NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ELTON JARDINES, Petitioner,

v.

THE HONORABLE JENNIFER RYAN-TOUHILL, Judge of the 

SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County 

of MARICOPA, Respondent Judge,

STATE OF ARIZONA, Real Party in Interest.

No. 1 CA-SA 21-0073

Petition for Special Action from the Superior Court in Maricopa County

No. CR2009-136653-001

The Honorable Jennifer Ryan-Touhill, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Alcock & Associates, P.C., Phoenix

By David Le Lievre

Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix

By Jeffrey Duvendack, M. Desi Rubalcaba

Counsel for Real Party in Interest

FILED 7-1-2021
JARDINES v. HON. RYAN-TOUHILL/STATE

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie joined. Judge Cynthia J. Bailey

dissented.

W I N T H R O P, Judge:

¶1 The State charged Elton Jardines with two counts of firstdegree murder and two counts of aggravated assault. See Ariz. Rev. Stat. 

(“A.R.S.”) §§ 13-1105, -1203, -1204. Jardines’ trial ended after the 

respondent judge sua sponte declared a mistrial over Jardines’ objection. 

Jardines then moved to dismiss the charges against him, claiming that a 

retrial would violate the constitutional prohibition against double jeopardy. 

The trial court denied the motion. Jardines petitioned this court for special 

action relief, arguing double jeopardy bars his retrial. For the following 

reasons, we accept jurisdiction and grant relief.

FACTS AND PROCEDURAL HISTORY1

¶2 In May 2009, a fight between two groups of people outside a 

convenience store became deadly when someone pulled a gun and began 

shooting. Four people were shot, and two died. Jardines was present at the 

scene.

¶3 As part of their investigation, police interviewed witnesses 

and victims to identify the shooter. Two witnesses/victims, A.B. and S.M.,

1 We agree with our dissenting colleague that the record provided this 

court is sparse. Nevertheless, we do not believe the lack of additional 

record in this case precludes us from accepting jurisdiction and granting 

relief. At oral argument, this court questioned Jardines’ counsel about the 

meager record provided, and counsel avowed that no material facts were 

in dispute. Counsel for the State did not quarrel with this avowal and 

affirmatively stated that the State did not dispute the facts as set forth in 

Jardines’ petition. Further, even after this court raised the issue, neither 

side offered, either at oral argument or subsequently, to supplement the 

record before this court, indicating that both sides believed all material facts 

before the trial court for consideration had been presented to this court as 

well.
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stated in part that they believed a person who had been identified as “Alex” 

was the shooter and the shooter had “Biggums” or “something with a B” 

tattooed on one of his arms or right bicep. Neither witness picked Jardines 

out of a photo lineup at the time, although A.B. came close, stating “I want 

to say [Jardines’ photo],” before ultimately rejecting all the photos shown 

to her.

¶4 The State eventually charged Jardines with the crimes, but 

Jardines fled to Mexico. After several years, Jardines was located and 

arrested, and his trial began in March 2021.

¶5 Jardines’ primary defense was misidentification, and he 

sought to impeach the testimony of both A.B. and S.M. by showing the 

tattoo on his right arm was different from the shooter’s tattoo as previously 

described by either A.B. or S.M. During opening statements, defense 

counsel told the jury that witnesses would testify about a tattoo that was on 

the shooter, and that Jardines had no such tattoo.

¶6 On the afternoon of the first day of testimony, the second 

witness called by the State was S.M. For the first time, S.M. described the 

shooter’s tattoo as having identifying characteristics much the same as the 

tattoo on Jardines’ right arm.

¶7 Defense counsel asked for a sidebar conference, explained he 

believed this information had not previously been disclosed,2 and asked to 

voir dire S.M. outside the jury’s presence. The trial court agreed. S.M. then 

explained no one had ever thoroughly questioned her about the shooter’s 

tattoo before, and she denied receiving any further information about the 

tattoo before her testimony. She conceded she had been to court once 

before, although “it was a long time ago,” and had previously seen Jardines 

in court. She also stated she had previously spoken to someone about the 

case but was unsure if that person was a prosecutor.

