demonstrate on the basis of the trial record that there was a "manifest necessity," United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824), for Judge Diggins' decision to declare a mistrial and that, therefore, the Commonwealth's requirement that he stand trial a second time violated the double jeopardy clause.
It is well settled that a state may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). This rule prohibits absolutely a retrial following an acquittal. However, "retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused." Arizona v. Washington, supra, 434 U.S. at 505, 98 S. Ct. at 830. When faced with such a situation, a reviewing court must satisfy itself that the termination of the initial criminal proceeding pursuant to a mistrial order was justified by a "high degree" of necessity if a retrial is to be permitted. Id. at 506, 98 S. Ct. at 830.
It is also clear that since the defendant's "valued right (secured by the double jeopardy clause) to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837, 93 L. Ed. 974 (1949), is abridged by a trial judge's declaration of a mistrial, the trial court is under an obligation to "temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." United States v. Jorn, 400 U.S. 470, 486, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971). Accordingly, a reviewing court must be assured that the trial court exercised "sound discretion" in deciding to declare a mistrial. See United States v. Perez, supra, 22 U.S. (9 Wheat.) at 580; Arizona v. Washington, supra, 434 U.S. at 514, 98 S. Ct. at 834.
The issues raised in Mr. Wilson's petition have proven difficult for courts to resolve. Recognizing this, the Supreme Court has stated that no single, mechanical rule can be formulated to judge the propriety of mistrial orders across the wide range of trial problems which may prompt a decision to abort a trial. See Illinois v. Somerville, 410 U.S. 458, 462, 93 S. Ct. 1066, 1069, 35 L. Ed. 2d 425 (1972). Nevertheless, as the Court explained in Arizona v. Washington, supra, 434 U.S. at 507, 98 S. Ct. at 831, a reviewing court's judgment about the propriety of a given mistrial order may be made more-or less-easily depending upon the particular situation which led to the decision. At one end of the spectrum are cases in which granting a mistrial provides some tactical advantage to the prosecution or stems from prosecutorial or judicial misconduct. In such cases, mistrial is clearly not a necessary step and the decision to declare a mistrial under such circumstances represents an abuse of the trial court's discretion which would bar a retrial. At the other extreme are cases where the trial judge considers the jury to be deadlocked and orders a mistrial. Here, the trial court's decision is generally considered necessary and is upheld as a sound exercise of discretion. See generally Arizona v. Washington, supra, 434 U.S. at 507-09, 98 S. Ct. at 831.
Of course, the most troubling issues are presented by the set of cases which fall between these two poles. A common example of this intermediate category is the situation in which the trial is interrupted by the illness of an important witness or by some other exigency. In this situation, courts have generally held that a short continuance is the preferred alternative to a mistrial, and a retrial following the declaration of a mistrial under such circumstances is therefore barred. See, e.g., United States v. McKoy, 591 F.2d 218, 221-23 (3rd Cir. 1979); Harris v. Young, 607 F.2d 1081, 1085-86 (4th Cir. 1979); Dunkerley v. Hogan, 579 F.2d 141, 146-48 (2d Cir.), cert. denied, 439 U.S. 1090, 99 S. Ct. 872, 59 L. Ed. 2d 56 (1978).
A variant situation-one raising perhaps the closest questions and the most troubling considerations-is that in which the trial court is unexpectedly faced with some clearly improper and prejudicial event in the course of the trial and must decide whether to grant a mistrial or to attempt some less drastic cure. It was this kind of trial problem that the Court examined in Arizona v. Washington, supra. There, the state trial judge declared a mistrial because of highly inappropriate aspersions on the prosecution made by defense counsel during his opening statement. The Court noted that in such circumstances the trial judge is in the best position to assess the extent of prejudice, its impact on the jury and the likelihood that such a taint can be satisfactorily cured by cautionary instructions. Id. 434 U.S. at 513-14, 98 S. Ct. at 834. Because these considerations favor appellate deference to the trial court's judgments, the Court held that the trial court's decision in such situations is entitled to "special respect." Id. at 510, 98 S. Ct. at 832. Applying that standard, the Court found that the trial judge's order had been proper and that retrial of the defendant did not violate the double jeopardy clause.
In my view, Mr. Wilson's first trial presented precisely the type of difficult situation discussed in Arizona v. Washington, supra, and, accordingly, in considering Mr. Wilson's petition, the decision by Judge Diggins to declare a mistrial must be accorded special deference. As the record makes clear, Judge Diggins was concerned-despite Mr. Wilson's proffered waiver-that cautionary instructions would not adequately protect the defendant from the prejudicial testimony concerning "mug shots." Considering that the trial judge was in the best position to assess the impact of this testimony on the jury; that the testimony presented a significant risk of prejudicing the outcome of Mr. Wilson's trial; and that the trial had apparently just gotten under way, Judge Diggins appears to have soundly exercised his discretion.
Moreover, as the Court made clear in Arizona v. Washington, supra, 434 U.S. at 516-17, 98 S. Ct. at 835-836, the Constitution does not mandate that a state trial court make explicit findings or explain on the record why alternatives to mistrial were not pursued, provided that the record, read as a whole, provides a sufficient justification for the ruling. The colloquy, quoted above, between Judge Diggins, Mr. Wilson, and counsel, reveals (a) the serious nature of the trial problem faced by Judge Diggins; (b) Judge Diggins' consideration of the less drastic alternative of cautionary instructions; and (c) his conclusion that ordering a mistrial was necessary and fair. Considering these circumstances in light of the principles announced in Arizona v. Washington, Judge Diggins' decision represents a sound exercise of discretion.
Accordingly, I will deny Mr. Wilson's petition for a writ of habeas corpus.