Swanson, J.
—Clell Jones appeals a judgment and sentence entered upon his conviction by a jury of first-degree murder. His principal contentions on appeal are that the trial court erred in (1) declaring a mistrial in violation of the double jeopardy clause, (2) permitting the information [3] against Jones to be amended, and (3) allowing a statement to be admitted into evidence under the excited utterance exception to the hearsay rule. We affirm.
Jones was originally charged with second-degree murder, RCW 9A.32.050(l)(a), but after the jury was impaneled and sworn, the State discovered new evidence and moved to amend the information to charge first-degree premeditated murder and first-degree felony-murder. The alleged underlying felony was first-degree rape. Jones opposed the motion, arguing that he would be prejudiced in the presentation of his case if amendment were allowed at that point in the proceedings. Jones also expressed dissatisfaction with his attorney and requested substitute counsel.1
The court tentatively indicated that both the State's motion to amend and the defendant's motion to substitute counsel should be granted and suggested a mistrial might be required. The State opposed a mistrial and argued that a continuance was the proper course of action. Jones, while maintaining his objection to the amendment, agreed that, if it were allowed, a continuance would be necessary.
During the argument, the bailiff informed the court that a juror had overheard a comment by a person the juror believed to be a prospective witness. The overheard comment was, "If he's not convicted, I'll have to move to Cuba." Examination of this juror revealed that no other juror had overheard or been told about this statement.
[4] The trial court deferred ruling on any of these issues until all had been raised. Ruling first on the motion to amend, the court granted the motion and Jones was arraigned on a charge of first-degree murder. RCW 9A.32-.030(1)(a) and (c). Next, on the motion to substitute counsel, the court found serious conflicts between Jones and his attorney and instructed the director of the Office of Public Defense to secure a new lawyer for Jones. Turning then to the question of the juror who overheard the statement, the court concluded "he would not be a proper juror" and would have to be excused from the panel. No alternate jurors had been selected, so the panel was reduced to 11 people.
The trial judge then sua sponte declared a mistrial, concluding that the interests of justice required such action because (1) the charge was amended to first-degree murder, (2) time was required for substitute counsel to prepare Jones' defense, and (3) the trial could not proceed with an 11-person jury. Prior to the second trial, Jones' motion to dismiss on the basis of double jeopardy was denied.
Jones first contends that constitutional double jeopardy principles require dismissal of the charge against him because there was no manifest necessity to declare a mistrial.
Under the United States Constitution and our state constitution, no person may be twice placed in jeopardy for the same offense. State v. Eldridge, 17 Wn. App. 270, 562 P.2d 276 (1977). The purpose of the double jeopardy clause has been explained as follows:
The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . .
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to [5] embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 78 S. Ct. 221, 61 A.L.R.2d 1119 (1957).
We note initially that jeopardy had attached in this case as the jury had been impaneled and sworn. State v. Eldridge, supra. The attachment of jeopardy does not automatically preclude the discharge of that jury, but a new trial before another jury is permitted only where "there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated." United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824). We are mindful of the holding in United States v. Jorn, 400 U.S. 470, 485, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971) that:
[i]n the absence of [a motion by the defendant for mistrial], the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option [to have his case tried before a particular tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.
Careful scrutiny of a mistrial is required where there is evidence of bad faith conduct by judge or prosecutor or there is any reason to believe the superior resources of the State are being used to harass or achieve a tactical advantage over the accused. Arizona v. Washington, 434 U.S. 497, 54 L. Ed. 2d 717, 98 S. Ct. 824 (1978). Absent such evidence, however, a trial court's finding of manifest necessity should be accorded the highest degree of respect. Arizona v. Washington, supra; State v. Eldridge, supra.
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Swanson, J.
—Clell Jones appeals a judgment and sentence entered upon his conviction by a jury of first-degree murder. His principal contentions on appeal are that the trial court erred in (1) declaring a mistrial in violation of the double jeopardy clause, (2) permitting the information [3] against Jones to be amended, and (3) allowing a statement to be admitted into evidence under the excited utterance exception to the hearsay rule. We affirm.
Jones was originally charged with second-degree murder, RCW 9A.32.050(l)(a), but after the jury was impaneled and sworn, the State discovered new evidence and moved to amend the information to charge first-degree premeditated murder and first-degree felony-murder. The alleged underlying felony was first-degree rape. Jones opposed the motion, arguing that he would be prejudiced in the presentation of his case if amendment were allowed at that point in the proceedings. Jones also expressed dissatisfaction with his attorney and requested substitute counsel.1
The court tentatively indicated that both the State's motion to amend and the defendant's motion to substitute counsel should be granted and suggested a mistrial might be required. The State opposed a mistrial and argued that a continuance was the proper course of action. Jones, while maintaining his objection to the amendment, agreed that, if it were allowed, a continuance would be necessary.
