Carman v. State

FINAL COPY




                       S18A0586. CARMAN v. THE STATE.


       HINES, Chief Justice.

       Demario Carman, along with three other men, was indicted for murder,

armed robbery, and related crimes in connection with the death of Vanessa

Thrasher at O.T.’s Lounge in Atlanta, Fulton County, Georgia, on August 16,

2012. The State gave notice of its intent to seek the death penalty, and the

guilt/innocence phase of Carman’s trial began on November 17, 2014. As

outlined in more detail below, the trial court declared a mistrial during the

latter half of the guilt/innocence phase of Carman’s trial. In this appeal,

Carman contends that his right not to be subjected to double jeopardy and his

right to counsel of his choosing would be violated if he were subjected to a

new trial following the mistrial. For the reasons set forth below, we affirm

the trial court’s denial of Carman’s plea in bar, and we thereby return

jurisdiction to the trial court for the purpose of its conducting a new trial.1
1

        This case was previously docketed in this Court as Case No. S16A1002 and was orally
argued on July 18, 2016, but the case was stricken from the docket and remanded to the trial court
       1. At a hearing held on January 28, 2013, the trial court approved

Christian Lamar to serve as lead counsel for Carman and Kimberly Staten-

Hayes to serve as co-counsel, and they represented Carman throughout the

nearly two years of his pretrial proceedings and trial preparation. On October

24, 2014, which was just 11 days before voir dire began, Gabrielle Pittman

filed a notice of appearance to join the defense team.

       The jury was sworn and testimony began on Monday, November 17,

2014. The trial court had previously announced its intention to conduct the

trial until the end of the day on Tuesday, November 25, and then to take a

recess for Thanksgiving from Wednesday, November 26, up to and including

Monday, December 1. However, on Wednesday, November 19, just before

11:00 a.m., the testimony of the ninth of the State’s anticipated 18 witnesses

for its case-in-chief in the guilt/innocence phase was interrupted when Ms.

Staten-Hayes approached the bench off the record and the trial court

dismissed the jury. Ms. Staten-Hayes informed the trial court on the record

that she had approached the bench because of an evidentiary matter, which


for the complete record to be assembled and transmitted to this Court. As this Court’s remand order
specified, the briefs previously filed have been filed under a new case number, Case No. S18A0586.
Each of the Justices who were not present at the previous oral arguments have viewed the recording
of those arguments, and, as our remand order also specified, we deem further oral arguments
concerning the same briefs to be unnecessary.
the trial court ruled on.    The trial court then ordered a recess to last

approximately 15 minutes.

     After the recess, the trial court announced, “we have had an emergency

occur,” explaining:

     Ms. Staten-Hayes received a communication when we were on
     the break that her niece attempted to commit suicide, and as a
     consequence of that, she is and — is emotionally distraught, and I
     can vouch for that because that’s the reason you saw me going
     through the door and going into the women’s bathroom.

The trial court announced:

     Given Ms. Staten-Hayes’s circumstances, we absolutely will not
     be proceeding today. What is going to occur at this point is I will
     give both sides an opportunity to state their position about
     whether I should declare a mistrial or whether this trial should be
     delayed.

Mr. Lamar informed the trial court that he and Carman’s other counsel had

discussed the matter with Carman, and Mr. Lamar proposed a 13-day

continuance until the Tuesday after Thanksgiving, December 2, which he

said would allow him and Ms. Pittman to “come up to speed” in case Ms.

Staten-Hayes could not return. The State joined that proposal, but it asked

the trial court to ensure that Carman, in seeking the 13-day continuance, was

committing “to the fact that if Ms. Staten-Hayes is not in the position to
proceed, that he would be willing to proceed with his other counsel of record

on December 2.”

      When questioned by the trial court, Mr. Lamar explained that Ms.

