concurring.
I concur in the result reached by the court. I have two problems with Judge Coats’ reasoning which in my view justify a separate opinion.
The Alaska Constitution article 1, section 9 provides, in relevant part:
No person shall be put in jeopardy twice for the same offense.
I am satisfied that, under the peculiar circumstances of this case, the claim that Travis Williams killed Thomas Andrus and the claim that Williams tampered with evidence regarding the killing of Andrus constituted “the same offense.” Williams’ acquittal of murder therefore bars further prosecution for tampering with evidence. I reach this conclusion because I am convinced that our Alaska Constitution precludes subjecting a defendant to separate trials for multiple offenses based on the same conduct arising from the same criminal episode if such offenses are known to *225the appropriate prosecuting officer' at the time of the commencement of the first trial and are within the jurisdiction of a single court. I am satisfied that Alaska Constitution article 1, section 9, properly interpreted, incorporates the substance of Model Penal Code § 1.07(2).1 I reach the conclusion that our state constitution should be interpreted in this way based on Justice Brennan’s reasons for interpreting the United States Constitution to reach this end. See Ashe v. Swenson, 397 U.S. 436, 453-54, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469, 481 (1970) (Brennan, J., concurring). See also Brown v. Ohio, 432 U.S. 161, 170, 97 S.Ct. 2221, 2227-28, 53 L.Ed.2d 187, 197 (1977) (Brennan, J., concurring). This principle requiring compulsory joinder which is found in the Model Penal Code and in Uniform Rule of Criminal Procedure 471 (Approved Draft 1974) has received substantial attention in the reported cases and should present no problems in interpretation or application.2
I am troubled by Judge Coats’ rationale because I see little utility in adding a requirement that the two cases involve exactly the same evidence before a successive prosecution is barred. I am particularly troubled that the same evidence test might permit re-prosecution where the same criminal-episode test would bar it and, conversely, bar re-prosecution where the same criminal-episode test would permit it.3 But no one could tell for sure until the trial of the first case was completed, a new prosecution brought and prosecuted, and the defendant’s appellate remedies exhausted. Uncertainty regarding the same evidence test makes it unacceptable as a device to prevent the harassment and uncertainty which Alaska Constitution article 1, section 9 is intended to prevent.
My second concern is limited to the facts of this case. The constitutional rule that I would adopt is subject to a number of exceptions. The following exception is of specific significance here.
Model Penal Code § 1.07(3) provides:
Authority of Court to Order Separate Trials. When a defendant is charged with two or more offenses based on the same conduct or arising from the same criminal episode, the Court, on application of the prosecuting attorney or of the defendant, may order any such charge to be tried separately, if it is satisfied that justice so requires.
*226Model Penal Code § 1.07(3) (Proposed Official Draft 1962).
I assume Judge Coats would recognize this principle as well since he says:
In this case the prosecution could have avoided any double jeopardy problems by charging the tampering offense before Williams was tried for murder. At least then Williams could have moved to consolidate the trial so that he would not be tried twice on essentially the same evidence.
State v. Williams, 704 P.2d at 222. I assume the converse would be true as well and that if the charges had been initially joined and Williams had moved for a severance, Judge Coats would find further prosecution permissible. See Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality opinion: A defendant waives double jeopardy challenge to successive prosecution if charges originally joined and he successfully obtains a severance). While first-degree murder and tampering with evidence were not joined in a single charging document against Williams, the prosecution did seek to have the jury which considered the homicide charges also consider the tampering with evidence charges as a lesser-included offense, and Williams objected. Judge Rowland sustained Williams’ objection and would not instruct on the charges subsequently brought against Williams. Despite the fact that all parties agreed at the time that tampering was not a lesser-included offense,4 Williams’ refusal to allow his first jury to consider these charges substantially undercuts his current claim that re-prosecution subjected him to unconstitutional harassment and mental suffering. I do not understand Williams’ objection to have been based on a contention that time constraints made him unable to meet the tampering charge at his first trial. Nevertheless, the protection of the double jeopardy clause may be waived but it cannot be forfeited. See Lemon v. State, 654 P.2d 277, 280 (Alaska App.1982). While a persuasive argument could be made that Williams waived the protection of the double jeopardy clause by objecting to jury instructions on hindering prosecution at his first trial on the basis of Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), the state has not made that argument either here or in the court below, and the trial court has not passed on it. It would be inappropriate to recognize it sua sponte in this appeal. I therefore join in the decision affirming Judge Moody’s dismissal of the indictment against Williams.
. Model Penal Code § 1.07(2) provides:
(2) Limitation on Separate Trials for Multiple Offenses. Except as provided in Subsection (3) of this Section, a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.
Model Penal Code § 1.07(2) (Proposed Official Draft 1962).
I do not suggest that the drafters of our constitution had the Model Penal Code in mind when they chose the language that would become article 1, section 9. Clearly, they did not. I am convinced, however, that they sought to prevent the same evils addressed by this section of the Model Penal Code. Consequently, our constitution, rightly interpreted, forbids successive prosecutions, at least to the extent precluded in the Penal Code provision.
. It is true that the Alaska Supreme Court has adopted rules of criminal procedure including a speedy-trial rule which do not require compulsory joinder. I agree that the supreme court has, at least in connection with rule making, implicitly rejected compulsory joinder. I am satisfied, however, that when the supreme court considers the issue for the first time, it will accept the force of Justice Brennan’s arguments at least in the context of successive prosecutions.
.As the Supreme Court noted in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the question of when successive prosecutions should be permissible is entirely separate from the question of when multiple convictions or sentences should be permitted for charges tried together. Consequently, the Alaska Supreme Court's decision in Whitton v. State, 479 P.2d 302, 312 (Alaska 1970), which considers the latter question, does not provide guidance in dealing with the former. While the supreme court in Whitton expresses doubts about a same-transaction test in connection with multiple convictions and punishments, it does not consider the test in connection with successive prosecutions. I would have no problem with the state prosecuting, convicting, and obtaining separate punishments for murder and tampering with the evidence so long as both charges were prosecuted in a single preceeding.
. I assume tampering and murder in context address different societal concerns and therefore the former is not a lesser of the latter even under the cognate theory.