State v. Moore

No. 15 March 9, 2017 205

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Adverse Party,

v.

MARK LYLE MOORE,

aka Mark Lyle Moore, Sr.,

Defendant-Relator.

(CC 14CR12536, SC S063946)

En Banc

Original proceeding in mandamus.*

Argued and submitted October 13, 2016.

Laura Graser, Portland, argued the cause and filed the

brief for defendant-relator.

Jennifer S. Lloyd, Assistant Attorney General, Salem,

argued the cause and filed the brief for plaintiff-adverse

party. Also on the briefs were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

BALDWIN, J.

Peremptory writ of mandamus to issue.

______________

*  On petition for a writ of mandamus from an order of Multnomah County

Circuit Court, Christopher J. Marshall, Judge.

206 State v. Moore

Case Summary: Defendant’s arson-related murder trial was well underway

when, following testimony from eight of the state’s witnesses, the prosecutor

abruptly announced his discovery of a new witness — an insurance investiga-

tor — who, according to the prosecutor, was willing to testify that, based on his

insurance-related examination of the crime scene, the fire that had killed the

victim was the result of arson. Although defendant objected to that evidence, he

was unambiguous in his desire to avoid a mistrial and finish the proceedings

against him with the jury his lawyer selected. After ruling that testimony from

the state’s newly-discovered expert would, indeed, be allowed, the trial court went

on to declare a mistrial on its own motion. Among other things, the trial court

found that the state had met its burden of establishing that the new evidence

to be admitted was, under the circumstances, so prejudicial to defendant that

a “manifest necessity” existed to retry defendant before a new jury. Defendant

subsequently moved to dismiss the new indictment that followed, citing, in part,

his former jeopardy rights under Article I, section 12, of the Oregon Constitution.

That motion was denied, however, and defendant’s petition for mandamus relief

to the Oregon Supreme Court followed shortly thereafter. Held: A peremptory

writ of mandamus shall issue. The Court concluded that the applicable “manifest

necessity” standard has not been met in this case. First, the prosecutor commit-

ted a serious mistake by proceeding to trial before discovering one of his key

witnesses. It was that mistake, in fact, that created the prejudice that the trial

court sought to mitigate by ordering a mistrial. Second, it is significant that the

state had already presented eight witnesses prior to the mistrial. That testimony

would potentially present the state with an unfair advantage at a new trial since

the state could further prepare many of its witnesses based on their prior trial

participation. As a result, the trial court’s sua sponte mistrial order and denial of

defendant’s subsequent motion to dismiss (1) violated defendant’s right to be free

from a second prosecution for the same offense under the Oregon Constitution

and (2) constituted fundamental legal error.

Peremptory writ of mandamus to issue.

Cite as 361 Or 205 (2017) 207

BALDWIN, J.

In this original proceeding, relator (defendant), who

is a defendant in the underlying criminal case, seeks a writ

of mandamus directing the trial court to dismiss the indict-

ment against him with prejudice, based on former or dou-

ble jeopardy under state and federal law. After a jury was

impaneled and several witnesses for the state had testified,

the trial court declared a mistrial. When the state sought a

retrial, defendant moved to dismiss the indictment on jeop-

ardy grounds, and the trial court denied his motion. The

issue before us now is whether, under Article I, section 12, of

the Oregon Constitution, there was “manifest necessity” for

the trial court’s mistrial order. For the reasons that follow,

we conclude that the state has not met its burden of demon-

strating that the trial court’s mistrial was consistent with

the “manifest necessity” standard. We therefore direct the

issuance of a peremptory writ of mandamus requiring the

trial court to dismiss the indictment with prejudice.

BACKGROUND

This petition arises out of criminal charges involv-

ing defendant, codefendant Golden, and a third defendant,

Richardson. All three men allegedly played a role in the

arson-related death of the victim. Defendant and codefen-

dant Golden presently face retrial, after the trial court

declared a mistrial over defendant’s objection and dismissed

the charges against both men without prejudice. The state

sought to proceed with a retrial against both defendants

on multiple counts of murder and first-degree arson. Prior

to the first trial, Richardson, the third defendant, pleaded

guilty to a single count of third-degree assault as part of an

agreement to cooperate with police authorities and testify

against the codefendants.

