The question presented by this appeal is whether the trial court properly granted a mistrial, so that a retrial of the appellant does not result in double jeopardy.
Appellant, John L. Jones, was charged with obtaining and using information from the Arkansas Crime Information Center in violation of Ark. Stat. Ann. § 5-1110. The trial was set for October 30, 1984, and after the defense and prosecution had announced ready for trial a jury was selected and sworn. When the state called its first witness, Carl Stuecken, there was no response. After a brief recess the state reported that Stuecken had been admitted to the hospital for emergency surgery and was presently in intensive care. The state argued that Stuecken was a critical witness and moved for a mistrial. The defense objected, contending it was not apparent Stuecken’s testimony was material. The trial judge commented that from similar cases he had already heard he regarded the testimony as material. The jury was dismissed and a conference was held with the state offering proof on the materiality of the testimony.
In January, 1985 the appellant filed a motion to dismiss the information on the grounds that to impanel another jury would subject him to double jeopardy. The motion was denied and appellant has appealed.
Relying on language in Cody and Muse v. State, 237 Ark. 15, 371 S.W.2d 143 (1963), appellant contends the mistrial could have been averted by diligence and care on the part of the state. In Cody and Muse, when it appeared during the trial that insanity could become a defense for Muse, the court, over the objection of defense counsel, declared a mistrial and committed both defendants to the state hospital for observation. Muse and Cody later moved to dismiss on grounds of double jeopardy and we reversed the denial of their motion:
The manifest necessity permitting the discharge of a jury without rendering a verdict and without justifying a plea of double jeopardy may arise from various causes or circumstances; but the circumstances must be forceful and compelling, and must be in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care.
We pointed out as far as Cody was concerned there was neither a plea of insanity nor a single line of evidence that would suggest Cody to be insane; that even if the mistrial had been justified as to Muse, there was nothing to prevent the continuation of the trial as to Cody. As to Muse, the state had possession of records for several months which should have alerted it to the sanity issue, and additionally, Muse had been held in jail for five months before an attorney had been appointed to defend him, time which might have been used in his defense.
In contrast, the facts in this case presented an emergency that could not have been averted by reasonable care. The trial was scheduled for the 30th of October and the witness, Stuecken, was subpoenaed twice, both subpoenas being served within a week prior to trial. In addition to the subpoena, the prosecuting attorney required the actual appearance of Stuecken and other witnesses at his office on Thursday, October 25. Stuecken appeared for the interview with no apparent difficulty. As Stuecken left, he was again advised by the prosecutor to be in court on the following Tuesday. He developed acute intestinal difficulties over the weekend and was admitted to the hospital on an emergency basis on Sunday night. He underwent surgery on Monday and was in intensive care on Tuesday, the day of trial. It was only then that the prosecution learned of his unavailability, having relied on his recent observations and the subpoenas.
There was nothing in these circumstances to alert the prosecution to any likelihood of Stuecken’s absence. Nor do we find that the prosecution should have exercised greater diligence in order to have discovered the absence of this witness.
The appellant’s claim is one of constitutional proportion and we have considered the argument in light of United States Supreme Court cases on the subject. That court has recognized in double jeopardy claims the difficulty of categorizing cases and the inadequacy of any standard formula, to the end that each case must turn largely on its own facts. Arizona v. Washington, 434 U.S. 497 (1978); Illinois v. Somerville, 410 U.S. 458 (1973). In Arizona v. Washington, noting the importance of a defendant’s right against double jeopardy and the fact that it is frustrated when a mistrial occurs, Justice Stevens wrote for the majority, “[T]he prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. . . . Thus, the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence. . . .” In the same vein, the court has also warned of the danger of error originating with the government that would lend itself to prosecutorial manipulation. Illinois v. Somerville, supra. In discussing the need for examining prosecutorial error, both Arizona and Somerville cite Downum v. United States, 312 U.S. 734 (1963). In Downum, material prosecution witnesses were absent at the start of trial, but the prosecution had not subpoenaed these witnesses and knew they were unavailable when it announced ready for trial. A mistrial was granted and the Supreme Court held that further prosecution was barred.
Here we do not find the same potential for prosecutorial manipulation as in Downum. The evidence demonstrates the prosecution’s care in preparation for trial in combination with the unforeseeable absence of the witness. The requirement of diligence on the part of the prosecution has not been loosely applied, see Cody, supra, and we find it comes within the standard of strict scrutiny noted in Arizona. As discussed earlier, the prosecution in this case came within that standard.
The order appealed from is affirmed.
Dudley, J., and Newbern, J., dissent. Purtle, J., not participating.