       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                          )      No. 76231-1-I
                     Respondent,          )
                                          )      DIVISION ONE                          ifi
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                                                 UNPUBLISHED OPINION              r
TREVOR STUART BUSH,                       )                                                     (-
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                     Appellant.           )      FILED: July 23, 2018
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       BECKER, J. — Trevor Bush was charged with second degree burglary. The—

trial court declared a mistrial in the first trial when the prosecutor commented on

Bush's exercise of his right to remain silent at the time he was arrested. Bush

unsuccessfully sought to dismiss the charge with prejudice under CrR 8.3 for

deliberate government misconduct. In the second trial, Bush was convicted. He

now argues that the doctrine of double jeopardy barred the retrial. But the record

does not support an inference that the prosecutor intended to goad the defendant

into seeking a mistrial or was indifferent to the possibility that her remarks would

cause a mistrial. We affirm.

                                      FACTS

       Douglas Dahl awoke early one April morning in 2016 to the sound of

motion sensor alarms. He heard grinding metal sounds coming from the property

of his neighbor, leading him to call 9-1-1. Shortly thereafter, Dahl heard the
No. 76231-1-1/2

sound of a car ignition. He watched an older dark Ford truck drive past his

house.

       Police arrived in time to stop the truck at the nearest intersection. The

truck belonged to appellant Bush, and he was driving it. He and his two

passengers, Bradley Martin and Gabriel Vogan, were placed under arrest. An

officer found a rototiller, a saw sharpener, and a box of trophies in the bed of the

truck. These items belonged to Dahl's neighbor. Bush was charged with second

degree burglary.

       Bush took the stand on the second day of trial. He testified that on the

morning in question, he and Martin were about to leave for their landscaping job

when Vogan called and asked for a ride. He said he followed Vogan's directions

and saw him standing by the side of the road next to a rototiller and some other

items. He said he helped load the rototiller into the truck and just assumed it

belonged to Vogan until the police arrived and stopped his truck as they were

driving away. Bush testified that as this was happening, Vogan told him that the

stuff was stolen,"and I told him, well, thanks a lot, now I'm going to get in trouble

because of you."

         The State began to cross-examine Bush and eventually worked up to

asking him whether he had told the police officers any of this information at the

time they first started talking to him. Bush objected and moved for a mistrial.

The trial court found the question was in violation of Doyle v. Ohio,426 U.S. 610,

611,96 S. Ct. 2240,49 L. Ed. 2d 91 (1976), and that it was intentional and

deliberate:


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             THE COURT: You asked if he told them. That directly
      implicates his right to remain silent. And it was all intentional. You
      worked your way up to it quite deliberately....
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             • • • And the answer to that question, if it was not objected to,
      would clearly implicate his right to remain silent. And it is an error.
      It's considered an error of constitutional magnitude. And it was
      deliberate. This was not inadvertent....
              . • ..
              ... And the question was clearly intended as evidence of
      guilt, to elicit—it's basically making the point that if you were
      innocent, you would have said something about all this that night.

The court granted Bush's motion for a mistrial.

       Before the second trial, Bush moved for dismissal under CrR 8.3. A

motion to dismiss under that rule is not to be granted absent a showing of actual

prejudice. State v. Michielli, 132 Wn.2d 229, 240,937 P.2d 587(1997). The trial

court found that while the State's questioning was deliberate and prejudicial, the

prejudice would not carry over to the second trial, thus the granting of a new trial

was sufficient remedy. The CrR 8.3 motion was denied.

       A second trial was set for November 21,2016. After two days of

testimony, the jury found Bush guilty of burglary in the second degree. He was

sentenced to a jail term of 10 months.

                                    ANALYSIS

       Bush assigns error to the order denying the motion to dismiss after the

first trial, but he does not make an argument based on CrR 8.3(b). Instead, he

makes a new argument: the prosecution's intentional misconduct in his first trial

required the dismissal under the doctrine of double jeopardy.

       Under the United States Constitution, the circumstances where a

defendant may invoke the bar of double jeopardy in a second effort to try him

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"are limited to those cases in which the conduct giving rise to the successful

motion for a mistrial was intended to provoke the defendant Into moving for a

mistrial." Oregon v. Kennedy 456 U.S. 667,679, 102 S. Ct. 2083,72 L. Ed. 2d

416(1982)(Kennedy I). Oregon law differs in that double jeopardy will bar a new

trial if the prosecutor is merely indifferent to the possibility of a mistrial:

       A retrial is barred by article I, section 12, of the Oregon Constitution
       when improper official conduct is so prejudicial to the defendant
       that it cannot be cured by means short of a mistrial, and if the
       official knows that the conduct is improper and prejudicial and
       either intends or is indifferent to the resulting mistrial or reversal.

State v. Kennedy, 295 Or. 260, 276,666 P.2d 1316(1983)(Kennedy II).

               Under the federal test the trial court must be able to find that
       the State was intentionally trying to provoke a mistrial. To obtain a
       dismissal under the federal test, the critical factor is the trial court's
       perception that the State's case was going badly and the
       prosecutor was looking for an excuse to start over. That perception
       Is not necessarily essential to meet the Oregon standard of
       "indifference". Indifference, analogous to recklessness, occurs
       when the conscious misconduct of a State actor creates a risk of
       mistrial in the absence of actual intent to obtain a second chance to
       try the case.
State v. Lewis, 78 Wn. App. 739, 743, 898 P.2d 874(1995), review denied, 128

Wn.2d 1012(1996). The Washington Supreme Court has not settled whether

the Washington Constitution follows the same standard as the Oregon

Constitution. State v. Hopson 113 Wn.2d 273, 283, 778 P.2d 1014(1989).

       The issue of double jeopardy was not raised before the trial court, and

there was no finding as to the prosecutor's indifference or intent towards a

mistrial. Because the trial court remarked that the improper question was posed

deliberately, Bush urges this court to conclude that, at the very least, the



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prosecutor was indifferent to the possibility of mistrial, placing the prosecutors

conduct within the criteria of the Oregon rule.

       The record does not suggest that the State wanted to abandon the trial out

of fear that it was heading toward an acquittal. The case against Bush was

straightforward: he was pulled over at 4 a.m, driving a truck full of stolen goods.

At the point where the mistrial was declared, the State had introduced photos of

the truck's interior and evidence that the truck contained tin snips, flashlights,

gloves, and screwdrivers as well as a collapsible baton and pepper spray. Bush

successfully challenged the admission of some other items of evidence that the

trial court judged to be either cumulative or irrelevant, but exclusion of such

evidence was foreseeable and routine; it was not a severe blow to the State's

case. The fact that Bush gave exculpatory testimony on his own behalf does not

mean that the State would have seen acquittal as likely. As the State points out,

Bush's argument ignores a key fact: the prosecutor opposed the granting of a

mistrial.

       Nor does the record present circumstances that would require reversal

under the Oregon standard of Kennedy II. The prosecutor, after apologizing to

the court for the improper cross-examination question, attempted to persuade the

court that a curative instruction would be an adequate remedy. There is every

indication that she had hoped to obtain a conviction in the first trial. Objective

facts in the record do not support an inference that she was indifferent to the

possibility of a mistrial, let alone that she was trying to provoke one.




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      Affirmed.


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WE CONCUR:



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