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State v. Gillespie

Court of Appeals of Oregon

October 9, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
CURTIS BROOKS GILLESPIE, JR., Defendant-Appellant.

          Submitted May 30, 2019.

          Marion County Circuit Court 17CR00284 Lindsay R. Partridge, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant was charged by information with two crimes. During his first trial, two law enforcement officers who were scheduled to testify for the state were called away on law-enforcement business and failed to return from the lunch recess. The state moved for a mistrial, which the trial court granted, over defendant's objection. Defendant later moved to dismiss the information on double jeopardy grounds. The trial court denied the motion, and defendant was subsequently convicted in a second trial. On appeal of the judgment of conviction, defendant challenges the denial of his motion to dismiss, arguing that the mistrial was not justified by manifest necessity and that retrying him therefore violated the double jeopardy protections in the Oregon and federal constitutions. The state concedes the error. Held: The Court of Appeals accepted the state's concession. The mistrial was not justified by manifest necessity where the trial court failed to adequately consider reasonable alternatives before declaring a mistrial.

         [299 Or.App. 814] AOYAGI, J.

         When a trial court orders a mistrial in a criminal case over the defendant's objection, double jeopardy principles preclude a second trial unless the mistrial was the result of "manifest necessity." In this case, defendant's first trial ended in a mistrial after two law enforcement officers scheduled to testify for the state were called to respond to an incident and therefore did not return from the lunch recess. On the state's motion, and over defendant's objection, the trial court granted a mistrial. Defendant subsequently moved to dismiss the information based on double jeopardy. The court denied the motion, and defendant was convicted after a second trial. On appeal of the judgment of conviction, defendant challenges the denial of his motion to dismiss, and the state concedes the error. We accept the state's concession and, accordingly, reverse.[1]

         The relevant facts are largely procedural. Defendant was charged by information with driving under the influence of intoxicants, ORS 813.010, and harassment, ORS 166.065. Trial was set for Friday, April 7. On the morning of trial, during voir dire, the trial court told prospective jurors that defendant's trial was expected to take one day. A six-person jury was empaneled, consisting entirely of women, which the trial court indicated was highly unusual. The trial began. The court gave preliminary instructions to the jury, and the state and the defense each delivered opening statements. The court then recessed for lunch until 1:15 p.m. The state intended to call up to four witnesses after lunch: Deputy Evarts and Deputy Ramseyer, who participated in defendant's arrest and booking, and defendant's wife and daughter, who were expected to be hostile witnesses.

         After the lunch recess ended-and before bringing the jurors back into the courtroom-the trial court went on the record to make a brief statement. It explained that it had been advised over the lunch hour that Evarts and Ramseyer had been called away on law enforcement business and that, consequently, it was going to declare a mistrial:

         [299 Or.App. 815] "Alright. We're back on the record in State of Oregon v. Gillespie, 17CR00284, and we're gonna bring the jurors in in a moment, and I've been advised over the lunch hour that there was some law enforcement incident, totally and absolutely unrelated to the matter we're trying today, but apparently required the presence of the two deputy sheriffs that were the state's law enforcement witnesses for this case and, for that reason, I am going to declare a mistrial. And I understand the defendant objects to that, and, [prosecutor], I'll let you, once we dismiss the jury, place more information about that on the record, such that you feel like you can, and, [defense counsel], I'll allow you to make a record as well, and I'll address the matter further. But we're gonna bring the jurors in right now and I'm gonna not retain them any longer."

         The trial court proceeded to release the jurors and, after doing so, gave the parties the promised opportunity to make a record. The state said that the court had accurately "summarized our conversation in chambers" and moved on the record for a mistrial. Defendant stated his objections to a mistrial. The trial court then granted a mistrial on the record. The court explained that, although it would have preferred to finish the trial, "if the community is benefited overall by the absence of the officers today, then I think, given whatever the circumstances are, that, while it's certainly inconvenient to the Court, but also continues to wear on the Gillespie family, then I'm mindful of that, but weighing that against what the potential issues might be, I think that's the appropriate remedy at this point."

         A month after the mistrial, defendant moved to dismiss the information on state and federal double jeopardy grounds. See Or Const, Art I, § 12 ("No person shall be put in jeopardy twice for the same offence * * *."); U.S. Const, Amend V ("nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"). Jeopardy attaches when a jury is empaneled, so it was undisputed that jeopardy had attached in the first trial. Crist v. Bretz,437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Defendant argued that the ...


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