Harvey v. State
| Citation | 770 S.E.2d 840,296 Ga. 823 |
| Decision Date | 27 March 2015 |
| Docket Number | No. S14A1646.,S14A1646. |
| Parties | HARVEY v. The STATE. |
| Court | Supreme Court of Georgia |
Lloyd Johnson Matthews, Public Defender's Office, for appellant.
Patricia B. Attaway Burton, Deputy Atty. Gen., Katherine Lee Iannuzzi, Asst. Atty., Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Tracy Graham–Lawson, Dist. Atty., Kathryn L. Powers, Elizabeth A. Baker, Asst. Dist. Attys., for appellee.
Appellant Kajul Harvey challenges the trial court's denial of her plea in bar based on double jeopardy after her first trial for murder and other crimes ended in a mistrial. We conclude that the trial court did not abuse its discretion in determining that Appellant's counsel violated the court's pretrial ruling on a motion in limine and improperly referred to evidence that may well not be admissible when he referred to Appellant's police interview during his opening statement, and the court also did not abuse its discretion in deciding that alternatives short of a mistrial were insufficient to cure the harm. Accordingly, we uphold the denial of the plea in bar. Our rejection of Appellant's double jeopardy claim on the merits makes it unnecessary for us to decide whether the trial court erred in finding that the claim was frivolous and allowing her retrial to proceed. We therefore affirm the trial court's judgment.
1. In February 2013, Appellant and her boyfriend, Latoris Grovner, were indicted for malice murder and other crimes in connection with the brutal beating death of Appellant's mother and subsequent attempts to access her bank accounts in June 2011.1 Appellant had been interviewed by the police for several hours, and the interview was videotaped. On April 15, 2013, the first day of Appellant's trial, the State filed a motion in limine to preclude “the defense from making opening statements that reference self[-]serving hearsay statements made by the defendant[ ]” or asking witnesses for the State or the defense any questions that reference such statements “until the door is opened by the State or until after the defendant testifies.”
The trial court held a hearing on the motion, during which the prosecutor revealed that the State did not intend to introduce the videotape of Appellant's police interview during its case-in-chief. At that point, Appellant's attorney, assistant public defender Lloyd Matthews, indicated that he might seek to admit a redacted version of the interview, and the court asked the prosecutor, “What happens if ... the defense puts that interview in ... ?” The prosecutor responded that the State would object to any attempt by the defense to introduce Appellant's police interview, directed the court's attention to the State's written motion, and argued, “as it relates to the interview, we don't believe that it should be referenced.” Matthews urged the court to deny the State's motion, explaining that in his view, as the evidence unfolded, it was “inevitable” that at least part of the interview would be played for the jury, and that “once [the jurors] find out there's a video tape, they're going to want to ... see that video tape.”
The trial court granted the motion in limine, saying:
The third motion was about the self[-]serving hearsay in the defendant's [police interview]. The State's asking that that not be allowed to [be gone] into unless and until the defendant testifies. And I will instruct the parties not to go into any statements, any contents of her statements to the police until such time.
A jury was then impaneled and sworn.
The next morning, the State made its opening statement, making no reference to Appellant's police interview. Matthews followed with the opening statement for Appellant, telling the jury as he began:
[T]his case ultimately boils down to a case of a mistaken rush to judgment.... The police immediately glom onto my client as the co-perpetrator and they never deviate from their scenario.... I mean the ... lead detective, Joanne Sutherland[,] and her fellow detectives.... This whole case is not a plan for the deceased['s] demise, but a rush to judgement to blame my client. Now when I say rush to judgement, that necessarily implies that something is being overlooked.
Matthews reviewed what he said the evidence would show, telling the jury that there would be no evidence of a plan or conspiracy involving Appellant. He then said:
At that point, the prosecutor objected, and the court held a bench conference. The prosecutor argued:
[T]he very fact that he's referencing this interview and the fact that it existed is a violation of the self-serving [hearsay] motion that we had in reference to that interview.... [T]he mere fact that she gave one is in direct violation of the Motion in Limine.
Matthews claimed that he understood the State's motion as seeking to preclude him from mentioning the contents of Appellant's statement to the police, not from referring to the fact that an interview had taken place. Matthews also claimed that Appellant would testify as part of the defense case, but the court observed, “that still doesn't mean the interview comes in.” Matthews then said,
The State requested a mistrial, and the court sent out the jury so the court could hear further argument from counsel. After quoting the State's motion in limine, the prosecutor argued that “by indicating that [Appellant] ... spoke to the police for hours, that's a direct reference.” Matthews reiterated his claim that he understood the State's motion to mean that the prosecutor As he had in the hearing before the motion was granted, Matthews again asserted that the fact of the police interview was “ inevitably going to come out” once Appellant testified, because the State would then use her interview responses to impeach her testimony. Matthews added that even if he violated the court's pretrial ruling, an instruction to the jury to disregard his remarks would be sufficient to cure any harm.
The court responded to this suggested remedy by saying:
[T]he jury has just heard that your client gave a three hour interview to the police.... You've just told the jury [Appellant] has been cooperative, she gave a lengthy interview to the police after I told you not to mention the interview, yesterday.
The prosecutor argued that a limiting instruction would be insufficient to cure the harm, because despite Matthews's claim that Appellant would testify, the State could not compel her to do so, and if Appellant ultimately declined to take the stand during the defense case, then The prosecutor added,
After a short recess to consider the matter, the trial court asked if either side had any additional input. The prosecutor said:
The State has committed in the opening statement and based on trial strategy that the defendant's self-serving statements would not be referenced. Their content was referenced [by Matthews] by indicating that [Appellant] was cooperative with the police, as well as the existence of that self-serving statement, which is in direct contravention of this Court's ruling [on] the third Motion in Limine. And we don't believe that a curative instruction would be sufficient.... [W]e don't believe it's [an] abuse of discretion to grant a mistrial when there has been affirmative conduct to mention it in opening statement. The bell has already been rung. And if the defendant decides not to testify, the State has an additional burden of proving why we didn't present this ... videotaped statement ... that was referenced.
Matthews replied that he had “already committed to the jury that [Appellant] is going to testify,” asserted again that he thought that the court's pretrial ruling only prevented him from mentioning the contents of the police interview, and requested that the court give a curative instruction, ask the jurors if any of them could not follow the instruction, and then go forward with the trial if no one raised a hand.
The trial court found that Matthews's remarks to the jury violated the ruling on the motion in limine and that a jury instruction would be insufficient to cure the harm, explaining:
Although the jury has not heard any reference to the content of what [Appellant] said, they heard that she had been cooperative and made a statement. Spoke with police for ... several hours.... [T]here was a Motion in Limine granted yesterday to—I said there would be no reference to that statement. And now—the jury has heard there is a statement. Even if the defendant testifies, there is no guarantee that that statement comes in. And there's certainly no way that the Court can force her to testify if she chooses not to testify when we get to the defense's portion of the trial. And then the jury is going to, I think, wonder, well, if she made a statement to the police, why haven't we heard it. And if I tell them, well, I've excluded it, it seems to me that [the] natural inclination of the jury is to say, well, the police must have done wrong because they can't get that interview in or something. Or they will start wondering why the interview doesn't come in and they'll say, well, the burden is on the State, the State didn't produce this...
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