349 S.E.2d 473 | Ga. Ct. App. | 1986
The defendant was indicted for the offenses of rape and aggravated sodomy and during the course of defendant’s trial defense counsel asked one of the State’s witnesses whether he had “developed a friendship or something . . .” with the complainant. The trial court admonished defense counsel, warning that “[i]f there’s a breach of the Shield law, however minor, we’ll start all over.” Later, defense counsel again asked the same witness whether he and the complainant “were close friends.” The trial court later declared a mistrial and subse
“An order denying a plea of double jeopardy is appealable without resort to an interlocutory appeal. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982). Once the jury has been impaneled and sworn, jeopardy attaches. See Crist v. Bretz, 437 U. S. 28 (98 SC 2156, 57 LE2d 24) (1977); Haynes v. State, 245 Ga. 817 (268 SE2d 325) (1980). However, where a mistrial is thereafter declared over the objection of a criminal defendant, a retrial is not barred where there is manifest necessity for the declaration of a mistrial or the ends of public justice would be defeated by allowing the trial to continue. See generally Illinois v. Somerville, 410 U. S. 458 (93 SC 1066, 35 LE2d 425) (1972); Abdi v. State, 249 Ga. 827 (294 SE2d 506) (1982).” Davis v. State, 170 Ga. App. 748 (318 SE2d 202). The trial judge may exercise broad discretion in determining whether circumstances exist which require the declaration of a mistrial. “[I]t has been held that a trial judge properly exercised his discretion to declare a mistrial where, taking all the circumstances into consideration, an impartial verdict could not be reached. Simmons v. United States, 142 U. S. 148 (12 SC 171, 35 LE 968) (1891). Likewise, where a trial judge’s declaration of a mistrial constitutes a rational determination designed to implement a legitimate state policy, it has been recognized that retrial of the defendant is not barred by the double-jeopardy clause. Duncan v. Tennessee, 405 U. S. 127 (92 SC 785, 31 LE2d 86) (1972); cf., Downum v. United States, 372 U. S. 734 (83 SC 1033, 10 LE2d 100) (1963).” Abdi v. State, 249 Ga. 827, 828 (2) (294 SE2d 506).
In the case sub judice, “the trial judge (unlike ourselves) actually observed the colloquy between defense counsel and the [State’s witnesses. Further, we have examined the entire trial transcript and we]
Judgment affirmed.