The decision as to the existence of manifest necessity is within the purview of the lower court. "The determination of whether 'manifest necessity' that will justify ordering a mistrial over a defendant's objection exists is a matter within the discretion of the trial court, to be exercised according to the particular circumstances of each case." Syl. pt. 3, Porter v. Ferguson, 174 W. Va. 253, 324 S.E.2d 397 (1984). Mindful of these applicable principles, we now consider the substantive issue presented herein.
These are two central tenets of our double jeopardy law. See Keller v. Ferguson, 177 W. Va. 616, 355 S.E.2d 405 (1987); Porter v. Ferguson, 174 W. Va. 253, 324 S.E.2d 397 (1984). We explained these principles in State ex rel. Betts v. Scott, 165 W. Va. 73, 79, 267 S.E.2d 173, 177 (1980), where we defined manifest necessity as an event "which arises from circumstances not within the control of the prosecution or the court" and went on to state:
The majority in the court of appeals opinion did not choose the wrong standards; instead, it misapplied those standards. In particular, the court of appeals' reliance on Porter v. Ferguson, 324 S.E.2d 397 (W.Va. 1984) was misplaced. In that case, defendant's counsel twice deliberately disobeyed the court's order prohibiting inquiry into a key witness' prior arrests.
Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); State v. Saavedra. In Porter v. Ferguson, 324 S.E.2d 397 (W.Va. 1984), the court considered a case similar in part to the present case. In Porter, defense counsel violated an order of the trial court issued after an in-limine hearing.
Given the flexibility afforded trial judges in this area, there is no evidence that the circuit court abused its discretion in denying the appellant's motion for a mistrial.Smith, 696 S.E.2d at 17-18 (quoting Syl. Pt. 3, Porter v. Ferguson, 324 S.E.2d 397 (W. Va. 1984)). Thereafter, Petitioner sought a writ of certiorari from the United States Supreme Court, which the Supreme Court denied on November 8, 2010.
The WVSCA added "[t]he determination of whether 'manifest necessity' that will justify ordering a mistrial ... exists is a matter within the discretion of the trial court, to be exercised according to the particular circumstances of each case." Id. at 716, 18 (citing Syllabus Point 3, Porter v. Ferguson, 324 S.E.2d 397 (W.Va. 1984)). Finding no abuse of discretion by the trial court, and no prosecutorial overreaching, the WVSCA rejected Petitioner's argument.
"The determination of whether 'manifest necessity' that will justify ordering a mistrial . . . exists is a matter within the discretion of the trial court, to be exercised according to the particular circumstances of each case." Syl. Pt. 3, in part, Porter v. Ferguson, 174 W.Va. 253, 324 S.E.2d 397 (1984). Petitioner argues that the circuit court, at a minimum, should have given the jury a curative instruction regarding Lt. Lanham's testimony.
We have also explained that "[t]he determination of whether 'manifest necessity' that will justify ordering a mistrial over a defendant's objection exists is a matter within the discretion of the trial court, to be exercised according to the particular circumstances of each case." Syl. Pt. 3, Porter v. Ferguson, 174 W.Va. 253, 324 S.E.2d 397 (1984). "Manifest necessity" warranting a mistrial arises from various circumstances, but must be forceful and appear prejudicial to the accused or the State. Syl. Pts. 1-3, State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972).
"'The determination of whether "'manifest necessity' that will justify ordering a mistrial over a defendant's objection exists is a matter within the discretion of the trial court, to be exercised according to the particular circumstances of each case.' Syllabus Point 3, Porter v. Ferguson, 174 W.Va. 253, 324 S.E.2d 397 (1984)." Syl. Pt. 4, State v. Smith, 225 W. Va. 706, 707, 696 S.E.2d 8, 9 (2010).
As this Court has held, "[t]he determination of whether `manifest necessity" that will justify ordering a mistrial over a defendant's objection exists is a matter within the discretion of the trial court, to be exercised according to the particular circumstances of each case." Syllabus Point 3, Porter v. Ferguson, 174 W. Va. 253, 324 S.E.2d 397 (1984). Given the flexibility afforded trial judges in this area, there is no evidence that the circuit court abused its discretion in denying the appellant's motion for a mistrial.