(dissenting).
I respectfully dissent. The majority has correctly stated the standard of review in this appeal: Did the trial court abuse its discretion in determining there was manifest necessity in declaring a mistrial? On review, the propriety of a trial court’s determination that manifest necessity exists to justify a mistrial declaration is measured by the specific facts of each case. United States v. Sisk, 629 F.2d 1174 (6th Cir.1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 871, 66 L.Ed.2d 809 (1981). Applying the same constitutionally-mandated principles the majority has applied, I have concluded that under the particular facts of this appeal, the record clearly shows the trial court abused its discretion.
The majority concedes the state “must shoulder a heavy burden to justify the mistrial if the double jeopardy bar is to be avoided[,]” citing Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Absent in the majority’s application of this constitutional principle, however, is the rigid standard by which we measure whether the state has met its burden. This standard was aptly stated in Arizona v. Washington:
The words “manifest necessity” appropriately characterize the magnitude of the prosecutor’s burden * * *. Indeed, it is manifest that the key word “necessity” cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a “high degree” before concluding that a mistrial is appropriate.
Id. at 505-06, 98 S.Ct. at 830-31.
The majority, citing Arizona and State v. Messier, 101 N.M. 582, 686 P.2d 272 (Ct.App.1984), additionally concedes that, although explicit findings on the presence of mánifest necessity are not dispositive of the issue before this court, the record must nonetheless provide “sufficient justification for the granting of the mistrial.” Arizona v. Washington (entry in record of findings and explanation of reasons supporting trial court’s declaration of mistrial, although facilitating review by appellate court, is not essential if the basis for mistrial declaration is adequately disclosed by record, including extensive argument of counsel before judge’s ruling). State v. Messier (explicit findings of manifest necessity, although strongly recommended, not determinative, if record provides sufficient justification for mistrial declaration, including the trial court’s consideration of other reasonable alternatives). State v. Saavedra, 108 N.M. 38, 766 P.2d 298 (1988) (trial judge’s exercise of discretion should not be overruled absent clear indication he failed to engage in scrupulous exercise of judicial discretion, including due consideration of possible alternatives). Saavedra is our supreme court’s most recent pronouncement on the issue before us.
Arizona, Messier and Saavedra all have a significant, common thread: the record in each case clearly indicated (1) the basis for the mistrial or (2) that the trial court considered other viable alternatives. These requirements, then, were essentially satisfied in those three cases. Without detailing the precise steps taken by the respective trial courts in those cases, I need only state they were substantial. What the trial courts did there, when compared with what the trial court did not do here, distinguishes this case materially. The record in this appeal is sorely lacking of any hint whatsoever that the trial court ever considered other alternatives.
In this regard, the majority recognizes that the trial court’s “vitriolic outburst in his sua sponte declaration of a mistrial was inappropriate” and not to be condoned. Notwithstanding this recognition, the majority nevertheless gives undue weight to the in-chambers proceeding at which the trial court heard the state’s motion in limine seeking to exclude opinion testimony of two police officers. I submit that in so doing, as well as in concluding that Officer Garcia’s uninvited, unsolicited comment seriously prejudiced the state’s case, the majority is performing judicial “cosmetic surgery” on the trial court’s conduct. The record reflects a total absence of reflection on the part of the trial court in consideration of other alternatives to a mistrial. Instead, its ruling at the in-limine hearing, although not approaching the ill-advised behavior that the majority itself categorizes as “vitriolic,” was spontaneous, if not regrettably impulsive, and did not represent the thought and consideration employed by the respective trial courts in Arizona, Messier and Saavedra.
There is one other, important element in this appeal that necessitates reversal. The reasoning of the majority, to a great extent, rests on what it contends was defense counsel’s “misconduct” in eliciting Officer Garcia’s opinion testimony concerning the victim’s credibility or veracity. Porter v. Ferguson, 324 S.E.2d 397 (W.Va.1984), relied on by the majority in this connection, is factually distinguishable. In upholding the trial court’s sua sponte mistrial declaration in Porter, the reviewing court emphasized defense counsel’s clearly improper conduct in intentionally violating the trial court’s in-limine order. The record in this appeal, on the other hand, is not only repleat of any affirmative showing of such misconduct, but instead indicates the contrary. Such misconduct, when present, has consistently been a significant underlying fáctor in reviewing court’s upholding of a trial court’s mistrial declaration, as was the case in Porter.
In reviewing the audio tapes of the in-limine hearing and that segment of the trial involving Officer Garcia’s unsolicited remark and the exchange that transpired between counsel and the trial court, I deduced no showing of misconduct, only the trial court’s notion that there had been. The trial court’s perception was tainted, I believe, by what it interpreted as a direct, personal attack on its prior ruling. It is the epitome of irony that the trial court’s conduct, in the presence of the jury, itself formed the basis for a mistrial, had defendant chosen to request one. In this connection, I fail to see the significance the majority attributes to the fact that defense counsel requested a mistrial on three previous occasions. That fact, to my knowledge, has never been' relevant in resolving the issue before us.
In performing the cosmetic surgery I noted earlier, the majority has now joined the trial court’s company in concluding that defense counsel prodded for the allegedly inadmissable and damaging testimony. I disagree with this interpretation of what occurred in the trial proceeding. Not only was the opinion testimony nonresponsive to defense counsel’s question, but defense counsel, after the trial court’s mistrial declaration, painstakingly explained his motives and intentions on the record. What follows is my understanding of this explanation.
The victim, Tammy Lewis, had previously testified that the state police (which included Officer Garcia) had attempted to dissuade her from filing a complaint. She also stated the police had maintained they could not pursue the matter because the case was not within their jurisdiction. In an attempt to discredit the victim, defense counsel sought to elicit testimony from Officer Garcia to the effect that neither he nor anyone else ever attempted to discourage the victim from “filing a complaint.” The lead-up questions to the ultimate question that unfortunately led Officer Garcia to offer the allegedly inadmissable testimony reasonably indicate that was defense counsel’s intent.
Defense counsel also reminded the trial court that its ruling on the motion in limine pertained only to another officer, not Officer Garcia, and that defense counsel had stated at that hearing he never intended to procure the opinion testimony from Officer Garcia. The basis for this decision was that, to counsel’s knowledge, Officer Garcia had never held any opinion of the victim’s veracity. Counsel explained he thought of warning the officer not to give any kind of opinion testimony, but that when the officer had entered the courtroom, counsel did not want to admonish him, lest the jury conclude he was inappropriately “coaching” him.
Counsel informed the trial court that when he realized Officer Garcia’s answer was nonresponsive to the specific question asked, he did not stop him because he did not want the jurors to think he was trying to keep something from them. He explained further that when Officer Garcia’s answers previously had been nonresponsive to the state’s questions on direct examination, he (defense counsel) decided not to object, for fear the jury would believe he did not want damaging testimony' to be introduced. Thus, in my judgment, there is absolutely nothing in the record indicating defense counsel was guilty of misconduct, but only the trial court’s personal opinion that counsel purposely and intentionally, in violation of the in-limine order, went on a fishing expedition for the damaging testimony.
I conclude there was an absence in this appeal of manifest necessity and would therefore reverse defendant's convictions.