During the argument, the bailiff informed the court that a juror had overheard a comment by a person the juror believed to be a prospective witness. The overheard comment was, "If he's not convicted, I'll have to move to Cuba." Examination of this juror revealed that no other juror had overheard or been told about this statement.
[4] The trial court deferred ruling on any of these issues until all had been raised. Ruling first on the motion to amend, the court granted the motion and Jones was arraigned on a charge of first-degree murder. RCW 9A.32-.030(1)(a) and (c). Next, on the motion to substitute counsel, the court found serious conflicts between Jones and his attorney and instructed the director of the Office of Public Defense to secure a new lawyer for Jones. Turning then to the question of the juror who overheard the statement, the court concluded "he would not be a proper juror" and would have to be excused from the panel. No alternate jurors had been selected, so the panel was reduced to 11 people.
The trial judge then sua sponte declared a mistrial, concluding that the interests of justice required such action because (1) the charge was amended to first-degree murder, (2) time was required for substitute counsel to prepare Jones' defense, and (3) the trial could not proceed with an 11-person jury. Prior to the second trial, Jones' motion to dismiss on the basis of double jeopardy was denied.
Jones first contends that constitutional double jeopardy principles require dismissal of the charge against him because there was no manifest necessity to declare a mistrial.
Under the United States Constitution and our state constitution, no person may be twice placed in jeopardy for the same offense. State v. Eldridge, 17 Wn. App. 270, 562 P.2d 276 (1977). The purpose of the double jeopardy clause has been explained as follows:
The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . .
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to [5] embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 78 S. Ct. 221, 61 A.L.R.2d 1119 (1957).
We note initially that jeopardy had attached in this case as the jury had been impaneled and sworn. State v. Eldridge, supra. The attachment of jeopardy does not automatically preclude the discharge of that jury, but a new trial before another jury is permitted only where "there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated." United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824). We are mindful of the holding in United States v. Jorn, 400 U.S. 470, 485, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971) that:
[i]n the absence of [a motion by the defendant for mistrial], the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option [to have his case tried before a particular tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.
Careful scrutiny of a mistrial is required where there is evidence of bad faith conduct by judge or prosecutor or there is any reason to believe the superior resources of the State are being used to harass or achieve a tactical advantage over the accused. Arizona v. Washington, 434 U.S. 497, 54 L. Ed. 2d 717, 98 S. Ct. 824 (1978). Absent such evidence, however, a trial court's finding of manifest necessity should be accorded the highest degree of respect. Arizona v. Washington, supra; State v. Eldridge, supra.
No mechanical rules exist for evaluating a claim that in a particular case the trial court abused its discretion to declare a mistrial. United States v. Jorn, supra; State v. Eldridge, supra. Here, Jones moved to substitute counsel and persuaded the trial court that conflicts with his trial attorney warranted such relief. Granting the motion protected Jones' fundamental rights to counsel and a fair trial. [6] To protect those rights, an indefinitely long delay of the trial was inevitable under the facts of this case. Complicating the situation was the possibility Jones might not approve proceeding with only 11 jurors. See CrR 6.1(b)(2). Assuming such approval were given, continuing the case would then have been literally or technically possible. The uncertainty, however, about when hew counsel could be ready for trial and the likelihood of additional continuances created a grave risk that the remaining jurors would be prejudiced against either Jones or the prosecution. This inevitable delay and risk of prejudice sustain the trial court's declaration of a mistrial even though a continuance might have been technically possible. Arizona v. Washington, supra. The granting of Jones' motion to substitute counsel did, under the facts of this case, warrant the trial court's scrupulously considered decision to declare a mistrial.2
Jones also challenges the trial court's decision to allow the information to be amended to charge first-degree murder.
CrR 2.1(d) states:
The court may permit any information to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced.
A defendant cannot claim error from the amendment of an information unless he can show he was prejudiced thereby. State v. Brown, 74 Wn.2d 799, 447 P.2d 82 (1968).
The amendment of the information in the instant case did not prejudice Jones and was, therefore, proper. An amendment to an information at trial may prejudice a defendant by leaving him without adequate time to prepare a defense to a new charge. See State v. LaPierre, 71 Wn.2d 385, 428 P.2d 579 (1967). Because the trial court declared a mistrial almost immediately after granting the State's [7] motion to amend, Jones and his counsel had ample opportunity to prepare his defense to the new charge. The declaration of a mistrial prevented any prejudice that the amendment, in a different context, might have caused the defendant.
