State v. Mathis, ___ N.C. App. ___, 813 S.E.2d 861 (Apr. 3, 2018)

In this felony assault case, the defendant failed to preserve for appeal the argument that double jeopardy precluded his second trial. During the defendant’s first trial, the trial court expressed concern about moving forward with the trial. A juror would become unavailable because of his wife’s upcoming heart procedure and the trial court expressed “no confidence” and “absolutely no faith” in the alternate juror, indicating the belief that the alternate “has not been able to hear much of what has transpired.” The trial court asked the parties if they wished to be heard on the matter. Defense counsel indicated that he supported the mistrial. The trial court then declared a mistrial based on manifest necessity and neither party objected. The defendant was convicted at a second trial. On direct appeal from that conviction the defendant asserted that he was subjected to double jeopardy because the trial court erred by declaring a mistrial in the absence of manifest necessity. The court concluded that the defendant failed to preserve this issue by consenting to the mistrial and by failing to raise the double jeopardy issue at his second trial.