¶8 The trial recessed for the evening, and defense counsel then 

emailed the prosecutor asking if S.M. had been allowed to see photographs 

of Jardines’ tattoos in advance of trial. The prosecutor denied allowing that 

to happen.

¶9 The next morning, the prosecutor advised defense counsel 

that another witness, A.B., may have seen photos of Jardines’ tattoos the 

day before. At an in-chambers meeting, the prosecutor noted that during 

2 The limited record before us indicates neither S.M. nor A.B. had been 

questioned since their 2009 police interviews.
JARDINES v. HON. RYAN-TOUHILL/STATE

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the lunch hour the previous day, A.B. had reviewed her initial police 

interviews on the prosecutor’s laptop in a separate witness room outside 

the courtroom. The prosecutor was also in the room but sat on the other 

side of the table, social distancing, and was unable to see the laptop screen. 

Twice, however, the prosecutor left the room, leaving A.B. alone with the 

laptop. After the prosecutor came back the second time, she noticed the 

computer screen had “tabs” at the bottom3 and the “tabs” linked to three 

photos of Jardines.

4 Later, A.B. and S.M. saw, hugged, and spoke to one 

another briefly in the witness room before S.M.’s testimony.

¶10 The next day, the trial court interviewed A.B., who confirmed 

the prosecutor’s statement that she had been left alone with the laptop on 

two occasions. A.B. denied accessing anything or seeing any photos of 

Jardines’ tattoos on the computer, stating she had her head down while 

listening to her prior recorded statements. She admitted she spoke to S.M.

immediately before S.M. testified but denied giving S.M. or anyone else 

information about Jardines’ tattoos. A.B. also admitted S.M. texted her after 

S.M.’s testimony concluded. Security video footage showed S.M. and A.B.

left the courthouse together.

¶11 Jardines moved to dismiss the case with prejudice based on 

prosecutorial misconduct, arguing the prosecutor’s misconduct had 

prejudiced him, and the only remedy was a dismissal with prejudice. He 

also argued the prosecutor had made herself a necessary witness, and 

3 At oral argument the next day, the prosecutor avowed that shortly 

before noticing the “tabs” for the first time, she had turned the computer 

around to change the recording for A.B. and “may have bumped [the 

computer] and caused the thumbnails [to appear].” The prosecutor also 

noted that “both times when I walked in, [A.B.] had her head down. She 

wasn’t even looking at the computer.”

4 Jardines argues the photos in question show his tattoos. The State 

argues the photos “appeared in thumbnail form,” “none of the potentially 

exposed photos even show the full tattoo,” and “the tattoo in question does 

not appear at an angle which would make the illustration incorporated into 

the tattoo with [Jardines’] name visible.” If the State is correct, then even 

had A.B. opened those photos and zoomed in on the tattoo in question, she 

would not have been able to describe the tattoo to S.M. so that S.M. could 

subsequently testify about it with the detail she provided. After observing 

the photos at the bottom of the laptop, the trial court concluded it was 

“unlikely” A.B. could have relied on the photos to convey the testified-to 

information about the tattoo to S.M.
JARDINES v. HON. RYAN-TOUHILL/STATE

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alternatively, he moved to compel the prosecutor’s testimony in the event 

his motion to dismiss with prejudice was denied. In support of his motion, 

he maintained the prosecutor could be called as a witness in her own case.

¶12 The State responded that the motion to dismiss was “not 

appropriately before the Court” because the prosecutor’s “lapse in 

judgment” did not rise to the level of prosecutorial misconduct, and the trial 

should continue. The State further argued that a mistrial should not be 

declared, but double jeopardy should not bar a retrial if a mistrial was

declared. As to Jardines’ motion to compel the prosecutor’s testimony, the 

State conceded the prosecutor could be called as a witness, but only if a 

compelling need could be demonstrated.

