concurring specially.
While I concur fully in the majority opinion and judgment, I write separately to emphasize the legal framework applicable in double jeopardy cases where the prior case ended in a mistrial due to the unavailability of a critical state witness.
It is true that under certain circumstances, the unavailability of a critical state witness can create a manifest necessity which will allow a mistrial without prohibiting retrial under the Double Jeopardy Clause. See Wade v. Hunter, 336 U. S. 684 (69 SC 834, 93 LE 974) (1949); Spearman v. State, 278 Ga. 327, 329 (1) (602 SE2d 568) (2004); Humphrey v. State, 244 Ga. App. 808, 808-809 (1) (537 SE2d 95) (2000); Spencer v. State, 192 Ga. App. 822, 823-824 (1) (386 SE2d 705) (1989); Davis v. State, 170 Ga. App. 748 (318 SE2d 202) (1984). But “the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence.” (Cita*370tion and punctuation omitted.) Spearman, 278 Ga. at 329 (1). See Arizona v. Washington, 434 U. S. 497, 508 (II) (98 SC 824, 54 LE2d 717) (1978); Spencer, 192 Ga. App. at 823-824 (1). Furthermore, where, as here, the defendant objects to the grant of the mistrial, “[t]he state bears the heavy burden of showing . . . manifest necessity.” (Citation and punctuation omitted.) Johnson v. State, 256 Ga. App. 730, 731 (569 SE2d 625) (2002). See also Arizona, 434 U. S. at 505 (II).
Where a mistrial is granted due to witness unavailability, the central question for determining whether there was manifest necessity is not whether the prosecutor acted in bad faith or was guilty of deliberate wrongdoing. Compare Beach v. State, 260 Ga. App. 399, 400 (579 SE2d 808) (2003) (in cases where a mistrial is granted at the defendant’s request, the defendant must show “that the [s]tate intended to ‘goad’ the defendant into moving for a mistrial in order for the [s]tate to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial”). Rather, the central question is whether the prosecutor was aware that the critical witness was unavailable before the jury was impaneled and sworn. See Arizona, 434 U. S. at 508 (II), n. 24; Downum v. United States, 372 U. S. 734 (83 SC 1033, 10 LE2d 100) (1963). If that question is answered in the affirmative, and a mistrial is later granted on the ground of witness unavailability, a second prosecution is barred. See id. This is because “[t]he prohibition against double jeopardy unquestionably forbids the prosecutor to use the first proceeding as a trial run of his case.” (Citation and punctuation omitted.) Arizona, 434 U. S. at 508 (II), n. 24. Moreover, focusing on the timing of the prosecutor’s awareness protects against a prosecutor simply gambling that he or she will not need a witness to establish a fact at trial, but then seeking a mistrial when the trial court makes an unanticipated evidentiary ruling that suddenly renders the absent witness’s testimony essential to the state’s case. See Laster v. State, 268 Ga. 172, 173 (1) (486 SE2d 153) (1997) (no manifest necessity for a mistrial where “the prosecutor seeks a mistrial to buttress weaknesses in the state’s evidence”).
Based on these principles, I agree with the majority that the trial court did not err in denying the defendant’s plea in bar on double jeopardy grounds. As the majority opinion notes, the trial court made a factual finding that the critical state witness did not become unavailable until after the jury was impaneled and sworn. Because the prosecutor could not have become aware of the witness’s unavailability until that point, the state met its burden of showing manifest necessity for the mistrial. Thus, retrial of the defendant is not prohibited under the Double Jeopardy Clause. See Arizona, 434 U. S. at 508 (II), n. 24; Downum, 372 U. S. at 737-738.
*371DeCided October 7, 2009. Kenya B. Herring, Ashleigh B. Merchant, for appellant. Paul L. Howard, Jr., District Attorney, for appellee.