State v. OliverState v. Oliver
Lead Opinion
Defendant Berthine Oliver was charged with three counts of child molestation in regard to the two young children for whom she was employed as a babysitter. The case was first called for trial on March 25, 1987. After the jury was chosen but before the jurors had been sworn, defendant challenged the selection of the jury, alleging the prosecutor had exercised his strikes against prospective black jurors in a racially discriminatory manner in violation of the standard set forth in Batson v. Kentucky,
The eleventh and final witness for the prosecution was a clinical psychologist who had examined the victim and was called as an expert witness. During the direct examination of the expert witness the prosecutor asked the witness what she looks for in counseling sessions with a child to validate whether or not alleged abuse has occurred. In response, the witness commenced a lengthy discussion of how she attempts to assess the credibility of a child. Defendant’s attorney objected to the testimony concerning credibility and moved for mistrial. The jury was excused and a lengthy discussion was conducted on the record between the judge and the attorneys concerning the admissibility of the expert’s testimony about the victim’s credibility. The
Defendant then filed a plea in bar arguing the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution precludes her from being retried for the charged offenses. After a hearing on the plea of double jeopardy, the court found it was the prosecutor’s intention to cause a mistrial by asking the fatal question in violation of the specific instructions of the court. The court also found evidence of prosecutorial overreaching and harassment. Accordingly, the court granted defendant’s plea of former jeopardy. The state appeals.
1. We first address the state’s third enumeration of error which argues the trial court applied the wrong standard for determining whether double jeopardy would bar retrial of defendant’s case. The United States Supreme Court has articulated a clear and unambiguous standard for barring retrial of a criminal case where the defendant was successful in moving for mistrial. “[T]he circumstances under which ... a defendant [who successfully moves for mistrial] may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” (Emphasis supplied.) Oregon v. Kennedy,
In support of the trial court’s order, defendant argues the Georgia standard for barring retrial is more protective than the minimum standard imposed by the United States Supreme Court in Kennedy. We find no reason for holding the Georgia standard to be more pro
Defendant cites to Morris v. State,
The trial court in this case based its grant of the motion to bar retrial partially upon a finding of prosecutorial overreaching and harassment. This conclusion was based on the earlier finding of impermissible use of peremptory strikes and upon a finding the prosecutor had attempted to influence the defendant’s husband to convince the defendant to plead guilty. These findings alone would not support the grant of defendant’s plea of double jeopardy according to the rule set forth in Kennedy. However, the court’s order does include a finding that the prosecutor intended to cause a mistrial by asking the fatal
2. The state’s first two enumerations of error argue the court improperly found the prosecutor intended to cause a mistrial. First, the state argues the question and answer which prompted the defendant’s objection were insufficient to justify a mistrial. With this argument, we disagree.
The state argues the jury was entitled to hear testimony concerning the competency of the minor witness to testify. “The competency of a witness shall be decided by the court.”
3. Although the fatal question was improper and provided ground for declaring a mistrial, we find no evidence to support the trial court’s conclusion that the prosecutor intended to cause a mistrial.
The intent of the prosecutor in asking an improper question of a witness is to be inferred from the objective facts and circumstances of the case. Oregon v. Kennedy, supra. The rationale or justification given by the state for the objectionable testimony is relevant to a determination of whether prosecutorial conduct was deliberately intended to cause a mistrial. See State v. Maddox,
The prosecutor in this case had called all his witnesses and there is no reason to believe the evidence was anything less than the state had expected it to be. “Defendant’s protestations to the contrary, the prosecution had already built its case against the defendant and had no reason to abort the first trial by forcing a mistrial.” Hampton v. State, supra at 15. Therefore, we find no evidence to support the trial court’s finding that the conduct of the prosecutor revealed an intent to subvert the protections afforded by the Double Jeopardy Clause.
I concur with the dissenting opinion that prosecutorial misconduct should not be condoned or encouraged. But our holding in this case in no way ties the hands of the trial judge to respond to prosecutorial misconduct. The award of mistrial is the appropriate remedy for curing the prejudice against the defendant created by the prosecutor’s error and the appropriate sanction to discourage misconduct by the prosecuting attorney. The bar of double jeopardy is such an extreme sanction against the interest of the state in prosecuting one who has been indicted for a crime that it should be applied strictly and only when the circumstances clearly show the prosecutor intended “to subvert the protections afforded by the Double Jeopardy Clause.” Oregon v. Kennedy, supra at 676.
