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State v. Moore

Supreme Court of Oregon, En Banc

March 9, 2017

STATE OF OREGON, Plaintiff-Adverse Party,
v.
MARK LYLE MOORE, aka Mark Lyle Moore, Sr., Defendant-Relator.

          Argued and submitted October 13, 2016

         Original proceeding in mandamus.[*] CC 14CR12536

          Laura Graser, Portland, argued the cause and fled the brief for defendant-relator.

          Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and fled the brief for plaintiff-adverse party. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         Peremptory writ of mandamus to issue.

         Case Summary: Defendant's arson-related murder trial was well underway when, following testimony from eight of the state's witnesses, the prosecutor abruptly announced his discovery of a new witness - an insurance investigator - who, according to the prosecutor, was willing to testify that, based on his insurance-related examination of the crime scene, the fre that had killed the victim was the result of arson. Although defendant objected to that evidence, he was unambiguous in his desire to avoid a mistrial and fnish the proceedings against him with the jury his lawyer selected. After ruling that testimony from the state's newly-discovered expert would, indeed, be allowed, the trial court went on to declare a mistrial on its own motion. Among other things, the trial court found that the state had met its burden of establishing that the new evidence to be admitted was, under the circumstances, so prejudicial to defendant that a "manifest necessity" existed to retry defendant before a new jury. Defendant subsequently moved to dismiss the new indictment that followed, citing, in part, his former jeopardy rights under Article I, section 12, of the Oregon Constitution. That motion was denied, however, and defendant's petition for mandamus relief to the Oregon Supreme Court followed shortly thereafter. Held: A peremptory writ of mandamus shall issue. The Court concluded that the applicable "manifest necessity" standard has not been met in this case. First, the prosecutor committed a serious mistake by proceeding to trial before discovering one of his key witnesses. It was that mistake, in fact, that created the prejudice that the trial court sought to mitigate by ordering a mistrial. Second, it is signifcant that the state had already presented eight witnesses prior to the mistrial. That testimony would potentially present the state with an unfair advantage at a new trial since the state could further prepare many of its witnesses based on their prior trial participation. As a result, the trial court's sua sponte mistrial order and denial of defendant's subsequent motion to dismiss (1) violated defendant's right to be free from a second prosecution for the same offense under the Oregon Constitution and (2) constituted fundamental legal error.

         Peremptory writ of mandamus to issue.

          BALDWIN, J.

         In this original proceeding, relator (defendant), who is a defendant in the underlying criminal case, seeks a writ of mandamus directing the trial court to dismiss the indictment against him with prejudice, based on former or double jeopardy under state and federal law. After a jury was impaneled and several witnesses for the state had testified, the trial court declared a mistrial. When the state sought a retrial, defendant moved to dismiss the indictment on jeopardy grounds, and the trial court denied his motion. The issue before us now is whether, under Article I, section 12, of the Oregon Constitution, there was "manifest necessity" for the trial court's mistrial order. For the reasons that follow, we conclude that the state has not met its burden of demonstrating that the trial court's mistrial was consistent with the "manifest necessity" standard. We therefore direct the issuance of a peremptory writ of mandamus requiring the trial court to dismiss the indictment with prejudice.

         BACKGROUND

         This petition arises out of criminal charges involving defendant, codefendant Golden, and a third defendant, Richardson. All three men allegedly played a role in the arson-related death of the victim. Defendant and codefendant Golden presently face retrial, after the trial court declared a mistrial over defendant's objection and dismissed the charges against both men without prejudice. The state sought to proceed with a retrial against both defendants on multiple counts of murder and first-degree arson. Prior to the first trial, Richardson, the third defendant, pleaded guilty to a single count of third-degree assault as part of an agreement to cooperate with police authorities and testify against the codefendants.

         In February 2011, Richardson was living-with the owner's consent-in a small detached garage located next to a house. Unbeknownst to the owner, however, Richardson had allowed the victim, Purcell, to stay in the garage as well. One night, a fire broke out in the garage with the victim inside. Firefighters arrived, removed Purcell from the burning structure, and put the fire out. Purcell, however, died of smoke inhalation some time later.

         In the fire investigation that followed, state fire authorities found blood on the floor of the garage, along with numerous syringes, discoveries that subsequently prompted the intervention of Portland homicide investigators. An autopsy revealed that Purcell had died of asphyxia from inhaling smoke and carbon monoxide, but the state investigators who examined the fire scene were not able to find any arson-related indicators. One investigator and his accelerant-sniffing K-9 partner searched in vain for evidence that an accelerant had been used to start the fire. Instead, what the investigator found was a structure that he concluded was a "firetrap, " a space littered with combustible materials, multiple plugged-in extension cords, and several locations where a fire could have started accidentally.

