¶1dissenting.
¶2I respectfully dissent. In this particular case, it would have been more than a minor disadvantage to the State, to have been required to proceed with the first trial, in the face of the deliberate refusal of Kimberly Gregory to obey a properly served subpoena.
¶3The majority correctly states the law as to double jeopardy and that a manifest necessity may allow a retrial. However, the trial court found that the "manifest necessity of the absconding witness, the emergency caused by her absence, the fact that the State had taken all reasonable steps ...to procure her attendance and the best interest of the public and the community" required the granting of the mistrial. The following facts support the trial court's determination that it should declare a mistrial in the defendant's first trial:
¶4Kimberly Gregory had been properly served with a subpoena;
¶5Kimberly Gregory drove the vehicle in which the defendant left the scene of the crime;
¶6Kimberly Gregory was the only witness who saw the defendant at the scene of the crime;
¶7Kimberly Gregory found a gold chain that had been stolen in the burglary under the seat where the defendant had been sitting in her car;
¶8Kimberly Gregory had an ongoing friendship with the defendant, and;
¶9Her friendship with the defendant appeared to be the reason she failed to appear to testify and avoided the law enforcement officers attempting to find her.
¶10There is evidence to support the trial court's finding and we should not reweigh the evidence to redetermine the importance of Kimberly Gregory's testimony.
¶11To hold that a mistrial called under the facts of this case subjects the defendant to double jeopardy upon retrial puts an unfair burden on the State. Kimberly Gregory's testimony would have provided an important, perhaps, the only linking of the defendant to the crime.
¶12The result in this case allows a friend or accomplice to trade off a ninety day sentence and five hundred dollar fine for a defendant's freedom from a lengthy sentence. A defendant may well encourage or procure the absence of a State's witness knowing that the prosecutor will have to proceed with the trial unable to present important or complete evidence.