State v. Williams

[22,23] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed.58 Whether probation or incarceration is ordered is
likewise a choice within the discretion of the trial court, whose
judgment denying probation will be upheld in the absence
of an abuse of discretion.59 We conclude that the trial court
did not abuse its discretion in sentencing Alford to 10 to 36
years’ imprisonment.
VI. CONCLUSION
We remand the cause with directions to the trial court to
vacate the credit for time served. In all other respects, we
affirm the conviction and sentence.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
heAvicAn, C.J., not participating.
58 State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
59 State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
StAte v. WILLIAmS 	841
Cite as 278 Neb. 841
stAte of nebrAskA, Appellee , v.
lArry williAms , AppellAnt.
774 N.W.2d 384
Filed November 6, 2009. 	No. S-08-1220.
1. Double Jeopardy. the Double Jeopardy Clauses of both the federal and the
Nebraska Constitutions protect a defendant against a second prosecution for the
same offense after an acquittal or conviction.
2. ____. A state may not put a defendant in jeopardy twice for the same offense.
3. Double Jeopardy: Juries. In a case tried to a jury, jeopardy attaches when the
jury is impaneled and sworn.
4. Double Jeopardy: Motions for Mistrial. A mistrial does not automatically
terminate jeopardy, because a trial can be discontinued when particular circum-
stances manifest a necessity for doing so, and when failure to discontinue would
defeat the ends of justice.
5. ____: ____. Double jeopardy does not arise if the State can demonstrate manifest
necessity for a mistrial declared over the objection of the defendant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

6. Double Jeopardy. A determination of a nonfrivolous double jeopardy claim
affects the substantial right not to be tried twice for the same offense.
7. Double Jeopardy: Motions for Mistrial. A mistrial entered without manifest
necessity is the equivalent of an acquittal for purposes of double jeopardy analy-
sis in that each terminates jeopardy without a finding of guilt.
8. Constitutional Law: Statutes. It is the duty of a court to give a statute an inter-
pretation that meets constitutional requirements if it can reasonably be done.
9. Double Jeopardy: Pleadings. A plea in bar pursuant to Neb. Rev. Stat. § 29-1817
(Reissue 2008) may be filed to assert any nonfrivolous double jeopardy claim
arising from a prior prosecution, including a claim that jeopardy was terminated
by entry of a mistrial without manifest necessity.
10. Courts: Appeal and Error. the Nebraska Supreme Court, upon granting fur-
ther review which results in the reversal of a decision of the Nebraska Court of
Appeals, may consider, as it deems appropriate, some or all of the assignments of
error the Court of Appeals did not reach.
11. Motions for Mistrial: Juries: Appeal and Error. the classic basis for a proper
mistrial is the trial judge’s belief that the jury is unable to reach a verdict. the
trial judge’s decision to declare a mistrial when he or she considers the jury dead-
locked is therefore accorded great deference by a reviewing court.
12. Motions for Mistrial: Appeal and Error. Reviewing courts have an obligation
to satisfy themselves that the trial judge exercised sound discretion in declaring
a mistrial.
13. Double Jeopardy: Motions for Mistrial: Juries. Because a deadlocked jury is
not the equivalent of an acquittal, a trial court’s determination of a mistrial due to
a deadlocked jury does not terminate the original jeopardy to which the defendant
was subjected and, thus, retrial is not automatically prohibited by the Double
Jeopardy Clause.
14. Motions for Mistrial: Juries: Appeal and Error. Several factors are to be
considered in determining whether a trial judge has properly exercised discretion
in granting a mistrial, including (1) a timely objection by the defendant, (2) the
jury’s collective opinion that it cannot agree, (3) the length of the deliberations of
the jury, (4) the length of the trial, (5) the complexity of the issues presented to
the jury, (6) any proper communications which the judge has had with the jury,
and (7) the effects of possible exhaustion and the impact which coercion of fur-
ther deliberations might have on the verdict. the most critical factor is the jury’s
own statement that it was unable to reach a verdict.
Petition for further review from the Court of Appeals, inbody,
Chief Judge, and sievers and moore, Judges, on appeal thereto
from the District Court for Buffalo County, williAm t. wright,
Judge. Judgment of Court of Appeals reversed, and cause
remanded with directions.
John H. marsh, Deputy Buffalo County Public Defender,
of Knapp, Fangmeyer, Aschwege, Besse & marsh, P.C., for
appellant.
842 	278 NeBRASKA RePORtS

