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Napier v. State11/13/1991
t also recognized that there had been no continuing discovery order filed in the case, finding only an order from the magistrate instructing the State to produce all the evidence in its possession at the time of the order. The State provided a copy of the report during the trial, agreed not to introduce it and offered to produce the witness to be interviewed. Defense counsel rejected any curative efforts by either the court or the prosecutor and insisted on a mistrial, which the court eventually granted. Without passing on the propriety of the State's conduct in general, we can say with certainty that the State's actions were not designed to deliberately "goad" or force Appellant into a mistrial. Accordingly, we do not find the exception stated in Oregon v. Kennedy to be applicable in the present case. The mistrial was granted by the absolute demand of Appellant, thus no violation of Appellant's double jeopardy rights has occurred. Harris v. State, 777 P.2d 1359, 1364 (Okl.Cr. 1989); Johnson v. State, 550 P.2d 984, 987 (Okl.Cr. 1976).
Based on the foregoing, we find that Appellant's conviction for First Degree Manslaughter must be REVERSED AND REMANDED FOR A NEW TRIAL consistent with the dictates of this opinion.
BRETT and PARKS, JJ., concur.
JOHNSON, J., concurs in result.
LUMPKIN, V.P.J., concurs in part/dissents in part.
LUMPKIN, Vice Presiding Judge, concurring in part/dissenting in part:
I concur in the Court's determination that a second trial was not precluded by double jeopardy prohibitions. However, I cannot agree with the Court's analysis of the admissibility of the blood test and reversal of the conviction. The Court is correct in its determination that the operative statutory word in 47 O.S. 1981 § 11-902 [47-11-902] and 47 O.S. 1981 § 751 [47-751], et seq. is "arrest". However, the Court does not address or reconcile the provisions of 47 O.S. 1981 § 751 [47-751](D), and State v. Wood, 576 P.2d 1181, 1183 (Okl.Cr. 1978), with the facts of this case. In addition, it is apparent that the language of Section 11-902 contemplates the arrest of a person as a result of a traffic stop for operating or being in actual physical control of an automobile with the test being administered within two (2) hours of that event.
The Appellant in this case was at times unconscious and other times incoherent on the night of the wreck. The two (2) hour period for purposes of a blood-alcohol analysis must be construed in relation to the time of the offense to which it is relevant. How can an officer effect an "arrest" if a person is injured, unconscious, and undergoing in-patient medical care? What more could the officer have done to preserve the evidence and protect the rights of the Appellant than was done by Trooper Jackson in this situation? While I agree with the judicial requirements of strict construction of our statutes, I find it difficult to apply both the requirement of arrest with the statutory authorization to extract a blood-alcohol sample from an unconscious person and use that evidence if the requirements of Wood are met. The decision by the Court creates more questions than it answers. Since the Court neither distinguishes or overrules Wood, I must dissent to the determination of the inadmissibility of the blood test and the reversal of the conviction in this case.
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