Carman v. State

• Decision Date: 18 June 2018
• Docket Number: S18A0586
• Citation: 304 Ga. 21,815 S.E.2d 860
• Court: Georgia Supreme Court
• Parties: CARMAN v. The STATE.

304 Ga. 21

815 S.E.2d 860

CARMAN

v.The STATE.

S18A0586

Supreme Court of Georgia.

Decided: June 18, 2018

Gabrielle A. Pittman, Kimberly A. Staten-Hayes, Christian G. Lamar, Christina P. Rudy, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

HINES, Chief Justice.

Demario Carman, along with three other men, was indicted for murder, armed robbery, and related crimes in connection with the death of Vanessa Thrasher at O.T.’s Lounge in Atlanta, Fulton County, Georgia, on August 16, 2012. The State gave notice of its intent to seek the death penalty, and the guilt/innocence phase of Carman's trial began on November 17, 2014. As outlined in more detail below, the trial court declared a mistrial during the latter half of the guilt/innocence phase of Carman's trial. In this appeal, Carman contends that his right not to be subjected to double jeopardy and his right to counsel of his choosing would be violated if he were subjected to a new trial following the mistrial. For the reasons set forth below, we affirm the trial court's denial of Carman's plea in bar, and we thereby return jurisdiction to the trial court for the purpose of its conducting a new trial.¹

1. At a hearing held on January 28, 2013, the trial court approved Christian Lamar to serve as lead counsel for Carman and Kimberly Staten-Hayes to serve as co-counsel, and they represented Carman throughout the nearly two years of his pretrial proceedings and trial preparation. On October 24, 2014, which was just 11 days before voir dire began, Gabrielle Pittman filed a notice of appearance to join the defense team.

The jury was sworn and testimony began on Monday, November 17, 2014. The trial court had previously announced its intention to conduct the trial until the end of the day on Tuesday, November 25, and then to take a recess for Thanksgiving from Wednesday, November 26, up to and including Monday, December 1. However, on Wednesday, November 19, just before 11:00 a.m., the testimony of the ninth of the State's anticipated 18 witnesses for its case-in-chief in the guilt/innocence phase was interrupted when Ms. Staten-Hayes approached the bench off the record and the trial court dismissed the jury. Ms. Staten-Hayes informed the trial court on the record that she had approached the bench because of an evidentiary matter, which the trial court ruled on. The trial court then ordered a recess to last approximately 15 minutes.

After the recess, the trial court announced, "we have had an emergency occur," explaining:

Ms. Staten-Hayes received a communication when we were on the break that her niece attempted to commit suicide, and as a consequence of that, she is and—is emotionally distraught, and I can vouch for that because that's the reason you saw me going through the door and going into the women's bathroom.

The trial court announced:

Given Ms. Staten-Hayes's circumstances, we absolutely will not be proceeding today. What is going to occur at this point is I will give both sides an opportunity to state their position about whether I should declare a mistrial or whether this trial should be delayed.

Mr. Lamar informed the trial court that he and Carman's other counsel had discussed the matter with Carman, and Mr. Lamar proposed a 13-day continuance until the Tuesday after Thanksgiving, December 2, which he said would allow him and Ms. Pittman to "come up to speed" in case Ms. Staten-Hayes could not return. The State joined that proposal, but it asked the trial court to ensure that Carman, in seeking the 13-day continuance, was committing "to the fact that if Ms. Staten-Hayes is not in the position to proceed, that he would be willing to proceed with his other counsel of record on December 2."

When questioned by the trial court, Mr. Lamar explained that Ms. Staten-Hayes had been responsible for preparing for the guilt/innocence phase and that Mr. Lamar had been responsible for preparing for the sentencing phase. Mr. Lamar also stated that Ms. Pittman had joined the defense team just two weeks prior to voir dire, that it had been intended that she would participate only in jury selection, that she had done other, unspecified things for the defense since then, and that she would not be prepared to catch up on nearly two years of preparation but could be prepared for "targeted things." Mr. Lamar also stated that his proposal for a continuance was acceptable to Carman personally.

