State v. Thomas

• Decision Date: 15 April 2002
• Docket Number: No. S02A0264.,S02A0264.
• Citation: 275 Ga. 167,562 S.E.2d 501
• Parties: The STATE v. THOMAS.
• Court: Georgia Supreme Court

562 S.E.2d 501

275 Ga. 167

The STATE v. THOMAS.

No. S02A0264.

Supreme Court of Georgia.

April 15, 2002.

Reconsideration Denied May 9, 2002.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Alvera A. Wheeler, Amira AbuBakr Arshad, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., for appellant.

Steven E. Phillips, Atlanta, for appellee.

THOMPSON, Justice.

Defendant Michelle Thomas filed a plea of former jeopardy in this case following the grant of a motion for mistrial. The trial court granted Thomas' plea and the State appeals. We affirm.

Thomas was charged with murder, felony murder, and aggravated assault. The State presented its case in chief and rested. The next day Thomas began to present her case. She did not deny that she had caused the victim's death; however, she asserted a defense of battered women's syndrome, relying on the testimony of an expert witness.

During the State's cross-examination of the expert, the prosecutor asked, "Isn't it true that [Thomas] told you something regarding her child, that she abused her child?" Thomas objected to this question and moved for a mistrial. The trial court conducted an inquiry in which the prosecutor was given an opportunity to explain why he asked the question. After the prosecutor offered various explanations, the trial court granted a mistrial. Thereafter, finding that the prosecutor intended to goad Thomas into moving for a mistrial, the trial court granted Thomas' plea of former jeopardy.

The State concedes that the question asked of the expert witness concerning whether Thomas abused her child was "poorly phrased," and that the trial court correctly granted a mistrial in this case. It argues, however, that it should be able to retry Thomas because the prosecutor did not intentionally try to abort the trial. See Williams v. State, 268 Ga. 488, 491 S.E.2d 377 (1997). We disagree.

Whether the prosecutor intended to goad the defendant into moving for mistrial called for the trial court to "make a finding of fact [by] [i]nferring the existence or nonexistence of intent from objective facts and circumstances." Oregon v. Kennedy, 456 U.S. 667, 675, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). In this case, the trial court's finding that the prosecutor intentionally provoked a mistrial is supported by these objective facts: the prosecutor, who was a member of the bar for nine years and tried numerous felony cases,¹ gave inconsistent, unconvincing explanations as to why he posed the question to the expert, the prosecutor did not seek curative instructions, or assert that the trial should continue; and the prosecutor stood to gain by aborting the trial because the expert's testimony was favorable to Thomas.

When the trial court sits as the factfinder, its resolution of factual issues will be upheld by the 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, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them. Jones v. State, 249 Ga.App. 64(3), 547 S.E.2d 725 (2001).

In this case, the trial court's findings were authorized by the evidence in the record and are not clearly erroneous. We must conclude, therefore, that the trial court properly granted Thomas' plea in bar on the grounds of double jeopardy.

The mere fact that the trial court said that, based on its personal knowledge of the prosecutor, it did not believe the prosecutor intended to cause a mistrial, is of no consequence. In making a decision involving more than one fact, a trial court can acknowledge that there are factors weighing against its decision; but such an acknowledgment cannot be said to undermine the court's decision. That is what the trial court did in this case. It acknowledged that the prosecutor is a person of integrity; nevertheless, based on the objective facts and circumstances, it found that the prosecutor intended to provoke a mistrial.

Judgment affirmed.

All the Justices concur, except HUNSTEIN and CARLEY, JJ., who dissent.

CARLEY, Justice, dissenting.

In sustaining the plea of former jeopardy, the trial court erroneously placed the burden of proof upon the State, rather than correctly requiring that Ms. Thomas, as the movant, prove that a retrial would be unconstitutional. When properly construed, the evidence demands a finding that she did not carry the burden of proof in that regard. The majority nevertheless affirms the erroneous grant of the motion, by deferring to findings of the trial court which are not supported by the evidence and which are not even relevant to a former jeopardy determination.

Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to "goad" the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial.

