Middleton I and in the majority’s decision here, prejudice was presumed once Appellant established he would have moved for mistrial if given the opportunity. Thus, a new trial for capital murder may be conducted. As the United States Supreme Court noted in United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) (quoting United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971)), “ ‘where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.’ ” Cf. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (<HOLDING>). Appellant’s position is no different than
holding double jeopardy did not bar retrial where a jury could not render a verdict and a mistrial was granted holding that when jury acquitted defendant on greater offense but deadlocked on lesserincluded offenses double jeopardy did not bar retrial of the lesers holding that a sua sponte dismissal of the charges during trial was not an acquittal that barred retrial based on double jeopardy holding double jeopardy prohibits government appeal and retrial following valid judgment of acquittal entered by trial court after jury deadlocked on criminal contempt charge holding that when the jury acquitted the defendant on the greater offense but deadlocked on the lesserincluded offenses double jeopardy did not bar retrial of the lessers