Jon Bruning, Attorney General, and James D. Smith for
appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck , and miller-lermAn, JJ.
stephAn, J.
In this criminal proceeding, the district court declared a
mistrial after the jury reported that it was unable to reach a
unanimous verdict. Larry Williams, the defendant, filed a plea
in bar alleging that further prosecution would subject him to
double jeopardy in violation of his constitutional rights. the
district court overruled the plea in bar, and Williams appealed.
the Nebraska Court of Appeals dismissed the appeal for lack
of jurisdiction. We granted Williams’ petition for further review
in order to address apparent tension between our holdings
in State v. Jackson1 and State v. Rubio2 with respect to (1)
whether a nonfrivolous double jeopardy claim following the
declaration of a mistrial may be raised by a plea in bar and (2)
if so, whether an order overruling such a plea in bar is final
and appealable.
I. BACKGROUND
In June 2007, Williams was charged by amended informa-
tion with one count of sexual assault of a child and six counts
of first degree sexual assault. A jury trial commenced on
October 1. During the second day of deliberations, the jury
reported that it was deadlocked and unable to reach a verdict.
the judge who had presided over the trial was unavailable, so
another judge met with the jury. Neither Williams, his coun-
sel, nor the prosecutor was present when the following col-
loquy occurred:
tHe COURt: . . . Without telling me anything with
regard to the division of how the jury is divided or the
way that it is divided, if the Court were to ask you
to continue deliberations, do you feel that there is a
1 State v. Jackson, 274 Neb. 724, 742 N.W.2d 751 (2007).
2 State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001).
StAte v. WILLIAmS 	843
Cite as 278 Neb. 841

reasonable probability that you might yet be able to arrive
at a verdict?
PReSIDING JUROR: No.
tHe COURt: Is there anything further the Court could
do to assist the jury on arriving at a verdict in your opin-
ion, for instance, reading further jury instructions, reread-
ing testimony, anything like that?
PReSIDING JUROR: maybe some rereading of some
testimony might help. I don’t know.
tHe COURt: Do you specifically have any idea
what testimony?
PReSIDING JUROR: It would be the testimony of the
defendant — not the defendant, the victim, may help, but
I don’t know.
tHe COURt: You can’t be certain of that, that a
rereading will help?
PReSIDING JUROR: No.
tHe COURt: I’ll tell you the rereading of testimony
in these circumstances is unusual and typically is not
something the Court often chooses to do. there’s a desire
not to reemphasi[ze] any of the testimony of a particu-
lar witness.
You have now been deliberating a period of approxi-
mately nine hours; is that correct?
PReSIDING JUROR: Seven and a half maybe. We
started at 11:30 yesterday until 5, so five and a half and
then two today — not quite two.
tHe COURt: Under the circumstances, I’m going to
have to declare a mistrial, release the jury. thank you
very much for your service.
On 	November 	16, 	2007, 	Williams 	filed 	a 	“Plea 	in
Abatement,” alleging there was “a defect in the record shown
by facts extrinsic thereto” in that a mistrial was declared with-
out the presence of him or his counsel. the plea requested that
the prosecution thus be abated. the district court overruled
the plea, and Williams appealed. On August 4, 2008, in case
No. A-08-067, the Court of Appeals summarily dismissed,
finding that the denial of a plea in abatement is not a final,
appealable order.
844 	278 NeBRASKA RePORtS

