*1 reversed; 5, Appeals Argued March decision Court 15, May defendant’s conviction affirmed rehearing petition denied June 1979. Petitioner, OREGON, STATE OF v. COLE, Respondent. STEVEN JAMES (TC 25960) 77-08-11096, C CA SC
Gary argued Babcock, Defender, Salem, D. Public respondent. the cause and filed the brief for on the brief was C. William With him Rehm, Intern, Law Salem. TONGUE, J. specially concurring opinion.
Linde, J.,
[412-a] *4 [412-b] TONGUE, J.
Defendant was convicted of conspiracy commit robbery. trial, armed At the end of the first day of and sworn, after a had jury been selected and the trial became ill and entered the The hospital. next morning jury being was dismissed. Before retried and convicted later three weeks defendant moved to dismiss the for jeopardy.” indictment "former The trial court denied that The of motion. Court revers- Appeals (1978).1 ed. 37 Or 586 App P2d 386 We allowed petition state’s for review. facts, The they question relate of double are as follows: jeopardy,
The first trial of the began on August 1977, before Judge William M. argument Dale. After on jury various motions a was and selected sworn. Late afternoon, any and before had testimony been made, taken arguments the court was for adjourned Dale, day. Judge feeling who had not been well for several days, went to his doctor who examined him and him sent to a for hospital day. tests be made the next He remained for week. hospital one
Upon entering at hospital about 8:00 on p.m. 29th, August Judge Dale did not many days know how he would be required to remain there but knew that he would not preside be able to at day. the next clerk, He then called his told him that he could not illness, continue with the trial because of his instructed his clerk to call counsel telephone and inform them he would be unable to do so and that would be discharged. The clerk then called defendant’s him that attorney told to be going Judge because discharged Dale was sick and unable to return to day. court the next appeal Appeals only On to the Court defendant not contended that motion, denying the trial court erred in but that the trial court erred failing judgment on acquittal its own motion to declare a due to the prove judgment failure state’s venue. Defendant made no motion for acquittal prove proper failure the state to venue. For that reason we question decline to decide case. this *5 wanted a mist-
Neither the state nor the defendant attorney, he defendant’s told the According rial. to he coversation that and his in that telephone clerk asked clerk with the and jury client were satisfied and set the trial Judge ask Dale retain was told that Dale had day, Judge for one but over days that he to be for two going gone stated he not illness and that could continue because of his his trial because illness. with the 30th) a.m., at 9:30 morning (August The next without attorney defendant’s entered courtroom client, go the clerk into the room his was about by Either then or on the jury. telephone to dismiss discussion between evening there was some previous whether question and Dale of the Judge the clerk days,” for a rather "couple should be postponed trial Dale "indicated” to jury, Judge dismiss the and than to in the trial due to clerk that he "could not continue his his illness.” 31st) the attor- prosecuting
The next day (August Judge attorney appeared and defendant’s before ney at which Beatty, Presiding Judge, C. Criminal John September set retrial on time the case was for attorney stated his 1977. At time defendant’s his objections to the dismiss- desire to make record of ruled that would Beatty then he jury. Judge al Judge Dale. There was ratify and confirm the action of then the following colloquy: only "The [attorney defendant]:
Mr. for Anderson is, opportu- I did not have an I make point wanted to formally object the record because there nity to on nowas record.” "Well, under our law is true. But
The Court: continue, Judge Dale when a unable to ill, you cannot continue unable to and is was with another continue judge.” that, "Well, Honor. I Your
Mr. Anderson: realize jury could have question of whether the There is a just left present status been maintained its de- days see what for a few holding pattern a veloped.” jurors "I in a The Court: don’t think we leave holding pattern.”2 at time that
Judge Beatty also noted been "con- "manifest for the mistrial had the fact remains ill.” [Judge Dale] firmed At the of the new on beginning September 1977, defendant moved to dismiss the indictment jeopardy,” "former the affidavit supported testimony At that time was ta- attorney. defendant’s *6 ken, including testimony by the defendant that he was with the original jury proceed satisfied and wanted to with the original trial. He then testified as follows:
Q. you "What would have had an alternative done recommended, getting procedure been such as judge couple days another the for a of holding proceeding and then later?” "Well, all, say
A. first of let me that I didn’t particularly judge. par- want another I wanted that him, judge, myself.” ticular and I was satisfied with Q. "Okay. jury? How you about the Were satisfied jury?” with the "Yes, definitely
