Brown v. State

• Decision Date: 13 March 2020
• Docket Number: A19A2359
• Citation: 354 Ga.App. 493,841 S.E.2d 125
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

354 Ga.App. 493

841 S.E.2d 125

BROWN

v.The STATE.

A19A2359

Court of Appeals of Georgia.

March 13, 2020

Paul Earle Bartels, Atlanta, for Appellant.

Keith Elliott Gammage, Kenneth D. Kondritzer, for Appellee.

McFadden, Chief Judge.

This appeal challenges the denial of a plea in bar which asserted double jeopardy grounds after the first trial of the defendant ended with the trial judge’s sua sponte declaration of a mistrial due to a violation of the rule of sequestration. Because there was no manifest necessity for a mistrial, the defendant may not be tried again on the same charges. Accordingly, the trial court erred in denying the plea in bar.

1. Facts and procedural posture.

Jasmine Brown was charged by accusation with two counts of battery and four counts of reckless conduct arising out of an altercation that allegedly occurred on November 3, 2016. The case proceeded to a jury trial on March 23, 2018. At the outset of the trial, Brown’s counsel invoked the rule of sequestration, and the trial court instructed any witnesses in the case to leave the courtroom. The state then presented its case-in-chief and rested.

As the defense prepared to call its two witnesses, who were located in a conference room adjacent to the courtroom, the judge indicated that the door to the conference room had not been closed. The judge sent the jury to the jury room, brought the two defense witnesses into the courtroom, and asked them how long they had been in the conference room. Both witnesses indicated that they had been in the room approximately two hours. The judge asked if they had been able to hear her voice from the conference room. One of the witnesses said, "A little, but I wasn’t paying attention." And the other witness replied, "It goes, but it wasn’t clear."

The judge then asked the state if it had a motion. The state’s attorney did not make a motion, but she said that there was a question about whether the rule of sequestration had been violated and noted that one of the witnesses was also charged with offenses arising out of the alleged altercation. When the state’s attorney continued discussing that witness, the trial judge cut her off and sua sponte declared a mistrial. The judge announced: "This case is mistried. I’m declaring a mistrial at this moment. The case is mistried and I will consider rescheduling as well as any other additional matters next week." The judge then called the jurors back into the courtroom, told them that there was a mistrial because there had been a violation of the rule of sequestration, and dismissed the jury.

After the jury had left, the court reporter told the judge that she thought the two witnesses had approached her after lunch and asked "in general how they would go about getting what was said in the trial." The judge indicated that she appreciated that matter being put on the record, but that she wanted to get back to the issue at hand, which was the rule of sequestration. The judge then announced that there had been a violation of that rule, that she found the violation to be the responsibility of defense counsel, and that she was holding both defense attorneys in contempt of court. The judge refused the attorneys’ request for a hearing at a later date with the assistance of counsel and asked them if they had anything "to say about the actual contempt at this time[.]" After both attorneys denied being in contempt, the judge reiterated her earlier finding of contempt, fined each of them $175, and adjourned the proceedings.¹

Brown subsequently filed a plea in bar, claiming that the trial judge had improperly declared a mistrial and thus any subsequent prosecution of the case against her is barred by double jeopardy. After a hearing, the trial judge denied the plea in bar. In her written order, the judge estimated that the door of the conference room was located approximately twenty-five to thirty feet from the witness stand and that the door had been open approximately four to six inches during the trial proceedings. The judge found, based on her brief questioning of the two defense witnesses at trial, that they had in fact heard the testimony of the state’s witnesses. The judge concluded that she had the discretion to declare a mistrial based on such a violation of the rule of sequestration and that subsequent "[p]rosecution of the case is not barred by double jeopardy." Brown appeals from that ruling.

2. Double jeopardy.

Brown asserts that the trial judge erred in denying her plea in bar because the double jeopardy provisions of the federal constitution, the Georgia constitution, and the Georgia code prohibit another trial on the same charges after the mistrial.

In determining whether a second trial is permitted on the same charges following a mistrial, our case law has treated all forms of double jeopardy claims, whether under the Constitution of the United States, under the Georgia Constitution, or under the Georgia Code, in a manner consistent with case law from the United States Supreme Court regarding the Fifth Amendment, and we do so below regarding [Brown’s] claims.