Staten-Hayes had been responsible for preparing for the guilt/innocence

phase and that Mr. Lamar had been responsible for preparing for the

sentencing phase. Mr. Lamar also stated that Ms. Pittman had joined the

defense team just two weeks prior to voir dire, that it had been intended that

she would participate only in jury selection, that she had done other,

unspecified things for the defense since then, and that she would not be

prepared to catch up on nearly two years of preparation but could be prepared

for “targeted things.”    Mr. Lamar also stated that his proposal for a

continuance was acceptable to Carman personally. The trial court expressed

its concern that the issue of Carman’s representation would become an issue

on appeal and on habeas corpus, and it noted that the jurors might become

“frustrated” and “should not be concerned about any personal issues

associated with either side.” The trial court continued:

      And I understand that as he sits here now, Mr. Carman may very
      well want to proceed, and I understand why everybody may very
      well want to proceed because I realize it’s been a long road, and
      people want it over. And they want it to be done. But how it is
      done matters. It matters for both sides. So I’m sorry that we are
      where we are, but I cannot, in good conscience, say we will
      proceed with this trial. Because the fact is Ms. Staten-Hayes has
      been Mr. Carman’s lawyer for the last two years. This case was
      prepared by Mr. Carman’s counsel with the intention that she
      would be the person who would handle the guilt-innocence
      phase. Now, I understand that everybody wants to continue, but
      it would be an injustice to do so, not just to Mr. Carman, but to
      Ms. Thrasher’s [the victim’s] family. Because when this is done,
      it needs to be done for everybody. And if we have to do it again,
      it should not be because we decided to do what was expedient
      now at the expense of being able to defend the decisions that
      we’re making. So this trial will end because given Ms. Staten-Hayes’s current mental condition, it is this court’s judgment that
      she is not in a position to give Mr. Carman the representation that
      he deserves.

      Ms. Staten-Hayes then spoke in favor of a continuance, stating

regarding her niece, “[W]hat I was hoping is that if the court would just give

me a couple of days to check on her.” Upon questioning by the trial court,

she explained that her niece was the only child of her sister who had died that

summer, that her niece’s father lived in Nashville, Tennessee, and that her

niece had made a serious suicide attempt and was in the hospital at

Vanderbilt University. When asked by the trial court, she admitted that she

would want to stay in Nashville if she were gone for two days and learned

that her niece needed her. She told the trial court, “If the court could hold off

on making this decision at least until I talk to [my brother-in-law], if he tells
me she’s going to be okay, I can shoot there and get back.” Mr. Lamar stated

his agreement with this request. The trial court replied:

      Well, let me tell you what I’m not going to do. I’m not going to
      put a human being in the position of if they think they need to
      stay with someone who has committed [sic] suicide, they’re
      debating w[h]ether or not to do that, or say: Yep, let’s just go
      forward with the trial because, you know, they gave me this time,
      and I feel bad.

The trial court then again stated its intention to grant a mistrial, adding, “[I]n

fairness to [Carman], and in fairness to the Thrasher family, we’re not

proceeding.”

      Mr. Lamar then made a final request for a continuance of 13 days,

explaining that the jury would not need to be informed of the reason for the

delay and stating: “So we’re asking the court for that time. The court can

still declare a mistrial. But we’re just asking for that time to figure out, like

you said, maybe we can go forward, maybe we can’t.” The trial court

replied, “I can tell you now, you are not going to go forward with a lawyer

who just got this case when you and Ms. Staten-Hayes have had it for two

years.” The trial court then added, “And I’m not going to put her in a

position of having to decide between her niece and this trial.” Mr. Lamar and
the State each renewed their objections to a mistrial. The trial court then

released the jury.

      After a recess, the trial court reiterated its reasoning in granting a

mistrial:

      The court, after hearing all of the circumstances associated with
      this matter, and for the reasons stated previously, finds that the
      declaration of a mistrial is a manifested [sic] necessity, that the
      failure to declare a mistrial would — if this trial were to continue
      — result in a set of circumstances that the court does not believe
      could be defended, both with respect to any verdict which might
      be returned, and should the matter be taken up on appeal at some
      later point in time.

      The trial court then allowed the defense to “expand upon [its]

objection.” Mr. Lamar stated that Carman “was prejudiced” because the

defense had already “revealed [its] theory in the case.”        The trial court

replied:

      At this point everybody has revealed their theory of the case, and
      the circumstances that came up were absolutely unforeseen, and
      in light of weighing the potential prejudice associated with
      requiring him to proceed with new counsel on such notice,
      potentially, as well as the clear emotional state of his current
      counsel, which the court finds to be entirely reasonable and
      justified, it is the court’s view that the balance of equities would
      make it appropriate to declare a mistrial.