¶13 After hearing argument on the motions, the court found 

misconduct had occurred, but the misconduct was an unintentional

“mistake” or “inadvertent error,” and denied the motion to dismiss. The 

court then concluded a curative instruction would not be sufficient to cure 

the prosecutor’s error and proposed a stipulation regarding the facts of the 

misconduct as a possible option, but Jardines rejected that proposal. The 

court also rejected in part the motion to compel the prosecutor’s testimony, 

concluding “you do not call a prosecutor during a case that they’re 

currently prosecuting,” but granted the motion to compel the prosecutor’s 

testimony in the event of a second trial.5 Neither party suggested, and the 

court apparently did not consider, deferring ruling on the motion and 

proceeding with the trial to see whether the need for testimony by the 

prosecutor could be obviated.

¶14 Because there was no agreement on a lesser remedy, the court, 

on its own motion, ordered a mistrial over both Jardines’ and the State’s 

objections after concluding the misconduct made the prosecutor a 

necessary witness to impeach S.M.’s testimony and the prosecutor could 

not testify before the impaneled jury:

IT IS ORDERED, sua sponte, declaring a mistrial. THE 

COURT FINDS that a manifest necessity exists. The manifest 

necessity is that [Jardines] has a right to question [S.M.], 

[A.B.], and, most specifically, the State about the photographs 

on the laptop, which go to the identification issue, which is a 

key fact in dispute in this case that impacts [Jardines’] ability 

to a fair trial. Jardines, while objecting to the Court’s sua 

5 The court did not formally disqualify the prosecutor, who 

announced she was set to retire soon anyway.
JARDINES v. HON. RYAN-TOUHILL/STATE

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sponte motion for mistrial, does not agree to stipulate to any 

actions by the State that would eliminate the need to call the 

prosecutor as a witness.

¶15 Jardines moved to bar retrial based on double jeopardy

grounds, arguing a manifest necessity did not exist to sua sponte declare a 

mistrial over his objection because the prosecutor could have testified at 

trial while continuing her role as prosecutor. After responsive briefing, the 

trial court denied the motion. Jardines then filed this special action.

ANALYSIS

I. Special Action Jurisdiction

¶16 Although a special action petition is not the exclusive way for 

a defendant to obtain appellate review of a double jeopardy claim, see State 

v. Felix, 214 Ariz. 110, 111-12, ¶ 8 (App. 2006), it “is the appropriate vehicle 

for a defendant to obtain judicial appellate review of an interlocutory 

double jeopardy claim,” State v. Moody, 208 Ariz. 424, 438, ¶ 22 (2004) 

(quoting Nalbandian v. Superior Court, 163 Ariz. 126, 130 (App. 1989)). 

“Because the Double Jeopardy Clause guarantees the right to be free from 

subsequent prosecution, the clause is violated by the mere commencement 

of retrial.” Id. (citing Abney v. United States, 431 U.S. 651, 660-61 (1977)).

¶17 Here, special action review is Jardines’ only method of relief 

before a second trial commences. If he is correct in his argument, the 

constitutional prohibition against double jeopardy would be violated by the 

mere commencement of a second trial. See id. Accordingly, we accept 

jurisdiction of his petition. See Ariz. R.P. Spec. Act. 1(a), 3(b)-(c).

II. Manifest Necessity and Double Jeopardy

¶18 The only issue presented is whether the trial court’s sua sponte

declaration of a mistrial over Jardines’ objection bars retrial on double 

jeopardy grounds. Jardines argues no manifest necessity existed for the sua 

sponte declaration of a mistrial over his objection because the prosecutor 

could have testified about the limited facts necessary to impeach S.M. while 

retaining her role as the prosecutor.

¶19 The Fifth Amendment, which protects a criminal defendant 

against multiple punishments or repeated prosecutions for the same 

offense, applies to individual states through the Fourteenth Amendment. 