In February 2011, Richardson was living—with the

owner’s consent—in a small detached garage located next to

a house. Unbeknownst to the owner, however, Richardson

had allowed the victim, Purcell, to stay in the garage as

well. One night, a fire broke out in the garage with the vic-

tim inside. Firefighters arrived, removed Purcell from the

burning structure, and put the fire out. Purcell, however,

died of smoke inhalation some time later.

208 State v. Moore

In the fire investigation that followed, state fire

authorities found blood on the floor of the garage, along with

numerous syringes, discoveries that subsequently prompted

the intervention of Portland homicide investigators. An

autopsy revealed that Purcell had died of asphyxia from

inhaling smoke and carbon monoxide, but the state investi-

gators who examined the fire scene were not able to find any

arson-related indicators. One investigator and his acceler-

ant-sniffing K-9 partner searched in vain for evidence that

an accelerant had been used to start the fire. Instead, what

the investigator found was a structure that he concluded

was a “firetrap,” a space littered with combustible materials,

multiple plugged-in extension cords, and several locations

where a fire could have started accidentally.

Shortly after the fire, Richardson recounted the

events of that evening to investigators and stated that the

fire had apparently been an accident. Two months later,

however, Richardson—who had been jailed on charges not

specified on this record—confessed to police that he had

entered the garage and beaten up the victim on the night of

the fire. According to Richardson’s new account, defendant

and codefendant Golden arrived at the garage and started

the fire after Richardson had left the area. Defendant and

Golden were subsequently indicted on murder and arson

charges; Richardson was released from jail and charged

with third-degree assault.

According to defendant, at the beginning of trial,

he was confident about his trial strategy. In opening state-

ments, defendant’s trial counsel had asked the jury to care-

fully consider the “pros and cons” of the evidence that would

come before it in determining whether the fire that had

killed the victim was arson or an accident. The “pros” were

the state fire investigators who had examined the burned-

out garage in the wake of the victim’s death. Counsel indi-

cated that they would uniformly testify that the cause of

the fire was undetermined, that there was no physical evi-

dence linking defendant to the victim’s death, and that there

would be no expert testimony indicating that the fire was the

result of arson. The “cons,” in contrast, constituted many of

the prosecutor’s other witnesses—incarcerated individuals

who, burdened with lengthy criminal histories and pending

Cite as 361 Or 205 (2017) 209

criminal charges, were highly motivated to provide favor-

able testimony for the state in exchange for certain consid-

erations regarding their sentences and the charges against

them.

The state called its first eight witnesses, among

them, the firefighting personnel who had been at the crime

scene, and local a resident, Thomas. At one point, Thomas

testified that she had seen defendant and codefendant

Golden leaving the garage shortly before it caught fire, but

made other statements that conflicted with that testimony.

Ultimately, Thomas acknowledged that, at the time of the

fire, she had been awake on crystal methamphetamine

for approximately 24 hours and that the drug affected her

memory.

At the end of the first day of trial, the prosecutor

stated that he was “still trying to track down information

on the arson—the fire investigation from the insurance com-

pany.” On the next day of trial, the prosecutor stated that he

had discovered a new witness and new evidence that he now

wished to present as part of the state’s case-in-chief:

“[A]s you recall, last week, Thursday, the state apprised

the Court and defense counsel that it had become aware

that there is potentially information from the insurance

company that an investigator, a fire investigator, did a

complete investigation and made a determination as to the

source and cause of the fire, and that’s all we knew at that

time.”

According to the prosecutor, he was still awaiting the

recently subpoenaed insurance file but had, in the interim,

spoken with insurance investigator Gunsolly and procured

the investigator’s notes. The handwritten notes, which the

prosecutor gave to the trial court and opposing counsel,

contained the names of different fire and police officials

involved with the post-fire investigation, along with the

names of various potential witnesses. The prosecutor stated

that, during his conversation with the insurance investiga-

tor, the investigator

“had ruled out that this was a fire that was caused by elec-

trical purposes and that he believe that a handheld, open

source flame was used to light some materials in the garage

210 State v. Moore

to start the fire. In essence, my interpretation of that is he

believed that somebody intentionally started the fire, that

it was not accidental.”

