Defendant appeals his conviction of armed robbery, OCGA § 16-8-41. He contends that his retrial after a prior mistrial violates the United States Constitution’s prohibition against double jeopardy. He also asserts that the evidence was insufficient to sustain the verdict of guilty.
1. Defendant does not rely upon the Georgia statute or provision of the Constitution regarding former jeopardy. Instead he calls into issue solely the Fifth Amendment to the United States Constitution. We therefore consider only that basis of attack. See
Leeks v. State,
Defendant was first tried on June 6, 1988. After two witnesses, including defendant’s alleged accomplice Bobby Lee Howard had testified, a key prosecution witness was not available. The witness, Howard’s girl friend, Sheila Johnson, had been subpoenaed and was present on the morning of the trial but did not respond for the afternoon session. After a two-day delay for what proved to be a fruitless search, the trial court declared a mistrial. The witness was subsequently located and arrested, and defendant was scheduled for retrial. He filed a plea of former jeopardy and moved to dismiss the charges against him.
During the hearing the State sought to show that there was no prior knowledge that the witness would not appear and that the witness’ presence on the first morning of the trial was proof that there were no reasonable grounds to foresee her subsequent behavior. Defendant relied on a remark by the prosecuting attorney in his opening statement, describing what he envisioned would be proved from the testimony of Sheila Johnson: “We anticipate that if, and when, she takes the witness stand in the trial, she will testify to knowing Bobby Lee Howard because [he] was also a boyfriend of hers.” Defendant urged that this established the State knew, or suspected, the witness would not testify and that the prosecution proceeded without even *823 requesting a continuance so that finally the drastic remedy of mistrial had to be utilized. The State explained that the quoted language was used merely as a precautionary measure in case the witness did not testify as expected, as a means of “hedging” or softening any adverse impact from such failure. The use of this subjunctive language referred to whether the witness would testify to facts substantially as related by the prosecuting attorney, not whether she would testify at all.
The trial court concluded that a mistrial was properly granted and denied defendant’s motion to dismiss predicated upon former jeopardy.
The Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment.
Benton v. Maryland,
The soundness of the court’s action is examined under the test originally propounded by
United States v. Perez,
This case is in that special category where the strictest scrutiny is required, i.e., when the reason for the mistrial is the unavailability of critical prosecution evidence, and where the State has an opportunity
*824
for overreaching by using its superior resources to harass or achieve a tactical advantage over defendant.
Cobb v. State,
The facts most closely approximate those of
Davis v. State,
2. Defendant contends there was insufficient corroboration of the accomplice’s testimony so that there was no evidence to sustain his conviction. The testimony of an accomplice alone is not sufficient to convict for a felony. OCGA § 24-4-8. Likewise a confession must be corroborated, see OCGA § 24-3-53, but only by proof of the corpus delicti.
Nation v. State,
Defendant admitted to the State’s witness that he committed *825 acts which amounted, in law, to armed robbery. This was sufficient corroboration. The evidence was such that a rational trier of fact could have found defendant guilty beyond a reasonable doubt.
Judgment affirmed.
Notes
After remand, the Oregon Supreme Court held independently that the state constitution, which had been raised but not ruled on earlier, was not violated either.
State v. Kennedy,