Carman v. State , 304 Ga. 21, 25 (2), 815 S.E.2d 860 (2018).

"The Double Jeopardy Clause of the Fifth Amendment, which applies to the states through the Fourteenth Amendment, says ‘[n]o person shall be ... subject for the same offence to be twice put in jeopardy of life or limb.’ " Meadows v State , 303 Ga. 507, 510 (2), 813 S.E.2d 350 (2018) (citations and punctuation omitted). See also Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII ("No person shall be put in jeopardy of life or liberty more than once for the same offense. ..."); OCGA § 16-1-8 (a) (2) ("A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution ... [w]as terminated improperly after the jury was impaneled and sworn[.] ).

[P]rotection against double jeopardy recognizes the valued right of a criminally accused, once [her] jury has been sworn and impaneled and thus jeopardy has attached, to have [her] trial proceed to acquittal or conviction before that tribunal. The trial judge, therefore, must always temper the decision whether or not to abort a trial by considering the importance to the defendant of being able, once and for all, to conclude [her] confrontation with society through the verdict of a tribunal [she] might believe to be favorably disposed to [her] fate. For these reasons, to avoid barring a second trial, the court may declare a mistrial without a defendant’s consent or over [her] objection only when taking all the circumstances into consideration, there is a manifest necessity for doing so, which means a high degree of necessity.

Meadows , supra at 511 (2), 813 S.E.2d 350 (citations and punctuation omitted). "Because of the severe consequences of ordering a mistrial without the accused’s consent, a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives[.]" Smith v. State , 263 Ga. 782, 783 (1), 439 S.E.2d 483 (1994) (citations and punctuation omitted). See also Fugitt v. State , 253 Ga. 311, 315 (E), n. 3, 319 S.E.2d 829 (1984) ("Unique problems arise when the court grants a mistrial ... on the court’s own motion. [Cit.]").

In this case, there was no manifest necessity for the trial judge’s sua sponte declaration of a mistrial based on the finding of a purported violation of the rule of sequestration. Our current statutory rule regarding sequestration of witnesses provides, in pertinent part, that "at the request of a party the court shall order witnesses excluded so that each witness cannot hear the testimony of other witnesses, and it may make the order on its own motion." OCGA § 24-6-615.² "(T)he purpose of the sequestration rule is to prevent the shaping of testimony by one witness to match that of another, and to discourage fabrication and collusion." Davis v. State , 299 Ga. 180, 185 (2) (a), 787 S.E.2d 221 (2016) (citation and punctuation omitted). Accord Jones v. State , 302 Ga. 488, 493 (3) n. 5, (807 S.E.2d 344) (2017). But the "[f]ailure of a witness to comply with the sequestration rule does not of itself render his testimony inadmissible, although it may affect the weight of the testimony[.]" United States v. Suarez , 487 F.2d 236, 238 (5th Cir. 1973).

[W]hen the rule of sequestration has been invoked and a witness violates it, the trial court may respond in at least three ways: (1) it may cite the guilty party for contempt; (2) it may allow opposing counsel to cross-examine the witnesses as to the nature of the violation; or (3) where counsel or the witness violates the rule intentionally, the court may strike testimony already given or disallow further testimony. The [trial] court’s denial of a mistrial for violation of the sequestration rule is a matter of discretion and reversible only on a showing of prejudice.

Davis , supra at 188, 787 S.E.2d 221 (2) (a). "To justify either declaring a mistrial or granting a new trial for a violation of [the rule of sequestration], there must be a showing that [a party’s] right to a fair trial was prejudiced by the violation." United States v. Green , 2015 WL 3440424 at *11 (II) (b), 2015 U.S. Dist. LEXIS 69000 at *29-30 (II) (b) (M. D. Fla. 2015) (construing and applying Eleventh Circuit decisions).

In this case, there was no showing that the state’s right to a fair trial was prejudiced by the alleged violation of the rule of sequestration. As an initial matter, there is no evidence that the rule was actually violated. The record shows only that at some point the two defense witnesses could hear the judge’s voice from the conference room. But there is no evidence of any specific testimony that was overheard, no evidence as to what the two defense witnesses’ own testimony would have been, and no showing that their testimony would have been shaped to match the testimony of others. "U...