The trial court then concluded the proceedings.
       After the mistrial was declared, Carman filed a plea in bar, arguing that

a new trial would constitute double jeopardy, and the trial court denied that

motion and a motion to reconsider. This case is properly before this Court as

a direct appeal, because the appeal of a denied plea of double jeopardy is

subject to the collateral order doctrine. See Patterson v. State, 

 (

) (1982).

       2. Carman contends that allowing him to be subjected to a second trial,

after the trial court granted the mistrial in his first trial, will subject him to

double jeopardy in violation of the Fifth Amendment to the Constitution of

the United States, the Georgia Constitution, and the Georgia Code.2 There is

no dispute that jeopardy attached during Carman’s first trial, as the jury in

that trial had been sworn before the mistrial was declared. See Crist v. Bretz,

 (II) (B) (

, 57 LE2d 24) (1978) (“The federal rule

2

         The Fifth Amendment provides: “No person shall . . . be subject for the same offense to be
twice put in jeopardy of life or limb. . . .” The Georgia Constitution provides: “No person shall be
put in jeopardy of life or liberty more than once for the same offense except when a new trial has
been granted after conviction or in case of mistrial.” Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII.
The Georgia Code provides:
        (a) A prosecution is barred if the accused was formerly prosecuted for the same
        crime based upon the same material facts, if such former prosecution: . . . (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. . . .

OCGA § 16-1-8.
that jeopardy attaches when the jury is empaneled and sworn is an integral

part of the constitutional guarantee against double jeopardy.”); OCGA § 16-

1-8 (a) (2). In 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, and we do so below regarding Carman’s claims. See Burleson

v. State, 

 (

) (1989) (equating all such forms of

double jeopardy claims). See also Benton v. Maryland, 

(III) (

, 23 LE2d 707) (1969) (“[W]e today find that the double

jeopardy prohibition of the Fifth Amendment represents a fundamental ideal

in our constitutional heritage, and that it should apply to the States through

the Fourteenth Amendment.”).3



3

        As we have noted, many questions of double jeopardy are properly addressed under
Georgia’s double jeopardy statutes. See Prater v. State, 

 (4) (

)
(2001). See also Stephens v. Hopper, 

 (1) (

) (1978) (noting that
“the 1968 Georgia Criminal Code provide[d] new, expanded statutory tests” regarding “two aspects
of double jeopardy — first limitations upon multiple prosecutions for crimes arising from the same
conduct (referred to as the procedural bar of double jeopardy); and, second, limitations upon
multiple convictions or punishments that may be imposed for such crimes (referred to as the
substantive bar of double jeopardy)” (emphasis in original)).
      (a) We first consider the general governing case law in this field. The

United States Supreme Court first addressed whether the sua sponte granting

of a mistrial prior to the jury’s verdict bars further prosecution in 1824 in a

case where the jury was unable to agree on a verdict, and the Court held as

follows:

      We think, that in all cases of this nature, the law has invested
      Courts of justice with the authority to discharge a jury from
      giving any verdict, whenever, in their opinion, taking all the
      circumstances into consideration, there is a manifest necessity for
      the act, or the ends of public justice would otherwise be defeated.
      They are to exercise a sound discretion on the subject; and it is
      impossible to define all the circumstances, which would render it
      proper to interfere. To be sure, the power ought to be used with
      the greatest caution, under urgent circumstances, and for very
      plain and obvious causes; and, in capital cases especially, Courts
      should be extremely careful how they interfere with any of the
      chances of life, in favour of the prisoner. But, after all, they have
      the right to order the discharge; and the security which the public
      have for the faithful, sound, and conscientious exercise of this
      discretion, rests, in this, as in other cases, upon the responsibility
      of the Judges, under their oaths of office.

United States v. Perez, 

 (6 LE 165) (1824) (emphasis

supplied). Regarding how deference will be applied to the question of the

necessity for a mistrial, the Supreme Court has clarified as follows:

      Nevertheless, those words [manifest necessity] do not describe a
      standard that can be applied mechanically or without attention to
      the particular problem confronting the trial judge. Indeed, it is
      manifest that the key word “necessity” cannot be interpreted
      literally; instead, contrary to the teaching of Webster, we assume
      that there are degrees of necessity and we require a “high
      degree” before concluding that a mistrial is appropriate.