After remand from the Court of Appeals, Williams filed a
plea in bar in the district court. Williams’ plea in bar stated that
he had “been placed in jeopardy” by a trial, that a mistrial had
been declared, and that because the “mistrial was in error and
an abuse of discretion,” a second prosecution was “barred” and
the matter should be dismissed. the district court overruled the
plea in bar, finding that the declaration of the mistrial was sup-
ported by manifest necessity.
Williams again appealed to the Court of Appeals, and, on
January 20, 2009, the court summarily dismissed the appeal
with the following minute entry:
Appeal dismissed. See Neb. Ct. R. App. P. § 2-107(A)(2).
Appellant’s plea in bar does not meet requirements of
Neb. Rev. Stat. § 29-1817 (Reissue 2008) and does not
allege further prosecution barred by the double jeopardy
clauses of the federal or state constitutions. See State v.
Jackson, 274 Neb. 724, 742 N.W.2d 751 (2007).
We granted Williams’ petition for further review.
II. ASSIGNmeNtS OF eRROR
In his petition for further review, Williams assigns, restated
and consolidated, that the Court of Appeals erred in finding
that his plea in bar was not a final, appealable order. In the
underlying appeal, Williams assigns, restated and consolidated,
that the trial court erred in failing to find that a retrial was
barred by the principles of double jeopardy.
III. StANDARD OF ReVIeW
Issues regarding the grant or denial of a plea in bar are ques-
tions of law.3 On a question of law, an appellate court is obli-
gated to reach a conclusion independent of the determination
reached by the court below.4
A trial court’s determination that a jury is deadlocked and
thus a manifest necessity exists for discharging the jury and
declaring a mistrial is reviewed for an abuse of discretion.5
3 State v. Jackson, supra note 1.
4 Id.
5 See State v. Bostwick, 222 Neb. 631, 385 N.W.2d 906 (1986).
StAte v. WILLIAmS 	845
Cite as 278 Neb. 841

IV. ANALYSIS
1. A ppellAte Jurisdiction
(a) Scope of Double Jeopardy Clause
[1,2] the Double Jeopardy Clauses of both the federal
and the Nebraska Constitutions protect a defendant against
a second prosecution for the same offense after an acquit-
tal or conviction.6 Stated another way, “[a] State may not
put a defendant in jeopardy twice for the same offense.”7 In
Arizona v. Washington,8 the U.S. Supreme Court explained
why the declaration of a mistrial in a criminal prosecution may
trigger the constitutional protection afforded by the Double
Jeopardy Clause:
Because 	jeopardy 	attaches 	before 	the 	judgment
becomes final, the constitutional protection also embraces
the defendant’s “valued right to have his trial completed
by a particular tribunal.” the reasons why this “valued
right” merits constitutional protection are worthy of repe-
tition. even if the first trial is not completed, a second
prosecution may be grossly unfair. It increases the finan-
cial and emotional burden on the accused, prolongs the
period in which he is stigmatized by an unresolved accu-
sation of wrongdoing, and may even enhance the risk that
an innocent defendant may be convicted. the danger of
such unfairness to the defendant exists whenever a trial
is aborted before it is completed. Consequently, as a gen-
eral rule, the prosecutor is entitled to one, and only one,
opportunity to require an accused to stand trial.9
[3-5] In a case tried to a jury, jeopardy attaches when the
jury is impaneled and sworn.10 However, a mistrial does not
automatically terminate jeopardy, because “‘a trial can be
6 See State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (2009).
7 Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 54 L. ed. 2d 717
(1978); Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. ed. 2d
707 (1969).
8 Arizona v. Washington, supra note 7.
9 Id., 434 U.S. at 503-05.
10 See State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
846 	278 NeBRASKA RePORtS