A. I jury.” was satisfied with the Q. they "If judge had offered us another instead of Dale, Judge you what would have done?” "Well, A. I I accepted don’t think would have that because, said, I judge.” like I satisfied with the 31, 1977, August transcript hearing included that on was not The of designation appeal from his conviction. the of record on defendant’s filing by Appeals and after its the decision the Court of After adverse decision, leave to file an petition review of that the state moved for proceeding. transcript designation of that of record to include amended ground opposed upon this court has no that Defendant motion filed within ten "jurisdiction” a motion because it was not to consider such 19.029(2). record, provided by designation days ORS defendant’s of of argument. oral at the time of The motion was taken under advisement 19.033(3), any appear that provisions it would view the of ORS In of provisions jurisdictional. deficiency reason of the Also such is not 19.108(1), may and untimeliness of the motion excuse the ORS this court hearing power transcript designation under its permit of the "incomplete.” may just” when the record is "supplement be the record as transcript of the Accordingly, to file the of the state we allow the motion transcript 31, 1977, be a August proceedings shall consider on and proceedings. part proper of the record in these Cole, judge Q. they if had offered us another "Mr. ” you, 'We should take—’ I had said to and leading "Objection. question. It’s a He’s Mr. Davis: for us.” question asked and answered "Well, Honor, I—” Your Mr. Anderson: inquiry, this he purpose The Court: "For may go ahead.” Anderson) Cole, they if offered us
Q. (By Mr. "Mr. judge take this you and I told another trial, only way we that’s the proceed with the it?” you have done keep jury; would could suggested.”3 my attorney "I do A. had to whatever at- hearing prosecuting At the on that motion clerk, and his Judge as witnesses Dale torney called the facts as stated.4 previously testified to who defendant’s testimony, of the the conclusion Upon he should have attorney argument contended me a "[G]ive say Dale to Judge had an opportunity days couple or let’s let the sit for new did are”; that defendant you really see how sick those alterna- "any opportunity propose not have to call tives,” attempt Dale made no Judge and that any judge. other motion, defendant’s then denied trial court
The discretion; his not abused Dale had Judge that holding necessity” a "manifest had shown the state that it is physically "when jeopardy there is no double that with conformity in with the trial proceed to impossible law.” 3 by any suggestion made had been that the first time This was willing might to attorney have been defendant his that or arrange upon judge, presumably depending whether proceed with another judge proceed who would with another for the trial to could be made ments Indeed, and the affidavit acceptable written motion him. defendant’s be postponed, not only been suggested the trial should have that to it attached judge. proceed with another it 4 attorney had Judge asked whether defendant’s was also Dale’s clerk proceedings” handle the mistrial come "to requested that another discussed, ever if it was but I don’t know responded "[i]t was * * request *.” in the form of discussed reversing In defendant’s because of the conviction by denial court defendant’s motion to jeopardy,” dismiss the indictment for "former Appeals held that Court the constitutional standard necessity” requires of "manifest "a trial not be any pos- terminated if reasonable alternative action is (37 202); App sible under the facts of each case” at Or that in this case the state had the burden to show that the alternatives of either a continuance or a con- tinuance of the trial with a new and the same available; were not the state had failed to prove sustain its burden to that such alternatives were available, not and that in the absence of such evidence finding there was no evidence sufficient to sustain the court that there was a "manifest (37 203) App to declare a mistrial. Or at arriving Appeals conclusion, In at that the Court of sought apply cited and to this case the recent deci- Supreme sion Court of the United States 434 US Arizona v. Washington, 98 S Ct 54 L (1978). 2d believe, Ed 717 however, We that the Court Appeals misapplied require- misconstrued and presented by ments of that case facts as this case. considering requirements
Before of "manifest necessity,” as stated in Arizona, for the termination of a criminal trial verdict, however, without a we requirements "necessity” must first consider the provided by Oregon by statute 131.525, ORS which part Oregon was enacted in 1973 as a of the then-new 131.525(2) Criminal Procedure Code.5 ORS was based provides ORS 131.525 that: previous prosecution subsequent prosecution "A is not bar to a previous prosecution properly any when the terminated under following circumstances:” «>}! sjs sfc "(2) termination, by judg- The trial court that a finds other than acquittal, necessary ment of because: "(a) physically proceed impossible It is with the trial in conformi- law; ty with