Both defendants moved to exclude the prosecutor’s

new evidence, arguing that to do otherwise would not only

be fundamentally unfair, but would also “encourage the

state to remain willfully blind to something that was in dis-

covery.” Defendant nevertheless rejected the possibility of a

mistrial, arguing that, “we do not want a mistrial” because

“the defense is always prejudiced when they have to retry

the case.” The trial court, however, denied the motion to

exclude, ruling that the new evidence would be admitted.1

Codefendant Golden’s counsel, opining that he

was obligated to do so, responded by moving for a mistrial.

Defendant did not join in that motion; his counsel stated,

“We don’t want a mistrial. We like this jury; we like how

we’re doing.” Counsel later reiterated, “[W]e are not joining

[codefendant’s] motion; we are not seeking a mistrial. That

is done in consultation with our client.” The trial court then

granted codefendant Golden’s motion for a mistrial, on its

own motion declared a mistrial as to defendant, and dis-

missed the jury. Shortly thereafter, the state reindicted both

defendants.

Defendant subsequently moved to dismiss the

indictment against him citing his former jeopardy and dou-

ble jeopardy rights under ORS 131.525(1),2 Article I, section

12, of the Oregon Constitution, and the Fifth Amendment

to the United States Constitution. After briefing and oral

argument, the trial court declined to dismiss the indict-

ment. It ruled:

“We will find that the state has met its burden of proof to

show that there was manifest necessity in declaring the

1

The parties have not argued the correctness of that ruling in this proceed-

ing, and we express no opinion on that issue.

2

ORS 131.525(1) is, in part, a codification of the test of “manifest necessity”

set forth in United States v. Perez, 22 US 579, 6 L Ed 165, 9 Wheat 579 (1824).

See State v. Cole, 286 Or 411, 417-18, 595 P2d 466 (1979) (so stating). However,

the parties did not develop a statutory argument under ORS 131.525(1) in either

the trial court or in this court. Further, the trial court did not base any rul-

ing on ORS 131.525(1). Thus, we limit our analysis to the parties’ constitutional

arguments.

Cite as 361 Or 205 (2017) 211

mistrial that the ends of public justice could not be served

by a continuation of the proceedings.”

The trial court later made a number of findings and conclu-

sions, among them that (1) the state had met is burden of

proof to demonstrate that there was manifest necessity to

declare a mistrial; (2) the state had not violated any pre-

trial discovery rules with its mid-trial request to have the

insurance investigator testify; (3) there had been no reason

to believe that the prosecutor used the superior resources

of the state to harass or achieve a tactical advantage over

defendant; (4) the insurance investigator’s anticipated tes-

timony and report would be extremely probative of the core

issue in the case and would not be substantially outweighed

by the danger of unfair prejudice or needless presentation of

cumulative evidence; and (5) this case was like the United

States Supreme Court’s decision in Wade v. Hunter, 336

US 684, 689, 69 S CT 834, 93 L Ed 974 (1949), in which

the Court opined that “a defendant’s valued right to have

his trial completed by a particular tribunal must in some

instances be subordinated to the public’s interest in fair tri-

als designed to end in just judgments.”

The trial court scheduled a new trial date for both

defendants. After the trial court denied defendant’s motion

to dismiss the indictment against him, defendant petitioned

this court for a writ of mandamus.

PARTIES’ ARGUMENTS

The parties agree that the question for this court’s

determination is whether the trial court’s mistrial ruling over

defendant’s objection met the constitutional standard of “man-

ifest necessity.” Defendant argues that he was entitled to com-

plete his trial with the jury selected and that the state has

not met its burden of demonstrating that the mistrial decision

was consistent with the standard of “manifest necessity.”

The state, for its part, acknowledges that “the ulti-

mate question whether defendant was entitled to dismissal

on jeopardy grounds is a legal one.” However, the state first

argues that the trial court—by ordering a mistrial—was

simply exercising its discretion to address the prejudice to

defendant resulting from the court’s ruling admitting the

212 State v. Moore

new evidence. Second, the state argues that defendant’s

objection to a mistrial was equivocal because defendant had

suggested to the trial court that defendant would not be able

to proceed with trial even if the court allowed a continuance.

ANALYSIS

“Mandamus is an extraordinary remedy that may

serve only to enforce a known, clear legal right.” Longo v.

Premo, 355 Or 525, 531, 326 P3d 1152 (2014). Although a

writ of mandamus “shall not be issued in any case where

there is a plain, speedy, and adequate remedy in the ordi-

nary course of the law,” ORS 34.110, defendant neverthe-

less contends that a writ should issue here because the right

to appeal after a conviction would not vindicate his consti-

tutional right to be free from a second prosecution for the

same offense. Subject to defendant sustaining his constitu-

tional claim, defendant is correct that mandamus relief is

available to avoid a reprosecution. See State ex rel Turner v.