State v. Solomon, 125 Ariz. 18, 21 (1980); U.S. Const. amend. V; XIV, § 1. The 

Arizona Constitution also affords “double jeopardy” protection to criminal 
JARDINES v. HON. RYAN-TOUHILL/STATE

Decision of the Court

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defendants. See Ariz. Const. art. 2, § 10 (“No person shall . . . be twice put 

in jeopardy for the same offense.”).

¶20 “Jeopardy attaches as soon as the jury is impaneled and 

sworn.” McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986) (citing Crist v. 

Bretz, 437 U.S. 28 (1978); Solomon, 125 Ariz. at 21; State v. Riggins, 111 Ariz. 

281, 283 (1974)). Once jeopardy attaches, a defendant generally may not be 

subject to a second trial for the same offense. See Arizona v. Washington, 434 

U.S. 497, 505 (1978); United States v. Jorn, 400 U.S. 470, 479 (1971). Because 

jeopardy attached in this case, we must consider whether Jardines would 

be twice placed in jeopardy if his case proceeds to a second trial.

¶21 We review a trial court’s decision to declare a mistrial and its 

ruling on manifest necessity for an abuse of discretion. State v. Adamson, 

136 Ariz. 250, 263 (1983); State v. Dickinson, 242 Ariz. 120, 123, ¶ 12 (App. 

2017). However, “[w]hether double jeopardy bars retrial is a question of 

law, which we review de novo.” Moody, 208 Ariz. at 437, ¶ 18 (citing State 

v. Siddle, 202 Ariz. 512, 515, ¶ 7 (App. 2002)).

¶22 The declaration of a mistrial negates “the defendant’s ‘valued 

right to have his trial completed by a particular tribunal.’” United States v. 

Dinitz, 424 U.S. 600, 606 (1976) (citations omitted); accord State v. Marquez, 

113 Ariz. 540, 541-42 (1976). Thus, when considering ordering a mistrial, a 

trial judge must be aware a defendant has a “significant interest” in 

deciding whether to take the case from the impaneled jury and retains 

primary control over the course to follow. Jones v. Kiger, 194 Ariz. 523, 526, 

¶ 9 (App. 1999) (citations omitted).

Indeed, even when a palpably prejudicial error has been 

committed a defendant may have valid personal reasons to 

prefer going ahead with the trial rather than beginning the 

entire process anew, such as a desire to minimize the 

embarrassment, expense, and anxiety [of a second trial].

These considerations are peculiarly within the knowledge of 

the defendant, not the judge, and the latter must avoid 

depriving the defendant of his constitutionally protected 

freedom of choice in the name of a paternalistic concern for 

his welfare.

Id. (quoting Curry v. Superior Court, 470 P.2d 345, 351 (Cal. 1970)). See also 

Klinefelter v. Superior Court, 108 Ariz. 494, 496 (1972) (recognizing a 

defendant may seek “to go to the first jury and, perhaps, end the dispute 

then and there with an acquittal” (quoting Jorn, 400 U.S. at 484)).
JARDINES v. HON. RYAN-TOUHILL/STATE

Decision of the Court

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¶23 Arizona law generally distinguishes between mistrials 

declared with a defendant’s consent, and mistrials declared over a 

defendant’s objection. In most cases, a mistrial declared upon a defendant’s 

motion or with his consent will remove any bar to re-prosecution. Marquez, 

113 Ariz. at 542 (citations omitted). In contrast, a mistrial declared without 

the defendant’s consent is a bar to retrial when improperly declared. 

McLaughlin, 150 Ariz. at 277 (citing State v. Fenton, 19 Ariz. App. 274, 276 

(1973)). “In instances where the trial court declares a mistrial sua sponte, 

whether the Double Jeopardy Clause permits retrial without the 

defendant’s consent depends on whether there is a manifest necessity for 

the mistrial or whether the ends of public justice will otherwise be 

defeated.” Id. (citations omitted); see also United States v. Perez, 22 U.S. (9 

Wheat) 579, 580 (1824).

