ROBBINS v. STATE

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JIE Q. ROBBINS, Petitioner,

v.

STATE OF ARIZONA ex rel. RACHEL H. MITCHELL, Maricopa County
Attorney, Respondent,
______________________________

ZACHARY ANDREW ROBBINS, Petitioner,

v.

STATE OF ARIZONA ex rel. RACHEL H. MITCHELL, Maricopa County
Attorney, Respondent.

No. 1 CA-SA 25-0153
1 CA-SA 25-0154 (Consolidated)
FILED 12-31-2025

Appeal from the Superior Court in Maricopa County
No. CR2019-150787-001, CR2019-150787-002
The Honorable Daniel G. Martin, Judge

VACATED AND REMANDED

COUNSEL

Feldman & Royle, PLLC, Phoenix
By David E. Ahl
Counsel for Petitioners
Maricopa County Attorney’s Office, Phoenix
By Quinton S. Gregory
Counsel for Respondent

OPINION

Presiding Judge Jennifer M. Perkins delivered the opinion of the Court, in
which Judge James B. Morse Jr. and Judge D. Steven Williams joined.

P E R K I N S, Judge:

¶1 Jie Q. Robbins and her husband Zachary Andrew Robbins,
defendants in this criminal matter, filed this special action after a mistrial
in their joint trial, arguing retrial would violate their double jeopardy rights.
They first argue the superior court should have granted their motions to
dismiss with prejudice for prosecutorial misconduct. We disagree. They
also argue the court erred by dismissing the case without prejudice for the
State to retry the defendants. We agree because the defendants did not
consent to the mistrial unless the court also dismissed the case with
prejudice, and no manifest necessity existed for a mistrial. Double jeopardy
thus bars retrial. We therefore accept special action jurisdiction and grant
the requested relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2019, the State charged Jie and Zachary with money
laundering, illegal control of an enterprise, and attempt to commit
trafficking in stolen property, alleging the defendants purchased and resold
stolen products. Almost five years later, and less than a month before trial,
the State disclosed two police reports and certifications for PayPal and eBay
records it intended to introduce at trial. The defendants moved to preclude
that evidence. The court found the State had untimely disclosed the reports
and records and ordered both precluded along with any testimony relating
to them.

¶3 The case went to trial, which was expected to last 16 days.
During opening statements, the State unsuccessfully moved for a mistrial
after Jie’s counsel played a recording of a detective calling Jie a racial slur.

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¶4 On the eighth day of trial, before playing a recording of Jie’s
police interview, the prosecutor informed the court that he planned to stop
the recording before the detective mentioned the precluded PayPal records.
The court approved. The prosecutor stopped the clip earlier than
anticipated after the detective made this statement: “I’ve looked at your
bank records and you’re selling millions of dollars worth of products.”

¶5 Jie’s counsel moved for a mistrial, arguing the statement
clearly referenced the precluded PayPal records because the bank records
in evidence did not show millions of dollars in sales. Jie’s counsel requested,
“additionally,” that the court “dismiss this case with prejudice” because the
prosecutor failed to redact references to the precluded records, and counsel
could not effectively combat the error.

¶6 Zachary’s counsel “agree[d] with and join[ed] in [Jie’s
counsel’s] sentiment” and requested “dismissal with prejudice.”

¶7 The prosecutor explained that he had mistakenly overlooked
the detective’s reference to the PayPal records because it was not explicit,
and when he realized the mistake, he paused the recording to divert the
jury’s attention away from it.

¶8 The court granted a mistrial after finding there was manifest
necessity for one. The court then denied the defendants’ motion to dismiss
with prejudice because the State’s conduct fell short of the intentional bad
faith conduct required for such a dismissal.

¶9 After that ruling, Zachary’s counsel clarified that he had only
asked for dismissal with prejudice, not a mistrial absent dismissal with
prejudice. And he requested that the trial continue because it was going
well for Zachary, and starting over with a different jury would prejudice
him.

¶10 Jie’s counsel also noted that the trial was going well for Jie,
and he requested time to talk to Jie before deciding between a mistrial and
continuing with trial.

