¶ 24 {concurring). I write separately to comment on an issue referred to in ¶ 23— whether counsel acted improperly, as the trial court stated, in giving Moeck's version of events in opening argument and then not presenting evidence of that version. Although Moeck argues that the trial court erred in concluding this was improper, the State does not develop an argument in support of the trial court's conclusion. That is one reason we should not address the issue. However, the more important reason in my view — one that the majority opinion does not mention — is that under State v. Seefeldt, 2003 WI 47, ¶¶ 40-41, 261 Wis. 2d 383, 661 N.W.2d 822, even if a defense counsel's conduct is improper, that is not a basis for a mistrial unless that conduct creates the high degree of necessity required by the double jeopardy clause. In Seefeldt the court held that defense counsel's statements in violation of a pretrial court order were not a basis for a mistrial unless the violation created that high degree of necessity required by the double jeopardy clause. Id., ¶ 40. Thus, whether or not defense counsel here should have done something other than what he did — and I am not suggesting that he should have — the trial court still had an obligation to exercise its discretion by exploring alternatives to a mistrial. See id., ¶ 41. I agree with the majority opinion that the trial court here did not do that.
*744¶ 25. As for the reference in ¶ 23 to a defendant's right not to testify, neither the trial court nor the State has suggested that Moeck did not have the right not to testify. I therefore see no reason to mention this issue.
¶ 26. For these reasons, I respectfully concur.