Appeal from the Superior Court in Pinal County No. S1100CR201300597 The Honorable Gilberto V. Figueroa, Judge
M. Lando Voyles, Pinal County Attorney By Renee J. Waters, Deputy County Attorney, Florence Counsel for Appellant
Shell & Nermyr, PLLC, Chandler By Chad Shell Counsel for Appellee
Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Miller concurred.
ECKERSTROM, CHIEF JUDGE
¶1 The state challenges the trial court's order granting a mistrial after the jury returned contradictory verdict forms in which it found appellee Austin Hansen guilty of aggravated assault with a deadly weapon but not guilty of its lesser included offense of simple assault. We conclude the state lacks a right to appeal the mistrial order. We nonetheless exercise our special action jurisdiction to resolve a legal question of statewide importance regarding the effect of an ambiguous verdict. See A.R.S. § 12-120.21(A)(4).
Factual and Procedural Background
¶2 Hansen was charged with a single count of aggravated assault with a deadly weapon or dangerous instrument pursuant to A.R.S. § 13-1204(A)(2) as a result of a stabbing at a music festival. For sentencing enhancement purposes, the state alleged the offense was of a dangerous nature due to the use of a knife. See A.R.S. §§ 13-105(13), 13-704. The court bifurcated the trial to separately address the questions of guilt and dangerousness.
¶3 During the guilt phase, the jury received instructions and verdict forms for aggravated assault and its lesser included offense of simple assault. When the jury returned the forms in open court, the judge initially overlooked that the forms stated the jury had found Hansen both guilty of aggravated assault and not guilty of simple assault. Only the verdict of guilt was announced in court. The court asked the jurors whether this was their verdict, they replied in the affirmative, and no dissent was registered when the jury was polled at Hansen's request.
¶4 After the jury was instructed on the question of dangerousness and returned an affirmative finding, the trial court discovered its previous oversight. The judge explained that he had seen only the guilty verdict form and had handed that form alone to the clerk to be announced. When the court asked the foreperson of the jury whether the jurors had believed they were required to render a verdict on simple assault, the foreperson responded, "I think it was more my confusion on what I was doing with the two sheets." The court interrupted this response to maintain the secrecy of the jury's deliberative process. Hansen's counsel stated his belief that the only option was a mistrial, and the court agreed over the state's objection. The state then filed its notice of appeal from the mistrial order.
¶5 This court's appellate jurisdiction is provided and limited by statute. State v. Avila, 147 Ariz. 330, 333, 710 P.2d 440, 443 (1985); see Ariz. Const. art. VI, § 1; A.R.S. § 12-120.21(A)(1). Appeals by the state are historically disfavored, State v. Bejarano, 219 Ariz. 518, ¶ 9, 200 P.3d 1015, 1019 (App. 2008), and A.R.S. § 13-4032 sets forth the exclusive grounds on which the state may appeal. State v. Fendler, 127 Ariz. 458, 461, 622 P.2d 17, 20 (App. 1980). Because this statute provides a right in derogation of the common law, we construe its terms strictly and presume that the state has no right of appeal "in the absence of express legislative authority" to the contrary. State v. Dawson, 164 Ariz. 278, 280, 792 P.2d 741, 743 (1990); see State v. Moore, 48 Ariz. 16, 18, 58 P.2d 752, 752 (1936) (noting "right of appeal in criminal cases is not known to the common law").
¶6 The state identifies § 13-4032(2) as the basis of our appellate jurisdiction. That provision allows the state to appeal "[a]n order granting a new trial." Id. An order declaring a mistrial, however, is not equivalent to an order granting a new trial.
¶7 Although a new trial typically follows the declaration of a mistrial, see Gray v. Gardiner, 92 Ariz. 208, 211, 375 P.2d 562, 564 (1962), there are situations that plainly illustrate both the distinct nature of these orders and the fact a new trial is not an inevitable consequence of a mistrial. For purposes of changing judges, for instance, we distinguish an order granting a new trial from one granting a mistrial. King v. Superior Court, 108 Ariz. 492, 493, 502 P.2d 529, 530 (1972); see State v. Neil, 102 Ariz. 110, 117, 425 P.2d 842, 849 (1967) (Bernstein, C.J., dissenting) (noting "[t]here is a critical distinction between a new trial and a mistrial, " because latter entails no judgment or sentence having been rendered by court). Similarly, if numerous trials have failed to result in a verdict, then a criminal defendant's due process rights might prohibit a successive prosecution following the declaration of a mistrial. See State v. ...