Thе state appeals the trial court’s dismissal of a complaint charging defendant with driving under the influence of intoxicants (DUII) on the ground of prosecutorial misconduct sufficient to constitute double jeopardy. We reverse and remand.
Thе relevant facts are not in dispute. Defendant was stopped while driving, based on a police officer’s belief that he was under the influence of alcohol. The officer called for back up. Officer Julifs arrived and asked defеndant to perform field sobriety tests, and defendant refused. He was transported to the police station, where he again refused to perform field sobriety tests. Defendant refused to take a breath test. Defendant was charged with DUII. In a рretrial hearing before Judge Alexander, the state conceded and the trial court ruled that the evidence of defendant’s refusal to take field sobriety tests at the scene was inadmissible, because the officer had failed to adequately advise defendant of the consequences of refusing to take the tests.
See State v. Rohrs,
Judge Upton presided at trial. The prosecutor began her opening statement by mentioning the absence of field sobriety tests. She continued by describing the stop and the arrivаl of the back-up officer:
“Officer Julifs shows up as sort of a backup officer, a cover officer. They’ll tell you that that’s standard procedure, they usually for officer safety reasons have cover officers, and so Officer Julifs shows up sort of part way into the stop.
“At that point Officer Julifs actually begins to take over the investigation, and that’s when [defendant] is asked, ‘Will you do some field sobriety tests so that I can determine whether or not you’re okay to drive,’ and [defendant] says, ‘I’m not doing your tests!.]’ ”
Outside the presence of the jury, defense counsel objected to the prosecutor’s comment, asserting that the prosecutor had *489 improperly referred to defendant’s refusal to take field sobriety tests at the scene of the stop, which had been suppressed. The court agreed that, from the jury’s perspective, the prosecutor’s comments described the refusal at the scene.
The prosecutor did not disagree with the trial cоurt’s characterization. She explained, however, that she had planned to describe only one refusal, and that, from her perspective, it made no difference where that refusal took place: “I have no reason tо have one refusal over the other. I mean, there’s no significance to me of it being at the scene or not.” She explained further that, in fact, she had described the refusal at the police station, but had shortened her summary of the еvidence by omitting mention of defendant having been handcuffed and transported to the police station.
The trial court explained that that was not how the jury would have understood it:
“I take your word as an officer of the court that that’s what you intended * * * but I think that the way it would be understood — the way that you’re thinking of it is the way you know the evidence is, but we have to go by what the jury’s hearing, and it sounds to me like what they’re hearing is that at the — that they’re talking about what happened right when they first approached him, which is the part that’s excluded.
“[Prosecutor]: Mm-hmm.
“THE COURT: So that when you have testimony about what happens at the police station, they’ve now got scenarios with two.”
Defendant moved for a mistrial, arguing that the prosecutor’s referencе to the refusal at the scene was prejudicial to defendant, because it would allow the jury to infer that defendant had been uncooperative from the beginning of his encounter with police and had refused to take tests at the sсene that could have shown that he was able to drive himself home.
The trial court granted the motion, explaining that defendant’s refusal at the scene was now in the jurors’ minds and that “I don’t know how to un-ring that bell.” The court explained, essentially, that instruсting the jury to disregard *490 the prosecutor’s comment would only highlight the refusal at the scene and that the jury was also likely to hear evidence of defendant’s second refusal at the police station.
Defendant subsequently filed a motion to dismiss the complaint on the ground that the prosecutor had intentionally referred to prejudicial evidence that had been excluded and that Article I, section 12, of the Oregon Constitution 1 prevents retrying him. The prosecutor acknowledged that, at the time of her comments, she was aware that the evidence had been suppressed; she argued, however, that she had not intended to refer to the first refusal. Further, she contended, she had not intended to cause defendant рrejudice.
The court granted the motion to dismiss, explaining that defendant had established each of the three requirements set out in
State v. Kennedy,
“It’s the finding of this Court that first — the first prong of the test, Judge Upton did in fаct make a finding that the conduct was so prejudicial to the defendant that it could not be cured by means short of a mistrial and did in fact grant a mistrial in this matter.