¶24 Ordinarily, the trial court is in the best position to determine 

when manifest necessity demands that a mistrial be declared. McLaughlin, 

150 Ariz. at 277 (citing Klinefelter, 108 Ariz. at 496). Courts have previously 

found such a manifest necessity when, for example, the jury was unable to 

reach a verdict after lengthy deliberation, when the trial judge became too 

ill to proceed, when newspaper coverage indicating the court had held the 

defendant in contempt was read by jurors and rendered impartiality 

suspect, and when a military court martial was discharged due to tactical 

necessity. Id. (citing Klinefelter, 108 Ariz. at 496-97; Riggins, 111 Ariz. at 284); 

see also Jones, 194 Ariz. at 526, ¶ 8 (including “when the prosecutor engaged 

in misconduct”).

¶25 The burden of demonstrating a manifest necessity, however,

is “a heavy one,” Arizona v. Washington, 434 U.S. at 505, and the record here 

does not reveal the existence of any of the traditional examples of manifest 

necessity. Although the trial court found some level of misconduct had 

occurred in the form of an unintentional “mistake” or “inadvertent error,” 

the court did not base its finding of manifest necessity directly on that 

conduct. Instead, the court explained that the manifest necessity behind the 

mistrial was the need for the assigned prosecutor to testify and the belief 

that she could not testify before the impaneled jury while acting as the 

assigned prosecutor.

¶26 In Arizona, the rules of professional conduct generally 

prohibit trial counsel from testifying as a witness. See Ariz. R. Sup. Ct. 42, 

ER 3.7(a). Because calling a prosecutor as a witness for the defendant 

inevitably confuses the distinctions between advocate and witness, and 

argument and testimony, the practice should be permitted only if required 

by a compelling need. State v. Tuzon, 118 Ariz. 205, 208 (1978) (citing United 
JARDINES v. HON. RYAN-TOUHILL/STATE

Decision of the Court

9

States v. Schwartzbaum, 527 F.2d 249, 253 (2nd Cir. 1975)). “[A] witness is 

‘necessary’ in this context only when the witness will offer ‘relevant and 

material’ testimony that ‘could not be obtained from other witnesses.’”

State v. Georgini, 2 CA-SA 2015-0069, 2016 WL 1298279, at *1, ¶ 2 (Ariz. App. 

Apr. 1, 2016) (mem. decision) (quoting Sec. Gen. Life Ins. Co. v. Superior Court, 

149 Ariz. 332, 335 (1986)). Thus, there are rare circumstances in which a 

prosecutor may testify in a case that he or she actively prosecutes. See State 

v. Williams, 136 Ariz. 52, 57 (1983); State v. Howard, 27 Ariz. App. 339, 341

(1976) (“Although it is generally held that a prosecutor is competent to 

testify in a criminal case for the State even though he is engaged in the 

prosecution of the case, courts have generally disapproved the practice 

except in the extraordinary circumstances.” (citation omitted)).

¶27 Here, it appears everyone, including the trial court, agreed the 

prosecutor was a necessary witness to testify in a limited capacity about 

facts surrounding the incident with the laptop. Assuming arguendo the 

prosecutor was a necessary witness,6 we agree with Jardines that the 

prosecutor could have testified at the time of trial without being 

disqualified. See Williams, 136 Ariz. at 57; Howard, 27 Ariz. App. at 342.

¶28 The State relies on Cottonwood Estates, Inc. v. Paradise Builders, 

Inc., 128 Ariz. 99 (1981), to argue that because the roles of an advocate and 

a witness are inconsistent, the assigned prosecutor should not have 

continued to represent the State and therefore manifest necessity existed to 

sua sponte declare a mistrial. In Cottonwood Estates, our supreme court 

denied special action relief after the trial court ruled the petitioners’ 

attorney could not try a breach of contract action brought against his client 

and testify as a witness in the same proceeding. Id. at 101, 106. In its 

analysis, the court quoted Hales v. Pittman, 118 Ariz. 305, 313 (1978), for the 

proposition that “[a] fundamental rule of the American system of 

jurisprudence prohibits an attorney from testifying in a case he is 

handling.” Cottonwood Estates, 128 Ariz. at 102. The court further noted that 

“[a] review of cases from other jurisdictions reveals that courts normally 

refuse to condone the practice of acting both as advocate and witness in the 

same proceeding.” Id. (citations omitted).

