813
Submitted May 30, reversed October 9, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
CURTIS BROOKS GILLESPIE, JR.,
Defendant-Appellant.
Marion County Circuit Court
17CR00284; A166256
451 P3d 637
Defendant was charged by information with two crimes. During his first
trial, two law enforcement officers who were scheduled to testify for the state
were called away on law-enforcement business and failed to return from the
lunch recess. The state moved for a mistrial, which the trial court granted,
over defendant’s objection. Defendant later moved to dismiss the information on
double jeopardy grounds. The trial court denied the motion, and defendant was
subsequently convicted in a second trial. On appeal of the judgment of conviction, defendant challenges the denial of his motion to dismiss, arguing that the
mistrial was not justified by manifest necessity and that retrying him therefore
violated the double jeopardy protections in the Oregon and federal constitutions.
The state concedes the error. Held: The Court of Appeals accepted the state’s concession. The mistrial was not justified by manifest necessity where the trial court
failed to adequately consider reasonable alternatives before declaring a mistrial.
Reversed.
Lindsay R. Partridge, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Hadlock, Presiding Judge, and DeHoog, Judge, and
Aoyagi, Judge.
AOYAGI, J.
Reversed.
814 State v. Gillespie
AOYAGI, J.
When a trial court orders a mistrial in a criminal
case over the defendant’s objection, double jeopardy principles preclude a second trial unless the mistrial was the
result of “manifest necessity.” In this case, defendant’s first
trial ended in a mistrial after two law enforcement officers
scheduled to testify for the state were called to respond to
an incident and therefore did not return from the lunch
recess. On the state’s motion, and over defendant’s objection,
the trial court granted a mistrial. Defendant subsequently
moved to dismiss the information based on double jeopardy.
The court denied the motion, and defendant was convicted
after a second trial. On appeal of the judgment of conviction,
defendant challenges the denial of his motion to dismiss,
and the state concedes the error. We accept the state’s concession and, accordingly, reverse.1
The relevant facts are largely procedural. Defendant
was charged by information with driving under the influence of intoxicants, ORS 813.010, and harassment, ORS
166.065. Trial was set for Friday, April 7. On the morning of
trial, during voir dire, the trial court told prospective jurors
that defendant’s trial was expected to take one day. A sixperson jury was empaneled, consisting entirely of women,
which the trial court indicated was highly unusual. The
trial began. The court gave preliminary instructions to the
jury, and the state and the defense each delivered opening
statements. The court then recessed for lunch until 1:15 p.m.
The state intended to call up to four witnesses after lunch:
Deputy Evarts and Deputy Ramseyer, who participated in
defendant’s arrest and booking, and defendant’s wife and
daughter, who were expected to be hostile witnesses.
After the lunch recess ended—and before bringing
the jurors back into the courtroom—the trial court went on
the record to make a brief statement. It explained that it had
been advised over the lunch hour that Evarts and Ramseyer
had been called away on law enforcement business and that,
consequently, it was going to declare a mistrial:
1
Because we reverse on the first assignment of error, we do not reach defendant’s other assignments of error.
Cite as 299 Or App 813 (2019) 815
“Alright. We’re back on the record in State of Oregon
v. Gillespie, 17CR00284, and we’re gonna bring the jurors
in in a moment, and I’ve been advised over the lunch hour
that there was some law enforcement incident, totally and
absolutely unrelated to the matter we’re trying today, but
apparently required the presence of the two deputy sheriffs that were the state’s law enforcement witnesses for this
case and, for that reason, I am going to declare a mistrial.
And I understand the defendant objects to that, and, [prosecutor], I’ll let you, once we dismiss the jury, place more
information about that on the record, such that you feel
like you can, and, [defense counsel], I’ll allow you to make
a record as well, and I’ll address the matter further. But
we’re gonna bring the jurors in right now and I’m gonna not
retain them any longer.”
