Spradley v. State
| Decision Date | 11 February 2000 |
| Docket Number | No. A99A1618.,A99A1618. |
| Citation | 242 Ga. App. 340,529 S.E.2d 647 |
| Parties | SPRADLEY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, Savannah, for appellant.
Spencer Lawton, Jr., District Attorney, Lori L. Canfield, Assistant District Attorney, for appellee.
Bobby Spradley appeals from the judgment entered after a jury found him guilty of two counts of armed robbery, possession of a firearm during the commission of a felony, possession of a controlled substance, obstruction, failure to stop, no license, reckless driving, and fleeing and eluding. Spradley claims the trial court erred in denying his plea in bar on the grounds of former jeopardy and in its charge to the jury. We find no reversible error and affirm.
This case arose when an anonymous caller reported to 911 that she heard a shot fired and saw two men in a white Chevette or Chevelle in front of her house, one of whom had a gun. Officers responding to the call saw a white Chevelle pull into a gas station and followed. When police approached the car after it stopped, Spradley, who was driving, sped off. Officers chased the car, and it ended up in a vacant lot. Spradley and co-defendant Shaun Frazier jumped out and ran. After a brief chase, police caught both men and arrested them. Police found a wallet belonging to Tracy Lundy in the car and also found cocaine on Spradley, who admitted that it was his.
The officer called Lundy who said that he and his brother-in-law had been robbed earlier in the evening but decided not to call the police. Both Lundy and his brother-in-law identified Spradley and Frazier as the men who robbed them.
At the time of the first trial, the 911 caller was still refusing to testify, and Spradley filed a motion in limine to exclude the contents of the 911 call. Before the start of trial, the judge held a hearing on the motion and then granted it, stating: "Right now, I am sustaining the motion in limine as to the content of anything that's in that report." The prosecutor then said: Defense counsel objected, and the trial court stated:
The jury was called in, and the prosecutor began her opening statement. During the statement, the prosecutor said: "And while they were on this Olympic detail, they got a dispatch on the radio, telling them to look out for a white Chevelle or white Chevette that was involved in a `shots fired' call."
Defense counsel objected to the prosecutor's statement that police were responding to a "shots fired" call and moved for a mistrial, which the court granted. Spradley then filed a plea in bar, moving the court to dismiss the indictment on grounds of double jeopardy. The court denied the motion, and Spradley was tried and found guilty on all counts. Spradley now appeals, claiming it was error not to grant his plea of former jeopardy.
1. The primary purpose of the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where the prosecution has, at the initial trial, produced insufficient evidence to sustain a conviction. See, e.g., Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Williams v. State, 258 Ga. 305, 311, 369 S.E.2d 232 (1988). "The general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency." Id. In general when a defendant makes a motion for a mistrial he waives any claim of double jeopardy. Id. But, where the prosecutor has goaded the defense into making a motion for a mistrial in order for the prosecution to avoid reversal of the conviction because of prosecutorial or judicial error or to otherwise obtain a more favorable chance for a guilty verdict on retrial, the Double Jeopardy Clause will stand as a bar to retrial. Id. See also Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982). The Supreme Court of Georgia has adopted the test set out in Oregon, supra. Beck v. State, 261 Ga. 826, 412 S.E.2d 530 (1992). The inquiry is whether the prosecutor intended to goad the defendant into moving for a mistrial and thus terminate the trial. What is critical is the objective of the prosecutor's conduct. Unless a prosecutor is trying to abort the trial, his or her misconduct will not prohibit a retrial. Oregon, supra; Mosley v. State, 230 Ga.App. 890, 891, 497 S.E.2d 608 (1998). The question of whether the prosecutor intended to goad the defendant into moving for a mistrial is a question of fact for the trial court to resolve. Ward v. State, 230 Ga.App. 581, 582, 497 S.E.2d 65 (1998). The Supreme Court, in concluding that a standard that examines the intent of the prosecutor has some difficulties but is still manageable, stated: Oregon, supra at 675, 102 S.Ct. 2083.
Spradley claims the prosecutor intended to goad him into moving for a mistrial in order to obtain a more favorable chance for a guilty verdict on retrial. He points out that the court had just refused to admit the State's similar transaction evidence and had also refused to allow the State to describe the 911 call. In addition, when the case was retried at a later date, the State's first three witnesses were the woman who made the 911 call, the dispatcher who took the call and the officer in charge of the 911 tapes. At the time of the first trial, the anonymous 911 caller had not agreed to testify, and therefore, none of this evidence could have been introduced. Thus, Spradley argues the prosecutor deliberately ignored the court's instruction not to mention the substance of the 911 call in order to force a motion for mistrial because she thought she had a better chance for a guilty verdict on retrial.
The prosecutor said she had not deliberately disobeyed the court's order but "thought that I could address it in that manner." The prosecutor also asked if they could strike another jury immediately. At the time, the trial court stated that it did not believe the prosecutor's mistake was deliberate. At the hearing on the plea in bar, the prosecutor again stated that she did not intend to goad the defense into requesting a mistrial and that s...
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...appellate court unless it is clearly erroneous. Walton v. State, 267 Ga. 713, 715, 716, 482 S.E.2d 330 (1997); Spradley v. State, 242 Ga.App. 340, 343, 529 S.E.2d 647 (2000). A trial court's findings of fact will not be deemed to be clearly erroneous if there is any evidence to support them......
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