571 N.E.2d 391 (1991)
Defendant was found guilty of murder. He was tried twice before for the same murder, and both earlier trials ended in mistrials. He appealed his conviction and argued that the third trial was barred by the prohibition against double jeopardy.
- The court found that the determination by the trial court in the first trial that the jury was unable to come to an agreement did not bar retrial on the same indictment.
- The court also found that the record of the second mistrial revealed that the trial court gave counsel an opportunity to be heard and explored alternatives to a mistrial.
- The court held that the third trial was not barred by reason of double jeopardy.
- Defendant also contended that the trial court erred by failing to instruct the jury that, if they found that he had committed the crime in the heat of passion, they could find him guilty of manslaughter rather than murder.
- The court found that the only evidence of provocation was defendant's alleged statement that the victim "made a pass" at him and held that no jury could have found, on the basis of that evidence, that reasonable provocation existed.
The court affirmed defendant's conviction for murder in the first degree.
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