Arizona v. Washington, 

 (II) (

, 54 LE2d 717)

(1978) (footnotes omitted; emphasis supplied).

      The Supreme Court has also stated, at least regarding cases not

involving bad faith by the prosecution or the trial judge, “[t]he decision

whether to grant a mistrial is reserved to the ‘broad discretion’ of the trial

judge.” Renico v. Lett, 

 (II) (

, 176 LE2d

678) (2010) (quoting Illinois v. Somerville, 

 (II) (

, 35 LE2d 425) (1973) (emphasis supplied)). See Harvey v. State, 

 (2) (a) (

) (2015) (“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. . . . Where it is clear from the record that the trial court actually

exercised its discretion in deciding to grant a mistrial, the Double Jeopardy

Clause generally will not bar retrial.”).

      This is not to say that we grant absolute deference to trial judges
      in this context. . . . Thus, “if the trial judge acts for reasons
      completely unrelated to the trial problem which purports to be the
      basis for the mistrial ruling, close appellate scrutiny is
      appropriate.” [Cit.] Similarly, “if a trial judge acts irrationally or
      irresponsibly, . . . his action cannot be condoned.” [Cit.]

Lett, 

 (II) (quoting Washington, 

 n.28, 514

(III)). See Meadows v. State, 

 (

) (2018) (reversing

where the trial court granted a mistrial due to concerns for jury safety based

on the reports of a bailiff, without ever asking the jurors if any of them felt

unsafe). The Supreme Court has since given deference to the trial courts to

grant mistrials where a variety of circumstances, other than the

unpreparedness of the prosecution to prove its case or bad faith on the part of

the trial judge, have interfered with the progress or fairness of trials. See,

e.g., Wade v. Hunter, 

 (

, 93 LE 974) (1949)

(allowing a second court martial after a first court martial was terminated

because witnesses were located far from the tribunal after the front line of

battle had advanced); Simmons v. United States, 

 (

, 35 LE 968) (1891) (holding that a second trial was permitted after a

mistrial was declared upon the discovery of an undisclosed bias of a juror).

Cf. Downum v. United States, 

 (

, 10 LE2d

100) (1963) (discussing the consequences of a mistrial declared upon the

prosecution’s unpreparedness to prove its case).
      The deference to the trial courts afforded by the Supreme Court has

also been applied where the exact circumstances motivating the trial court’s

actions were unclear, especially where the trial court’s motivation was clearly

not to favor the prosecution. See Gori v. United States, 

(

, 6 LE2d 901) (1961).          Notably, the Supreme Court has

emphasized:

      Where, for reasons deemed compelling by the trial judge, who is
      best situated intelligently to make such a decision, the ends of
      substantial justice cannot be attained without discontinuing the
      trial, a mistrial may be declared without the defendant’s consent
      and over his objection, and he may be retried consistently with
      the Fifth Amendment.
                                      ...
      Suffice that we are unwilling, where it clearly appears that a
      mistrial has been granted in the sole interest of the defendant, to
      hold that its necessary consequence is to bar all retrial. It would
      hark back to the formalistic artificialities of seventeenth century
      criminal procedure. . . . We would not thus make [the trial
      courts] unduly hesitant conscientiously to exercise their most
      sensitive judgment — according to their own lights in the
      immediate exigencies of trial — for the more effective protection
      of the criminal accused.

. That deference to the trial courts based on the interests of the

defendant, however, is not applied in an idle manner. The Supreme Court

has held:

      At times the valued right of a defendant to have his trial
      completed by the particular tribunal summoned to sit in judgment
      on him may be subordinated to the public interest — when there
      is an imperious necessity to do so.