Williams v. State, 268 Ga. 488, 489, 491 S.E.2d 377 (1997). See also Oregon v. Kennedy, 456 U.S. 667, 676(II), 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Beck v. State, 261 Ga. 826, 412 S.E.2d 530 (1992). Under Georgia law, it is well-settled that the defendant bears the burden of proof on a plea in bar, even if she is thereby required to make an affirmative showing of the actual knowledge of the prosecutor. Turner v. State, 238 Ga.App. 438, 439, 518 S.E.2d 923 (1999); Blackwell v. State, 232 Ga.App. 884, 885, 502 S.E.2d 774 (1998). Thus, the defendant had the burden of "establish[ing] that the State intended to `goad' [her] into moving for a mistrial...." Williams v. State, supra at 489, 491 S.E.2d 377. This placement of the burden of proof on the defendant is consistent with the procedure of federal courts, as well as other states which have applied the rule of Oregon v. Kennedy, supra. United States v. Borromeo, 954 F.2d 245, 247(II) (4th Cir. 1992); Robinson v. Commonwealth, 17 Va.App. 551, 439 S.E.2d 622, 624, fn. 2 (Va.App. 1994); State v. Fleer, 851 S.W.2d 582, 598 (Mo.App.1993); Commonwealth v. Andrews, 403 Mass. 441, 530 N.E.2d 1222, 1226(1) (1988).

In this case, the trial court did not base its ruling on any affirmative evidence showing that Ms. Thomas was impermissibly goaded into moving for a mistrial. Instead, the trial court relied entirely upon its conclusion that the evidence did not clearly negate the assistant district attorney's intent to cause a mistrial. The trial court summarized its findings as follows: "The State's question in the present case was clearly improper, it had no legitimate purpose, no legal basis and was not precipitated by any action on the part of the Defendant." Although these findings may arguably justify the grant of the motion for mistrial, they do not, without more, preclude a subsequent retrial. Under the controlling double jeopardy standard of Oregon v. Kennedy, supra, bad faith conduct, harassment and overreaching on the part of the prosecutor do not themselves prevent retrial, although they may have warranted the grant of a mistrial. Reed v. State, 222 Ga.App. 376, 378(1), 474 S.E.2d 264 (1996). Thus, the trial court's findings as to the underlying validity of the decision to grant a mistrial are irrelevant to a proper retrial inquiry. Indeed, retrial should not be barred even if the mistrial resulted from prosecutorial conduct which is malicious and deliberate. Dinning v. State, 267 Ga. 879, 880-881, 485 S.E.2d 464 (1997); State v. D'Auria, 229 Ga.App. 34, 35, 492 S.E.2d 918 (1997). Therefore, the trial court clearly erred, if for no other reason than, once Ms. Thomas showed that she successfully moved for mistrial, it impermissibly shifted the burden of proof to the State to show that double jeopardy did not bar a retrial. At a minimum, this error would require reversal and a remand for entry of a new order based upon the proper placement of the burden of proof on appellant to show that she was impermissibly goaded into terminating the trial by moving for the mistrial.

However, such a remand would be authorized only if there was some evidence which might support such a finding. In that regard, "[w]hat is critical is the objective of the prosecutor's improper conduct. Unless a prosecutor is trying to abort the trial, his or her misconduct will not prohibit a retrial. [Cits.]" Dinning v. State, supra at 881, 485 S.E.2d 464. "`It doesn't even matter that he knows he is acting improperly, provided that his aim is to get a conviction. The only relevant intent is (the) intent to terminate the trial, not (the) intent to prevail at ... trial by impermissible means.' [Cit.]" Williams v. State, supra at 490, 491 S.E.2d 377.

In applying the standard of Oregon v. Kennedy, supra, other jurisdictions rely on Justice Powell's concurrence to identify those factors which are relevant to a determination of prosecutorial intent to provoke a mistrial. Those factors include the following: first, whether there was a sequence of overreaching or error prior to the single prejudicial incident; second, whether the prosecutor resisted or was surprised by the motion for mistrial; third, whether the prosecutor testified, and the trial court found, that there was no intent to cause a mistrial; and, fourth, whether the timing of the error was such that the success or failure of the prosecution could reasonably have been assessed. Oregon v. Kennedy, supra at 680, 102 S.Ct. 2083 (Powell, J., concurring); United States v. Neufeld, 949 F.Supp. 555, 559(II) (S.D.Ohio 1996); State v. Torres, 328 N.J.Super. 77, 744 A.2d 699, 705(II) (2000); State v. Girts, 121 Ohio App.3d 539, 700 N.E.2d 395, 403(I) (1997).

As for the...