[417] 1.08(4)(b) Code, as § the Model Penal upon prepared of Law the American Institute in 1961.6 published by Commentary It from the to the Tentative appears the Penal was provision Draft of Model Code this drafted in an effort to make "somewhat more specific” forth necessity,” the test of "manifest set United (9 Wheat) Perez, _ S Ct _, 6 22 States v. US (1824), by stating L Ed 165 five reasons "general (1) termination,” including justify "physical which (2) (3) necessity,” con necessity,” "legal prejudicial (4) (5) duct, of a "hung jury,” a false statements given the of a juror examples on voir dire.7 One of a termination of trial was "physical necessity” for the the judge.” "death or illness of follows, It in our the termination opinion, the first trial of this defendant because of the illness of the a termination for "physical trial a neces- sity” meaning within the intended of ORS 131.525. It remains, however, to whether the termina- consider reason, tion the and under the * * "(b) *; proceeding legal is a in the or There defect "(c) courtroom, conduct, impos- Prejudicial or makes it outside injustice or proceed to either defendant with the trial without sible the state; or "(d) verdict; agree upon a or is The unable "(e) prevent juror dire a fair trial. of a on voir False statements 6 (ALI1961) 1.08(4)(b) provides Code the Model Penal Section (i.e., improper previous prosecution does bar a is not not of a termination any following subsequent prosecution) circumstances: under "(1) impossible proceed physically conformi- with it is law; ty with or "(2) proceedings legal make which would is defect in there a law; upon any judgment as a matter of or verdict reversible entered courtroom, "(3) conduct, it makes prejudicial in or outside the injustice to proceed either the impossible with trial without State; or or "(4) verdict; agree upon unable to "(5) juror prevent a on voir dire fair trial.” of a false statements 7 Reprint-Tentative Code, Law Institute Model Penal American See (1956). 7, p. 6 and Drafts No.’s *9 case, re- of this satisfied constitutional circumstances quirements. and the Constitution Oregon
Both the Constitution in somewhat different provide, the United States of a terms, right a in a criminal case has that defendant for the same offense.8 not to be in twice put jeopardy (434 503), the a right in US at of As stated Arizona "have his trial com in a criminal case to defendant a right” tribunal” is "valued pleted by particular (at in reasons. As also held Arizona important various subordi 505), that is nevertheless "sometimes right prosecutor in public affording nate to the interest his evidence to opportunity present one full and fair an impartial jury.” the retrial of a determining permit
In
whether
following
in a criminal case
the termination
reached,
of a
trial before a verdict has been
previous
States, beginning
Court
the United
in
Supreme
Perez, supra,
in United States v.
1824 with its decision
of "manifest necessi-
requirement
has established
It
as a standard for
in such cases. would
ty”
application
serve no useful
in this case to review or
purpose
decisions
the United
analyze
the various
attempt
Perez and
to its most
Supreme
prior
States
Court since
in Arizona.9
subject
recent decision on
8
United States
of the
The Fifth Amendment of the Constitution
provides:
* *
** *
jeopardy
person
put
of life or limb
in
"No
shall
be twice
I,
Oregon
provides:
§ 12 of the
Constitution
Article
(sic)
put
jeopardy
offence
person
twice for the same
shall be
"No
»
S}{ ;J«
Sfi
provisions
party
should
that these two
contention is made
either
No
differently
applied
case.
as
to this
be construed
9
1523,
364,
See,
States,
6 L Ed 2d
e.g.,
S Ct
v. United
367 US
81
Gori
1033, 10
734, 83
States,
L Ed 2d
(1961);
372 US
S Ct
Downum v. United
901
547,
470,
(1963);
Jorn,
L Ed 2d 543
27
US
91 S Ct
United States v.
400
Somerville,
In facts of that to the applied "manifest (at 505) variety "[a] there are case, recognized dis- necessary to make it may circumstances * * The is a trial concluded before charge (at 507-508) that: say went on court degree’ [of 'high question "The whether answered been reached is necessity’] has 'manifest At in others. kinds of cases than easily in some [more] prosecutor cases in which extreme are one buttress weaknesses mistrial in order to requests a * * * Thus, scrutiny is the strictest evidence. his mistrial is the basis for the appropriate when evidence, or prosecution critical unavailability prosecutor to believe that there is reason when state to harass resources of the using superior accused.” *10 advantage over the a tactical to achieve (at 509) that: The court then stated premised the mistrial "At the other extreme is unable to the judge’s trial belief upon the verdict, basis for a a classic long considered reach a * * * mistrial. proper "Moreover, especially there are in this situation judge to allowing the trial compelling reasons for deciding whether or not in broad discretion exercise ju- necessity’ justifies discharge [a] the 'manifest ry.” (at 505) addition, that:
In the court said * "* * [defend- the importance of the [I]n view and the jeopardy] twice in right put ant’s] [not to be mistrial, any prosecu- the by it is fact that frustrated a mistrial justifying the burden of must shoulder tor jeopardy His burden is avoid the double bar. if he is to must demonstrate heavy prosecutor one. The a declared over the necessity’ any for mistrial 'manifest objection of the defendant.” refused, however, in to reverse The court Arizona in granting by exercise of discretion the did not that he upon ground mistrial case finding his arriving at state that expressly alternatives possible he had considered "necessity” 516-517): (at The court said of a mistrial. granting is not judge’s "The state trial mistrial declaration subject simply court to collateral attack in a federal necessity’ because he failed to find in those 'manifest words all the or articulate in the record factors of his dis- which informed the deliberate exercise cretion.”