         Shortly after the fire, Richardson recounted the events of that evening to investigators and stated that the fire had apparently been an accident. Two months later, however, Richardson-who had been jailed on charges not specified on this record-confessed to police that he had entered the garage and beaten up the victim on the night of the fire. According to Richardson's new account, defendant and codefendant Golden arrived at the garage and started the fire after Richardson had left the area. Defendant and Golden were subsequently indicted on murder and arson charges; Richardson was released from jail and charged with third-degree assault.

         According to defendant, at the beginning of trial, he was confident about his trial strategy. In opening statements, defendant's trial counsel had asked the jury to carefully consider the "pros and cons" of the evidence that would come before it in determining whether the fire that had killed the victim was arson or an accident. The "pros" were the state fire investigators who had examined the burned-out garage in the wake of the victim's death. Counsel indicated that they would uniformly testify that the cause of the fire was undetermined, that there was no physical evidence linking defendant to the victim's death, and that there would be no expert testimony indicating that the fire was the result of arson. The "cons, " in contrast, constituted many of the prosecutor's other witnesses-incarcerated individuals who, burdened with lengthy criminal histories and pending criminal charges, were highly motivated to provide favorable testimony for the state in exchange for certain considerations regarding their sentences and the charges against them.

         The state called its first eight witnesses, among them, the firefighting personnel who had been at the crime scene, and local a resident, Thomas. At one point, Thomas testified that she had seen defendant and codefendant Golden leaving the garage shortly before it caught fire, but made other statements that conflicted with that testimony. Ultimately, Thomas acknowledged that, at the time of the fire, she had been awake on crystal methamphetamine for approximately 24 hours and that the drug affected her memory.

         At the end of the first day of trial, the prosecutor stated that he was "still trying to track down information on the arson-the fire investigation from the insurance company." On the next day of trial, the prosecutor stated that he had discovered a new witness and new evidence that he now wished to present as part of the state's case-in-chief:

"[A]s you recall, last week, Thursday, the state apprised the Court and defense counsel that it had become aware that there is potentially information from the insurance company that an investigator, a fire investigator, did a complete investigation and made a determination as to the source and cause of the fire, and that's all we knew at that time."

         According to the prosecutor, he was still awaiting the recently subpoenaed insurance file but had, in the interim, spoken with insurance investigator Gunsolly and procured the investigator's notes. The handwritten notes, which the prosecutor gave to the trial court and opposing counsel, contained the names of different fire and police officials involved with the post-fire investigation, along with the names of various potential witnesses. The prosecutor stated that, during his conversation with the insurance investigator, the investigator

"had ruled out that this was a fire that was caused by electrical purposes and that he believe that a handheld, open source flame was used to light some materials in the garage to start the fire. In essence, my interpretation of that is he believed that somebody intentionally started the fire, that it was not accidental."

         Both defendants moved to exclude the prosecutor's new evidence, arguing that to do otherwise would not only be fundamentally unfair, but would also "encourage the state to remain willfully blind to something that was in discovery." Defendant nevertheless rejected the possibility of a mistrial, arguing that, "we do not want a mistrial" because "the defense is always prejudiced when they have to retry the case." The trial court, however, denied the motion to exclude, ruling that the new evidence would be admitted.[1]

         Codefendant Golden's counsel, opining that he was obligated to do so, responded by moving for a mistrial. Defendant did not join in that motion; his counsel stated, "We don't want a mistrial. We like this jury; we like how we're doing." Counsel later reiterated, "[W]e are not joining [codefendant's] motion; we are not seeking a mistrial. That is done in consultation with our client." The trial court then granted codefendant Golden's motion for a mistrial, on its own motion declared a mistrial as to defendant, and dismissed the jury. Shortly thereafter, the state reindicted both defendants.

         Defendant subsequently moved to dismiss the indictment against him citing his former jeopardy and double jeopardy rights under ORS 131.525(1), [2] Article I, section 12, of the Oregon Constitution, and the Fifth Amendment to the United States Constitution. After briefing and oral argument, the trial court declined to dismiss the indictment. It ruled:

         "We will find that the state has met its burden of proof to show that there was manifest necessity in declaring the mistrial that the ends of public justice could not be ...


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