HIGHTOWER v. THE STATE.
S22A0870
In the Supreme Court of Georgia
Decided: January 18, 2023
MCMILLIAN, Justice.
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
1. Voir dire in Hightower‘s trial began on the morning of Monday, March 9, 2020, and was completed the next day, on March 10. The jury was then selected and sworn. The same day, counsel gave their opening statements, and the State presented the testimony of three witnesses. On Wednesday, March 11, the trial court heard argument on several motions, and the State presented two additional witnesses. The parties also conducted voir dire of a proposed expert witness whom the State wished to call to rebut Hightower‘s defense of battered-person syndrome, and the witness was qualified as an expert. The trial court recessed the trial proceedings for the next day, Thursday, March 12, to allow the State‘s expert to interview Hightower and to allow the parties to prepare and exchange expert reports on the battered-person defense.
That evening, Christopher S. Brasher, chief judge of both the Atlanta Judicial Circuit and the Superior Court of Fulton County, sent an email notifying all Fulton County
Chief Judge Brasher sent another email at 8:20 a.m. on Friday, March 13, attaching a copy of his order, which was entered about an hour later, at 9:23 a.m. The order, citing
[T]he undersigned makes this declaration of a judicial emergency affecting all courts and clerk‘s offices in Fulton County as it relates to jury service, including
grand jury service and any non-essential matters, unless they can be conducted via video or teleconferencing.
Accordingly, IT IS THE ORDER of the Court that no jurors shall report and no jury trials shall be held for a period of thirty (30) days from the date of the entry of the Order (the “Fulton County Order“).
The proceedings in Hightower‘s case later recommenced at 9:51 a.m., outside the presence of the jury, and after addressing preliminary evidentiary matters, the trial court announced that it would be taking judicial notice of the Fulton County Order and that it was also anticipating a similar statewide order from then-Chief Justice Harold D. Melton of this Court. As a result, the trial court said it anticipated that it would be declaring a mistrial in Hightower‘s case and asked counsel if they wanted to “place something on the record.”
The State had no objections, but Hightower‘s counsel objected to the mistrial and asked the court to consider less drastic alternatives. Defense counsel proposed that the trial continue through the weekend with the belief that it could be concluded by Sunday “before the judicial emergency has been declared.” In the alternative, defense counsel suggested that the trial simply be continued until it could be reconvened with the same jury and a new trial date set “once the judicial emergency is over.” After the jurors returned to the courtroom, the trial court informed them of the Fulton County Order declaring a judicial emergency,4 and announced that it was declaring a mistrial based on the judicial emergency. The trial court then released the jury from further service.5
By declaring a mistrial in this case, the Court declares explicitly that a manifest necessity warranted the declaration of the mistrial in this case, specifically the existence of a judicial emergency in Fulton County. Further, this Court specifically declares that the entry of the order of mistrial, in this case, is designed to ensure that the ends of justice will be served.
Hightower filed the Plea in Bar over one year later, on April 7, 2021. After an evidentiary hearing, the trial court denied the Plea in Bar in a written order entered May 21, 2021. That order recited that in making the decision to declare a mistrial, the trial court was aware that “a judicial emergency was being declared due to the [c]oronavirus/COVID-19“; that COVID-19 “was highly contagious and could cause severe illness or death to those who contracted it“; and that “medical professionals in the media were urging people to stay at home to avoid contracting and spreading the virus to others.” The order also said that the trial court further “considered the fact that the trial was not likely to conclude by the end of the day and that the courtroom did not have adequate infrastructure in place to prevent the contraction or spread of the virus.” Based on these factors, the trial court concluded “that a high degree of necessity existed such that a mistrial was warranted.”
2. Hightower asserts on appeal that her Plea in Bar should have been granted because the trial court erred in declaring a mistrial sua sponte over her objection without carefully exercising sound discretion, without considering less drastic alternatives, and without a manifest necessity.
“The Double Jeopardy Clause of the Fifth Amendment, which applies to the states through the Fourteenth Amendment, says ‘[n]o person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb[.]‘” Meadows v. State, 303 Ga. 507, 510 (2) (813 SE2d 350) (2018);
The manifest necessity standard requires a “high degree of necessity” to grant a mistrial. Laguerre v. State, 301 Ga. 122, 124 (799 SE2d 736) (2017) (citation and punctuation omitted). See also Tubbs v. State, 276 Ga. 751, 754 (3) (583 SE2d 853) (2003) (“Manifest necessity can exist for reasons deemed compelling by the trial court, especially where the ends of substantial justice cannot be attained without discontinuing the trial.” (citation and punctuation omitted)). “Whether such necessity exists is to be determined by weighing the defendant‘s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.” Laguerre, 301 Ga. at 124 (punctuation and citation omitted).
