Jackson v. State

• Decision Date: 23 April 1997
• Docket Number: No. A97A1024,A97A1024
• Citation: 226 Ga.App. 256,485 S.E.2d 832
• Parties: , 97 FCDR 1873 JACKSON v. The STATE.
• Court: Georgia Court of Appeals

Page 832

485 S.E.2d 832

226 Ga.App. 256, 97 FCDR 1873

JACKSON v. The STATE.

No. A97A1024.

Court of Appeals of Georgia.

April 23, 1997.

Certiorari Denied Oct. 3, 1997.

Strongwater & Cherniak, Leeza R. Cherniak, Atlanta, Suzanne M. White, Marietta, for appellant.

G. Channing Ruskell, Canton, for appellee.

ELDRIDGE, Judge.

In December 1995, appellant, Russell Wayne Jackson, was charged with simple battery for allegedly spitting in his wife's face during a domestic conflict. During the jury trial in October 1996, appellant's counsel attempted to raise defenses that the alleged victim either failed to take prescribed medication for her manic depression and imagined the incident or that the victim was involved in a custody dispute with appellant and fabricated the alleged battery. When the trial court, in response to a motion in limine by the State, asked whether appellant's counsel had evidence to support these assertions, she replied "I believe ... I can get [the victim] to admit to ... what happens if she does not take the medication." In addition, appellant's counsel reported that one other witness would testify regarding the victim's "erratic behavior" and about admissions allegedly made by the victim; she also stated that she could subpoena "several doctors" to testify regarding the victim's mental illness, if necessary. Although the trial court reserved ruling on the motion in limine, he warned appellant's counsel that he did not believe the assertions regarding the victim's mental illness were relevant "because we don't have anybody to explain it" to the jury.

However, during trial, appellant's counsel proceeded to make repeated references to the victim's mental illness, asserting that the victim failed to take her medication as prescribed and that, when not taking the medication, the victim became dysfunctional, incoherent, delusional, and violent. Appellant's counsel also questioned the victim and another witness regarding alleged specific incidents of perjury, illicit drug use, and bizarre behavior, including an allegation that the victim communicated with her deceased mother.

The State repeatedly objected to these lines of questioning, asserting that appellant's counsel had no evidence that the victim was not taking her medication at the time of the incident at issue in the trial, so that questioning the victim about the effects of failing to take medication was unfairly prejudicial and irrelevant. The State also asserted that there was no evidence of any of the alleged delusions or attacks being asserted by appellant, since the victim denied such allegations and appellant's counsel had no eyewitnesses to testify regarding the alleged incidents. Such objections were sustained by the trial court, who repeatedly warned appellant's counsel to avoid such arguments absent evidentiary support. The trial court also warned appellant's counsel during opening statements that a mistrial might become necessary if "she can't sustain what she says she is going to do."

The trial court further instructed appellant's counsel that she would need to secure an expert witness to testify regarding the effects of the failure to take lithium, the prescribed medication at issue. Appellant's counsel told the court that she "was working on" getting a psychologist into court to testify the next morning. However, since appellant's counsel had stated prior to trial that she had only two witnesses, neither being a psychologist, there was no indication that the anticipated "expert" witness had ever examined the victim's medical file, had ever questioned or examined the victim, or had the necessary credentials to be considered an expert for the purpose of testifying.

After repeatedly sustaining objections by the State to questions by appellant's counsel regarding the victim's alleged failure to take prescribed medication and alleged delusional and/or violent episodes, for which there was no evidentiary foundation, the trial court sua sponte declared a mistrial based on prejudicial misconduct by appellant's counsel. Appellant moved to bar the retrial based upon double jeopardy. The motion was denied, and appellant timely appealed. Held:

"The double-jeopardy clause of the Fifth Amendment, as applicable to the states through the due-process clause of the Fourteenth Amendment, does not bar retrial of a criminal defendant following declaration of a mistrial over his objection where there is 'manifest necessity' for declaration of the mistrial or the 'ends of public justice' would be defeated by allowing the trial to continue. Illinois v. Somerville, 410 U.S. [458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) ]." Abdi v. State, 249 Ga. 827(2), 828, 294 S.E.2d 506 (1982); United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824). In declaring a mistrial, the trial courts are to take "all the circumstances into consideration.... They are to exercise a sound discretion ... and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; ... [b]ut, after all, [the trial courts] have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges under their oaths of office." Id. at 580. "This is especially true when the grounds for the mistrial relate to jury prejudice, for the trial judge is in a peculiarly good position to observe the jurors, the witnesses and the attorneys in order to evaluate the extent of the prejudice. [Cit.]" Abdi v. State of Ga., 744 F.2d 1500, 1503 (11th Cir.1984).

The Perez test has been applied as "a standard of appellate review for testing the trial judge's exercise of his discretion in declaring a mistrial without the defendant's consent." United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); see also Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824, 833, 54 L.Ed.2d 717 (1978) (appellate courts must "accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected" by the improper comments). "This formulation abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated.... Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends...