Jenkins v. State

• Decision Date: 24 February 2014
• Docket Number: No. S13A1387.,S13A1387.
• Citation: 755 S.E.2d 138,294 Ga. 506
• Court: Georgia Supreme Court
• Parties: JENKINS v. The STATE.

294 Ga. 506

755 S.E.2d 138

JENKINS

v.The STATE.

No. S13A1387.

Supreme Court of Georgia.

Feb. 24, 2014.

Jonathan P. Lockwood, Jesup, for appellant.

Andrew J. Ekonomou, Asst. Dist. Atty., Brunswick, Jacquelyn Lee Johnson, Dist. Atty., Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., for appellee.

HINES, Presiding Justice.

Larry Jenkins appeals the denial of his motion to dismiss the indictment against him and his plea in bar based upon the grounds that his retrial for two murders and related crimes would violate the constitutional prohibition against double jeopardy and the constitutional right to a speedy trial. For the reasons that follow, we affirm.

In September 1995, Jenkins was convicted of the malice murders, kidnappings with bodily injury and armed robbery of two victims, and the theft of $600 in coins. The jury recommended a death sentence for each of the murders, finding nine aggravating circumstances. The trial court sentenced Jenkins to death, Jenkins appealed, and this Court affirmed. See Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502 (1998). Jenkins filed a petition for a writ of habeas corpus on March 4, 1999, and after evidentiary hearings in December 2002 and January 2003, the habeas court vacated Jenkins' death sentences and convictions, finding that Jenkins was 17 years old at the time of the crimes and that the Supreme Court of the United States had declared death sentences for crimes committed by persons under the age of 18 to be unconstitutional. See Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The habeas court further found that Jenkins' trial counsel rendered ineffective assistance in the guilt/innocence phase of Jenkins' trial, that Jenkins's trial counsel had a conflict of interest, and that there was prosecutorial misconduct in that the State, inter alia, suppressed evidence of the involvement of an unindicted suspect, evidence related to the mental state of a key prosecution witness, and contradictory prior statements of testifying prosecution witnesses. The Warden appealed and this Court affirmed the judgment of the habeas court, ordering a new trial based upon the habeas court's determination that Jenkins's counsel rendered ineffective assistance in the guilt/innocence phase of the trial.¹ See Terry v. Jenkins, 280 Ga. 341, 627 S.E.2d 7 (2006).

On June 27, 2011, Jenkins filed a “Motion to Dismiss Indictment and Plea in Bar” seeking to bar his retrial on the grounds, inter alia, that it would violate the “fair trial” and speedy trial guarantees and the prohibitions against double jeopardy under the Federal and State Constitutions. On May 16, 2012, Jenkins filed a “Motion to Bar Retrial Under the State and Federal Double Jeopardy Clauses.” It was denied on October 22, 2012. On November 14, 2012, he filed a “Plea in Bar Based Upon Violations of the Defendant's Constitutional Right to a Speedy Trial.” By consent of Jenkins and the State, on that same date the trial court entered an order vacating the October 22, 2012 denial order on the basis that the court would enter a consolidated order on the motion to dismiss indictment and the pleas in bar following a scheduled hearing in the matter. On January 28, 2013, the trial court denied the pending motion and pleas in bar.

1. Jenkins contends that the trial court erred in denying his motions and pleas in bar because his retrial would constitute double jeopardy under the United States and Georgia Constitutions for the reason that the prosecution committed intentional misconduct which violated due process, and thus, denied him his right to a fair trial. He urges this Court to adopt a reading of the Georgia constitutional protections against double jeopardy as that set forth in the caselaw of other jurisdictions, which have found that prosecutorial misconduct, similar to that alleged in Jenkins's case, warranted discharge.² But, Jenkins's argument is unavailing.

This Court is to assess the factual findings of the trial court under the standard of clear error, but this Court is to independentlyexamine the trial court's conclusions of law. See State v. Caffee, 291 Ga. 31, 33(3), 728 S.E.2d 171 (2012). The legal standard employed by the trial court, and its resulting legal conclusions are not in error. Jenkins complains that the trial court relied on the legal standard set forth in State v. D'Auria, 229 Ga.App. 34, 492 S.E.2d 918 (1997):

As a general rule, a post-conviction reversal or grant of a motion for new trial which is not based on insufficiency of the evidence does not preclude retrial. [Cit.] There is an exception to this general rule, however: The defendant cannot be retried if the retrial is necessitated by prosecutorial misconduct which was intended to subvert the protections afforded by the Double Jeopardy Clause. [Cits.]