discontinued when particular circumstances manifest a neces-
sity for doing so, and when failure to discontinue would defeat
the ends of justice.’”11 Double jeopardy does not arise if the
State can demonstrate manifest necessity for a mistrial declared
over the objection of the defendant.12
(b) Remedy and Review
[6] Neb. Rev. Stat. § 29-1817 (Reissue 2008) provides: “the
accused may . . . offer a plea in bar to the indictment that he
has before had judgment of acquittal, or been convicted, or been
pardoned for the same offense . . . .” In State v. Milenkovich,13
we held that the denial of a plea in bar which asserted an
acquittal as the bar to subsequent prosecution for the same
offense was a final, appealable order. In reaching that conclu-
sion, we relied upon the holding of the U.S. Supreme Court in
Abney v. United States14 that “rights conferred on a criminal
accused by the Double Jeopardy Clause would be significantly
undermined if appellate review of double jeopardy claims were
postponed until after conviction and sentence.” the Abney
Court reasoned that the protections of the Double Jeopardy
Clause would necessarily be lost if an accused were required
to stand trial a second time before seeking appellate review of
a claim that the second trial constituted double jeopardy. In the
context of a final order as defined by Neb. Rev. Stat. § 25-1902
(Reissue 1989), we concluded in State v. Milenkovich15 that
based upon Abney, “there is no question that a determination
of a nonfrivolous double jeopardy claim affects the substan-
tial right not to be tried twice for the same offense.” We then
concluded that a ruling on a plea in bar is made in a “special
11 State v. Jackson, supra note 1, 274 Neb. at 728, 742 N.W.2d at 756,
quoting Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. ed. 974
(1949).
12 Arizona v. Washington, supra note 7; State v. Jackson, supra note 1; State
v. Marshall, supra note 10.
13 State v. Milenkovich, 236 Neb. 42, 458 N.W.2d 747 (1990).
14 Abney v. United States, 431 U.S. 651, 660, 97 S. Ct. 2034, 52 L. ed. 2d
651 (1977).
15 State v. Milenkovich, supra note 13, 236 Neb. at 48, 458 N.W.2d at 751.
StAte v. WILLIAmS 	847
Cite as 278 Neb. 841

proceeding,” because § 29-1817 “authorizes a defendant to
bring a special application to a court to enforce the defendant’s
constitutional right to avoid double jeopardy.”16
In State v. Lynch,17 we applied the Milenkovich rationale
to a prisoner’s claim that his criminal prosecution for escape
was barred by a prior administrative disciplinary proceeding
in which the evidence was found insufficient to establish his
involvement in the escape. Rejecting the State’s argument
that we lacked jurisdiction to review the denial of the plea in
bar prior to conclusion of the criminal case, we reasoned that
because the plea in bar raised a double jeopardy claim, it was
final and appealable.
two more recent decisions of this court further frame the
jurisdictional issue in this case. In State v. Rubio,18 a defendant
charged with drug-related offenses in state court filed a plea
in bar. He asserted that the State was precluded from pros-
ecuting him because federal charges arising out of the same
activity had been voluntarily dismissed after he successfully
sought suppression of certain evidence in federal court. the
district court denied the plea in bar, and the Nebraska Court
of Appeals affirmed. On further review, we framed the issue
as “whether a plea in bar is the proper procedural device with
which to raise a challenge based on the Supremacy Clause of
the U.S. Constitution.”19 We concluded that we lacked jurisdic-
tion because the defendant had not filed a “true plea in bar,”20
as defined by § 29-1817, in that he had not alleged that he was
previously acquitted, convicted, or pardoned; therefore, the
order denying the purported plea in bar could not be considered
final and appealable under Milenkovich.
more recently, in State v. Jackson,21 we considered the
merits of the defendant’s claim that a retrial following the
16 Id.
17 State v. Lynch, 248 Neb. 234, 533 N.W.2d 905 (1995).
18 State v. Rubio, supra note 2.
19 State v. Rubio, supra note 2, 261 Neb. at 477, 623 N.W.2d at 661.
20 Id.
21 State v. Jackson, supra note 1.
848 	278 NeBRASKA RePORtS