¶11 The court cut off Jie’s counsel’s argument and warned him to
“be careful” because he had asked for a mistrial—the court did not initiate
it sua sponte. Jie’s counsel responded, “Correct.” Then, with no further
consideration, the court affirmed its grant of a mistrial, noting: “There’s no
turning back at this point once the Court has determined a fundamental
error has occurred. I’m not going to continue on with this trial. Simple as
that.” The court then dismissed the jury.

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¶12 The court permitted the defendants to file written motions to
reconsider the court’s denial of their request to dismiss with prejudice. Both
defendants filed such motions. The court denied both, finding that the
prosecutor’s mistake resulted from an “[in]sufficient [] mastery of the []
evidence,” rather than “intentional conduct pursued for an improper
purpose.” The defendants then petitioned for special action relief.

SPECIAL ACTION JURISDICTION

¶13 Special action jurisdiction is highly discretionary, but if a
question is of constitutional significance and no adequate remedy exists on
appeal, we generally accept review. Milke v. Mroz, 236 Ariz. 276, 279, ¶ 2
(App. 2014). Interlocutory double jeopardy claims are appropriate for
special action review because the commencement of retrial would violate
the Double Jeopardy Clause. State v. Moody, 208 Ariz. 424, 438, ¶ 22 (2004).
We therefore accept jurisdiction to address whether double jeopardy bars
the continued prosecution of the defendants.

DISCUSSION

¶14 The defendants argue their retrial is barred by the Double
Jeopardy Clauses of the United States and Arizona Constitutions. See U.S.
Const. amend. V; Ariz. Const. art. 2, § 10; State v. Kelly, 257 Ariz. 128, 132,
¶ 6 n.1 (App. 2024) (“The double jeopardy provision of the Arizona
Constitution is virtually identical to its federal counterpart, and the analysis
under each is the same.” (cleaned up)). Double jeopardy prohibits more
than one prosecution for a single offense. State v. Aguirre, __ Ariz. __, __, ¶
25 (App. 2025). “Declaring a mistrial after selecting a jury implicates double
jeopardy.” Id.

¶15 The defendants argue double jeopardy precludes retrial
because (1) the prosecutor’s misconduct required dismissal with prejudice,
and (2) the court granted a mistrial without their consent or manifest
necessity for one. We address each argument in turn.

¶16 We review de novo whether double jeopardy bars retrial.
Moody, 208 Ariz. at 437, ¶ 18. We review the denial of a motion to dismiss
with prejudice due to prosecutorial misconduct for an abuse of discretion.
State v. Korovkin, 202 Ariz. 493, 495, ¶ 5 (App. 2002). We also review the
grant of a mistrial for an abuse of discretion. State v. Dickinson, 242 Ariz.
120, 123, ¶ 12 (App. 2017).

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I. Denial of the motions to dismiss with prejudice

¶17 The superior court must dismiss charges with prejudice if a
prosecutor engaged in (1) improper conduct, (2) which is “not merely the
result of legal error, negligence, mistake, or insignificant impropriety, but,
taken as a whole, amounts to intentional conduct which the prosecutor
knows to be improper and prejudicial,” (3) and prejudice results “which
cannot be cured by means short of a mistrial.” Pool v. Superior Court, 139
Ariz. 98, 108–09 (1984). Double jeopardy is then triggered because the State
“intentionally expos[ing] the defendant to multiple trials for the same
crime . . . is exactly what the double jeopardy provision intended to
prevent.” State v. Jorgenson, 198 Ariz. 390, 392, ¶ 6 (2000) (cleaned up).

¶18 The parties only dispute the second Pool factor—whether the
prosecutor’s mistake was intentional or, as the court found, resulted from
the prosecutor not having a “sufficient mastery of the State’s evidence.”
Absent clear error, we defer to the superior court’s findings on whether a
prosecutor’s conduct was intentional. Korovkin, 202 Ariz. at 495, ¶ 8.