6 We agree the prosecutor was potentially a necessary witness. Still, 

on the limited record provided by the parties, it appears most if not all her 

expected impeachment testimony could have been obtained through the 

consistent testimony of A.B., another attorney who could testify as to 

practices and procedures in the prosecutor’s office, and possibly a forensic 

computer analyst.
JARDINES v. HON. RYAN-TOUHILL/STATE

Decision of the Court

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¶29 We do not quarrel with those fundamental tenets. We note, 

however, that Cottonwood Estates does not stand for the proposition that an 

assigned prosecutor can never testify in his or her case. Cottonwood Estates

is a civil case that involved an attorney advocating as both counsel and a 

witness for his client, not a criminal case in which the prosecutor is called 

on behalf of the defendant for impeachment purposes against her case. See 

id. at 102 n.4 (“While in a criminal proceeding there are similar 

considerations militating against an attorney testifying in a trial he is 

conducting, there are additional considerations which we are not required 

to weigh here.”). Moreover, if our supreme court’s 1981 ruling in 

Cottonwood Estates always precluded an attorney from being called as a 

witness, the court would not have two years later issued Williams, which 

supported, with caution, compelling the use of the prosecutor as a material 

witness in limited circumstances. 136 Ariz. at 56-57. Here, unlike 

Cottonwood Estates, the trial court did not disqualify the prosecutor, who 

could have continued to prosecute the case and been allowed to testify in a 

limited capacity as an impeachment witness if necessary. See Howard, 27 

Ariz. App. at 342 (“Although a prosecutor, when he finds it necessary to 

testify on behalf of the prosecution, should withdraw, he has no such duty 

when called on behalf of the defendant.” (citations omitted)). Accordingly, 

no manifest necessity existed for declaring a mistrial on this basis.

¶30 Further, even if the trial court desired not to have the 

prosecutor testify in a case she was prosecuting, the court did little to 

consider other alternatives to declaring a mistrial. Jardines indeed declined

the court’s suggestion of a stipulation, and the court perhaps correctly 

summarily rejected the idea of a possible jury instruction. However, there 

appears to have been no consideration as to whether other evidence might 

obviate any possible need for the prosecutor’s testimony, as to the 

availability of another prosecutor with familiarity of the case to take over,

or in inquiring of the jurors whether a delay in the trial until another 

prosecutor could take over would inconvenience them. See McLaughlin, 150 

Ariz. at 277-78; Jones, 194 Ariz. at 527, ¶ 12. On this record, no manifest 

necessity existed for the court’s sua sponte declaration of a mistrial.

¶31 Because it is possible that the prosecutor might not have to 

testify or could testify while continuing to prosecute the case without the 

need for a mistrial, no manifest necessity existed to sua sponte declare a 

mistrial against Jardines’ objection. Accordingly, jeopardy has attached in 

this case, and a retrial is barred.
JARDINES v. HON. RYAN-TOUHILL/STATE

Decision of the Court

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CONCLUSION

¶32 We accept jurisdiction of Jardines’ special action petition and 

grant relief. We remand to the trial court with instructions to dismiss the 

charges with prejudice against Jardines.

B A I L E Y, J., dissenting:

¶33 I respectfully dissent.

¶34 While the parties do not dispute many of the facts, much of 

what was presented in the petition comes from the briefing and from 

descriptions of the facts in the motions filed in superior court, and not from 

the transcripts of the trial. By the time the superior court declared a mistrial, 

both parties had presented their opening statements, the state had elicited 

S.M.’s testimony on direct, S.M. answered Petitioner’s voir dire questions, 

the court had reviewed S.M.’s police interview from 2009 and the photos 

referenced on the prosecutor’s computer, and had also considered the 

testimony A.B. and the victim advocate had given outside the jury’s 

presence. None of this record is before us.

