with whom CLIFFORD, Justice, joins, dissenting.
This was a close case for the Superior Court. At the first trial, the trial justice in my opinion could well have called the mistrial question either way — he could have declared the mistrial at the time he did, or he could have sent the jury back for more deliberation. And, on the motion to dismiss filed prior to the start of the second trial, the motion justice could have resolved the factual question, whether the first jury had been genuinely deadlocked, either way — he could have found as a fact, as he did, that further deliberation had become futile by the time of the mistrial, or he could have concluded that the jury was not genuinely deadlocked. On appeal we could not say that either finding of fact was clearly erroneous.
In my judgment, however, this case is not a close one for the Law Court. On appeal it is not a close case when we apply the standard of appellate review that is compelled by our past decisions. In reviewing the factual decision of the motion justice, we must recognize, just as the justice had to recognize in making that decision, that “[t]he trial justice is in the best position to weigh all the considerations to determine whether the jury may reach [a verdict]” and that “[a]s a result, the trial justice's decision should be accorded great deference.” State v. McConvey, 459 A.2d 562, 566 (Me.1983). Further, we review the motion justice's finding of fact, that the first jury was genuinely deadlocked, only for clear error. See State v. Friel, 500 A.2d 681, 634 (Me.1985). The clear error standard is a demanding one:
An appellate court can reverse a finding of fact only where (1) there is no competent evidence in the record to support it, or (2) it is based upon a clear misapprehension by the trial court of the meaning of the evidence, or (3) the force and effect of the evidence, taken as a total entity, rationally persuades to a certainty that the finding is so against the great preponderance of the believable evidence that it does not represent the truth and right of the case.
Harmon v. Emerson, 425 A.2d 978, 982 (Me.1981). None of the three branches of Harmon v. Emerson justifies our rejecting the motion justice’s finding of fact that the jury was genuinely deadlocked in defendant Landry’s first trial.
Defendant’s first jury trial in the Superi- or Court (Somerset County, Alexander, J) started on the forenoon of January 10, 1990. The next day, the jury recessed to begin deliberation at 11:38 a.m. At 1:36 p.m. the trial justice received a note from the jury stating that its members were in disagreement on the criminal threatening and witness tampering charges, but had reached a verdict on the assault charge. The trial justice proposed to counsel for the parties that he bring the jury into the courtroom, instruct it that it should keep deliberating because it had not been deliberating for long, and reinstruct it on the two crimes. Counsel agreed.
After receiving the trial justice’s additional instructions, the jury returned to the jury room at 1:43 p.m. to deliberate. During the deliberations that followed, the justice and counsel could overhear, without detecting what was said, loud noise from the jury room indicating what the justice later characterized as “clearly substantial disagreement” and as “sharp disagreement.” At 2:47 p.m. the jury again sent out a note to the trial justice that it was unable to agree to a verdict on the two *104charges. The justice then proposed to counsel that he bring the jury back into the courtroom to take the verdict on the assault charge and to determine if the jury was hung on the other charges. Again, counsel agreed.
In the courtroom the trial justice asked the foreman, “[W]ith respect to each of those [criminal threatening and witness tampering charges], do you think there is any possibility that with further deliberations you might reach a verdict?” The foreman answered, “No.” The trial justice then turned to the other jurors and asked them, “Members of the jury, I will ask you — the rest of you collectively, do you think there is any possibility that with further deliberations you would be able to reach a verdict on those charges?” The transcript then reports: “(At this time, the jury responded.)” Whatever the jurors’ response was, the trial justice commented: “Okay. [They s]eem to be saying that rather emphatically.” Based on his observations of all the individual jurors, the trial justice in the bench conference that immediately followed found the jury to be “emphatically, unequivocally ... in disagreement.” Over only general objections from both counsel, the justice found manifest necessity and declared a mistrial on the criminal threatening and witness tampering charges.
On the evidence before him, the motion justice (Brody, C.J.) committed no clear error in later finding that the jury had been genuinely deadlocked at the first trial. The entire trial had lasted only a little beyond one day and the jury had heard only a few witnesses. During its deliberations, the jury twice notified the court that it was unable to reach a verdict on the threatening and tampering charges. The jurors’ disagreement was made more emphatic and evident by the noise that had come from the jury room during deliberations. Although the members of the jury were not polled one-by-one, the trial justice did determine by a question addressed to all of the jurors that they unanimously and emphatically agreed with the foreman that the jury would not be able to reach a verdict on those two charges. Both the prosecutor and defense counsel entered only general objections to the order of mistrial, emphasizing that time remained in the afternoon, the weather was good for traveling and no emergency existed, and “that it can’t hurt to let them deliberate somewhat longer.” Neither registered any objection to, or voided any disagreement with, the trial justice’s specific statement at the bench after questioning the jurors— “the jury is emphatically, unequivocally, [from] the way they are shaking their heads and looking at me and so forth ... they are in disagreement and are not likely with further deliberations to be able to reach an agreement.” The trial justice was in the unique position to assess, in light of the totality of the circumstances, the jurors’ responses to his inquiry and to infer from them that the jury was genuinely deadlocked. The motion justice later gave appropriate deference to that consideration in making his finding, here being reviewed, that the State had proved manifest necessity because the jury was genuinely deadlocked.
By themselves, our past statements that only an “urgent, manifest or imperious necessity” justifies a trial justice’s declaration of a mistrial do not help much in deciding this appeal. The simple, straightforward question for us is whether the two Superior Court justices were wrong — and clearly so — in finding as a fact that the first jury at 2:47 p.m. on January 11, 1990, was genuinely deadlocked and had no reasonable probability of agreement. See State v. Derby, 581 A.2d 815, 817 (Me.1990). This case is not one where outside factors, such as a storm-created travel emergency or improper juror contacts, might impair the impartiality of the jury deliberations. There is no lack of “imperious” necessity for the mistrial in the present circumstances which gave both of the Superior Court justices full evidentiary support for their conclusions that sending the jury out again would have served no purpose. Of course this appeal might have been avoided if the trial justice had ordered the jury to spend the rest of the afternoon in further deliberations, however clamor*105ous they might become; but the vindication of the constitutional protection against double jeopardy does not depend upon making the first jury go through useless motions for a set length of time. That constitutional guaranty is vindicated by requiring proof of the fact of genuine jury deadlock; where that proof is present, as it plainly is here, the declaration of a mistrial deprived defendant of nothing. His second trial did not violate the double jeopardy clause.
I would affirm the judgments entered in defendant’s second trial convicting him of criminal threatening with a dangerous weapon and tampering with a witness.