Terrell v. State, A98A2464.
| Citation | 236 Ga. App. 163,511 S.E.2d 555 |
| Decision Date | 29 January 1999 |
| Docket Number | No. A98A2464.,A98A2464. |
| Parties | TERRELL v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
Robert H. Alexander III, Atlanta, for appellant.
Benjamin F. Smith, Jr., District Attorney, Ann B. Harris, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.
Nelson Terrell was indicted for felony shoplifting and misdemeanor theft by taking. Two co-defendants were also charged in the same indictment and pled guilty. On April 20, 1998, the case was called for trial, the defense announced it was ready, and the jury was selected. On April 21, 1998, after opening statements had been completed, the trial judge announced she had received a message that the prosecutor had a family emergency. The judge further announced that the prosecutor's father had a heart attack, was hospitalized in Birmingham, Alabama, and that the prosecutor needed to go there. The judge then stated "[s]o we need to declare a mistrial." Terrell's counsel asked whether a continuance could be granted. After noting that the jury had not heard any evidence and another jury could be obtained, the trial judge again announced her intent to declare a mistrial. The judge then asked the defense counsel whether he wanted the mistrial to be declared formally on the record. Terrell's counsel replied that the judge could just go back to the jury room and inform them of the decision. The judge again inquired whether she could just go back and tell the jury and let the prosecutor go. At this point, Terrell's counsel responded "[t]hat's fine with me."
On April 27, 1998, before the state commenced further prosecution, Terrell filed a motion to dismiss or acquit by reason of former jeopardy. After holding a hearing, the trial judge denied the motion. Terrell appeals.
At the hearing on the motion to dismiss or acquit, the prosecutor stated on the record that the situation causing the mistrial was an "emergency situation." Her father had been taken to the hospital with chest pains; it was thought that he had a heart attack. Her mother has Alzheimer's disease and could not cope with the situation by herself. The prosecutor and her brother both live in Atlanta. It subsequently was discovered that her father did not have a heart attack. He was hospitalized for four days and was found to have substantial arterial blockages. He currently is being evaluated for surgery. No other prosecutor had assisted her in the case or knew anything about it. The case was complicated in that it involved four or five witnesses, a question of whether a co-defendant would testify, and a Jackson-Denno issue.
At this same hearing, the trial judge stated that during the course of defendant's opening argument, it became apparent that the prosecutor had heard that her father had suffered a heart attack; it was clear that the prosecutor "was no longer able to go forward with the case"; and it would have been an injustice to make the prosecutor go forward with the case at that time. The trial judge further stated that she understood the balance between the defendant's and the state's rights and the seriousness of declaring a mistrial. She noted that no evidence had been presented and the defense's case still remained unknown to the state. The trial judge also stated that while she may not have mentioned it on the record, she did consider many alternatives. She recalled that in a similar case, the jury had been held on call for several weeks and was never able to finish that case. The judge reasoned that this was not a simple shoplifting case, noting the issues involved co-defendants and a suppression motion. It would have been an injustice to have another prosecutor enter the case. The trial judge said that she did not grant Terrell's request for a continuance due to her prior experience with similar family difficulties especially where the attorney must leave town. The trial judge further observed that based on what transpired in this situation, a continuance would not have been effective. Accordingly, the court concluded that it had no choice but to declare the mistrial.
OCGA § 16-1-8(a) pertinently provides that: Thus, jeopardy attached in this case.
Once jeopardy has attached, if a mistrial is declared without a defendant's consent or over his objection, the...
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