Downum, 

. Thus, the Supreme Court has held that, even

though one might conclude that a defendant actually gained some benefit

from a mistrial, such a benefit, except where a defendant has requested a

mistrial, does not in itself authorize a future prosecution. This is true because

a defendant, regardless of whether he or she might gain some benefit from a

new trial, retains a qualified right “to go to the first jury and, perhaps, end the

dispute then and there with an acquittal.” United States v. Jorn, 

 (II) (

, 27 LE2d 543) (1971) (plurality opinion)

(discussing Gori, 

, but concluding that “a limitation on the

abuse-of-discretion principle based on an appellate court’s assessment of

which side benefited from the mistrial ruling does not adequately satisfy the

policies underpinning the double jeopardy provision”). See Somerville, 

 (III) (“Nor will the lack of demonstrable additional prejudice

preclude the defendant’s invocation of the double jeopardy bar in the absence

of some      important countervailing interest in the proper judicial

administration.”). The focus, where a benefit to the defendant appears to

have been contemplated in the granting of a mistrial, is on whether that
benefit was of a sort designed to ensure that the ends of justice would be

served. Thus,

      independent of the threat of bad-faith conduct by judge or
      prosecutor, . . . the Perez doctrine of manifest necessity stands as
      a command to trial judges not to foreclose the defendant’s option
      until a scrupulous exercise of judicial discretion leads to the
      conclusion that the ends of public justice would not be served by
      a continuation of the proceedings.

Jorn, 

 (II).

      (b) Turning more specifically to Carman’s case, we note that, even in

discussing the need for such a “scrupulous exercise of judicial discretion,”

Jorn, 

 (II), the Supreme Court made the following

acknowledgment:

      [I]t is also true 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.

 (II). See also United States v. Wayman, 510 F2d 1020, 1028

(VIII) (5th Cir. 1975) (approving the granting of a mistrial where “trial

counsel was injured in an automobile wreck and was unable to continue the

trial”). Thus, throughout our consideration of the trial court’s decision to

declare a mistrial in Carman’s case, we rightfully remain mindful that that
decision involved the emotional health and ability to proceed of one of the

two attorneys who had spent nearly two years preparing Carman’s case for

trial and whose absence, at least arguably, might not have simply harmed

Carman but might have significantly frustrated the ends of public justice.

      Carman argues that the trial court’s stated concern about future appeals

regarding counsel’s representation amounted to a substitution of defense

strategy and did not constitute a manifest necessity. However, the trial court

had a valid concern that Carman’s representation might be inadequate. This

concern was voiced in terms of the likelihood of reversal on appeal or relief

on habeas corpus, which would render the trial an exercise in futility. See

Somerville, 

 (III) (affirming where a mistrial was declared

because the indictment was fatally flawed and stating that “[i]f a mistrial

were constitutionally unavailable in situations such as this, the State’s policy

[regarding indictments] could only be implemented by conducting a second

trial after verdict and reversal on appeal, thus wasting time, energy, and

money for all concerned”).      Furthermore, the trial court’s core concern,

however phrased, was that Carman should have adequate representation in

the interest of justice. See United States v. Gomez, 

(IV) (3d Cir. 2005) (“The District Court’s interest in protecting Gomez’s
Sixth Amendment right to effective counsel competed with Gomez’s right to

have his trial completed by a particular tribunal. . . . The District Court’s

resolution of the tension between Gomez’s Fifth and Sixth Amendment rights

in this context is entitled to substantial deference.”).     As the trial court

explicitly identified, a concern for the interest of justice, including a concern

that adequate counsel be provided to an indigent defendant, properly

encompasses a consideration of the interests not only of the defendant but

also of the public. See Wade, 

 (“[A] defendant’s valued right

to have his trial completed by a particular tribunal must in some instances be

subordinated to the public’s interest in fair trials designed to end in just

judgments.”).

      Carman argues that the trial court abused its discretion by resting its

decision to grant a mistrial on an incorrect understanding of the Unified

Appeal Procedure. See Otis v. State, 

 (

)

(2016) (holding that the trial court’s declaration of a mistrial was based on an

incorrect understanding of a legal issue and concluding that, “[a]ccordingly,

the circumstances in th[e] case did not demand entry of mistrial”).

Specifically, Carman argues that the Unified Appeal Procedure simply

requires the appointment of two attorneys who meet specified “minimum
qualifications,” and he argues that Ms. Pittman met the requirements to

replace Ms. Staten-Hayes as Mr. Lamar’s co-counsel. UAP II (A). We find

no error. First, Carman’s assertion is not supported by the record, because, as

Carman himself acknowledges, the trial court made no reference to the

Unified Appeal Procedure in considering and then declaring a mistrial.

