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State v. Moody8/8/2004
37-45, 55 P.3d at 782-83. Our holding in that case was expressly conditioned on the prosecution's concealment of the misconduct; we reasoned that the misconduct in that case would have warranted a mistrial had it been discovered. Id. at 439, 35, 55 P.3d at 782 (holding that a mistrial is not a prerequisite for a double jeopardy claim if a prosecutor "engages in egregious conduct sufficient to require a mistrial but manages to conceal his conduct until after trial"). Moody does not claim that the misconduct of which he now complains -- offering false evidence before the grand jury and interfering with his relationship with counsel -- was concealed as was the conduct in Minnitt. Additionally, while Minnitt could point to places in the trial at which a mistrial would have been appropriate had the misconduct been overt, Moody has made no such assertion regarding his first trial. In short, not only did Moody fail to move for a mistrial, but he has failed to demonstrate that a mistrial would ever have been appropriate. Consequently, our holding in Minnitt offers Moody no refuge from the requirement that a motion for a mistrial based on prosecutorial misconduct be made during trial to preserve the issue for appeal. This issue therefore is not properly before us.
Minnitt also differs in one other important respect: after the trial court denied his motion to dismiss on double jeopardy grounds, Minnitt filed a special action seeking review of that decision. Id. at 437, 24, 55 P.3d at 780. Our courts have held that "a petition for special action is the appropriate vehicle for a defendant to obtain judicial appellate review of an interlocutory double jeopardy claim." Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App. 1989). The reasons underlying the preference for special action review of denials of motions to dismiss based on double jeopardy are obvious: Because the Double Jeopardy Clause guarantees the right to be free from subsequent prosecution, the clause is violated by the mere commencement of retrial. See Abney v. United States, 431 U.S. 651, 660-61 (1977) (observing that appellate review of a double jeopardy claim before retrial may prevent "personal strain, public embarrassment, and expense of a criminal trial" caused by a retrial eventually overturned on double jeopardy grounds).
This court has never reviewed a double jeopardy claim based on prosecutorial misconduct if the defendant had not previously moved for mistrial or sought relief by special action from the trial court's denial of his motion to dismiss on those grounds. Moody provides no compelling reasons to diverge from this practice.
2. Improvement of the State's Case on Retrial
In addition to filing a pretrial motion to dismiss based on double jeopardy grounds, the defense also sought to preclude the State from offering any evidence on retrial that it had not offered at the first trial, claiming that double jeopardy principles prevented the State from improving its case on retrial. At Moody's second trial, the State presented testimonial and physical evidence that it did not offer at the first trial. Additionally, after relying solely on premeditation at the first trial, the State added felony murder theories as to both murders on retrial. Moody now argues that the admission of this new evidence and the addition of the felony murder theories in the second trial violated his constitutional protection against double jeopardy.
Moody relies on the United States Supreme Court's opinion in Burks v. United States, 437 U.S. 1, 11 (1978), for the proposition that the use of new evidence in a retrial violates both federal and state double jeopardy protections. His readin
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