Therefore, in the absence of prosecutorial misconduct, “the decision whether to grant a mistrial is reserved to the ’broad discretion’ of the trial judge.” Carman v. State, 304 Ga. 21, 27 (2) (a) (815 SE2d 860) (2018) (punctuation omitted and emphasis in original), quoting Renico v. Lett, 559 U.S. 766, 774 (II) (130 SCt 1855, 176 LE2d 678) (2010). See also Laguerre, 301 Ga. at 125; Tubbs, 276 Ga. at 754-55 (3).
The decisions of this Court and the U.S. Supreme Court emphasize that whether the required degree of necessity for a mistrial has been shown is a matter best judged by the trial court. The propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial cannot be determined by the application of any mechanical formula.
Harvey v. State, 296 Ga. 823, 831-32 (2) (a) (770 SE2d 840) (2015) (citations and punctuation omitted) (quoting Illinois v. Somerville, 410 U.S. 458, 462 (93 SCt 1066, 35 LE2d 425) (1973)). And “great deference is accorded to a decision that a mistrial was necessary.” Blake, 304 Ga. at 750 (2).
Although trial courts should “give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, a court‘s rejection of other alternatives is a proper exercise of the court‘s discretion—and not an abuse—if reasonable judges could differ about the proper disposition.” Blake, 304 Ga. at 749 (2). See also Harvey, 296 Ga. at 832 (2); Tubbs, 276 Ga. at 754-55 (3). A trial court “is not required to make explicit findings of manifest necessity nor to articulate on the record all the factors which informed the deliberate exercise of his discretion,” but the record must at least “show that the trial court actually exercised its discretion.” Blake, 304 Ga. at 749 (2) (punctuation and citation omitted). See also Laguerre, 301 Ga. at 125.
Hightower argues that the trial court abused its discretion in determining that there was a manifest necessity to declare a mistrial and in failing to consider less drastic alternatives. She asserts that the trial court based its mistrial decision, not on any problem with her trial, but rather on the Fulton County Order and its underlying concerns for “community safety.” Hightower asserts that such concerns are unrelated to any problem that occurred at her trial and therefore not appropriate to consider in determining whether to grant a mistrial.
However, in considering the issue of double jeopardy, the United States Supreme Court has recognized that considering the health of trial participants can be integral to conducting a criminal trial. The Court has acknowledged that
a criminal trial is, even in the best of circumstances, a complicated affair to manage. The proceedings are dependent in the first instance on the most elementary sort of considerations, e.g., the health of the various witnesses, parties, attorneys, jurors, etc., all of whom must be prepared to arrive at the courthouse at set times.
United States v. Jorn, 400 U.S. 470, 479-80 (II) (91 SCt 547, 27 LE2d 543) (1971). Thus, the Supreme Court concluded that application of a mechanical rule barring retrial
Moreover, we do not view the trial court‘s decision to declare a mistrial in hindsight, but rather from the court‘s perspective at the time it exercised its discretion. See Harvey v. State, 296 Ga. 823, 833 (2) (b) (770 SE2d 840) (2015) (“[T]he question before us is not whether the trial court exercised its discretion to grant a mistrial with care and full deliberation or whether, with the benefit of hindsight, we would say that a mistrial was necessary. Our task is only to decide whether the trial court abused its broad discretion.“); Tankersley v. Stepp, 266 Ga. 892, 892 (1) (471 SE2d 882) (1996) (trial court did not abuse its discretion in denying a continuance or mistrial where witness “evidenced an inability to respond” to cross-examination questions, even though hindsight may have revealed that witness had a serious illness during trial).
At the time the trial court declared a mistrial in this case, the COVID-19 pandemic had created an unexpected and unprecedented global health crisis, which posed a potential threat to the health of the parties, including the defendant, witnesses, jurors, counsel, and court personnel required to appear in court and, as the Fulton County Order stated, “substantially endanger[ed] or infringe[d] upon the normal functioning of the judicial system as it relates to jury service.” Hightower‘s trial took place early in the pandemic, when very little was understood about the nature or spread of the COVID-19 virus, understandably prompting caution by public officials in addressing the crisis based on the circumstances in the surrounding area. The Fulton County Order declared that an emergency existed based on “the continued transmission of Coronavirus/COVID-19 throughout Fulton County.”
