Harvey v. State, 296 Ga. 823

Background

Kajul Harvey was indicted for malice murder and related offenses for her mother’s 2011 death; a videotaped multihour police interview of Harvey existed but the State said it would not use the tape in its case-in-chief.
On the first day of trial the State obtained a motion in limine barring any reference to Harvey’s out-of-court statements (or their contents) unless the door was opened or Harvey testified.
During defense opening, counsel (Lloyd Matthews) told the jury Harvey was “very cooperative” in a several-hour police interview, and the prosecutor objected as violating the motion in limine.
The court excused the jury, heard argument, concluded counsel had violated the motion, found a curative instruction would be insufficient, granted the State’s request for a mistrial, discharged the jury, and set a retrial date.
Harvey filed a plea in bar asserting double jeopardy and alleged the mistrial was unnecessary or induced by the State; the trial court denied the plea, found the claim frivolous, and allowed retrial — Harvey was retried and convicted.

Issues

Issue	Harvey’s Argument	State’s Argument	Held
Whether defense counsel’s opening statement violated the motion in limine	Matthews did not refer to interview contents and only mentioned existence/cooperation; thus no violation	Counsel’s remark implied the interview’s contents (cooperativeness) and referenced excluded evidence	Court held counsel violated the motion in limine; the ruling prohibiting reference to the interview was reasonably understood to bar even mentioning it
Whether a curative instruction would cure the harm and avoid mistrial	A jury instruction and voir dire would cure any prejudice; defendant pledged she would testify	An instruction would not cure prejudice because the jury would wonder why the tape wasn’t admitted if she did not testify; harm already done	Court held a curative instruction would be insufficient and mistrial was appropriate
Whether the mistrial deprived Harvey of double jeopardy protection against retrial	Mistrial was unnecessary and alternatives existed; retrial barred by double jeopardy	Mistrial was warranted due to improperly introduced inadmissible evidence and retrial not barred	Court held trial court did not abuse its discretion in declaring mistrial; double jeopardy did not bar retrial
Whether the trial court erred in finding the double-jeopardy plea frivolous and allowing retrial pending appeal	Finding frivolous was erroneous and should have stayed retrial	Written finding of frivolousness permits retrial absent an appellate stay; defendant did not seek stay	Court declined to decide frivolousness question on merits because it rejected the double-jeopardy claim; retrial was proper under the circumstances

Key Cases Cited

Arizona v. Washington, 434 U.S. 497 (trial judge’s discretion and balancing of manifest necessity for mistrial)
Renico v. Lett, 559 U.S. 766 (broad trial-court discretion in granting mistrial; high degree of necessity standard)
Illinois v. Somerville, 410 U.S. 458 (jeopardy attachment starts further inquiry into retrial after mistrial)
United States v. Perez, 22 U.S. (9 Wheat.) 579 (establishing manifest necessity doctrine for mistrials)
United States v. Jorn, 400 U.S. 470 (plurality on trial management and mistrial discretion)
Varner v. State, 285 Ga. 334 (mistrial may be required when inadmissible evidence reaches jury and instructions cannot cure it)
Tubbs v. State, 276 Ga. 751 (Georgia deference to trial-court determination of manifest necessity)
Smith v. State, 263 Ga. 782 (trial courts must carefully consider less drastic alternatives before granting mistrial)