declaration of a mistrial would constitute double jeopardy.
Neither the parties nor this court raised a jurisdictional issue,
and we concluded that retrial would violate the defendant’s
constitutional right not to be placed twice in jeopardy, because
the record did not demonstrate the manifest necessity of
the mistrial.
Rubio did not present a colorable double jeopardy claim,
because jeopardy had never attached. As we noted in the opin-
ion, the defendant in Rubio did not assert that he had previ-
ously been acquitted, convicted, or pardoned. And, in fact, he
had been subjected only to a suppression hearing in federal
court, not to a full trial on the criminal charges. Jackson,
on the other hand, presented a true double jeopardy claim,
because jeopardy had attached to the defendant prior to the
declaration of the mistrial. However, the double jeopardy claim
which we found to be meritorious in Jackson did not result
from an acquittal, conviction, or pardon within the mean-
ing of § 29-1817. thus, there is tension between Rubio and
Jackson as to whether a “true plea in bar” may include only
double jeopardy claims arising from an acquittal, conviction,
or pardon, or whether a plea in bar may also be used to raise
a nonfrivolous double jeopardy claim arising from the declara-
tion of a mistrial.
A literal reading of the language of § 29-1817 would lead to
the first conclusion, and there is some case law which would
support this interpretation.22 But were we to adopt this literal
interpretation, there would be no remedy whereby a claim of
double jeopardy resulting from a mistrial could be resolved
before the retrial actually occurs, thereby effectively depriv-
ing the defendant of his constitutional right even if the double
jeopardy claim is eventually found to have merit. the need
for such a remedy forms the underlying rationale of Abney v.
United States,23 in which the U.S. Supreme Court noted that
22 See Melcher v. State, 109 Neb. 865, 192 N.W. 502 (1923) (holding issues
which are proper subject of plea in abatement cannot be raised by plea in
bar).
23 Abney v. United States, supra note 14, 431 U.S. at 662.
StAte v. WILLIAmS 	849
Cite as 278 Neb. 841

the essential guarantee of the Double Jeopardy Clause would
be lost
if the accused were forced to “run the gauntlet” a second
time before an appeal could be taken; even if the accused
is acquitted, or, if convicted, has his conviction ultimately
reversed on double jeopardy grounds, he has still been
forced to endure a trial that the Double Jeopardy Clause
was designed to prohibit.
[7,8] In Milenkovich, we noted that state courts had reached
differing conclusions as to whether Abney established a fed-
eral constitutional requirement of immediate review of double
jeopardy claims. We did not reach the constitutional issue
because we concluded that § 29-1817 “authorizes a defendant
to bring a special application to a court to enforce the defend-
ant’s constitutional right to avoid double jeopardy”24 and that
the denial of such an application constituted a final, appeal-
able order. A mistrial entered without manifest necessity is
the equivalent of an acquittal for purposes of double jeopardy
analysis in that each terminates jeopardy without a finding of
guilt. Were we to narrowly interpret § 29-1817 as authoriz-
ing a special application to enforce some but not all colorable
double jeopardy claims based upon a previous prosecution, a
constitutional question could arise. State procedural and evi-
dentiary rules construed and applied in an illogical manner
have been held to violate a criminal defendant’s federal con-
stitutional rights.25 It is the duty of a court to give a statute an
interpretation that meets constitutional requirements if it can
reasonably be done.26
[9] We therefore hold that a plea in bar pursuant to § 29-1817
may be filed to assert any nonfrivolous double jeopardy claim
arising from a prior prosecution, including a claim that jeop-
ardy was terminated by entry of a mistrial without manifest
necessity. to the extent that language in Rubio is inconsistent
24 State v. Milenkovich, supra note 13, 236 Neb. at 48, 458 N.W.2d at 751.
25 See, e.g., Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L.
ed. 2d 503 (2006); Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18
L. ed. 2d 1019 (1967).
26 State v. Arterburn, 276 Neb. 47, 751 N.W.2d 157 (2008).
850 	278 NeBRASKA RePORtS

