¶ 14 “[O]ne of the principal rights embodied in the double jeopardy clause is the defendant's ‘valued right to have his trial completed by a particular tribunal.’ ” People v. Espinoza, 666 P.2d 555, 558 (Colo.1983) (quoting United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) ). Ordinarily, a defendant's motion for mistrial functions as a waiver of that right. Id. ; People v. Baca, 193 Colo. 9, 12, 562 P.2d 411, 413 (1977).
Defendant's double jeopardy challenge to the necessity of the mistrial fails because defendant sought the mistrial. A defense "motion for a mistrial is generally considered to operate as a waiver" of double jeopardy protections, People v. Espinoza, 666 P.2d 555, 558 (Colo. 1983), and at a minimum precludes any later challenge to the necessity of the mistrial. See Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (where "the defendant himself has elected to terminate the proceedings against him," "the `manifest necessity' standard has no place in the application of the Double Jeopardy Clause").
If section 18-1-405(3) were read to require a six-month extension of the speedy trial time period from the date of any continuance granted at the defendant's request, without some implicit qualification, the benefits of the statutory speedy trial right would always be vulnerable to prosecutorial efforts to "goad" the defendant into waiving that right. Like the analogous constitutional right of a defendant to complete his trial before a single jury, without being placed in jeopardy a second time, the statutory right to a speedy trial would become a hollow shell if the defendant could be forced to waive it by intentional prosecutorial misconduct designed expressly for that purpose. Cf. Oregon v. Kennedy, 456 U.S. 667, 679 (1982) (defendant's motion for mistrial will not waive double jeopardy protection, as it otherwise would, if provoked by intentional prosecutorial or judicial misconduct);People v. Espinoza, 666 P.2d 555, 559 (Colo. 1983) (applyingOregon v. Kennedy and noting prior Colorado case law permitting retrial in the absence of bad faith motivation of the prosecutor to trigger a mistrial). On the other hand, any broader test that focused on the causes for the defendant's choice rather than the motivation of the prosecutor would blur the legislature's distinction between a request for continuance and a delay caused at the instance of the defendant.
In addition, it protects a defendant's right to have a verdict returned by a particular jury. See id. at 1010-11; People v. Espinoza, 666 P.2d 555, 558 (Colo. 1983). In general, the double jeopardy prohibition is implicated if a defendant is arraigned, enters a plea, is brought to trial in a court of competent jurisdiction, and a jury has been selected and sworn to hear the case.
Oliver v. State, 479 So.2d 1385 (Ala.Cr.App. 1985); Piesik v. State, 572 P.2d 94 (Alaska 1977); Jackson v. State, 322 Ark. 710, 911 S.W.2d 578 (Ark. 1995); People v. Valenzuela-Gonzales, 195 Cal.App.3d 728, 241 Cal.Rptr. 114 (Cal.App. 4 Dist. 1987); People v. Espinoza, 666 P.2d 555 (Colo. 1983); Aillon v. Manson, 201 Conn. 675, 519 A.2d 35 (Conn. 1986); Sudler v. State, 611 A.2d 945 (Del.Supr.
We agree. We note that while prosecutorial misconduct which prompts a defendant to seek a mistrial may in some situations raise problems of double jeopardy, People v. Espinoza, 666 P.2d 555, 558 (Colo. 1983), no such issue exists in this case. Colorado has adopted a subjective test resolving such issues, under which a retrial is barred only if prosecutorial or judicial misconduct giving rise to the mistrial was intended to provoke the defendant into moving for a mistrial.
Moreover, were the trial court to sua sponte declare a mistrial, defendant would undoubtedly raise the issue of double jeopardy. People v. Espinoza , 666 P.2d 555, 558 (Colo. 1983) ("A mistrial declared without the consent and over the objection of the defendant invokes double jeopardy protection to bar retrial unless ‘manifestly necessary’ to preserve the public interest in a fair trial and a just verdict."). ¶ 33 However, the defendant in Jackson raised the issue with the trial court.
Moreover, were the trial court to sua sponte declare a mistrial, defendant would undoubtedly raise the issue of double jeopardy. People v. Espinoza , 666 P.2d 555, 558 (Colo. 1983) ("A mistrial declared without the consent and over the objection of the defendant invokes double jeopardy protection to bar retrial unless ‘manifestly necessary’ to preserve the public interest in a fair trial and a just verdict."). ¶ 79 Defendant relies on Jackson for the proposition that a trial court has a duty to sua sponte hold a hearing on the issue of voluntariness absent an express objection by a defendant where it should be evident to the trial court that voluntariness is an issue.
When a mistrial is declared without the consent and over the objection of the defendant, double jeopardy principles will bar a second trial unless the mistrial was justified by manifest necessity. People v. Espinoza, 666 P.2d 555 (Colo. 1983). Double jeopardy does not bar a second trial if the defendant consents to a mistrial.
To the extent that defendant is arguing that the combined effect of the trial court's ex parte conversation, its refusal to further instruct the jury, and its refusal to remind them in some manner of their responsibility to reach a verdict, reflects bad faith on the part of the court, we do not agree. There is nothing in the record to support the proposition that the trial court's actions were taken to prejudice defendant's chance for an acquittal. See People v. Espinoza, 666 P.2d 555 (Colo. 1983). When a criminal trial is appropriately terminated because the jury cannot agree on a verdict, re-prosecution of the accused is not barred under double jeopardy principles.