dissenting.
Although I concur with the majority’s holding that mandamus is available under these circumstances, I do not agree that the trial court erred in holding that a mistrial was not necessary in the original trial.
The majority states, correctly, that the test is whether “manifest necessity” required the termination of the original trial before verdict. However, I do not believe that the majority applied that test properly here. As the court pointed out in State v. Cole, 286 Or 411, 423, 595 P2d 466, cert den 444 US 968 (1979), there are two kinds of necessity in double jeopardy cases involving the granting of mistrials over defense objections— “physical necessity” and the “necessity of doing justice.” When, as in Cole, the trial is terminated as a result of the illness of the trial judge, the necessity falls in the “extreme end” of the spectrum; in such a case, the trial judge “would be allowed to exercise ‘broad discretion’ “ and a “flexible standard of review” is applicable. 286 Or at 424.
This case is not one of “physical necessity” allowing the trial judge “broad discretion” to which we apply a “flexible standard of review,” as the majority appears to hold. Rather, it is claimed to be one in which a mistrial was justified because prejudicial conduct made it “impossible to proceed with the trial without injustice to either the defendant or the State.” ORS 131.525(2)(c). In this kind of case, the trial judge’s discretion is not so broad, and the prosecutor has a heavy burden to show “manifest necessity” if he is to avoid the bar of former jeopardy. In Arizona v. Washington, 434 US 497, 505, 98 S Ct 824, 54 L Ed 2d 717 (1978), the Supreme Court said:
“[I]n view of the importance of the [defendant’s] right [not to be put twice in jeopardy] and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate *98‘manifest necessity’ for any mistrial declared over the objection of the defendant.”
Here, although I agree that defense counsel’s jury type argument was both premature and inappropriate, his questions to the arresting officer were intended to show that the police report stated that defendant was wearing cowboy boots with 1-1/2 inch heels, which might have affected his performance of the field sobriety tests administered by the officer. If the police report showed that fact, and if the prosecutor had not brought that out on direct examination, defense counsel could have argued those facts to the jury. If, on the other hand, the police report did not state that defendant was wearing high-heeled boots, then defense counsel’s inappropriate response to the trial judge’s question might have worked to the state’s advantage and to defendant’s disadvantage. Not only was counsel’s argument premature, so was the trial judge’s granting a mistrial.
In any event, the prosecutor did not carry his “heavy burden” of establishing that it was “impossible to proceed with the trial without injustice * * * to the state,” ORS 131.525(2)(c), or the “manifest necessity” of terminating the trial over defendant’s objection. An admonishment to defense counsel and an instruction to the jury to disregard counsel’s statement would have been sufficient to maintain the balance of justice. The trial court in this proceeding so held, and I would affirm.
Accordingly, I dissent.