with this holding, it is disapproved. We construe Williams’ plea
in bar as asserting a nonfrivolous double jeopardy claim based
upon the mistrial declared after jeopardy had attached, and we
conclude that the order overruling the plea in bar was a final,
appealable order which we have jurisdiction to review.
2. merits
[10] this court, upon granting further review which results
in the reversal of a decision of the Nebraska Court of Appeals,
may consider, as it deems appropriate, some or all of the
assignments of error the Court of Appeals did not reach.27 In
the interest of judicial economy, we address the substantive
issues raised by Williams’ double jeopardy claim which were
not reached by the Court of Appeals due to its conclusion that
it lacked jurisdiction to do so.
As we have noted, double jeopardy does not arise if
the State can demonstrate manifest necessity for a mistrial
declared over the objection of the defendant. While “‘[t]he
words 	“manifest 	necessity” 	appropriately 	characterize 	the
magnitude of the prosecutor’s burden,’” the words “‘do not
describe a standard that can be applied mechanically or with-
out attention to the particular problem confronting the trial
judge.’”28 there are “‘degrees of necessity,’” and a “‘“high
degree”’” is required before a court can conclude that a mis-
trial is appropriate.29
[11-13] the “‘classic basis’” for a proper mistrial is the
trial judge’s belief that the jury is unable to reach a verdict.30
the trial judge’s decision to declare a mistrial when he or
she considers the jury deadlocked is therefore accorded great
deference by a reviewing court.31 Reviewing courts have an
obligation to satisfy themselves that the trial judge exercised
27 State v. Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003).
28 State v. Jackson, supra note 1, 274 Neb. at 728-29, 742 N.W.2d at 756,
quoting Arizona v. Washington, supra note 7.
29 Id. at 729, 742 N.W.2d at 756, quoting Arizona v. Washington, supra
note 7.
30 Id.
31 Arizona v. Washington, supra note 7.
StAte v. WILLIAmS 	851
Cite as 278 Neb. 841

sound discretion in declaring a mistrial.32 But our narrow scope
of review in this instance is tempered by significant policy con-
siderations articulated by the U.S. Supreme Court in Arizona
v. Washington:33
If retrial of the defendant were barred whenever an appel-
late court views the “necessity” for a mistrial differently
from the trial judge, there would be a danger that the
latter, cognizant of the serious societal consequences of
an erroneous ruling, would employ coercive means to
break the apparent deadlock. Such a rule would frustrate
the public interest in just judgments. the trial judge’s
decision to declare a mistrial when he considers the jury
deadlocked is therefore accorded great deference by a
reviewing court.
Because a deadlocked jury is not the equivalent of an acquittal,
a trial court’s determination of a mistrial due to a deadlocked
jury does not terminate the original jeopardy to which the
defendant was subjected and, thus, retrial is not automatically
prohibited by the Double Jeopardy Clause.34
Williams argues that the trial judge’s conversation concern-
ing the deadlock with the jury foreman was an ex parte com-
munication which bars his retrial under Strasheim v. State.35
In that case, the trial judge conducted a colloquy with the
jury about its reported inability to reach a verdict, during
which the defendant and his counsel were not present. the
judge made a statement to the jury regarding the importance
of reaching a verdict which expanded upon the jury’s role in
the criminal justice system. the jury then resumed its delib-
erations and later returned a verdict of guilty. On appeal,
the defendant argued that he had a right to be present when
the judge addressed the jury about its deadlock. We agreed,
found that prejudicial error had occurred, and reversed the
32 State v. Jackson, supra note 1.
33 Arizona v. Washington, supra note 7, 434 U.S. at 509-10. See, also, State
v. Bostwick, supra note 5.
34 Richardson v. United States, 468 U.S. 317, 104 S. Ct. 3081, 82 L. ed. 2d
242 (1984); State v. Bostwick, supra note 5.
35 Strasheim v. State, 138 Neb. 651, 294 N.W. 433 (1940).
852 	278 NeBRASKA RePORtS