The trial court proceeded to release the jurors and,
after doing so, gave the parties the promised opportunity to
make a record. The state said that the court had accurately
“summarized our conversation in chambers” and moved on
the record for a mistrial. Defendant stated his objections to
a mistrial. The trial court then granted a mistrial on the
record. The court explained that, although it would have
preferred to finish the trial, “if the community is benefited
overall by the absence of the officers today, then I think,
given whatever the circumstances are, that, while it’s certainly inconvenient to the Court, but also continues to wear
on the Gillespie family, then I’m mindful of that, but weighing that against what the potential issues might be, I think
that’s the appropriate remedy at this point.”
A month after the mistrial, defendant moved to dismiss the information on state and federal double jeopardy
grounds. See Or Const, Art I, § 12 (“No person shall be put
in jeopardy twice for the same offence ….”); US Const,
Amend V (“nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb”). Jeopardy
attaches when a jury is empaneled, so it was undisputed
that jeopardy had attached in the first trial. Crist v. Bretz,
437 US 28, 35,
98 S Ct 2156,
57 L Ed 2d 24 (1978). Defendant
argued that the mistrial had not been the result of “manifest necessity” and that, as such, retrying him would constitute double jeopardy.
816 State v. Gillespie
The trial court denied defendant’s motion. The court
described its options when the deputies did not return from
lunch as being (1) “to just simply wait it out,” (2) “to excuse
the jury and reconvene at a future date,” or (3) “to declare
a mistrial.” The court viewed the first two options as not
“appropriate” for what was supposed to be a one-day trial on
a Friday, when it was already going to be difficult to finish on
time and there was no “indication about how long we should
wait.” Ultimately, the court said, the “[n]umber one” reason
not to wait for the deputies’ return or reconvene on a different day was “what we had promised jurors, and not just that
we had promised them that it was one day, but then, in voir
dire, not inquiring as to whether or not they would have any
problems being able to serve as a juror if they had to come
back on the next week, because that was not in our realm
of consciousness at the time we were doing voir dire.” The
court concluded that, under the circumstances, there had
been “manifest necessity to declare the mistrial,” stating,
“when I balance the situation that we have here regarding
resetting this trial and the potential need for the officers to
provide for community safety, I think it clearly weighs in the
favor of deferring to the officers’ decisions regarding what
would be most appropriate for community safety.”
After a second trial, defendant was convicted of both
charges. On appeal, he argues that the trial court erred in
denying his motion to dismiss. The state concedes the error,
but “[w]e are not bound to accept that concession and must
decide whether to accept it.” Cervantes v. Dept. of Human
Services, 295 Or App 691, 693,
435 P3d 831 (2019).
In reviewing the denial of a motion to dismiss an
indictment or information following a mistrial, we must
determine whether granting a mistrial over the defendant’s
objection “was outside the constitutional bounds of discretion and constituted legal error.” State v. Moore, 361 Or 205,
221,
390 P3d 1010 (2017). “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,” but, “[w]here, as here, a trial court declares a
mistrial over a defendant’s objection, that decision is examined against the standard of ‘manifest necessity.’ ”
Id. at
214. That standard applies under both the state and federal
Cite as
299 Or App 813 (2019) 817
constitutions. See
id. In accordance with our normal practice, we begin with the state constitution and, because it
is determinative, do not reach the federal constitution. See
id. at 213 (“This court’s practice has been to resolve such
claims first under state law while giving proper weight to
relevant United States Supreme Court opinions that we find
persuasive.”).
“Manifest necessity” refers to a “ ‘high degree’ ” of
necessity to declare a mistrial. Id. at 215 (quoting Arizona
v. Washington, 434 US 497, 505-06,
98 S Ct 824,
54 L Ed 2d
717 (1978)). The “validity of each ‘manifest necessity’ ruling
depends on the unique circumstances that each case presents.”
Id. We have declined to adopt a rule that “an absence
of witnesses can never justify an order of mistrial.” State v.
