This case is before us on remand from the United States Supreme Court,
Oregon v. Kennedy,
Defendant was charged with the theft of an oriental rug. The facts leading up to the mistrial are set out in our earlier opinion. The pivotal exchange leading to the mistrial toоk place on redirect examination of one of the state’s key witnesses:
“Q: (The Prosecutor): Have you ever done business with the Kennedys?
“A: No I have not.
“Q. Is that because he is a crook?”
In ruling on defendant’s motion to dismiss after the mistrial had been granted, the trial court 1 stated:
“I have reviewed the transcript and the wording, as put, and I would аgree that the question was improper as put. I do not find, however, that it constitutes bad faith or was intentional impropriety. The question of whether or not it constitutes overreaching is one of those gray areas where we have to determine what ‘overreaching’ means, and in looking to the case which the defense has cited, United States v. Kessler, [530 F2d 1246 (1976),] prosecutorial overrеaching is there defined as being such as must have been a result of gross negligence or intentional misconduct which prejudiced the defendant so that he cannot receive a fаir trial, and I wouldn’t find that the overreaching or the erroneous conduct in this matter reachеs that degree of aggravation. I don’t think it amounted to gross negligence or intentional miscоnduct.”
In our original opinion in this case, we noted the trial court’s determination that the prosecutor did not intend to cause a mistrial and that we are bound by that
*472
finding of fact.
“* * * the circumstances under which [a defendant who has moved for a mistrial] may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to thе successful motion for a mistrial was intended to provoke the defendant into moving for a mistriаl. ” Oregon v. Kennedy,456 US 667 , 680,72 L Ed 2d at 427 . (Emphasis supplied.)
It held that, given the finding by the trial court in this case, defendant’s rights under the United States Constitution were not violated.
On remand, the remaining question is whether the
Oregon
constitution prohibits defendant’s retrial. In
State v. Rathbun,
“Except as provided in ORS 131.525 * * *
“(1) No person shall be prosecuted twice for the same offensе.”
and ORS 131.525:
“A previous prosecution is not a bar to a subsequent prosecution when the previоus prosecution was properly terminated under any of the following circumstances:
<<* * * * *
“(2) Thе trial court finds that a termination, other than by judgment of acquittal, is necessary because:
iiijc if:
“(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceеd with the trial without injustice to either the defendant or the state; or
*473 “(d) The jury is unable to agree upon a verdict;
The court in Rathbun explicitly decided the case under Oregon law. It stated:
“The misconduct of this bailiff is so аbhorrent to the sense of justice that we find the same sanction is required to effectuate the constitutional command as in the case where the prosecutor or the judge intends to provoke a mistrial. ***
“We hold that Article I, section 12, of the Oregon Constitution prevents the application of ORS 131.525(2)(d) in these circumstances. That being so, ORS 131.515(1) bars the retrial of the defendant.”287 Or at 432-33 . (Emphasis supplied.)
As the emphasized portions of Rathbun and Kennedy indicate, the type of conduct that has been held to bar retrial of a defendаnt under both the Oregon and federal constitutions is conduct intended to interfere with the defendаnt’s right to a fair trial, either by provoking a mistrial or by influencing the jury. In other words, with respect to the рrecise and narrow issue under consideration here, both constitutions embody the same standard.
The trial court here found that the prosecutor’s question was not intentional misconduсt or even gross negligence. However we might ourselves have assessed the situation if we were the factfinder, the trial court believed that even though the question asked was improper, it was not asked in bad faith. An error on the part of the prosecutor requiring a mistrial doеs not always trigger the bar of double jeopardy.
State v. Oliver,
Affirmed.
Notes
The judge who ruled on the motion to dismiss was not the judge who presided at defendant’s trial.