The trial court was also aware that health issues already had arisen among the participants in Hightower‘s trial. On Tuesday, March 10, one juror informed the court that she was concerned she had “strep” as she had a sore throat that had “progressively gotten worse,” and the State informed the trial court that one of its witnesses called to report that she had “flu-like” symptoms that were “getting worse.”7 These circumstances, demonstrate that, contrary to Hightower‘s argument, community health concerns potentially arising from COVID-19 presented a problem for Hightower‘s trial. Moreover, the record belies Hightower‘s assertion that the trial court abused its discretion by not considering less drastic alternatives. Before declaring a mistrial, the trial court informed the parties of the Fulton County Order and that it was
anticipating declaring a mistrial, but it nonetheless solicited argument from counsel on the matter. The State raised no objection, but the defense objected and was given an opportunity to argue the issue. Defense counsel suggested two options: (1) holding the trial over the weekend to be completed “before the judicial emergency has been declared” on Monday, March 16, and (2) ordering a continuance until “the judicial emergency
We conclude that, under the circumstances present in this case, rejecting the defendant‘s suggested alternatives was within the trial court‘s discretion. The first alternative proposed a procedure that would have violated the Fulton County Order, which had already declared a judicial emergency as of March 13 and ordered that jurors should not appear for jury service for 30 days after that date.8 And nothing in this proposal would have addressed the concerns underlying that order for protecting the trial participants’ health. Moreover, implied in this suggestion is an acknowledgement by the defense that the trial could not have been completed on March 13, and thus it represents an implicit concession that proceeding with the trial that day would not have resulted in a verdict.9 The second alternative would have necessitated a continuance for an indefinite period of time. In light of the uncertainties surrounding the pandemic, no one could predict when the judicial emergency would be over, and there was no assurance that the same jury would have been available to continue the trial at an unknown point in the future. See Carman, 304 Ga. at 33 (2) (b) (affirming denial of plea in bar following mistrial because
defense counsel was experiencing severe emotional distress following suicide of close family member and it was unclear when counsel would be able to return to try the case). See also State v. Smith, 465 N.J. Super. 515, 542 (III) (B) (ii) (244 A3d 296) (App. Div. 2020) (affirming grant of mistrial where continuance or adjournment for an indefinite period was not feasible given the state of the COVID-19 pandemic).
Accordingly, given the COVID-related judicial emergency and 30-day prohibition on jury service in Fulton County, and the potentially COVID-related health concerns among the trial‘s participants, we conclude that the trial court did not abuse its discretion in declaring a mistrial based on manifest necessity or in denying Hightower‘s Plea in Bar.10 See Carman, 304 Ga. at 33 (2) (b) (no abuse of discretion in declaring mistrial due to severe emotional
distress of defense counsel who had worked on the death penalty case for two years where backup counsel had only been involved for two weeks); Laguerre, 301 Ga. at 126 (no abuse of discretion in declaring mistrial after the trial court “reasonably decided that the jury unit likely could not be preserved in the circumstances“); Spearman v. State, 278 Ga. 327, 329 (1) (602 SE2d 568) (2004) (no abuse of discretion in declaring mistrial based on prosecution witness‘s unavailability, which was due solely to an unforeseeable accident that occurred the weekend before the trial, where there was no evidence that prosecution knew of witness‘s unavailability before beginning trial).
Judgment affirmed. All the Justices concur.
Notes
Although this statewide order contradicted the Fulton County Order by allowing criminal trials in progress to continue to conclusion, it had not yet been issued when the trial court declared the mistrial.[T]rials in any criminal case for which a jury has been empaneled and the trial has commenced as of the date of this order shall continue to conclusion, unless good cause exists to suspend the trial or declare a mistrial. The decision whether to suspend a criminal trial or declare a mistrial rests with the judge presiding over the case.
We note thatA prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal; or
(2) Was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts or after a plea of guilty was accepted by the court.
Carman v. State, 304 Ga. 21, 25 (2) (815 SE2d 860) (2018). And Hightower does not argue that a different analysis should apply under the Georgia Constitution.[i]n determining whether a second trial is permitted on the same charges following a mistrial, our case law has treated all forms of double jeopardy claims, whether under the Constitution of the United States, under the Georgia Constitution, or under the Georgia Code, in a manner consistent with case law from the United States Supreme Court regarding the Fifth Amendment[.]