Appeal from the Superior Court in Cochise County No. CR201000870 The Honorable Ann R. Littrell, Judge The Honorable John F. Kelliher Jr., Judge REVERSED AND REMANDED WITH INSTRUCTIONS
Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee
Harriette P. Levitt, Tucson Counsel for Appellant
Presiding Judge Kelly authored the opinion of the Court, in which Judge Howard concurred and Judge Vásquez dissented.
KELLY, Presiding Judge
¶1Following a jury trial, Tywan Woods was convicted of eight counts of aggravated assault, six counts of kidnapping, and two counts each of aggravated robbery and armed robbery. The trial court sentenced him to concurrent and consecutive prison terms totaling 78.5 years. On appeal, Woods argues the court violated his right not to be twice placed in jeopardy when it granted the state's motion for a mistrial without prejudice, permitting the state to try him again. Woods also argues the court erred by allowing an in-court identification of Woods and his vehicle. For the following reasons, we reverse Woods's convictions and sentences.
Factual and Procedural Background
¶2We view the facts in the light most favorable to sustaining Woods's convictions and sentences. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In November 2009, L.C., her four daughters, her boyfriend, W.W., and three of his friends were held captive at gunpoint by Woods and two other men who had entered L.C.'s home purportedly to engage in a drug transaction with W.W. and one of his friends. Woods and his companions stole the marijuana that they were supposed to have purchased. They also took L.C.'s car keys and driver's license, as well as electronic items, cash, and jewelry. Woods was charged with multiple counts of armed robbery, aggravated robbery, kidnapping, and aggravated assault. The first trial resulted in a hung jury, and the trial court apparently declared a mistrial and ordered a new trial.
¶3During Woods's second trial,  L.C. disrupted the proceedings, directed profanity and a racial epithet toward Woods in the presence of the jury, and apparently was stopped by police at or near the courthouse and arrested shortly thereafter. After the prosecutor informed the court that some jurors could have seen police activity outside the courthouse and may have known L.C. had been arrested, and the court reporter affirmed that two jurors had been overheard discussing the arrest, the court granted the state's motion for a mistrial. Following a third trial,  Woods was convicted and sentenced as set forth above. He timely appealed.
¶4Woods argues "[t]he trial court erred in declaring a mistrial following the second trial and, therefore, the third trial violated [his] right against double jeopardy." He did not object to the third trial on double jeopardy grounds; therefore, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). A double jeopardy violation constitutes fundamental error. State v. Price, 218 Ariz. 311, ¶ 4, 183 P.3d 1279, 1281 (App. 2008). "In evaluating a double jeopardy claim, we review the trial court's decision to declare a mistrial for an abuse of discretion." State v. Aguilar, 217 Ariz. 235, ¶ 7, 172 P.3d 423, 426 (App. 2007).
¶5Declaring a mistrial "is the most drastic remedy for trial error" and should be granted "only when justice will be thwarted if the current jury is allowed to consider the case." State v. Nordstrom, 200 Ariz. 229, ¶ 68, 25 P.3d 717, 738 (2001). "[T]he state 'must demonstrate manifest necessity for any mistrial declared over the objection of the defendant, ' and the burden 'is a heavy one.'" Gusler v. Wilkinson, 199 Ariz. 391, ¶ 18, 18 P.3d 702, 706 (2001), quoting Arizona v. Washington, 434 U.S. 497, 505 (1978).
¶6 At Woods's second trial, L.C. frequently used profanity in her testimony and expressed extreme contempt for the men who had held her children captive. While one of her daughters was testifying, L.C. interrupted the questioning. Woods's counsel asked the court to admonish L.C, and the court told her, "You need to keep quiet." L.C. responded that she would leave the courtroom, but before leaving, accused Woods of holding her children "hostage, " and directed profanity and a racial epithet toward him.
¶7 Woods moved for a mistrial, arguing that what L.C. had said was "totally inflammatory" and "very prejudicial." The state responded that L.C. had not said "anything different than what she said on the stand." The trial court agreed that "[i]t was very much in keeping with her angry outbursts during her testimony" and denied the motion for a mistrial.
¶8 The court admonished the jury to "disregard [L.C.'s] angry outbursts and what she said on her way out of this courtroom." Woods then asked the court to remove the admonishment because L.C. was a witness and "the jury can consider her demeanor as she is going out as part of her testimony in this case." The court told the jury it was "withdrawing [its] prior instruction to you, and allowing you to consider what [L.C] said as she left the courtroom, to the extent that you deem it relevant and appropriate to do so."
¶9 The next day, before the jury was brought in, the trial court stated there had been "matters that happened outside of the presence of the jury that are of concern." Woods's counsel told the court there had been "commotions going on outside" the courtroom after L.C. left. The trial court commented that after L.C. had left the courtroom the day before, "one could hear from inside the courtroom the sound of a woman yelling, " although the specific words could not be heard. The court also noted there had been a "banging" and then "some sound, commotion ...