In considering requirements of the application a finding of "manifest as stated in Ari- zona, we significance believe it to be of to note the nature and extent of "spectrum” by as described the court that case. As an one example of "extreme” (at 507) end of the "spectrum,” court Arizona referred to cases in which the prosecution requests mistrial because prosecution critical evidence is unav- ailable, in which the "strictest scrutiny” would be required. As an example of "other extreme” end of that "spectrum” the court referred to cases in which the jury verdict, is unable to agree on a in which the court has "broad discretion.” In both of the examples chosen as representing the two "extreme” ends of the "spectrum,” the decision whether not to declare a mistrial would be by made a trial during court, course of the trial and in open where he was present and able to exercise his discretion in a proper manner giving arguments consideration to contentions both parties, including only not objections by defendant, but also alterna- possible tives to the declaration of a mistrial. so find
Having "spectrum,” described such a we *11 nothing to indicate that the court in Arizona intended "spectrum” to include in that cases in which the "manifest for the of the was discharge jury a physical necessity arising from death of the or judge his serious illness of such a nature as to events, him In it hospital. confine to a either such charge not be for the trial in possible judge would the case to make the decision whether or not to declare court, mistrial give a in where he would be able to open by and contentions arguments consideration to proper [421] or pos- defendant by including objections the parties, of the trial alternatives, as a postponement such sible continue judge of another the substitution impos- would be words, in such a case it In trial. other matter, for the trial sible, practical as a in the manner contem- his discretion judicial exercise Arizona. the court in by plated law in Ore Indeed, established presently it is the al, v. et 128 court in State Chandler by as held this gon, (1929), of a P 303 the declaration Or of a is a of the trial part the trial court by mistrial charged with a at which the defendant criminal case 136.040) (under to be right ORS felony statutory has presence with the result present, proceed of such validity is essential to the defendant the trial discharged by jury In that case the ings. for failure to in of the defendant court the absence addition, said in In this court on a verdict. agree 209): (at Chandler "* * * that, if it reasonable to assume [W]e think present with his counsel defendant had been discharge of the objection had made to the been delibera- time covered their account of the short on tions, reluctant so to court would have been more defendant was presence that the of the act. We hold proceedings and the validity to the of the essential effect, is, an legal in discharge of the unlawful * * *” acquittal of the defendant. of the a literal application insists upon Defendant case. Our the facts of this in Chandlerto as stated rule application no intended Chandler had decision because of discharged be must juries in which cases That judge. illness of death or serious however, prob- does, practical illustrate decision held, as contended if it be that would arise lems has become so case, who in this then, and must to the hospital ill as to be confined arguments hear in the hospital, sick and while to a alternatives possible all and consider objections judicial his exercise and must jury, of the discharge the manner that decision making discretion *12 contemplated by Arizona for application cases of such a nature as to be within the two "extremes” of the "spectrum” described the court in that case.