4. The order granting defendant’s plea in bar shows the order was based in part upon (1) a finding the prosecutor had improperly communicated with defendant’s husband in an attempt to convince the defendant to plead guilty; (2) the earlier finding of impermissible use of peremptory strikes at the first voir dire of the jury; and (3) testimony of one of the jurors that, at the time mistrial was declared, she would have voted for acquittal. Even if the prosecutor acted improperly in communicating with defendant’s husband when he arrived at the courthouse in response to his subpoena to trial, which we do not here address, such communications would not meet the test of Kennedy to show intent to subvert the protections afforded by the Double Jeopardy Clause. The impermissible use of peremptory strikes at the first call of the case was remedied by the grant of defendant’s challenge to the jury pursuant to Batson v. Kentucky. It cannot be said that the disqualification of the first jury subjected defendant to former jeopardy since the earlier jury was never impaneled. Finally, it was improper for the judge to consider the testimony of the juror as to what her verdict would have been at the time mistrial was declared for the jury had not yet heard the remainder of the testimony of the state’s expert witness nor any of the evidence which might have been presented by the defendant. This testimony and the additional findings of the trial court do not support the order barring retrial of de
5. The earlier order granting defendant’s challenge to the jury pursuant to Batson v. Kentucky is not properly before the court on this appeal of the order barring retrial. Therefore, we need not address the state’s final enumeration of error.
Judgment reversed.
Notes
Although the order granting defendant’s challenge to the jury employed the term “mistrial,” the order was not actually a grant of mistrial since the jury had not yet been impaneled and sworn. See Hughey v. State,
Eberhardt v. State,
Concurrence Opinion
concurring specially.
I concur with the majority opinion except as follows.
1. The witness had been recognized by the court as qualified to give her opinion “in the field of clinical psychology as an expert.” She had testified that in such capacity, she counseled with the child in four counseling sessions after the child had been referred to her under the district attorney’s victim assistance program. Since she was called to give her opinion that the child had been abused, the State proceeded to lay the foundation for such an opinion. Part of the basis upon which she formed that opinion was what the child said to her in the counseling sessions, as well as her observation of the child and the results of psychological tests given. She described in general the capacity of young children to distinguish fact from fancy and about their perception capacity.
Defendant stopped the proceeding to state that the witness should not be permitted to testify that the witness was credible, as that was a question reserved to the jury. There followed a debate in which the court ruled that the witness could not testify “as to the credibility of the child.” Upon request by defendant, the jury was instructed that a witness could not testify as to the victim’s credibility and that it was the jury’s province to determine credibility.
Questioning resumed, and the witness testified about her counseling sessions with the child. There was no objection to the question, “Now, in your professional opinion, was the number and lengths of the times that you counseled Ashley sufficient for you to form an expert opinion in which you had confidence in its reliability?”; nor in the answer, “Yes, it was.” Then the State asked: “And in your opinion, based on those personal sessions with Ashley, can Ashley distinguish between telling the truth and telling a lie?” The response was: “Yes, I believe she can.” The motion for mistrial followed.
In argument supporting the motion at that time, defendant’s position was that this was prohibited testimony about credibility. The State’s position was that it was not about credibility, which it conceded was a question for the jury, but about the child’s ability to recognize or discriminate or perceive between truth and lie. The State also conceded that competency to testify was initially a question to be
The court, however, saw the evidence as invading the jury’s province on the question of the child’s credibility as a witness and granted the mistrial. This was explicitly repeated in the written order on the mistrial.
The difference between the two subjects, although the edges are not sharp, is great enough for the lack of prosecutorial misconduct to be shown as a matter of law. The State had an arguable justification for insisting on the difference and asking the objected-to question as being on the subject of competency and not on the subject of credibility. Competency may be a jury question, Goodson v. State,
Even assuming that the State was in error insofar as admissibility of the answer to this particular question is concerned, a proposition I am not prepared to accept, it cannot be said that the State deliberately created error by intentionally injecting inadmissible evidence such as would cause mistrial. Defendant himself found it necessary to rely on cases from other jurisdictions to support his position, the law on the matter not being clear. That is, there is no case in Georgia holding that when an expert who has professionally counseled with a young child who allegedly has undergone sexual abuse, that expert cannot testify that the particular child is or is not developmentally capable of distinguishing between truth and falsehood, or of comprehending the difference.
Thus, even if a mistrial was called for, what prompted it did not breach the standard by which a claim of Fifth Amendment violation is measured, as ordained in Oregon v. Kennedy,
2. This brings me to the second point. The defendant relied in the court below solely on the Fifth Amendment’s proscription against double jeopardy. The plea of former jeopardy is based expressly on this federal constitutional ground, insofar as the alleged improper question is concerned, and the brief below in support of it expands on the Fifth Amendment, Oregon v. Kennedy, and applications thereof in state cases. The court ruled on the basis of federal constitutional law, citing Oregon and “The Double Jeopardy Clause” in its conclusions of law.