“The second prong of this test is the — what the State knew to be prejudicial. * * * It was clear that the first refusal, the motion to suppress was granted, and as [the prosecutor] indicated, that she was the attorney who argued for the State, so she knew that the information was suppressed.
“From the Court’s notes, from the transcript, and from listening to the transcript, [the prosecutor’s] statements clearly indicate to this Court, referring to the officer actually begins to take over the investigation and that it’s when [defendant] was asked, ‘Will you do field sobriety tests to make sure whether or nоt you’re okay to drive,’ and [defendant] says, ‘I’m not going to do your tests,’ refers to the evidence that was suppressed.
*491 “And finally, the Court in Kennedy indicates that the official knew what anyone in his or her position or should have known in his — official in fact knew what anyone in his оr her position would know, and finally the improper conduct appears to be to this Court that the State was indifferent to the mistrial that could be expected to result.”
The state appeals, contending that the trial court erred in granting the motion to dismiss and that the record does not support the findings that the trial court made in support of its conclusion that Article I, section 12 bars a retrial of defendant. We review for errors of law the trial court’s decision to grant the motion to dismiss on double jeopardy grounds.
State v. Selness/Miller,
In
Kennedy,
the Supreme Court set forth the test for determining when prosecutorial misconduct is sufficiently egregious to bar retrying a criminal defеndant under Article 1, section 12. As articulated by the court, retrial is barred when (1) the misconduct is so prejudicial that it cannot be cured by means short of mistrial; (2) the prosecutor knew that the conduct was improper and prejudicial; and (3) the prosecutor either intended or was indifferent to the resulting mistrial or reversal.
The trial court determined that each of the three prongs hаd been met, specifically finding that the prosecutor knew that evidence of the first refusal had been suppressed and that she referred to it with indifference to the mistrial that could be expected to result. The trial court’s findings are binding on аppeal as long as there is evidence in the record to support them.
Ball,
We need not address whether the record was sufficient to permit the trial court to find that the prosecutor *492 knew that her conduct was improper and prejudicial and acted with indifference tо a likely mistrial. Even assuming that the record supports those findings, we conclude that the trial court erred in dismissing the charge, because the first Kennedy prong has not been satisfied. The prejudice to defendant as a result of the prosecutor’s cоmment did not require a mistrial.
In support of the trial court’s ruling, defendant contends that, once disclosed, the fact of defendant’s refusal at the scene could not have been removed from the jury’s consideration, and the disclosure was рrejudicial. Defendant’s theory of prejudice is that the negative inference to be drawn from defendant’s refusal at the scene, at which time he was not yet under arrest, is more onerous than the negative inference to be drawn from dеfendant’s subsequent refusals at the station, when defendant had already been placed under arrest. The state counters that it would have made no difference to the jury whether the refusal was at the scene or at the station and that thе reference to the refusal at the scene was not incrementally more prejudicial. Further, the state contends, any prejudice could have been cured by an instruction.
Whether to grant a mistrial is a determination committed to the “sound discretion of the trial court,”
State v. Rogers,
We conclude that the trial court could have cured the prosecutor’s misconduct, either by requiring the prosecutor to clarify that the refusal had taken place at the police station or by giving an instruction that the jury was not to consider any refusal that had occurred at the scene.
See State v. Wederski,
Initially, we note that the prosecutor’s opening remarks were nоt evidence, and the jury had been instructed to that effect. Further, the prejudice to defendant was minimal. The prejudicial effect of the prosecutor’s comment was the adverse inference that the jury could draw that defendant did nоt perform the tests at the scene because he believed that he would fail them.
State v. Fish,
Reversed and remanded.
Notes
Article I, section 12, of the Oregon Constitution provides:
“No person shall be put in jeopardy twice for the same offence, nor be compelled in any criminal prosecution to testify against himself.”