Wilson v. State, A95A1283

• Decision Date: 11 May 1995
• Docket Number: No. A95A1283,A95A1283
• Citation: 458 S.E.2d 486,217 Ga.App. 544
• Parties: WILSON v. The STATE.
• Court: Georgia Court of Appeals

Page 486

458 S.E.2d 486

217 Ga.App. 544

WILSON v. The STATE.

No. A95A1283.

Court of Appeals of Georgia.

May 11, 1995.

Reconsideration Denied June 6, 1995.

Glyndon C. Pruitt, Buford, for appellant.

Gerald N. Blaney, Jr., Sol., Richard E. Thomas, Susan C. Devane, Asst. Sols., Lawrenceville, for appellee.

BLACKBURN, Judge.

The appellant, Kernie Gene Wilson, appeals from the trial court's denial of his plea of former jeopardy.

Wilson was indicted for the offenses of public indecency and use of fighting words, and a two-day jury trial on these offenses commenced on November 16, 1994. During trial, the victim testified that she was standing on her back porch when Wilson, a neighbor, started grunting, yelling, and shouting obscenities at her from his porch. He then unfastened his pants, exposed his penis, and yelled to the victim that she should "eat this," referring to his genitalia.

Wilson denied yelling at the victim, and in support of his defense, he presented the testimony of several character witnesses who all testified that they had never heard Wilson shout profanities at anyone or otherwise make a disturbance. After the close of the case for the defense and before the presentation of rebuttal witnesses for the State, the trial court received a note from a juror concerning a possible conflict based upon his acquaintance with a defense witness. The trial court questioned the juror on the nature of his relationship with the witness, and the juror responded that he knew the defense witness very well, respected the witness, and would believe the witness's testimony over the testimony of any other witness under oath. He further stated that "my feelings tell me he wouldn't lie." The prosecution moved for a mistrial due to juror bias, and over the objection of defense counsel, the motion was granted.

The double jeopardy provisions of our state and federal constitutions recognize the right of the accused to have his trial proceed to an acquittal or a conviction before that tribunal once a jury has been sworn and impaneled. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974). "Once the jury has been impaneled and sworn, jeopardy attaches. However, where a mistrial is thereafter declared over the objection of a criminal defendant, a retrial is not barred where there is [a] manifest necessity for the declaration of a mistrial or the ends of public justice would be defeated by allowing the trial to continue. The trial court has as much authority to grant a mistrial where injustice is caused to the state as where injustice is caused to the defendant." (Citations and punctuation omitted.) Moss v. State, 200 Ga.App. 253, 254, 407 S.E.2d 477 (1991).

"A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb such ruling in the absence of a manifest abuse of that discretion which threatens the defendant's right to a fair trial. This is especially true when the grounds for the mistrial relate to jury prejudice, for the trial judge is in a peculiarly good position to observe the jurors, the witnesses and the attorneys in order to evaluate the extent of the prejudice." (...