Instead, the trial court referred repeatedly to two core concerns: (1) Ms.

Staten-Hayes was effectively incapacitated as counsel and should not be

relied upon to determine the timing of her return to court under the

circumstances; and (2) Ms. Pittman, regardless of the fact that she was

qualified under the Unified Appeal Procedure, was simply unprepared to

serve as Carman’s sole co-counsel.      Second, even if the trial court had

referred to the Unified Appeal Procedure as a factor supporting its exercise of

discretion in declaring a mistrial, doing so would not have been unjustified.

Obviously, the requirements of the Unified Appeal Procedure must yield to

constitutional mandates wherever they are in conflict, including the

constitutional mandates governing the declaration of mistrials. Cf. Waldrip

v. Head, 

 (II) (A) (

) (2005) (holding that the

work product doctrine as interpreted by this Court must “yield to”

constitutional mandates if the two are in conflict). However, it would not
have been error for the trial court to weigh the Unified Appeal Procedure’s

concern for the appointment of qualified counsel as it exercised the discretion

afforded to it under constitutional mandates regarding mistrials.

      Carman argues that the trial court rushed to declare a mistrial; however,

we disagree with his characterization of the facts. As the United States

Supreme Court has itself done in the past, we find it highly relevant here that

the trial court in Carman’s case, rather than acting abruptly, gave both parties

an ample opportunity to discuss the alternatives to a mistrial prior to making

a ruling. Compare Washington, 

 (III) (“The trial judge

did not act precipitately. . . . On the contrary, evincing a concern for the

possible double jeopardy consequences of an erroneous ruling, he gave both

defense counsel and the prosecutor full opportunity to explain their positions

on the propriety of a mistrial.”) with Jorn, 

 (III) (plurality

opinion) (finding a double jeopardy bar where “the trial judge acted so

abruptly in discharging the jury” that the parties were unable to offer

alternatives or make objections). Carman’s case does not involve the failure

of the trial court to take even a short recess in order to inquire into the

circumstances at hand. Cf. Meadows, 

 (2) (b), (c) (finding

the trial court’s declaration of a mistrial improper where “the trial court did
nothing to try to confirm the deputy’s reports with the jurors by asking if any

of them felt the least bit unsafe during their deliberations” and failed to

consider obvious alternatives to a mistrial); Love v. Morton, 

 (III) (3d Cir. 1997) (finding a mistrial to have been improper where the

trial judge learned of the death of his mother-in-law but failed to allow the

parties to present alternatives, including a one-day continuance to allow a

new judge to take over); Mizell v. Attorney Gen. of New York, 586 F2d 942,

947 (2d Cir. 1978); United States v. Tinney, 473 F2d 1085, 1089 (3d Cir.

1973). Instead, the trial court in Carman’s case took such a recess, inquired

further into the circumstances at hand, allowed extensive argument, and only

then concluded that a 13-day continuance would not be sufficient to serve the

interests of justice. Cf. Thomason v. State, 620 S2d 1234, 1239 (Fla. 1993)

(cataloguing similar cases and concluding: “[T]he trial judge, while clearly

well-intentioned, did not discuss alternatives before declaring a mistrial over

the objection of the defendant’s counsel and the State.” (emphasis supplied)).

      The trial court in Carman’s case initially expressed some concern about

the effect of a 13-day continuance on the jury and its ability to be fair.

Although the trial court did not question the jury on the matter, we conclude

for two reasons that the trial court’s discretion was not abused by its failure
to do so. First, at times such a direct inquiry may be desirable yet still not be

absolutely necessary. See Lett, 

 (III) (stating, “we do not

deny that the trial judge could have been more thorough,” but finding that

such additional thoroughness was not constitutionally required). See also

State v. Anderson, Nos. CR04276040T, CR04275960T, 

, at *11 (II) (Conn. Super. Ct. May 29, 2008) (holding that

“[p]olling the jury would have been futile” because the seriously ill

prosecutor “could not indicate to the court when he would be able to return”).

