Spearman v. State, No. S04A0907.

• Decision Date: 13 September 2004
• Docket Number: No. S04A0907.
• Citation: 278 Ga. 327,602 S.E.2d 568
• Parties: SPEARMAN v. The STATE.
• Court: Georgia Supreme Court

602 S.E.2d 568

278 Ga. 327

SPEARMAN v. The STATE.

No. S04A0907.

Supreme Court of Georgia.

September 13, 2004.

Avis Karen Hornsby, Kenneth D. Kondritzer, Atlanta, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., Jason Charles Fisher, Asst. Atty. Gen., Peggy Ann Katz, Asst. Dist. Atty., for Appellee.

HUNSTEIN, Justice.

Michael Renard Spearman appeals from the trial court's denial of his plea of former jeopardy. Because in Spearman's first trial there existed a manifest necessity for the declaration of a mistrial and the trial court did not abuse its sound discretion in rejecting possible alternatives to mistrial, we affirm the determination that Spearman may be retried.

The record reflects that Sandra Highland, a key prosecution witness in the State's murder case against Spearman, was under subpoena for Spearman's November 2003 trial. On the Friday before the Monday call of the case, an investigator for the district attorney's office spoke with Highland and arranged to collect her on Monday afternoon and drive Highland and Highland's male companion¹ to a hotel where they would stay during the trial. That Monday the State announced ready for trial and jury selection began. The investigator arrived in the early morning to pick up Highland. Her male companion told the investigator that Highland had left with a cab driver friend to clean houses but would be back in the afternoon. The investigator returned at the designated time and waited several hours with the companion, but Highland did not return. ²

Trial began the next day, November 18, 2003. That morning when Highland still could not be located, the investigator contacted the cab driver friend and learned that Highland had been in an accident on Saturday and was hospitalized with a broken pelvis. The investigator found Highland at the hospital and talked with her. Highland told the investigator she was receiving morphine and the pain medication Percocet; the investigator observed a morphine drip and determined from the conversation that Highland was not very coherent. The investigator contacted the district attorney's office. The prosecutor, who was in the process of examining the State's first witness, brought the matter to the trial court's attention, informing the court that the witness had been in a car accident the prior Saturday, that she had a broken pelvis and was immobilized. After a recess provided so that the prosecutor could review the matter, the trial court entertained several options proposed by the State as alternatives to a mistrial. The trial court then heard from the defense. Spearman objected to a mistrial, arguing that the State should have anticipated there would be a problem with Highland not appearing at trial.³ Spearman offered No alternatives to mistrial. instead, while deFense counsel acknowledged that he did not "know if [the court] is looking at the possibility of bringing [Highland] in," he objected on Spearman's behalf to that action.

Highland's medical records, filed in the case by the State on the order of the trial court, reflect that Highland had a fractured pelvis⁴ and received medication for her pelvic pain. The records also reflect that Highland became "very upset" and insisted on being released from the hospital. This occurred at 4 p.m. on November 18, the day the trial began. Highland was prescribed pain medication; provided with a walker and a commode chair; instructed to limit her activity by 50 percent; and was requested to seek follow-up care in two weeks.

1. It is undisputed that jeopardy attached in Spearman's first trial. Case law is well-established that once jeopardy has attached,

an accused is entitled to have the trial proceed to an acquittal or conviction by that jury. The trial court may interrupt the proceedings and declare a mistrial over the defendant's objection only if the prosecutor demonstrates manifest necessity for the mistrial. Manifest necessity exists when the accused's right to have the trial completed by a particular tribunal is subordinate to "`the public interest in affording the prosecutor one full and fair opportunity to present [her] evidence to an impartial jury.'"

(Footnotes omitted.) Laster v. State, 268 Ga. 172, 173(1), 486 S.E.2d 153 (1997).

We recognize that "the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence." (Footnote omitted.) Arizona v. Washington, 434 U.S. 497, 508, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). However, this is not an instance in which the prosecutor proceeded to trial aware that the State's key witness was not available to give testimony. Compare id. at 508, fn. 24, 98 S.Ct. 824. The record reflects that the State took reasonable steps in light of past problems to ensure the appearance of its subpoenaed witness; that Highland's unavailability at trial was due solely to an unforeseeable accident that occurred the weekend before the trial; and that because of the misleading information provided by Highland's companion, the State could not reasonably have known on the Monday call of the case that Highland would not be available for trial. Thus, there was no evidence that the prosecutor knew prior to trial that Highland would not be available to testify.

"When there is no prosecutorial misconduct, the trial court has broad discretion in deciding whether to grant a mistrial." (Footnote omitted.) Laster, supra, 268 Ga. at 173, 486 S.E.2d 153. Given the uncontrovertedly essential nature of the testimony Highland was to provide and the absence of prosecutorial misconduct, we find no error in the trial court's determination that a mistrial was warranted in this case due to manifest necessity. Accord Humphrey v. State, 244 Ga.App. 808(1), 537 S.E.2d 95 (2000) (manifest necessity for mistrial where critical, subpoenaed witnesses failed to appear at trial); Spencer v. State, 192 Ga.App. 822(1), 386 S.E.2d 705 (1989) (manifest necessity for mistrial where subpoenaed witness left unexcused after morning trial session and could not be located); Davis v. State, 170 Ga.App. 748, 318 S.E.2d 202 (1984) (manifest necessity for mistrial where adolescent witness escaped from juvenile shelter the night before her...