Misten,
26 Or App 681, 685,
554 P2d 584 (1976). At the same
time, we have made clear that “manifest necessity” requires
“at the least that a trial not be terminated if any reasonable
alternative action is possible under the facts of each case.”
State v. Embry,
19 Or App 934, 942,
530 P2d 99 (1974). The
trial court “is not to foreclose the defendant’s option to go to
the jury unless [it] reasonably concludes the ends of public
justice cannot be served by a continuation of the proceedings.”
Id. at 941. It is the state’s burden to demonstrate that
granting a mistrial “was such a ‘manifest necessity’ as to
justify the dismissal of the jury and avoid the bar of double
jeopardy.” Moore,
361 Or at 207, 214 (quoting State v. Cole,
286 Or 411, 424,
595 P2d 466 (1979)).
On this record, we accept the state’s concession that
the trial court erred in denying defendant’s motion to dismiss the information. In declaring a mistrial immediately
upon learning of the deputies’ absence, the trial court did
not adequately consider reasonable alternatives. The court
appears to have focused almost entirely on potential inconvenience to the jurors, who had been told that morning that
the trial was expected to last one day. Although concern for
jurors’ schedules is understandable, juror inconvenience
does not outweigh the double jeopardy protections afforded
to criminal defendants. Of course, juror availability is a different matter than juror inconvenience. If the trial court
had determined that defendant’s trial could not be finished
that day because of the officers’ absence and that it would
818 State v. Gillespie
not be possible to reconvene with the same jurors the following week, then the manifest necessity standard might
be met. But here, even assuming that the delay caused by
the officers’ absence after lunch made it impossible to finish
defendant’s trial that day,2 the court made no inquiry into
the jurors’ ability to reconvene later. In explaining its denial
of the motion to dismiss, the court indicated that it had not
considered it “appropriate” to “reopen voir dire and start
asking those questions [of] the jurors.” However, irrespective of “reopening” voir dire, we are aware of no reason—and
the state represents that it also is aware of no reason—that
the court could not simply have asked the jurors about their
availability the following week.
As for the trial court’s view that it should “defer” to
the deputies’ decision whether it was “most appropriate for
community safety” to respond to the call or to stay and testify at defendant’s trial, defendant correctly notes that “[t]he
ultimate issue in this case is not whether the officers were
justified in leaving court to respond to [an incident].” The
issue is whether the trial court adequately explored all reasonable options for completing the trial, given the officers’
sudden absence of unknown duration, and only declared a
mistrial once it was evident that doing so was a manifest
necessity.
On this record, we cannot say that the “manifest
necessity” standard was met.3 We therefore accept the state’s
2
Before the trial court declared a mistrial, there was no discussion (or at
least no discussion on the record) of how long the court might be able to wait
for the officers to return before it would become impossible to finish the trial
that day. Meanwhile, the court had no information about when the officers might
return, although it was later determined during the motion-to-dismiss proceedings that Evarts had finished his duties at the incident scene at 1:45 p.m. and
Ramseyer at 2:00 p.m. We need not address whether waiting for the officers to
return would have been a reasonable alternative. If so, that would defeat the
manifest necessity for a mistrial. If not, there was still the option of reconvening
the following week, which the trial court did not adequately explore.
3
In reaching our decision, we have considered each of the dozen factors suggested by Professor LaFave as potentially relevant to assessing “manifest necessity” for a mistrial. See Moore, 361 Or at 215 n 6 (describing the factors listed in
Wayne R. LaFave et al, 6 Criminal Procedure § 25.2(c) at 799-800 (4th ed 2015)
as “instructive”). Because each manifest-necessity case is unique, and the state
is not contesting error in this one, we do not believe it would be helpful to the
parties, the bench, or the bar to go through those factors in detail here.
Cite as
299 Or App 813 (2019) 819
concession that the trial court erred in denying defendant’s
motion to dismiss the information on double jeopardy grounds
and, accordingly, reverse the judgment of conviction.
Reversed.
