Bailey v. State

¶1dissenting.

¶2I respectfully dissent from the majority’s opinion because retrial subjects Bailey to double jeopardy in violation of the Georgia Constitution. Ga. Const., Art. I, Sec. I, Par. XVIII. I believe the trial court abused its discretion in sua sponte declaring a mistrial in excess of three months after the trial’s conclusion.

¶3It has long been established that double jeopardy bars retrial following a mistrial contested by a defendant absent a showing of manifest necessity. Oregon v. Kennedy, 456 U. S. 667, 672 (102 SC 2083, 72 LE2d 416) (1982). While the concept of manifest necessity admits of no precise definition, it “exists where, due to circumstances beyond control of the parties and court, it becomes no longer possible to conduct the trial, or to reach a fair result based upon the evidence.” (Citation and punctuation omitted.) People v. Turner, 434 NE2d 428, 431 (111. App. Ct. 1982); Abdi v. Georgia, 744 F2d 1500 (11th Cir. 1984). In applying this rather nebulous but important concept, courts *263have looked to the causes of the mistrial and viewed them on a spectrum. “At one extreme are cases in which a prosecutor requests a mistrial in order to buttress weaknesses in his evidence. ... At the other extreme is the mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict.” Burleson v. State, 259 Ga. 498, 500 (384 SE2d 659) (1989) (quoting Arizona v. Washington, 434 U. S. 497, 505-509 (98 SC 824, 54 LE2d 717) (1978)). When the facts supporting mistrial are unforeseeable, a finding of manifest necessity is justified. See, e.g., Commonwealth v. Smith, 467 A2d 888 (Pa. 1983); Black’s Law Dictionary, 963 (6th ed. 1990) (defining manifest necessity as “a sudden and overwhelming emergency beyond control of court and unforeseeable”). In determining whether the trial court properly found manifest necessity for a mistrial, defendants’ valued right to have their trials decided by a particular tribunal must be considered. United States v. Jorn, 400 U. S. 470, 484 (91 SC 547, 27 LE2d 543) (1971).

¶4The cause of the mistrial was clearly foreseeable in this case. By indulging in the usual practice of deferring a ruling on the motion to suppress until after the bench trial, the court ran the predictable risk of being prejudiced by the evidence presented. The circumstances precipitating the mistrial in this case were not sudden or beyond control of the court.1 They arise in virtually every bench trial where evidentiary rulings which go to the heart of the case are deferred until all the evidence has been heard, and the court takes under consideration evidence it knows is not admissible. But a judge trained in the law is expected to be able to distinguish between admissible and inadmissible evidence. While the trial court’s candor is commendable, this is not a case where the inadmissible evidence is so emotionally charged that no reasonable person could disregard it. If the ability to make this distinction is not required of trial courts as a matter of course, how can we ever expect a jury to follow a trial court’s curative instructions to disregard evidence in similar circumstances? In granting the mistrial under these circumstances, the trial court deprived Bailey of his right to the tribunal of his choice and ultimately placed him in jeopardy of his liberty more than once for the same offense. Ga. Const., Art. I, Sec. I, Par. XVIII. By condoning this practice, the majority promotes expedience at justice’s expense. Because manifest necessity did not justify the mistrial, I believe double jeopardy bars retrial in this case.

¶5I am authorized to state that Judge Blackburn and Judge Smith *264join in this dissent.