Frankel, 322 Or 363, 376, 908 P2d 293 (1995) (so holding).

Thus, the issue for our determination is whether defendant

had a clear, legal right to dismissal of the state’s indictment

after the trial court had ordered a mistrial and discharged

the original jury in this case.3

Defendant’s motion to dismiss the indictment against

him was based on former jeopardy under Article I, section

12, of the Oregon Constitution and double jeopardy under

the Fifth Amendment of the United States Constitution.4

Both provisions “provide, in somewhat different terms, that

3

As noted, the state contends that the trial court properly exercised discre-

tion in ordering a mistrial over defendant’s objection. However, mandamus relief

may be appropriate when “the trial court’s decision amounts to ‘fundamental

legal error’ or is ‘outside the permissible range of discretionary choices’ ” avail-

able. Lindell v. Kalugin, 353 Or 338, 347, 297 P3d 1266 (2013) (quoting State ex rel

Keisling v. Norblad, 317 Or 615, 623, 860 P2d 241 (1993)). As we will explain, the

trial court’s decision below amounted to fundamental legal error.

4

Article I, section 12, of the Oregon Constitution provides:

“No person shall be put in jeopardy twice for the same offence [sic] * * *.”

The Fifth Amendment of the United States Constitution provides:

“No person shall * * * be subject for the same offense to be twice put in jeop-

ardy of life or limb[.]”

Neither party argues that those provisions have different meanings as applied

here.

Cite as 361 Or 205 (2017) 213

a defendant in a criminal case has a right not to be put

in jeopardy twice for the same offense.” State v. Cole, 286

Or 411, 419, 595 P2d 466 (1979). This court’s practice has

been to resolve such claims first under state law while giv-

ing proper weight to relevant United States Supreme Court

opinions that we find persuasive. See, e.g., id. at 417-18

(applying state statute to jeopardy claim before analyzing

under Supreme Court cases); see also Sterling v. Cupp, 290

Or 611, 614, 625 P2d 123 (1981) (“proper sequence is to ana-

lyze the state’s law, before reaching a federal constitutional

claim). We have, in some instances, concluded that the state

and federal provisions afford varying degrees of protection

to a criminal defendant. See State v. Kennedy, 295 Or 260,

276-77, 666 P2d 1316 (1983) (acknowledging that Oregon

law concerning retrial after prosecutor-induced mistrial not

identical to federal law); State v. Rathburn, 287 Or 421, 431,

600 P2d 392 (1979) (Article I, section 12, barred reprosecu-

tion of defendant as result of bailiff’s prejudicial remarks

to jury); State v. Brown, 262 Or 442, 497 P2d 1191 (1972)

(holding that Article I, section 12, requires consolidation of

all charges known to prosecutor).

Thus, we analyze defendant’s Article I, section 12,

claim first and, in doing so, give proper weight to relevant

United States Supreme Court opinions that we find persua-

sive. The general purpose and meaning of the federal dou-

ble jeopardy bar has been cogently summarized by Justice

Hugo Black:

“The constitutional prohibition against ‘double jeopardy’

was designed to protect an individual from being subjected

to the hazards of trial and possible conviction more than

once for an alleged offense[.]

“* * * * *

“The underlying idea, one that is deeply ingrained in at

least the Anglo-American system of jurisprudence, is that

the State with all its resources and power should not be

allowed to make repeated attempts to convict an individual

for an alleged offense, thereby subjecting him to embar-

rassment, expense, and ordeal and compelling him to live

in a continuing state of anxiety and insecurity, as well as

enhancing the possibility that even though innocent he

may be found guilty.”

214 State v. Moore

Green v. United States, 355 US 184, 187-88, 78 S Ct 221,

2 L Ed 2d 199 (1957). This court has embraced a similar

view regarding Article I, section 12, by holding that “a bar

against prosecution must be derived from the constitutional

objective to protect defendant against ‘the harassment,

embarrassment and risk of successive prosecutions for the

same offense’ and that ‘[i]t is not a sanction to be applied for

the punishment of prosecutorial or judicial error.’ ” Kennedy,

295 Or at 273 (footnote omitted).

The dimensions of the guarantee against double

jeopardy and the many issues that may arise when the state

seeks to reprosecute a defendant are varied and complex.