¶19 On this record, we cannot conclude the court clearly erred by
finding the prosecutor’s mistake was unintentional. The prosecutor
avowed to the court that when reviewing the recording, he did not notice
the reference to the precluded records because they were not mentioned
directly. He thus played that portion of the recording by “mistake,” and not
as an “intentional act.” The court assessed the prosecutor’s credibility
firsthand, and nothing in the record suggests that his explanation was less
than forthcoming when he explained he had simply overlooked the
reference to the precluded records. See State v. Smith, 250 Ariz. 69, 86, ¶ 62
(2020) (we defer to the court’s assessment of a prosecutor’s credibility).

¶20 We are not persuaded by the defendants’ arguments that the
prosecutor’s error was intentional. They assert that the prosecutor
demonstrated prior knowledge of the recording’s contents by identifying a
portion to redact. But the fact that the prosecutor identified one mention of
the precluded records does not mean he also identified and then
intentionally disregarded a separate indirect reference to those records.
This is consistent with the prosecutor’s explanation that he overlooked the
“millions of dollars” comment when reviewing the recording.

¶21 The defendants also argue that the prosecutor intended to
seek a mistrial because the trial was going poorly for the State. And that the
prosecutor revealed this intent during opening statements by waiting to
object to the video of the detective’s racial slur until after defense counsel

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played it for the jury. These speculative claims do not overcome the court’s
finding that the prosecutor lacked knowledge of the recording’s improper
content before playing it for the jury. The court did not abuse its discretion
by denying the defendants’ motions to dismiss with prejudice.

II. Grant of a mistrial

¶22 When a court declares a mistrial (1) without the defendant’s
consent, and (2) when no manifest necessity exists for entering the mistrial,
double jeopardy prohibits retrial. McLaughlin v. Fahringer, 150 Ariz. 274,
277–78 (1986).

A. Consent

¶23 Arizona courts have held that a defendant does not consent
to a mistrial for double jeopardy purposes by merely failing to object to its
declaration, State v. Fenton, 19 Ariz. App. 274, 276 (App. 1973), unless “that
silence . . . in the context of other circumstances indicate[s] consent.” State
v. Henderson, 116 Ariz. 310, 314 (App. 1977) (inferring consent to a mistrial
when defense counsel “actively participated” and had “every opportunity”
to object but did not do so). Arizona courts have yet to address whether
requesting a mistrial but then revoking that request after the court grants it
but before the jury is dismissed constitutes consent to a mistrial. See, e.g.,
Dickinson, 242 Ariz. at 124, ¶ 15 (no consent because defendant objected to
the mistrial before it was declared); McLaughlin, 150 Ariz. at 276 (lack of
consent was not at issue); Jones v. Kiger, 194 Ariz. 523, 525, ¶ 5 (App. 1999)
(same). In the absence of controlling Arizona authority, we may turn to
federal precedent for guidance.

¶24 The Ninth Circuit Court of Appeals has held that to consent
to a mistrial, defense counsel must “affirmatively indicate his
understanding that there could and would be a retrial” and must “not
object to the order of mistrial.” United States v. Smith, 621 F.2d 350, 352 (9th
Cir. 1980); see also Glover v. McMackin, 950 F.2d 1236, 1240 (6th Cir. 1991) (a
defendant consents when “the circumstances positively indicate [his or her]
willingness to acquiesce in the mistrial order”) (cleaned up). A defendant
who moves for a mistrial without “explicitly limit[ing] his [or her] request
to a mistrial with prejudice,” does “not consent to the mistrial” if he or she
later makes “clear that [he or she] only desired a mistrial if jeopardy would
attach.” Weston v. Kernan, 50 F.3d 633, 637 (9th Cir. 1995).

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1. Jie

¶25 The State argues Jie consented to the mistrial without
prejudice because her counsel requested a mistrial and affirmed the request
when the court raised the issue.

¶26 In Weston, the defendant made an oral request for a mistrial
but did not specify whether he sought the mistrial with or without
prejudice. 50 F.3d at 637. He later filed a written motion clarifying that he
sought only a mistrial with prejudice. Id. The trial court then orally declared
a mistrial without prejudice, to which the defendant immediately and
repeatedly objected. Id. The Ninth Circuit concluded the defendant had not
consented to a mistrial without prejudice. Id.