We agree Schuler, with the analysis State v. 293 34, 226, NC (1977), 235 SE 2d 233 in which the court held, although facts, under different there are "two kinds of necessity” in double jeopardy cases in (1) volving mistrials for reasons of "necessity”: "phys — ical necessity” or "physical and absolute necessity,” (2) as distinguished from the "necessity of doing jus tice,” which arises from the duty of the court "guard the administration justice” from prejudice, as cases involving improper conduct either In party. deed, as noted, previously a distinction is made in (ORS 131.525) Oregon by statute between "necessity” to dismiss the jury in a criminal case "[i]t because physically impossible proceed with the trial in con law,” formity with and necessity because of "prejudi cial conduct” or inability of the jury agree, among other things.10
Although neither this court nor the United States Supreme Court has previously had occasion to consider the problem for the "necessity” discharge of a in a criminal case because of the death or serious illness of the most, it judge, appears that if not all, other courts that have considered the question have held that double does jeopardy not attach in such Thus, a case. Brunn, in State 120, v. 22 2d Wash 154 (154 837) P2d (1945), 826 the court said P2d at that: "It universally is now almost held that a dismissal of a without the defendant’s consent will not acquit a defendant if done on account of illness or * * death of the trial
To effect, see, the same e.g., State, Westover v. 66 145, Ariz 315, (1947); 185 P2d 317 Commonwealth v. Robson, 461 615, 573, (1975); Pa A2d 337 577 ex People rel Barr, 126, Brinkman v. 444, 248 NY 161 NE 445 (1928); State, 342, Henderson v. 95 Okla Cr 246 P2d
10 5, See note supra. 29,
393, (1952); 13 3d People Upshaw, 399-401 v. Cal (1974); 756, 759 and State v. Cal 528 P2d Rptr (1909).11 Varnado, 124 La 50 So 661 when, case, as in this For these reasons we hold that ill as to seriously has so be become *13 it that he hospital, expected to a and when is confined the hospital be to in for more may required remain (and remain for day than one in this case did one (which week), state, such facts of are upon proof the case), its in this has sustained burden to admitted was a "manifest as to show that there such and avoid the bar of the dismissal of the justify double jeopardy. believe, however, involving even if cases
We that of the trial must judge the death or illness be serious as in "spectrum” as within the described considered Arizona, of the flexible application so to require as case, in that also described standard of review as "extreme end” of of this would it at the place facts case the trial judge as a in which would "spectrum” case (See 434 allowed to "broad discretion.” US be exercise 509) Dale did Judge that consider at The record shows reject postponement and alternative possible because, trial, as matters good and for reason a week. Under he in developed, hospital that no that he had considered express finding Arizona is required. alternative continuing the
As for the alternative possible in a which the judge before a different case trial ill to be to has died or so as confined judge become the flexible we do not believe that under hospital, a Arizona, to show was required the state standard the trial. no available continue other Court of the Supreme cannot believe that We such a impose Arizona to States intended United facts, pointed may distinguishable their on Some of these cases be all, however, general death or They support the rule that defendant. out "necessity” justify judge provides a as to such of the trial serious illness jury. of the dismissal upon attorney, assuming burden the state’s even would defendant consent to continue trial before such a judge. defendant, be,
It as contended if may then refused to such he accept would waive his to the of the right object discharge case, however, retrial of the case. In this the defendant testified at the time of his subsequent trial, "I don’t think I [another would have accepted * * *.” judge] said, he Although response then to a highly improper leading question by attorney, his state, objection by over "had he to do whatever my attorney suggested,” nothing there is in the record to show that either defendant or attorney his would agreed have to the continuation of the trial any before other A judge. further indication the contrary is the fact that defendant’s attorney made no such sugges- tion when he appeared Judge Beatty before on August (the 31, 1977 day after of the discharge jury) to "make a record” of mistrial, his reasons for objection to the *14 stating only his desire at that time jury to have the "held” until Judge Dale might return from the hos- pital.
These may facts or not be may sufficient to consti- tute waiver by defendant of the possible alternative of a continued believe, trial before another We judge. however, that under the facts and circumstances this case there was such a "manifest as to necessity” the justify dismissal of and to bar defendant’s claim of double jeopardy.12 reasons,
For these we reverse the decision by the Appeals Court of and affirm the conviction of the defendant. suggested concurring Linde, J., It opinion by is in the that even in a "physical case which there has been a for the termination of a trial, as in the judge, event of the death or serious illness of the trial as in case, jeopardy may available,
this may defense of double not be depending upon early whether such an event occurred in the trial or late in party the trial. No such contention was made either in this case and we possible question need not decide that in this case. J.,
LINDE, concurring. specially states, in this opinion judge As the Court’s was selected incapacitated became after case Under any testimony sworn before taken. and but circumstances, prejudice serious to the risk of take to the state to require defendant was not such as to find another attempting the initiative of trial. complete the examined in which witnesses have been
In case cross-examined, the defendant including perhaps himself, might prejudicial, be much more the mistrial that it showing "impossible burden of is state’s 131.525, trial,” when with the ORS proceed with a new continue prepared is course, in the greater. light be Of might arguably I, 12 of the constitu- and article section the statute on tion,1 hinge does decisions not question opinion I add this brief Court. Supreme United States not to the fact the issue only draw attention in this case. or decided presented 1 Const, I, §12: Or art person put jeopardy twice for the same offence No be shall