¶35 The Petitioner had the burden to file everything from the 

record below necessary for this court to rule. Ariz. R.P. Spec. Act. 7(e) (“All 

references to the record shall be supported by an appendix of documents in 

the record before the trial court that are necessary for a determination of the 

issues raised by the petition.”). Not only did Petitioner decline to file any 

of the relevant transcripts, but when the court inquired during oral 

argument, he shrugged off their relevance to the issue his petition presents. 

In my view, without a full record, we cannot adequately review the facts 

and circumstances the superior court necessarily considered when it ruled. 

Nor can we fully appreciate the context in which the court found a manifest 

necessity existed, or adequately assess the parties’ arguments, including 

Petitioner’s assertion here that he would have been in a better position if 

trial proceeded.

¶36 As the majority acknowledges, the general rule prohibits a 

prosecutor from testifying in a case he or she is prosecuting. Normally, 

when the prosecutor must testify, he or she must step down from the 

courtroom team or be disqualified. But here the majority concludes that 

this case falls into an exception to that rule. In my view, there is no 
JARDINES v. HON. RYAN-TOUHILL/STATE

Bailey, J., dissenting

12

precedent for that conclusion. Based on what we know from the parties’ 

briefing and the court’s minute entries, the prosecutor’s testimony would 

have addressed the core issue before the jury—the crux of the defense—the 

identification of Petitioner as the shooter. The prosecutor’s testimony 

would have either impeached or bolstered the testimony of a key 

identification witness or witnesses. Acknowledging that uncertainty, the 

superior court could have properly inferred that the prosecutor would be 

in the untenable position of vouching for her own credibility in closing 

arguments. That argument would not only put the weight of the 

government behind the prosecutor’s testimony but could result in the 

prosecutor vouching for an eyewitness’s testimony. As such, the cases the 

majority cites, which weigh against the finding of a manifest necessity, do 

not reflect the circumstances present in the limited record before us.

¶37 I agree with the majority that a court’s sua sponte mistrial 

declaration over a defense objection can be highly problematic. But it is 

equally rare for a court to conclude that a prosecutor must be allowed to 

testify on a matter central to the case. As the majority notes, when that 

scenario arises, and the prosecutor declines to step down, the trial judge is 

in the best position to determine whether a manifest necessity exists. Here, 

because a full transcript of the proceedings is not part of the record, I cannot 

conclude the court abused its discretion by sua sponte declaring a mistrial. 

See McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986) (citing Klinefelter v. 

Superior Court, 108 Ariz. 494, 496-97 (1972)).

¶38 I also disagree with the majority’s conclusion that the trial 

court did “little to consider other alternatives to declaring a mistrial.” See 

supra ¶ 30. Precedent provides slim guidance on how many alternatives the 

trial court must consider before declaring a mistrial. Here, the superior 

court considered a curative instruction and would have allowed a 

stipulation describing A.B.’s opportunity to view the prosecutor’s 

computer if the parties had agreed to one. And unlike the cases upon which 

the majority relies, nothing in this record shows the availability of a secondchair or another prosecutor who could have taken over the prosecution 

here.

¶39 Ultimately, without the benefit of knowing everything the 

court considered before declaring a mistrial, I would apply the 

presumption that the record supports the court’s finding of a manifest 

necessity and decline special action jurisdiction. See Baker v. Baker, 183 Ariz. 

70, 73 (App. 1995) (“A party is responsible for making certain the record on 

appeal contains all transcripts or other documents necessary for us to 

consider the issues . . . . When a party fails to include necessary items, we 
JARDINES v. HON. RYAN-TOUHILL/STATE

Bailey, J., dissenting

13

assume they would support the court’s findings and conclusions.”) (citation 

omitted); see also Ariz. R.P. Spec. Act. 7(e).