¶27 Similarly, Jie’s counsel’s initial request was ambiguous
because he requested a mistrial and “additionally” dismissal with
prejudice. And after the court declared the mistrial, Jie’s counsel asked to
speak with Jie before deciding whether to accept the mistrial or continue
on. By immediately expressing his uncertainty on whether to accept the
mistrial without prejudice, Jie’s counsel clarified, like in Weston, that his
initial request only sought a mistrial with prejudice. Because the court
denied counsel’s request to confer with Jie to determine his client’s position,
counsel never “affirmatively indicate[d] his understanding that there could
and would be a retrial.” Smith, 621 F.2d at 352. Accordingly, Jie did not
consent to a mistrial without prejudice.

¶28 Contrary to the State’s contention, Jie’s counsel did not
affirmatively acquiesce to a mistrial without prejudice merely by
confirming that he initially requested a mistrial. When Jie’s counsel asked
to confer with Jie, the court cautioned him: “Be careful. Who asked for a
mistrial in this case? It was not the Court. It was you.” And Jie’s counsel
responded: “Correct.” This response only confirmed that counsel asked for
a mistrial, not whether he asked for a mistrial with or without prejudice.

¶29 Finally, the State argues Jie’s counsel’s “waffling after the trial
court granted the mistrial . . . is irrelevant” because any objections had to
be raised “prior to the court’s declaration of mistrial.” But Arizona courts
have considered defense counsel’s conduct after a mistrial is declared as
relevant in determining consent. See, e.g., Henderson, 116 Ariz. at 314 (“The
record at the time of mistrial strongly suggests concurrence in the trial
judge’s action, and the events thereafter are consistent only with and confirm
consent.” (emphasis added)); Dickinson, 242 Ariz. at 124, ¶ 15 (considering
“counsel’s failure to do something after the mistrial was granted”).

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¶30 The State cites United States v. Palmer, 122 F.3d 215 (5th Cir.
1997) in support, but Palmer does not aid the State here. The court in Palmer
held that a defendant’s objections to a mistrial must be “stated
contemporaneously with the declaration of mistrial” to avoid providing
consent. Id. at 219 (emphasis added). And other federal cases have found a
defendant’s statements “after the order of mistrial are relevant to the issue
of implied consent,” as long as “they come before the actual dismissal of the
jury.” Smith, 621 F.2d at 352, n.2 (emphasis added); see also Camden v. Cir.
Ct. of Second Jud. Cir., 892 F.2d 610, 616 n.7 (7th Cir. 1989) (“A trial court is
[able] to reconsider its intention to declare a mistrial” until “the jury is
discharged and has dispersed”). Such a rule is necessary to allow a defense
counsel to preserve objections by making prompt mistrial requests.
Prohibiting counsel from withdrawing a mistrial request when doing so
serves a client’s best interests would deter such requests and thus hamper
a defendant’s ability to preserve trial objections. United States v. Gaytan, 115
F.3d 737, 743 (9th Cir. 1997) (“It is important for defendants to have the
chance fully to assess their positions as of the time the mistrial is ordered,”
in part, to allow defense counsel to “discuss the various possible choices
with their clients.”(cleaned up)). Accordingly, Jie did not consent to a
mistrial without prejudice based on her counsel’s statements following the
court’s mistrial declaration.

2. Zachary

¶31 It is even clearer that Zachary did not consent to a mistrial
without prejudice. First, his counsel never explicitly requested a mistrial.
He only asked for “dismissal with prejudice.” The State argues Zachary’s
counsel requested a mistrial without prejudice because he stated: “I would
agree with and join in [Jie’s counsel’s] sentiment” after Jie’s counsel made
his motion. But, at most, this made it “ambiguous” as to whether Zachary’s
counsel “limit[ed] his request to a mistrial with prejudice.” Weston, 50 F.3d
at 637. And any ambiguity quickly dissipated because after the court
declared the mistrial, Zachary’s counsel repeatedly emphasized that he
only requested dismissal with prejudice, not a mistrial without prejudice.
Because counsel made these objections before the jury was dismissed, he
revoked any consent to a mistrial without prejudice. See Smith, 621 F.2d at
352 n.2; Weston, 50 F.3d at 637 (“[The defendant] did not consent to
the . . . mistrial without prejudice [declared] over defense counsel’s
repeated objections.”).

