484 S.E.2d 725 | Ga. Ct. App. | 1997
The trial court granted appellee David Telenko’s motion in autrefois convict preventing the retrial of his case. The state appeals. As the procedural chronology of the instant case is key to the resolution of the issue raised, we set forth the following:
Telenko was indicted in the Superior Court of DeKalb County for the offenses of vehicular homicide, DUI, reckless driving, and involuntary manslaughter. Pursuant to a motion and subsequent hearing, the state was permitted to introduce at trial a DUI similar transaction against the appellee for the purpose of showing course of conduct and bent of mind.
During the closing argument of the state, the prosecutor discussed the similar transaction evidence, thereafter making the comment, “That’s Mr. Telenko. That’s the kind of person we’re talking about.”
After approximately two days of deliberation, the jury was una
After the recess, the trial court raised the issue of the reserved motion for mistrial based on prosecutorial misconduct and asked if there was further argument thereon. After hearing from counsel, the trial court granted the appellee’s motion for mistrial, finding that “the state made an improper comment about the defendant’s character in final argument”; the court withheld judgment on appellee’s motion to bar retrial of the case, suggesting that such would properly be the subject of a further motion and evidentiary hearing. Subsequently, appellee filed a motion in autrefois convict to prevent retrial of the case, claiming that the prosecutor’s comment was made deliberately in order to “goad” the appellee into moving for a mistrial. An evidentiary hearing was held during which all parties agreed that in order to grant the motion, the trial court must find that the prosecutor’s comment was intentionally made for the purpose of influencing the defense to move for mistrial.
Thereafter, the trial court issued an order granting the appellee’s motion in autrefois convict based upon the state’s improper reference to character; however, with regard to the prerequisite finding of deliberate intent, the trial court determined, “It is unnecessary for this court to address the intent issue, however, for this judge believes the circumstances of this case prohibit a retrial without a specific finding that the state intended to ‘goad’ the defense to moving for a mistrial.”
The state argues that since a mistrial was granted when the jury was unable to reach a verdict, the granting of appellee’s motion for mistrial was “redundant.” We agree.
While never before confronted with the precise issue presented by competing mistrials in the same case, we, nevertheless, have long been cognizant of when a trial is over: once a jury has reached its verdict in a case, and the same has been presented in open court, the trial has ended. Douglas v. State, 206 Ga. App. 740, 742 (426 SE2d 628) (1992); Maltbie v. State, 139 Ga. App. 342, 345 (228 SE2d 368) (1976). It follows that once a jury is unable to reach a verdict in a case, the same has been affirmed in open court, the jury has been dismissed, the court has recessed, and the parties’ attorneys have discussed the case with the dismissed jurors, the trial has ended. In dismissing the jury, “the effect of the court’s action was a mistrial.” Huff v. State, 207 Ga. App. 686, n. 1 (428 SE2d 818) (1993). Consequently, the trial court’s subsequent declaration of a mistrial based on improper closing argument was a “mere nullity.” Douglas, supra at 742. When the horse has already escaped the stable, shutting the door thereof is a moot act. As such, the granting of appellee’s motion in autrefois convict, which was premised upon a declaration of mistrial that was rendered moot because the trial had ended prior to the declaration, must be reversed.
Judgment reversed.
Closing arguments in the instant case were not recorded; however, there appears to be no dispute that the substance of the prosecutor’s comment is as noted above.
A trial judge’s determination with regard to the granting of a motion for mistrial is entitled to the greatest of deference. See, e.g., Bailey v. State, 219 Ga. App. 258 (465 SE2d 284) (1995). However, without something more, “to bar retrial of a criminal defendant, on the sole ground that trial error necessitates reversal of the conviction, is far too high a price for society to pay for the vindication of the rights of criminal defendants under our scheme of government, and was never intended by the Double Jeopardy Clause.” Williams v. State, 258 Ga. 305, 311 (1) (369 SE2d 232) (1988).