conviction and remanded the cause for further proceedings.
Because no mistrial was declared and no double jeopardy
issue was presented, Strasheim is instructive but not determi-
native of this case.
Williams’ primary argument is that because he and his coun-
sel were not present when the jury reported that it was dead-
locked and the judge declared a mistrial, he was deprived of his
right to counsel at a critical stage of the proceeding and thus,
there could be no manifest necessity for the mistrial. We note
that unlike the Federal Rules of Criminal Procedure, Nebraska
has no specific statute or rule requiring a trial court to involve
the defendant and counsel in the decision of whether to declare
a mistrial.36 But Strasheim supports Williams’ argument that
he and his counsel should have been present when the trial
judge addressed the jury about its reported deadlock and then
declared a mistrial. We conclude that the trial judge erred in
conducting the colloquy with the jury outside the presence of
Williams, his counsel, and the prosecutor.
[14] the remaining question is whether this error automati-
cally bars a retrial. We note that in Strasheim, the error resulted
in a reversal of the conviction and a remand of the cause to the
district court for further proceedings. there was no indication
in our opinion that jeopardy had terminated and the defend-
ant could not be retried. But Williams argues that a similar
error should automatically preclude his retrial. We reject this
bright-line approach. In State v. Bostwick,37 we employed a
test utilized by the Ninth Circuit Court of Appeals in Arnold
v. McCarthy,38 in which several factors are to be considered in
determining whether a trial judge has properly exercised dis-
cretion in granting a mistrial, including
“(1) a timely objection by defendant, (2) the jury’s col-
lective opinion that it cannot agree, (3) the length of the
deliberations of the jury, (4) the length of the trial, (5)
the complexity of the issues presented to the jury, (6) any
36 Fed. R. Crim. P. 26(3).
37 State v. Bostwick, supra note 5.
38 Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978).
StAte v. WILLIAmS 	853
Cite as 278 Neb. 841

proper communications which the judge has had with the
jury, and (7) the effects of possible exhaustion and the
impact which coercion of further deliberations might have
on the verdict.”39
“‘[t]he most critical factor is the jury’s own statement that it
was unable to reach a verdict.’”40
In this case, the jury, through its presiding juror, declared
that it was deadlocked and unable to reach a verdict after
deliberating for approximately 71⁄2 hours. the judge’s substan-
tive inquiries to the presiding juror were proper and elicited a
response that there was not a reasonable probability that the
jury could arrive at a verdict. When the judge asked if there
was anything the court could do to assist the jury in conclud-
ing its task, and the presiding juror suggested that rereading
the testimony of the victim might be helpful, the judge prop-
erly indicated that this would not be permissible. Because
Williams and his counsel were not present, Williams did not
have an opportunity to object when the judge stated that he
would declare a mistrial. But even if Williams, his counsel,
and the prosecutor had been present and either counsel had
objected, the record would support the declaration of a mis-
trial over such objection, because the judge’s opinion that the
jury was hopelessly deadlocked is supported by the record.
thus, taking into consideration the relevant factors, we con-
clude that although the judge erred in not having the parties
and counsel present during his colloquy with the jury regard-
ing its inability to reach a verdict, the court did not abuse
its discretion in ordering the mistrial. Accordingly, jeopardy
did not terminate and retrial is not barred by principles of
double jeopardy.
V. CONCLUSION
For the reasons discussed, we reverse the judgment of the
Court of Appeals and remand the cause to that court with
directions to (1) affirm the order of the district court overruling
39 State v. Bostwick, supra note 5, 222 Neb. at 646, 385 N.W.2d at 916, quot-
ing Arnold v. McCarthy, supra note 38.
40 Id.
854 	278 NeBRASKA RePORtS

Williams’ plea in bar and (2) remand the cause to the district
court for further proceedings consistent with this opinion.
reversed And remAnded with directions.
StAte v. WILLIAmS 	855
Cite as 278 Neb. 841