Id. at 35, 492 S.E.2d 918. (Citations and punctuation omitted.) And, the Double Jeopardy Clauses of both the Federal and State Constitutions

[protect] criminal defendants from three governmental abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.

Williams v. State, 288 Ga. 7, 8(2), 700 S.E.2d 564 (2010). In D'Auria, it was noted that some defendants have argued, as Jenkins is now doing, that double jeopardy should preclude a defendant's retrial whenever the prosecutors' intentional misconduct is egregious and prejudicial so that it denies the defendant a fair trial. State v. D'Auria at 35, 492 S.E.2d 918. However, for this Court to interpret the double jeopardy bar so expansively would be tantamount to making the constitutional protection a type of exclusionary rule. Id.; Roscoe v. State, 286 Ga. 325, 687 S.E.2d 455 (2009).

Generally, the Double Jeopardy Clauses of both the Federal and State Constitutions do not protect a criminal defendant from being put in jeopardy of life and liberty more than once for the same offense in the case of the grant of a new trial following conviction or when there is a mistrial. Williams v. State, 288 Ga. at 8(2), 700 S.E.2d 564 (2010). And, with rare exceptions, even in the situation in which a defendant was deprived of effective assistance of counsel but the evidence was nevertheless sufficient to convict, the proper remedy is not to discharge the defendant but rather to reverse the defendant's conviction and remand the matter for a new trial. Green v. State, 291 Ga. 287, 288–289(1), 728 S.E.2d 668 (2012). However, double jeopardy does prohibit the retrial of a criminal defendant when the State does not produce sufficient evidence at the initial trial to sustain a conviction. Dinning v. State, 267 Ga. 879, 880, 485 S.E.2d 464 (1997). It also precludes retrial when the defendant is granted a mistrial or a reversal on appeal of his or her conviction in the case of intentional prosecutorial misconduct, which is “purposefully designed to secure an opportunity to retry the case.” Id.

This Court has determined that the evidence at Jenkins's initial trial was sufficient to enable a rational trier of fact to find Jenkins guilty of the crimes charged beyond a reasonable doubt. Jenkins v. State, 269 Ga. at 284, 498 S.E.2d 502.

As to the issue of the intent of the prosecutorial misconduct found by the habeas court, there is no showing that the State's conduct was aimed at aborting the trial and securing an opportunity to retry the case. Dinning v. State, 267 Ga. at 880, 485 S.E.2d 464. In fact, quite the contrary. Jenkins acknowledges in his argument to this Court that “[t]he evidence is clear that the State was not trying to induce a mistrial,” but rather was trying to obtain his convictions. Thus, the trial court properly concluded that double jeopardy does not bar Jenkins's retrial.

2. There is likewise no merit to Jenkins's further claim that the trial court erred when it denied his plea alleging that the State had violated his Federal and State Constitutional rights to a speedy trial.

In examining an alleged denial of the constitutional right to a speedy trial, courts must engage in a balancing test with the following factors being considered: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of the right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514[ , 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ]. The existence of no one factor is either necessary or sufficient to sustain a speedy trial claim, and a trial court's findings of fact and its weighing of disputed facts will be afforded deference on appeal. We review the trial court's ruling for abuse of discretion.

Higgenbottom v. State, 290 Ga. 198, 200(1), 719 S.E.2d 482 (2011). However, before the Barker v. Wingo test is applied, there must be a threshold determination as to whether the interval between the accused's arrest, indictment, formal accusation, or other triggering event and the trial is sufficiently long for it to be “presumptively prejudicial.” Id. If that presumption is unwarranted, then the analysis goes no further because the speedy trial claim fails; however, if the delay raises the presumption of prejudice, then the analysis proceeds to the examination of all the Barker v. Wingo factors. Id.

(a) Threshold Inquiry. In general, a delay of one year in prosecuting a crime is considered to be delay which is presumptively prejudicial. Brock v. State, 293 Ga. 156, 158(2)(a), 743 S.E.2d 410 (2013). Jenkins urges that because of the intentional prosecutorial misconduct and the lack of conflict-free counsel at trial, the delay should be measured from the date of arrest. However, as the trial court noted, Jenkins did not raise the denial of his right to a speedy trial prior to his first trial, on direct appeal of his convictions, or in his habeas corpus proceeding. The delay in this case, in which no retrial has occurred, is...