Jones next assigns error to the admission of a statement at trial. Cross-examination of a State witness, Llewellyn Thomas, Jr., an employee of the hotel where the homicide occurred, concerned the reaction of a George Nixon when he and Thomas discovered the victim's body in Nixon's hotel room. The following exchange occurred between defense counsel and Thomas:
Q. How did George [Nixon] react when you saw him . . .? What was his reaction?
A. When I first met him it was just a normal reaction. Once he asked me to open [the door to Nixon's room], that's when he went to hoo hawing and raving a little bit.
Q. What do you mean, hoo hawing and raving? Was he excited?
A. Yeah.
On redirect examination, over objection, the prosecuting attorney asked Thomas to clarify his testimony:
Q. Would you explain to the jury what happened when you started to enter the room?
A. He [Nixon] was raving and hollering about this Jones guy. . . .
Q. You said that he started to say something about Jones. Do you remember what he said?
A. He said this Jones guy—he was raving about him. So that's when I was telling him that he didn't have no business letting nobody use his room because that's against the hotel policy.
Both Nixon and Jones were arrested on suspicion of this murder, and after Jones was charged, Nixon disappeared and was unavailable to be examined at trial. The court ruled Thomas' statement about Nixon's reaction upon discovering the body ("raving and hollering about this Jones guy") was admissible under the excited utterance exception [8] to the hearsay rule. Jones argues that the statement was inadmissible hearsay.
Statements relating to a startling occurrence or event, otherwise inadmissible as hearsay, are admissible if they meet the criteria of the excited utterance exception. Beck v. Dye, 200 Wash. 1, 9-10, 92 P.2d 1113, 127 A.L.R. 1022 (1939). Jones objects that Nixon's statement is inadmissible under this exception because it is a statement of opinion, that Jones was the murderer, rather than a statement of fact. See Beck v. Dye, supra. Thomas' testimony about his response to Nixon's "raving and hollering," however, discloses not that Nixon had accused Jones of the murder but that he had merely told Thomas that he had allowed Jones to use his hotel room. This is a statement of fact, not opinion. The statement likewise satisfies the other elements of the excited utterance exception. Therefore, assuming Nixon's statement was hearsay, i.e., that it was offered to show the truth of the matter asserted in the statement, it was properly admitted under this exception.
Nixon's statement was also admissible, however, on nonhearsay grounds, as evidence of Nixon's state of mind. See State v. Haga, 13 Wn. App. 630, 536 P.2d 648 (1975), cert. denied, 425 U.S. 959, 48 L. Ed. 2d 204, 96 S. Ct. 1740 (1976); 5 Wash. Prac. 389 (1965). Cross-examination of Thomas elicited the testimony that Nixon was "raving" and "excited" upon seeing the victim's body in his room. Jones' apparent theory of the case was that someone else, possibly Nixon, was the murderer. Had the prosecution not been permitted to explore Nixon's reaction further, the defense would have been free to draw the inference in closing argument that Nixon's behavior betrayed a guilty mind. Redirect examination, revealing the reason for Nixon's excitement, brought Nixon's state of mind into clearer focus.
This analysis is consistent with the general rule that a party may examine a witness within the scope of the opposing party's previous examination of that witness. State v. Gefeller, 76 Wn.2d 449, 458 P.2d 17 (1969).
[9] It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it.
Gefeller, supra at 455.
Even if admission of Nixon's statement were error, however, that error would be harmless. The statement "raving and hollering about this Jones guy" falls far short of an accusation against Jones. Indicative of the statement's lack of prejudicial effect is the fact that the prosecution did not mention it in closing argument. Other evidence against Jones, on the other hand, was overwhelming. Testimony established that, on the day of the murder, Jones and the victim were together in Nixon's hotel room and Jones later was seen pursuing a partially clad woman down a corridor of the hotel. A quantity of physical evidence—hair, blood, semen, and food particles—linked Jones to the murder. Jones' alibi defense was effectively discredited by the prosecution. Under these circumstances, Jones would have been convicted even if Nixon's statement had not been admitted. Therefore, if admission of the statement were error, that error would not be prejudicial. State v. Martin, 73 Wn.2d 616, 440 P.2d 429 (1968).
The remaining issues raised by Jones are without merit.3
[10] The judgment is affirmed.
Dore, J., concurs.