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B. Manifest Necessity

¶32 Courts apply varying degrees of scrutiny in reviewing
whether there was manifest necessity for a mistrial. Dickinson, 242 Ariz. at
124, ¶ 17. At one extreme, we apply “the strictest scrutiny” to mistrials
resulting from the State’s attempt to bolster its evidence or gain “a tactical
advantage over the accused.” Id. at 124–25, ¶¶ 18–19 (cleaned up). At the
other extreme, we “accord great deference” to mistrials resulting from
“conduct by the defendant or defense counsel.” Id. at 124, ¶ 18 (cleaned up).
Here, because the mistrial was based on the State’s mistaken presentation
of favorable evidence, with no fault by the defendants, the scrutiny is more
strict and “we will [not] accord great deference” to “the superior court’s
decision regarding manifest necessity for the mistrial.” Id. at 125, ¶ 19.

¶33 In these circumstances, a court abuses its discretion by
granting a mistrial without the defendant’s consent while failing to
consider the defendant’s interest in proceeding with trial, see Dickinson, 242
Ariz. at 125, ¶ 20; Kiger, 194 Ariz. at 526–27, ¶¶ 9–10, unless proceeding with
trial “would make reversal on appeal a certainty,” State v. Madison, 114 Ariz.
221, 224 (1977) (quoting Illinois v. Somerville, 410 U.S. 458, 464 (1973));
Aguirre, __ Ariz. at __, ¶ 43. The court here abused its discretion in granting
the mistrial because (1) it refused to consider the defendants’ interests in
proceeding with the trial, and (2) reversal on appeal was not certain if the
trial had proceeded to a guilty verdict.

¶34 The court failed to consider the defendants’ interests in
continuing with the trial. After the court declared a mistrial finding
manifest necessity for one, Zachary’s counsel asked to “continue on with
the trial,” given “how far we [are] into this case and . . . how it’s [been]
going.” And Jie’s counsel asked to talk with Jie before deciding between a
mistrial and continuing, noting “we [are] doing well in [the trial], with a
jury that we like.” The court denied defense counsels’ requests to confer
with their clients and declined to reconsider its mistrial declaration in light
of the defendants’ stated interests in proceeding with trial. That denial was
premised on the court’s incorrect conclusion that there was “no turning
back at this point.”

¶35 At oral argument in superior court, the State argued that once
the court found manifest necessity for a mistrial, the court could not
reconsider that finding. But, as we noted supra ¶¶ 29–30, no Arizona
authority prevents, and federal law expressly permits a court to “reconsider
its intention to declare a mistrial” before excusing the jury. United States v.
Segura-Gallegos, 41 F.3d 1266, 1271 (9th Cir. 1994); see also United States v.

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DiPietro, 936 F.2d 6, 11 (1st Cir. 1991) (same); Creighton v. Hall, 310 F.3d 221,
228 (2d Cir. 2002) (same).

¶36 Because the jury had not been dismissed when the court
declined to reconsider its mistrial order, the initial order was not yet final.
And the court’s initial manifest necessity finding was incomplete because
the court had not been aware that the defendants preferred to continue with
trial when it made that finding. See Kiger, 194 Ariz. at 526, ¶ 9 (“When
considering a mistrial, the trial judge must recognize that the defendant has
a significant interest in deciding whether to take the case from the jury and
retains primary control over the course to be followed in the event of such
error.”(cleaned up)). Therefore, the court should have reconsidered its
mistrial order in light of defendants’ preference for trial to continue. See
Dickinson, 242 Ariz. at 125, ¶ 20 (the mistrial order did not survive scrutiny
because the court failed to consider the defendant’s opposition to the
mistrial); State v. Woods, 237 Ariz. 214, 219–20, ¶¶ 20–22 (App. 2015) (the
court abused its discretion by granting a mistrial because the “court made
no further inquiry after [the defendant] stated he preferred to continue with
the trial”).