See, generally Wayne R. LaFave et al, 6 Criminal Procedure

§ 25 (4th ed 2015). Where, as here, a trial court declares a

mistrial over a defendant’s objection, that decision is exam-

ined against the standard of “manifest necessity.” United

States v. Perez, 22 US 579, 6 L Ed 165, 9 Wheat 579 (1824);

Arizona v. Washington, 434 US 497, 98 S Ct 824, 54 L Ed 717

(1978); see also Cole, 286 Or at 419 (applying standard).

In Cole, this court held that the state had “sus-

tained its burden to show that there was such a ‘manifest

necessity’ as to justify the dismissal of the jury and avoid

the bar of double jeopardy,” when the trial judge in that case

had become so ill that he was hospitalized. Id. at 424. In so

holding, the court distinguished between two distinct kinds

of necessity: (1) “physical necessity”, and (2) the “necessity

of doing justice” based on the duty of the court to “guard the

administration of justice.” Id. at 423. The court characterized

the circumstance of the judge’s illness as a “physical neces-

sity” and noted that “there is nothing in the record to show

that either the defendant or his attorney would have agreed

to the continuation of the trial before any other judge.” Id.

at 425. Justice Linde, specially concurring, emphasized that

the trial judge “became incapacitated after the jury was

selected and sworn but before any testimony was taken.” Id.

at 426. His view was that, “[i]n a case in which witnesses

have been examined and cross-examined, including perhaps

the defendant himself,” a mistrial “might be much more

prejudicial” and, “when the defendant is prepared to con-

tinue with a new judge[, the state’s burden] might arguably

be greater.” Id.

Cite as 361 Or 205 (2017) 215

As noted, the United States Supreme Court first

established the “manifest necessity” standard in Perez, an

1824 case where the Court held that the failure of a jury

to agree on a verdict did not bar the state from retrying

the defendant. At that point, the standard was undeveloped,

requiring only the exercise of “standard discretion” consis-

tent with the “ends of the public justice,” a power, the Court

nevertheless added, that “ought to be used with the greatest

caution, under urgent circumstances[.]” Perez, 22 US at 580.

In Arizona v. Washington, the Court explained:

“The words ‘manifest necessity’ appropriately char-

acterize the magnitude of the prosecutor’s burden. * * *

[But] it is manifest that the key word ‘necessity’ cannot be

interpreted literally; instead, contrary to the teaching of

Webster, we assume that there are degrees of necessity and

we require a ‘high degree’ before concluding that the mis-

trial is appropriate.”

434 US at 505-06. The Supreme Court has, moreover, often

observed that the validity of each “manifest necessity” rul-

ing depends on the unique circumstances that each case

presents.5 Such a standard, the Court has stated, “abjures

the application of any mechanical formula by which to judge

the propriety of declaring a mistrial in the varying and

often unique situations arising during the course of a crim-

inal trial.”6 Illinois v. Somerville, 410 US 458, 462, 93 S Ct

1066, 35 L Ed 2d 425 (1973).

5

Arizona, 434 US at 505; Illinois v. Somerville, 410 US 458, 462, 93 S Ct

1066, 35 L Ed 2d 425 (1973), United States v. Jorn, 400 US 470, 480, 91 S Ct 547,

27 L Ed 2d 543 (1971).

6

Professor LaFave’s commentary about the many factors that may be rele-

vant in assessing whether a mistrial order is justified by “manifest necessity” is

instructive:

“A substantial number of factors enter into the assessment of ‘manifest neces-

sity’ on a fairly regular basis. They are (1) the source of the difficulty that led

to the mistrial—i.e., whether the difficulty was the product of the actions of

the prosecutor, defense counsel, or trial judge, or were events over which the

participants lacked control; (2) whether the difficulty could have been inten-

tionally created or manipulated for the purpose of giving the prosecution an

opportunity to strengthen its case; (3) whether the possible prejudice or other

legal complications created by the difficulty could be ‘cured’ by some alter-

native action that would preserve the fairness of the trial; (4) whether the

record indicates that the trial judge considered such alternatives; (5) whether

any conviction resulting from the trial would inevitably be subject to rever-

sal on appeal; (6) whether the trial judge acted during the ‘heat of the trial

216 State v. Moore

In addition to the authorities noted above, we also

consider two United States Supreme Court cases that we

find particularly relevant to our inquiry here: Downum v.

