, 479 F.2d 1061 (2d Cir. 1973); U.S. v.
Gantley, 172 F.3d 422 (6th Cir. 1999); Camden v. Circuit Court of Second
Judicial Circuit, supra note 15.
28
See, Glover v. McMackin, 950 F.2d 1236 (6th Cir. 1991); Camden v.
Circuit Court of Second Judicial Circuit, supra note 15; Stanley v.
Superior Court, 206 Cal. App. 4th 265, 141 Cal. Rptr. 3d 675 (2012); State
v. Saunders, 267 Conn. 363, 838 A.2d 186 (2004); State v. Stevens, 126
Idaho 822, 892 P.2d 889 (1995); Benson v. State, supra note 22; Torres v.
State, 614 S.W.2d 436 (Tex. Crim. App. 1981).
29
See, Camden v. Circuit Court of Second Judicial Circuit, supra note 15;
State v. Saunders, supra note 28. See, also, Davidson v. U.S., 48 A.3d 194
(D.C. 2012); State v. Stevens, supra note 28; Torres v. State, supra note 28.
30
See, State v. Grayson, 90 So. 2d 710 (Fla. 1956); Cardine v. Com., 283
S.W.3d 641 (Ky. 2009); People v Hoffman, 81 Mich. App. 288, 265
N.W.2d 94 (1978); State v. Bertrand, 133 N.H. 843, 587 A.2d 1219
(1991); Com. v. Kelly, 797 A.2d 925 (Pa. Super. 2002).
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particular tribunal.31 These courts also reason that criminal
­trials are adversarial and that the State bears the burden; thus,
defendants should not be forced to voice an objection and risk
“forgoing a win” or “snatching defeat from certain victory” by
implicitly consenting to a mistrial that ultimately would not
have been supported by manifest necessity.32
But we have rejected defendants’ use of constitutional shields
as swords of gamesmanship.33 Particularly, we have found that
defendants who remain silent in the face of trial error impact-
ing important constitutional rights, and who gamble on a favor-
able outcome or raise the objection only once the alleged error
can no longer be remedied, have waived the error.34
[7] We are persuaded by the reasoning underlying the
majority rule. Courts holding that defendants implicitly con-
sent when they fail to object, despite the opportunity to do
so, point out that “[w]hether the defendant wants a verdict is
something he knows best, and when the occasion for choice
comes he must choose . . . .”35 It is fair to expect the defend­
ant to participate in preserving his or her right to have the
trial completed by a particular tribunal.36 And bringing the
objection to the court’s attention affords the trial court the
opportunity to consider the defendant’s arguments and prevent
any error.37
[8,9] Moreover, these courts reason that a defendant who
remains silent when the court suggests a mistrial leaves “the
false impression of acquiescence even while anticipating a
31
See, e.g., Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234
(1976) (citing cases).
32
Cardine v. Com., supra note 30, 283 S.W.3d. at 652.
33
See State v. Abdouch, 230 Neb. 929, 434 N.W.2d 317 (1989).
34
See, State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011); State v. Mills,
199 Neb. 295, 258 N.W.2d 628 (1977).
35
United States v. Buljubasic, 808 F.2d 1260, 1266 (7th Cir. 1987).
36
See Davidson v. U.S., supra note 29.
37
See People v. Bean, 26 Ill. App. 3d 1090, 325 N.E.2d 679 (1975).
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subsequent objection.”38 If silence were not construed as con-
sent, attorneys could “lull the court into taking actions that
could not later be undone.”39 Requiring the defendant to make
an affirmative choice “avoids transforming the protection
against double jeopardy into an abusive weapon used by a
defendant to avoid prosecution.”40
What occurred in Leon-Simaj’s trial well illustrates the
reasons for the majority rule. After the court sustained the
State’s objection to defense counsel’s line of questioning of
E.Z., the court gave defense counsel and the State the express
opportunity to state their positions as to a possible mistrial. At
no point did defense counsel express that he was opposed to
the court’s declaring a mistrial. Instead, he apologized for his
improper line of questioning. And it was the court, not defense
counsel, who suggested that the parties present research on the
adequacy of a curative instruction.
After a recess, defense counsel still did not return with an
objection to the mistrial under consideration. Defense counsel
presented cases where curative instructions were adequate, but
did not argue that those cases were analogous or that a curative
instruction would cure the improper questioning defense coun-
sel admitted had occurred in Leon-Simaj’s trial. Even when the
State pointed out that “[t]here is a mechanism if the defense
wishes to object to a mistrial,” defense counsel failed to offer
an objection. Finally, when, after hearing the arguments, the
court announced its intention to declare a mistrial, defense
counsel still remained silent.
Later, at the hearing on the plea in bar, defense counsel
argued that double jeopardy barred reprosecution, because the
line of questioning he had previously conceded was improper
was actually proper. And, while defense counsel admitted he
38
Marte v. Berkman, supra note 25, 16 N.Y.3d at 876, 949 N.E.2d at 481,
925 N.Y.S.2d at 390.
39
Id.
40
Brock v. State, supra note 25, 955 N.E.2d at 203.
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had not expressly objected to the mistrial, he asserted that his
presentation of case law at the court’s request should be suf-
ficient to preclude implicit consent.
Intentionally or not, defense counsel had lulled the court
into taking action that could not later be undone, only to sub-
sequently attempt to bar reprosecution on the ground that the
court erred in concluding the very thing that defense counsel
had previously conceded.
[10,11] Even under a totality of the circumstances test, it
would appear from these events that defense counsel implic-
itly consented to the mistrial. But we hold that a totality of
the circumstances test is unnecessary when the defendant
fails to object to the court’s sua sponte consideration of a
mistrial, when the court gives defense counsel an opportunity
to respond. It is not too onerous to require defense counsel to
clearly state whether he or she objects. We hold that where
a mistrial is under sua sponte consideration by the court and
the defendant is given the opportunity to object, but fails to
timely and explicitly do so, that defendant will be held to
have impliedly consented to the mistrial, and double jeop-
ardy will not bar a retrial unless the defendant demonstrates
such consent was procured through the prosecutorial conduct
intended to provoke the defendant into moving for or consent-
ing to a mistrial. Where the defendant has thereby elected to
terminate the proceedings against him, the manifest neces-
sity standard has no place in the application of the Double
Jeopardy Clause.
[12,13] Although the district court denied the plea in bar
on the ground that manifest necessity justified the mistrial, we
may affirm on ground different than those expressed below.
Where the record adequately demonstrates that the decision
of a trial court is correct—although such correctness is based
on a ground or reason different from that assigned by the trial
court—an appellate court will affirm.41 Whether the defendant
41
State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017).
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consented to a mistrial involves the application of a consti-
tutional principle to historic facts that are reflected in the
record.42 The record reflects that Leon-Simaj was given several
opportunities to express his explicit objection to the mistrial
under consideration and that he failed to do so. Accordingly,
he consented to the mistrial and the district court did not err
in denying his plea in bar. Having so concluded, we need
not address Leon-Simaj’s assignments of error pertaining to
whether manifest necessity warranted the mistrial.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
42
See, Camden v. Circuit Court of Second Judicial Circuit, supra note 15;
State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).