from the Superior Court in Yavapai County No.
P1300CR201000452 The Honorable Cele Hancock, Judge
Arizona Attorney General's Office, Phoenix By Eliza C.
Ybarra Counsel for Appellee.
Yavapai County Public Defender's Office, Prescott By
Nicole S. Murray Counsel for Appellant.
Presiding Judge Kent E. Cattani delivered the opinion of the
Court, in which Judge Lawrence F. Winthrop and Chief Judge
Michael J. Brown joined.
Wade Cole Dickinson challenges on double jeopardy grounds his
convictions and sentences for fraudulent schemes, forgery,
taking the identity of another, and theft. He argues that
because the convictions resulted from a second trial
following a trial in which the superior court sua
sponte ordered a mistrial over his objection, the second
trial violated the Double Jeopardy Clauses of the United
States and Arizona Constitutions. We agree because the
mistrial did not result from a "manifest necessity"
and was not essential to the ends of public justice.
Accordingly, we vacate Dickinson's convictions and remand
with instructions to enter a judgment of dismissal.
AND PROCEDURAL BACKGROUND
The charges arose from the theft of a high-end mountain bike
from a home in Cornville in March 2010, and its sale a few
days later by Dickinson on Craigslist. During opening
statements in the first trial (which began in August 2013),
defense counsel told the jury that the mountain bike
Dickinson had sold on Craigslist was not the bike stolen from
Cornville, as evidenced by the difference between the serial
number for the stolen bike and the serial number on the bike
Later, while cross-examining the person who bought the bike
from Dickinson, Dickinson's counsel learned that the
buyer's wife had recently given Prescott police officers
a scrap of paper on which she had written two numbers that
the Cornville theft victim told her had been on his mountain
bike, one of which the buyer indicated matched a number on
the bike he purchased from Dickinson. The buyer's wife
apparently had the note for three years before giving it to
the police two weeks before trial, and neither the prosecutor
nor defense counsel was aware of the contents of the note
until the buyer mentioned it during cross-examination.
After a lengthy discussion about possible ways to address the
surprise testimony and the lack of timely disclosure of the
note, the superior court asked the parties if they wanted a
mistrial. Dickinson's counsel initially noted that one
possible resolution was a mistrial, which would allow him to
start over with a new opening statement and cross-examination
"fully appri[s]ed of the evidence." But counsel
made clear that he preferred instead to proceed with the same
jury, without any further reference to the scrap of paper.
The prosecutor argued that dismissal with prejudice was not
appropriate, and suggested that empaneling a new jury was an
option, or that alternatively the court could preclude
further evidence of the note. The prosecutor concluded by
noting that the State "can proceed forward with the
exclusion of this evidence. It's not the State's
first priority, because all facts should go to the jury. But,
however, it's an option for the Court."
After again indicating his preference to go forward with
trial, Dickinson's counsel indicated he would not move to
strike the surprise testimony, because he believed doing so
would emphasize it. Finally, Dickinson's counsel told the
court that if it deemed a mistrial necessary, he would seek a
dismissal with prejudice.
After the court declared a mistrial, Dickinson's counsel
did not file a motion to dismiss with prejudice, and the
second trial proceeded six months later, resulting in the
convictions detailed above.
The court sentenced Dickinson to a total of 19.5 years in
prison, to be served consecutively to a 5-year term imposed
on revocation of probation in another case. Dickinson timely
appealed, and we have jurisdiction ...