United States, 372 US 734, 83 S Ct 1033, 10 L Ed 2d 100

(1963), and United States v. Jorn, 400 US 470, 480, 91 S Ct

547, 27 L Ed 2d 543 (1971).

In Downum, a trial court granted the state’s request

to discharge an impaneled jury after the state had allowed

the jury to be selected and sworn even though one of its key

witnesses was absent and had not been found. 372 US at

735. The trial court cited precedent, including Wade, for the

proposition that “[a]t times the valued right of a defendant

to have his trial completed by the particular tribunal sum-

moned to sit in judgment on him may be subordinated to

the public interest—when there is an imperious necessity

to do so,” but concluded that the circumstances presented

did not pose such a necessity. Id. at 736. The Court observed

that to not bar the subsequent prosecution of the defendant

would allow the trial court to “exercise what would be an

unlimited, uncertain, and arbitrary judicial discretion.” Id.

at 738. Downum is similar to this case, in that the state did

not identify a key witness until after the trial was under-

way, and the trial court ordered a mistrial over defendant’s

objection.

In Jorn, a plurality opinion, the trial court, sua

sponte, discharged an impaneled jury to allow state wit-

nesses to consult with their own attorneys because the trial

court was unsure whether the witnesses had been ade-

quately advised of their right against self-incrimination.

According to the plurality, it was “apparent from the record

confrontation’; (7) whether the trial judge’s determination rests on an eval-

uation of the demeanor of the participants, the ‘atmosphere’ of the trial, or

any other factors that similarly are not amendable to strict appellate review;

(8) whether the trial judge granted the mistrial solely for the purpose of pro-

tecting the defendant against possible prejudice; (9) whether the evidence

presented by the prosecution prior to the mistrial suggested a weakness in

the prosecution’s case (e.g., a witness had failed to testify as anticipated);

(10) whether the jurors had heard enough of the case to formulate some ten-

tative opinions; (11) whether the case had proceeded so far as to give the

prosecution a substantial preview of the defense’s tactics and evidence; and

(12) whether the composition of the jury was unusual.”

LaFave, 6 Criminal Procedure § 25.2(c) at 799-800.

Cite as 361 Or 205 (2017) 217

that no consideration was given to the possibility of a trial

continuance.” Jorn, 400 US at 487. Concluding that the trial

court’s decision did not meet the “manifest necessity” stan-

dard, the plurality affirmed dismissal of the information on

the ground of double jeopardy and barred a retrial of the

defendant.

Although Jorn did not involve prosecutorial error,

the Court nevertheless cited its holding in Downum and dis-

cussed the significance of the lack of preparedness by the

government for trial in double-jeopardy cases. The plurality

also emphasized the importance of a defendant being able to

complete a trial with a jury that the defendant believed to be

favorably disposed to his or her position:

“The trial judge must recognize that lack of preparedness

by the Government to continue the trial directly implicates

policies underpinning both the double jeopardy provision

and the speedy trial guarantee. Cf. Downum v. United

States, 372 US 734 (1963). Alternatively, the judge must

bear in mind the potential risks of abuse by the defendant

of society’s unwillingness to unnecessarily subject him to

repeated prosecutions. Yet, in the final analysis, the judge

must always temper the decision whether or not to abort

the trial by considering the importance to the defendant

of being able, once and for all, to conclude his confronta-

tion with society through the verdict of a tribunal he might

believe to be favorably disposed to his fate.”

Jorn, 400 US at 486.

In reaching its decision, the plurality rejected as

unsubstantiated by the record the government’s argument

that the trial court had ordered a mistrial solely for the

defendant’s benefit. Id. at 483. The plurality also cited prior

case law recognizing that the Double Jeopardy Clause does

not always guarantee a single trial for a given offense, as

in cases where reprosecution is necessary after a criminal

defendant’s conviction has been reversed on appeal. Id. at

484. However, the plurality differentiated between that

circumstance and reprosecution after a mistrial by a trial

court sua sponte:

“For the crucial difference between reprosecution after

appeal by the defendant and reprosecution after a sua

218 State v. Moore

sponte judicial mistrial declaration is that, in the first sit-

uation, the defendant has not been deprived of his option

to go to the first jury and, perhaps, end the dispute then

and there with an acquittal. On the other hand, where the

judge, acting without the defendant’s consent, aborts the

proceeding, the defendant has been deprived of his ‘valued

right to have his trial completed by a particular tribunal.’

