King v. State, 403 P.3d 1070

Patricia Barrett reported that Justin Tanner King assaulted her on March 14, 2015, including choking, striking, threatening, restraining, and theft; King was charged with multiple felony and misdemeanor offenses.
At the first jury trial, King testified and denied harming Barrett. During cross-examination the prosecutor asked whether King had told Detective Cox the same account, eliciting testimony suggestive of prior silence; defense objected and court sustained.
Defense counsel moved for a mistrial, arguing the prosecutor’s questions improperly encroached on King’s Fifth Amendment right; the district court granted the mistrial, concluding any comment on the right to remain silent was prejudicial.
King moved to dismiss on double jeopardy grounds before retrial, arguing the prosecutor’s comments required the State to justify a retrial; the district court denied the motion, finding no prosecutorial intent to goad King into moving for a mistrial.
At a second trial a jury convicted King of felonious restraint, strangulation of a household member, and domestic battery; King appealed the denial of his double jeopardy motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether retrial is barred by double jeopardy after defendant-requested mistrial based on prosecutorial comments	King: Retrial barred because prosecutor’s cross-examination improperly commented on his silence and State must justify mistrial	State: Kennedy governs; retrial barred only if prosecutor intentionally goaded defendant into moving for mistrial; no such intent here	Court held Kennedy controls; King must show prosecutor intended to goad—record shows no such intent, so retrial not barred

Arizona v. Washington, 434 U.S. 497 (constitutional protection of right to have trial completed by particular tribunal; manifest necessity standard when prosecution seeks mistrial)
Oregon v. Kennedy, 456 U.S. 667 (when defendant requests mistrial, retrial barred only if prosecutor intended to goad defendant into moving for mistrial)
United States v. Tafoya, 557 F.3d 1121 (10th Cir.) (standard of review for factual findings in double jeopardy goading cases)
Montoya v. State, 386 P.3d 344 (Wyo.) (Wyoming application of Kennedy rule)
Derrera v. State, 327 P.3d 107 (Wyo.) (application of Kennedy standard)
Daniel v. State, 189 P.3d 859 (Wyo.) (deference to district court factual findings unless clearly erroneous)
State v. Newman, 88 P.3d 445 (Wyo.) (prior Wyoming application of Kennedy rule)