The trial court expressed its concern that the issue of Carman's representation would become an issue on appeal and on habeas corpus, and it noted that the jurors might become "frustrated" and "should not be concerned about any personal issues associated with either side." The trial court continued:

And I understand that as he sits here now, Mr. Carman may very well want to proceed, and I understand why everybody may very well want to proceed because I realize it's been a long road, and people want it over. And they want it to be done. But how it is done matters. It matters for both sides. So I'm sorry that we are where we are, but I cannot, in good conscience, say we will proceed with this trial. Because the fact is Ms. Staten-Hayes has been Mr. Carman's lawyer for the last two years. This case was prepared by Mr. Carman's counsel with the intention that she would be the person who would handle the guilt-innocence phase. Now, I understand that everybody wants to continue, but it would be an injustice to do so, not just to Mr. Carman, but to Ms. Thrasher's [the victim's] family. Because when this is done, it needs to be done for everybody. And if we have to do it again, it should not be because we decided to do what was expedient now at the expense of being able to defend the decisions that we're making. So this trial will end because given Ms. Staten-Hayes's current mental condition, it is this court's judgment that she is not in a position to give Mr. Carman the representation that he deserves.

Ms. Staten-Hayes then spoke in favor of a continuance, stating regarding her niece, "[W]hat I was hoping is that if the court would just give me a couple of days to check on her." Upon questioning by the trial court, she explained that her niece was the only child of her sister who had died that summer, that her niece's father lived in Nashville, Tennessee, and that her niece had made a serious suicide attempt and was in the hospital at Vanderbilt University. When asked by the trial court, she admitted that she would want to stay in Nashville if she were gone for two days and learned that her niece needed her. She told the trial court, "If the court could hold off on making this decision at least until I talk to [my brother-in-law], if he tells me she's going to be okay, I can shoot there and get back." Mr. Lamar stated his agreement with this request. The trial court replied:

Well, let me tell you what I'm not going to do. I'm not going to put a human being in the position of if they think they need to stay with someone who has committed [sic] suicide, they're debating w[h]ether or not to do that, or say: Yep, let's just go forward with the trial because, you know, they gave me this time, and I feel bad.

The trial court then again stated its intention to grant a mistrial, adding, "[I]n fairness to [Carman], and in fairness to the Thrasher family, we're not proceeding."

Mr. Lamar then made a final request for a continuance of 13 days, explaining that the jury would not need to be informed of the reason for the delay and stating: "So we're asking the court for that time. The court can still declare a mistrial. But we're just asking for that time to figure out, like you said, maybe we can go forward, maybe we can't." The trial court replied, "I can tell you now, you are not going to go forward with a lawyer who just got this case when you and Ms. Staten-Hayes have had it for two years." The trial court then added, "And I'm not going to put her in a position of having to decide between her niece and this trial." Mr. Lamar and the State each renewed their objections to a mistrial. The trial court then released the jury.

After a recess, the trial court reiterated its reasoning in granting a mistrial:

The court, after hearing all of the circumstances associated with this matter, and for the reasons stated previously, finds that the declaration of a mistrial is a manifested [sic] necessity, that the failure to declare a mistrial would—if this trial were to continue—result in a set of circumstances that the court does not believe could be defended, both with respect to any verdict which might be returned, and should the matter be taken up on appeal at some later point in time.

The trial court then allowed the defense to "expand upon [its] objection." Mr. Lamar stated that Carman "was prejudiced" because the defense had already "revealed [its] theory in the case." The trial court replied:

At this point everybody has revealed their theory of the case, and the circumstances that came up were absolutely unforeseen, and in light of weighing the potential prejudice associated with requiring him to proceed with new counsel on such notice, potentially, as well as the clear emotional state of his current counsel, which the court finds to be entirely reasonable and justified, it is the court's view that the balance of equities would make it appropriate to declare a mistrial.

The trial court then concluded the proceedings.

After the mistrial was declared, Carman filed a plea in bar, arguing that a new trial would constitute double jeopardy, and the trial court denied that motion and a motion to reconsider. This case is properly before this Court as a direct appeal, because the appeal of a denied plea of double jeopardy is subject to the collateral order doctrine. See Patterson v. State , 248 Ga. 875,...