“* * * * *

“Thus, 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. In the

absence of such a motion, the Perez doctrine of manifest

necessity stands as a command to trial judges not to fore-

close the defendant’s option until a scrupulous exercise of

judicial discretion leads to the conclusion that the ends of

public justice would not be served by a continuation of the

proceedings.”

Id. at 484-86 (internal citations and footnotes omitted).

We find the reasoning of Jorn and Downum persua-

sive, and, therefore, we will give those cases proper weight

in addressing the Article I, section 12, issue presented

here. See Cole, 286 Or at 424 (applying “flexible standard of

Arizona” and concluding that state “[not] required to show

that no other judge is available to continue the trial” when

mistrial ordered because trial judge ill in hospital).

With the above authority in mind, we now deter-

mine whether the state has met its burden of demonstrating

that the trial court’s mistrial order is consistent with the

standard of “manifest necessity.” The trial court concluded

that the circumstances of this case justified a mistrial under

the United States Supreme Court’s decision in Wade, a posi-

tion also adopted by the state on review. We disagree.

Wade involved a military court martial in wartime

Germany of a United States soldier accused of rape. After

the court martial had commenced, the commander of the

Third Army concluded that the tactical situation of his com-

mand and its distance from the trial site prevented the trial

from being completed within a reasonable timeframe. The

Cite as 361 Or 205 (2017) 219

charges against the defendant were withdrawn and later

reinstated for trial at a location more convenient for the wit-

nesses. The Court concluded that there was “manifest neces-

sity” for the reprosecution under the circumstances. Wade,

336 US 684. Later, in Downum, the Court stated that “the

tactical problems of an army in the field were held [in Wade]

to justify the withdrawal of a court-martial proceeding and

the commencement of another one on a later day.” Downum,

372 US at 736. We think that Wade—a case decided based

on tactical problems posed in a war zone—is inapposite to

this case where the state proceeded to trial without a key

witness and the trial court, after declining to exclude the

testimony of that witness, ordered a mistrial sua sponte over

defendant’s objection.7

As previously explained, whether a trial court rul-

ing is consistent with the federal “manifest necessity” stan-

dard depends on the unique circumstances presented in

that case. Washington, 434 US at 505; Somerville, 410 US at

462 (“manifest necessity” standard “abjures the application

of any mechanical formula by which to judge the propriety

of declaring a mistrial in the varying and often unique sit-

uations arising during the course of a criminal trial”); Jorn,

400 US at 480. Similarly, we think that whether the “man-

ifest necessity” standard is met under Article I, section 12,

likewise depends on the circumstances of each individual

case. After considering the unique circumstances here, two

factors lead us to conclude that the trial court’s mistrial

order did not meet the “manifest necessity” standard.

First, the state mistakenly proceeded to trial in this

case before identifying a key witness, Gunsolly, an insur-

ance investigator who—according to the prosecutor—would

testify that the fire that caused the victim’s death was not

accidental. The prospect of such testimony—raised well into

the state’s case-in-chief—went to the core of the case and

necessarily affected the parties’ theories and strategies. The

record shows that that serious mistake created the issue of

7

Wade might be most accurately characterized as a case where the test of

“manifest necessity” was met based on the physical necessity of a retrial in a

war zone. See Cole, 286 Or at 423 (distinguishing “physical necessity” from the

“necessity of doing justice” based on the duty of the court to “guard the adminis-

tration of justice”).

220 State v. Moore

prejudice that the trial court sought to address by allowing

codefendant Golden’s motion for a mistrial and sua sponte

ordering a mistrial as to defendant. The record also shows

that the state was solely responsible for that mistake. That

factor weighs heavily in favor of defendant’s constitutional

argument. See Downum, 372 US at 734 (failure to bar sub-

sequent prosecution of defendant when state allowed jury to

be selected and sworn even though one of its key witnesses

was absent would allow trial court to exercise “unlimited,

uncertain, and arbitrary judicial discretion”).