Furthermore, and more importantly, the totality of the trial court’s comments,

particularly those following the suggestion by Carman’s lead counsel that the

jury could be left unaware of the reason for a continuance, shows that the

trial court’s core focus was on whether a 13-day continuance would be

sufficient to ensure that Carman’s trial was conducted in a manner that

served the ends of justice in light of the severe emotional distress of his co-

counsel of two years and the unpreparedness of the third attorney who had

only two weeks before joined the case.

      As defense counsel suggested to the trial court, it could have delayed

ruling on a possible mistrial until after a shorter continuance and a further

report from the defense about whether Carman’s co-counsel of two years felt
that she could return or whether any new arguments could be raised regarding

the ability of his lead counsel to proceed without her assistance. However,

the trial court clearly stated that it had considered the relevant circumstances,

which included a serious suicide attempt by the affected attorney’s close

family member who had recently lost her mother, the trial court’s direct

observation of the attorney’s severe emotional distress, the trial court’s

concern that the attorney would not be in a sound position to decide whether

she could or should return following a shorter continuance, and the

unpreparedness of the other attorney available to serve.           See State v.

Saavedra, 

 (N.M. 1988) (“Saavedra argues the judge should

have granted the continuance instead of jumping to the conclusion that

defense counsel would not be up to the strain of continuing with trial. . . .

Although it may have been the better course, we do not believe that the

Constitution [of the United States] required the trial court to grant the

defendant’s request for a one week continuance in order to make a more

‘scrupulous’ choice than the one in fact made.” (citing Jorn, 

(III) (plurality opinion)). As another court has noted, the “best practice may

favor allowing for a severance or mistrial where the prolonged illness or

absence of a defense counsel would require substitution.” United States v.
Bell, 

 (II) (B) (D.C. Cir. 2015) (emphasis supplied). See

State v. Kirby, 

 (S.C. 1977) (reversing the trial court’s

granting of the defendant’s plea of double jeopardy where the prosecutor had

unexpectedly died during the trial and where the assistant prosecutor “was

totally unprepared to prosecute the remainder of the case” and “was in no

emotional condition to continue the case”).

      Even if we might have chosen a different course in Carman’s case as

trial judges, the discussion above shows that the course chosen by Carman’s

trial court was not unreasonable. See Tubbs v. State, 

 (3)

(

) (2003) (“A trial judge has acted within his sound discretion

in rejecting possible alternatives and in granting a mistrial, if reasonable

judges could differ about the proper disposition.” (citation and punctuation

omitted)). Accordingly, we conclude that the trial court did not abuse its

discretion in declaring a mistrial and, in turn, denying Carman’s plea in bar

based on alleged double jeopardy.

      3. Carman makes an alternative argument in which he claims that the

trial court denied him the right to his counsel of choice without justification.

As Carman notes in his appeal, this Court has held that a trial court abuses its

discretion when it refuses, in selecting counsel for an indigent defendant, “to
give sufficient weight to the defendant’s ‘relationship of trust and confidence

with prior counsel’ and to prior counsel’s familiarity with the ‘legal and

factual complexities of the case.’” Grant v. State, 

 (1) (

) (2005) (quoting Amadeo v. State, 

 (2) (

) (1989)). However, the action taken by the trial court was not to

force unwanted representation on Carman but, instead, to abandon a trial

already underway where the trial court did not believe that one of Carman’s

two existing attorneys, who had been preparing his case for two years and

had primary responsibility for the guilt/innocence phase, would be in a sound

position to consider returning to represent him following the 13-day

continuance that Carman’s lead counsel had requested. Furthermore, our

review of the record reveals that Carman did not preserve this issue regarding

his choice of counsel for appellate review by raising it in the trial court. See

Butts v. State, 

 (31) (

) (2001) (noting the

general rule that, where “trial counsel failed to obtain a ruling from the trial

court on [a given] issue, it is waived for purposes of appeal”).

      Judgment affirmed. All the Justices concur, except Melton, P. J., who

concurs in judgment only.
                           Decided June 18, 2018.

      Murder. Fulton Superior Court. Before Judge Russell.

      Gabrielle A. Pittman, Kimberly A. Staten-Hayes, Christian G. Lamar,

Christina P. Rudy, for appellant.

      Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C.

Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, for appellee.