State v. Moore ( 2017 )


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  • 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 U.S. 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 U.S. 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 U.S. 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 U.S. 579
    , 
    6 L. Ed. 165
    , 9 Wheat 579 (1824);
    Arizona v. Washington, 
    434 U.S. 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 U.S. 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 U.S. 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 U.S. 458
    , 462, 
    93 S. Ct. 1066
    , 
    35 L. Ed. 2d 425
    (1973).
    5
    
    Arizona, 434 U.S. at 505
    ; Illinois v. Somerville, 
    410 U.S. 458
    , 462, 
    93 S. Ct. 1066
    , 
    35 L. Ed. 2d 425
    (1973), United States v. Jorn, 
    400 U.S. 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 U.S. 734
    , 
    83 S. Ct. 1033
    , 
    10 L. Ed. 2d 100
    (1963), and United States v. Jorn, 
    400 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. at 505
    ; 
    Somerville, 410 U.S. 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 U.S. 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 U.S. 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 U.S. 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 second
    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 dismiss the
    indictment with prejudice constituted fundamental legal
    error. This court, therefore, will provide the mandamus
    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.