Second, it is significant that the state examined—

and defense counsel cross-examined—eight witnesses for

the state prior to the mistrial. That fact presents a signif-

icant potential for prejudice to defendant and an unfair

advantage to the state. If the state is permitted to repros-

ecute defendant, it would then have an unfair opportunity

to further prepare its witnesses based on their previous

examination and cross-examination during the first trial.

See Cole, 286 Or at 426 (Linde, J., concurring) (where “wit-

nesses have been examined and cross-examined, including

perhaps the defendant himself, the mistrial might be much

more prejudicial,” and the state’s burden is arguably greater

when defendant prepared to continue with new judge).

In this case, the record is clear that defendant

wished to complete his trial with the jury selected, not-

withstanding the prospect of new evidence or his codefen-

dant’s motion for a mistrial. Defendant’s counsel stated to

the court: “We don’t want a mistrial. We like this jury; we

like how we’re doing.” Defendant also personally stated to

the court that he wanted to continue with the trial. The

fact that defendant and his counsel believed that the jury

was favorably disposed to his case and objected to a mis-

trial is an important consideration here. See Jorn, 400 US

at 486 (judge “must always temper the decision whether or

not to abort the trial by considering the importance to the

defendant of being able, once and for all, to conclude his con-

frontation with society through the verdict of a tribunal he

might believe to be favorably disposed to his fate”).

Thus, we hold, as a matter of law, that the trial court’s

mistrial order violated defendant’s right to be free from a

Cite as 361 Or 205 (2017) 221

second prosecution for the same offense under Article I, sec-

tion 12.8 Under the circumstances presented, the sua sponte

mistrial ordered by the trial court over defendant’s objection

was outside the constitutional bounds of discretion and con-

stituted legal error. We do not reach our holding today as a

sanction for prosecutorial error, but rather to protect defen-

dant against the harassment, embarrassment, and risk of

successive prosecutions as guaranteed by Article I, section

12. See Kennedy, 295 Or at 272-73 (expressing constitutional

objective of Article I, section 12).

We reject the state’s first argument that the trial

court’s mistrial order was necessary to eliminate the poten-

tial prejudice to defendant attributable to the court admit-

ting new evidence after prosecutorial error. We also reject

the state’s second argument that defendant’s objection to a

mistrial was equivocal because defendant suggested to the

court that defendant would not be able to proceed with the

trial even if the court allowed a continuance. The record

does not support the state’s argument. The record shows

that defendant did not request a continuance or bring up

the subject of a continuance when the court discussed with

counsel the prejudicial effect on both defendants of admit-

ting the new evidence. The state first raised the possibility

of a continuance to address the problem. Defendant unequiv-

ocally took the position that the new evidence should not

be admitted because the prejudice to defendant could not

be effectively addressed by a continuance. Defendant stated

that the nature of the new evidence was such—at that point

in the trial—that “a continuance will not be the cure” in

support of his argument to exclude the evidence. Defendant

did not, however, state that he would not be able to proceed

with the trial even if the court admitted the evidence. In

addition, after a lengthy discussion about whether the prej-

udice to defendant could be effectively addressed, defendant

told the court: “And just so we’re clear, the last—we do not

want a mistrial.” The only reasonable inference that could

be drawn from that statement is that, even if the trial court

admitted the challenged evidence, defendant nevertheless

wanted to proceed with the trial. In sum, the record shows

8

As a result, we do not find it necessary to address defendant’s federal con-

stitutional claim.

222 State v. Moore

that defendant clearly took the position that (1) the new evi-

dence should not be admitted because—if admitted—the

resulting prejudice to defendant could not be effectively

cured; and (2) defendant objected to a mistrial. Defendant

was entitled to make both arguments, and he did so.

CONCLUSION

We conclude that the trial court’s sua sponte mis-

trial order violated defendant’s right to be free from a sec-

ond prosecution for the same offense under Article I, section

12, of the Oregon Constitution. The trial court’s mistrial

order and the court’s denial of defendant’s motion to dis-

miss the indictment with prejudice constituted fundamental

legal error. This court, therefore, will provide the manda-

mus relief requested by defendant to enforce a clear legal

right. Frankel, 322 Or at 376 (mandamus relief available to

avoid reprosecution when defendant’s Article I, section 12,

rights violated). We direct the issuance of a peremptory writ

of mandamus requiring the trial court to dismiss the indict-

ment with prejudice.

Peremptory writ of mandamus to issue.