¶37 Reversal on appeal was not a certainty had the trial continued.
When “reversal on appeal is a certainty, the Double Jeopardy Clause does
not require” the case to proceed to trial if a conviction would automatically
be reversed by an appellate court. Aguirre, __ Ariz. at __, ¶ 37. Because a
defendant “normally waives his [or her] right to raise on appeal the defect
that prompted the mistrial offer” if he or she “rejects the mistrial offer or
withdraws a prior motion for a mistrial,” the defect must constitute
fundamental error to be reversible on appeal. United States v. Huang,
960 F.2d 1128, 1135 (2d Cir. 1992) (discussing “plain error”); see State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (we review for fundamental error
when the defendant fails to object to the alleged error at trial); State v. Hood, 251 Ariz. 57, 61, ¶ 14 (App. 2021) (citing the federal plain error doctrine
because it is analogous to Arizona’s fundamental error doctrine).

¶38 Had the trial continued at the defendants’ request, they
would have waived any appellate challenge—outside of fundamental
error—to the State playing the recording in question for the jury.
Fundamental error is limited to situations in which “(1) the error went to
the foundation of the case, (2) the error took from the defendant a right
essential to his defense, or (3) the error was so egregious that he could not
possibly have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21
(2018). The court excluded the evidence based on late disclosure, and there
is no indication that the bank records, much less the isolated statement

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referencing those records, were otherwise inadmissible. Preclusion of
evidence is “rarely an appropriate sanction for a discovery violation” and
should be used as a “last resort.” State v. Delgado, 174 Ariz. 252, 257 (App.
1993). Only in an extremely rare situation would the accidental admission
of an isolated reference to precluded evidence go the foundation of a case,
take away a defendant’s essential rights, or deny a fair trial. See e.g., State v.
Strong, 258 Ariz. 184, 211, ¶ 116 (2024) (inadmissible hearsay was not “of
such a magnitude” to constitute fundamental error as it was not “the sole
proof of an essential element of the state’s case”). That is certainly not the
case here, as the evidence was only precluded because of late disclosure.
Thus, we cannot conclude—had the trial proceeded to guilty verdicts—that
reversal on appeal would have been certain.

¶39 The State argues the defendants conceded that a mistrial was
manifestly necessary because, in arguing their prosecutorial misconduct
claim on appeal, the defendants asserted that the third prong of Pool was
“easily satisfied,” meaning the prejudice could not “be cured by means
short of mistrial.” See Pool, 139 Ariz. at 109. We need not address the alleged
contradiction in the defendants’ arguments. The defendants’ prosecutorial
misconduct claims fail for other reasons as noted supra ¶¶ 14–18. And the
defendants’ position on the third Pool prong does not negate our manifest
necessity analysis, supra ¶¶ 32–37.

¶40 Neither defendant consented to a mistrial without prejudice
and there was no manifest necessity to enter one. Therefore, the Double
Jeopardy Clauses of the United States and Arizona Constitutions prohibit
the defendants’ retrial. McLaughlin, 150 Ariz. at 277–78.

¶41 Although defense counsel here ultimately informed the court
that the defense only sought dismissal with prejudice and not mistrial
without prejudice, clarity on the defendants’ position would have been
helpful before the court issued its ruling. When confronting a defense
mistrial motion that lacks clarity on the defendant’s position as to a with or
without prejudice dismissal, the best practice would be for the court to seek
clarity before ruling and certainly before dismissing the jury. And defense
counsel should likewise ensure a clear record on this point before the ruling
and dismissal of the jury.

CONCLUSION

¶42 We accept special action jurisdiction, lift the stay imposed
pending the outcome of this matter, and grant relief. We vacate the court’s

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order granting a mistrial without prejudice and direct the superior court to
dismiss the defendants’ charges with prejudice.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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