Ellerbee v. State

• Decision Date: 07 November 1994
• Docket Number: No. A94A2407,A94A2407
• Citation: 450 S.E.2d 443,215 Ga.App. 312
• Parties: ELLERBEE v. The STATE.
• Court: Georgia Court of Appeals

Page 443

450 S.E.2d 443

215 Ga.App. 312

ELLERBEE v. The STATE.

No. A94A2407.

Court of Appeals of Georgia.

November 7, 1994.

Reconsideration Denied Nov. 22, 1994.

James J. Dalton, II, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Mary D. Hanks, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Roy Anthony Ellerbee appeals his judgment of conviction of theft by shoplifting. Appellant was tried for shoplifting and his first trial resulted in a mistrial; appellant was retried and convicted. Appellant enumerates seven errors. Held:

1. Assuming without deciding that the issue of denial of motion for directed verdict in appellant's first trial was not rendered moot following the subsequent mistrial and his retrial (compare Rhyne v. State, 209 Ga.App. 548(1), 434 S.E.2d 76 with Willis v. Maloof, 184 Ga.App. 349, 361 S.E.2d 512 and Phillips v. State, 133 Ga.App. 461, 211 S.E.2d 411), in the interest of judicial economy we accept appellate jurisdiction over the issue in appellant's first enumeration of error. OCGA § 5-6-34(d).

The trial court did not err in denying appellant's motion for directed verdict of acquittal. When an enumeration is based on the overruling of a motion for directed verdict of acquittal which was grounded on insufficiency of the evidence, the proper appellate test is the "beyond a reasonable doubt test" expressed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. On appeal a reviewing court may consider all the evidence in the case and must view the evidence in the light most favorable to the verdict. Riden v. State, 213 Ga.App. 17, 18(1), 443 S.E.2d 865. Review of the transcript of the first trial reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the theft by shoplifting offense for which he was brought to trial. Jackson v. Virginia, supra.

2. Appellant's second enumeration of error is crafted so unartfully as to fail to state any specific assignment of error with adequate specificity. To the extent the enumeration may be interpreted as asserting the trial court erred in granting appellant's motion for mistrial during the first trial, it is without merit. The record establishes that the judge had an ex parte communication with a holdout juror at the latter's request; the holdout juror who was visibly upset in essence requested to be removed from the jury, as it was hopelessly deadlocked 11-1, and she apparently perceived she was being subjected to undue pressure. The court subsequently reported these events whereupon appellant's counsel moved for mistrial, opposing vigorously any suggested corrective alternatives. The trial court granted appellant's mistrial motion. It is well settled that on appeal a party cannot complain of a judgment, ruling, or order that his own trial procedure, legal strategy, or conduct procured or aided in causing. See generally Williams v. State, 205 Ga.App. 445, 446(2), 422 S.E.2d 309. Also, the trial court must exercise discretion in determining whether to grant or deny a mistrial motion. See Grier v. State, 209 Ga.App. 283, 284(1), 433 S.E.2d 685. Appellant has failed to show the trial court abused its discretion by granting appellant's mistrial motion.

3. Appellant's third enumeration of error appears to assert that reversible error occurred in the first trial when an alternate juror was placed in the jury room with the other 12 jurors after the complaining juror had been excused from jury duty and without the alternate being properly selected as a replacement juror. The granting of appellant's motion for mistrial renders this particular enumeration moot. Assuming arguendo any other claim of error also is contained within this single enumeration, such procedure would violate OCGA § 5-6-40; this Code section requires that each enumeration shall set out separately each error relied upon. In the exercise of our appellate discretion, we elect to review no other error asserted within enumeration of error no. 3. Robinson v. State, 200 Ga.App. 515, 518(2), 408 S.E.2d 820.

4. Appellant's assertion of error due to denial of his double jeopardy claim will be addressed in Division 5 below. Appellant requested a certificate of immediate review of the rulings of the trial court on appellant's double jeopardy claim, motion to renew and motion for acquittal notwithstanding a mistrial. Appellant's counsel argued that, as to the double jeopardy claim, the certificate could not be denied unless the court found appellant's position was frivolous and was taken to delay the court. The trial court denied the request after setting forth a detailed chronology of events and ruling that "the plea [in bar] was not filed sufficiently in advance of trial, that, in fact, is a delaying device at this point." However, the record affirmatively establishes that previously the trial court had conducted a hearing, had considered appellant's double jeopardy claim on the merits and had denied that claim. Appellant's contention that its double jeopardy claim was summarily denied prior to trial is without merit. Moreover, any error is rendered moot by this court's consideration of appellant's double jeopardy claim in Division 5 below.

5. Appellant's fifth enumeration of error appears to assert two errors rather than one separate claim of error, and thus violates OCGA § 5-6-40. In our appellate discretion (Robinson, supra), we will address the claims that the trial court erred in failing to grant appellant's double jeopardy claim and that error occurred by not allowing appellant to appeal the denial of his double jeopardy claim before the State was allowed to try him again.

(a) Assuming arguendo that error had occurred in denying appellant an opportunity to appeal immediately the trial court's ruling as to appellant's double jeopardy claim, we find that by our consideration of this claim on its merits, any such error is rendered harmless. OCGA § 9-11-61.

(b) "Jeopardy attached in this case. Once the jury has been impaneled and sworn, jeopardy attaches." Dotson v. State, 213 Ga.App. 7, 8(1), 443 S.E.2d 650. "Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the 'manifest necessity' standard.... But in the case of a mistrial declared at the behest of the defendant [as occurred in the case at bar], quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the 'manifest necessity' standard has no place in the application of the Double Jeopardy Clause." Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087-88, 72 L.Ed.2d 416. Rather, the general rule is that where a mistrial is granted at the behest of the defendant, a retrial is not barred by principles of double jeopardy unless the governmental conduct in question (from whomever derived) is intended to "goad" the defendant into moving for a mistrial. Mobley v. State, 262 Ga. 808, 809-810(1), 426 S.E.2d 150. In this instance, during the course of deliberation, the holdout juror obtained an ex parte conference with the trial judge and asked to be released from jury duty. The trial court subsequently made a complete disclosure of these events. Appellant does not contend that the conduct of the trial court was intended to provoke appellant into requesting a mistrial. In fact, appellant conceded during the hearing of his double jeopardy claim that he did not "mean to imply that [the trial judge] did [communicate with the juror] unwittingly or that [the trial judge] did it with malice either. [Appellant] only meant to say that it was not something that was intended to create the result that occurred." The record further reveals that appellant at the first trial was given at least one option other than mistrial but opposed continuing the trial using the alternate juror. The fact that appellant made a strategic choice that backfired and placed him in a "particular dilemma" does not justify a further expansion of the narrow exception announced in Oregon v. Kennedy, supra, and recognized in Mobley v. State, supra. Appellant's contention that the trial court erred in denying his claim of double jeopardy is without merit.

6. Appellant's sixth enumeration is that the trial court erred in finding a prima facie case of discriminatory peremptory strikes when the defense struck twelve white jurors; appellant is black. The principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 apply equally to the defense as to the prosecution. State v. Carr, 262 Ga. 893, 427 S.E.2d 273; see State v. McCollum, 262 Ga. 554, 422 S.E.2d 866. " '[W]here (, as here,) a [defense counsel] has disproportionately struck members of one race in the exercise of his peremptories, it is not sufficient rebuttal to rely on the composition of the jury as selected.' " Smith v. State, ...