Thus, the state constitutional ground was not raised below and
3. Even if a state constitutional basis were properly before us, I could not agree with the categorical statement that the Georgia Constitution’s double jeopardy provision is less protective than the Fifth Amendment. Just because the words are not identical does not mean that they are not construed the same by the two governing supreme courts respectively, or that the state supreme court has not or cannot construe the State provision more broadly in this regard. See Linde, “E Pluribus — Constitutional Theory & State Courts,” 18 Ga. L. Rev. 165, 181, discussing text methodology (1984);
The Supreme Court of Georgia is the final construer of our state constitution whereas the United States Supreme Court is the final interpreter of the federal constitution. See Michigan v. Long,
“The right question is not whether a state’s guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state’s guarantee means and how it applies to the case at hand. The answer may turn out the same as it would under federal law. The state’s law may prove to be more protective than federal law. The state law also may be less protective. In that case the court must go on to decide the claim under federal law, assuming it has been raised.” Id. at 179.
Dissenting Opinion
dissenting.
There are several points in the majority opinion with which I am in full agreement: that the grant of a mistrial was proper; that the Batson v. Kentucky,
It is appropriate to begin this discussion with a consideration of the proper role of a prosecuting attorney. “Judges have previously outlined the spirit of [a prosecuting attorney’s] duty by stating: ‘While the safety of society requires the faithful prosecution of offenders against the laws, the State does not ask their conviction but upon a calm and dispassionate investigation of the charges against them.’ [Cit.] ‘While a [prosecuting attorney] is necessarily a partisan, yet it is his paramount duty “to subserve public justice” [Cit.], and not merely to convict each defendant charged with a violation of the laws of this State.’ [Cits.]” Brown v. State,
The logical consequence of such purposeful misbehavior is that the prosecutor not be permitted another chance to prosecute that particular case, but with so subjective a standard as the intent of the prosecuting attorney to provoke a mistrial, such a result is difficult to reach: it cannot reasonably be expected that a prosecuting attorney will admit that the specific intent of particular conduct was to cause a mistrial. Indeed, in the present case, the prosecuting attorney expressly disclaimed such intent. Nonetheless, the trial court found against that prosecuting attorney on several other issues concerning which he denied impropriety, and I believe there was ample evidence to permit the trial court to reach a finding contrary to the prosecuting attorney’s protestations on the issue of intent as well.
I recognize that intent is to be inferred from objective facts and circumstances (Oregon v. Kennedy, supra), and agree with the majority that the rationale or justification advanced by the prosecuting attorney is relevant to the issue of intent. That justification cannot, however, be considered to be controlling. We must not tie the hands of our trial judges by restricting unduly their consideration of all the prosecuting attorney’s actions in determining whether it can be inferred that the conduct of the prosecuting attorney was intended to provoke a mistrial; we must permit them to consider on that issue the totality of the circumstances involving the prosecution of the case and the prosecuting attorney’s conduct with relation thereto.
Such a consideration in this case warrants the inference that the prosecuting attorney’s intent was to employ tactics which, if permitted, would tip the scales of justice inexorably toward conviction and, if not permitted, would provoke a meritorious motion for mistrial by the defendant, leaving the way clear for a retrial.
The focus, instead, should be on the course of conduct in which the prosecuting attorney has engaged. Where, as here, the prosecuting attorney has persistently employed objectionable and illegal tactics, such as the racially motivated use of peremptory strikes, efforts to undermine the defense by attempting to influence the defendant’s husband, and a flagrant disregard of the trial court’s evidentiary ruling, it may fairly be inferred that the conduct was intended to provoke a mistrial.
The majority’s approach to the present case, finding no motive for causing a mistrial and accepting the prosecuting attorney’s self-serving assertion that he did not intend to cause a mistrial, ignores the fact that the trial judge was present for the trial and for the hearing on appellee’s plea of double jeopardy, and had an opportunity to see and hear the conduct of the trial. Worse, perhaps, is the undermining of the trial judge’s authority by the majority’s finding that the prosecuting attorney’s blatant disregard of a ruling because he disagreed with it was done in good faith.
I believe it is our duty to provide the trial judges of this State with the means of curbing prosecutorial misconduct. That will be done by affirming the decision of the trial court in this case, a decision set out in an order reflecting careful consideration of the totality of the circumstances and a due regard for the right of defendants in criminal cases to receive a fair trial. To reverse this decision sends a clear message to the prosecuting attorneys of this State that they are free to employ Machiavellian tactics, and to the trial courts of this State that their hands are tied.
Because I cannot participate in the sending of such a dangerous message, I must dissent from the judgment of reversal in this case.
I am authorized to state that Chief Judge Birdsong and Judge Sognier join in this dissent.