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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 appellate 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 questions 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 manifest 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 automatically 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/30/2017 09:11 AM CDT
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8. ____: ____. Double jeopardy does not arise if the State can demonstrate manifest necessity for a mistrial declared over the objection of 

the defendant.

9. Double Jeopardy: Motions for Mistrial: Records. A specific finding of manifest necessity is not necessary to prevent termination of 

jeopardy if the record provides sufficient justification for the mistrial 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. Hall, Judge, on appeal thereto from the County Court 

for Dodge County, Kenneth 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, 

Kelch, 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 
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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 complaint 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 pursuant 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 testified 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 happened, 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.
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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 identified 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 reasonably believed by Todd to be certain to occur.”

Todd testified in her own defense at the trial. She testified 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 
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defense counsel asked Todd why she felt scared, disoriented, 

and confused when the police officer stopped her. In addition, 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 getting 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 questioning.” 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 
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clear that it had “previously and specifically deemed as inadmissible” 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 necessity 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 mistrial 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 driving 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 
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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 concluded 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 regarding 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 appellate 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 
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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 discretion, 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 independent of the determination reached by the court below. Todd 

appears to overlook the fact that in Williams, we also stated 
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the proposition that a trial court’s determination of whether a 

manifest necessity existed for discharging the jury and declaring 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 constitutional 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 acquittal 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 criminal 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 repetition. Even if the first trial is not completed, a second 

prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the 

period in which he is stigmatized by an unresolved accusation 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 general 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.]
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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 manifest a necessity for doing so, and when failure to discontinue 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 mistrial. 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 deference, we reviewed that specific determination for an abuse of 

discretion. Id.
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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 defendant claimed that the prosecutor provoked the defendant to 

move for a mistrial and that because of the prosecutor’s conduct, 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 question 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 ruling 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 necessity 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.
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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 different 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 questions” by defense counsel that the court determined were in 
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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 necessity 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) (citing 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 uncertainty 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 declaration of a mistrial in light of precedent regarding the type 

of reasoning that indicates the existence of a manifest necessity 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 spectrum 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 
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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 circumstance 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 consideration 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 
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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 evidence 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 additional 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 
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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 determining 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.

Affirmed.