¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: January 18, 2023
¶4 S22A0870. HIGHTOWER v. THE STATE.
¶5 MCMILLIAN, Justice.
¶6 Michelle Antoinette Hightower was charged with malice
¶7murder and other crimes in connection with the shooting death of
¶8Michael McGee on September 5, 2017. Hightower’s trial on these
¶9charges began in the Superior Court of Fulton County on March 9,
¶102020, and four days later, on March 13, after the Chief Judge of the
¶11Atlanta Judicial Circuit issued an order declaring a judicial
¶12emergency due to the continued transmission of the COVID-19
¶13virus, the trial court declared a mistrial in Hightower’s case, over
¶14defense counsel’s objections. Hightower subsequently filed a plea in
¶15bar and motion to dismiss the indictment (collectively, the “Plea in
¶16Bar”), asserting that further prosecution of her case was barred by
¶17the double jeopardy clauses of the state and federal constitutions because there was no manifest necessity to declare a mistrial and
¶18because the trial court did not exercise its discretion or consider
¶19reasonable alternatives prior to declaring the mistrial. Following a
¶20hearing, the trial court denied the Plea in Bar on May 21, 2021, and
¶21Hightower appeals. 1 Because we conclude that the trial court acted
¶22within its discretion in determining that there was a manifest
¶23necessity for a mistrial, we affirm.
¶24 1. Voir dire in Hightower’s trial began on the morning of
¶25Monday, March 9, 2020, and was completed the next day, on March
¶2610. The jury was then selected and sworn. The same day, counsel
¶27gave their opening statements, and the State presented the
¶28testimony of three witnesses. On Wednesday, March 11, the trial
¶29court heard argument on several motions, and the State presented
¶30two additional witnesses. The parties also conducted voir dire of a
¶31proposed expert witness whom the State wished to call to rebut
¶32 1 Although Hightower originally filed her appeal in 2021, at Hightower’s request, the case was remanded to allow for completion of the record, and it was re-docketed under the current case number when it returned to this Court. The case was orally argued on August 23, 2022. 2 Hightower’s defense of battered-person syndrome, and the witness
¶33was qualified as an expert. The trial court recessed the trial
¶34proceedings for the next day, Thursday, March 12, to allow the
¶35State’s expert to interview Hightower and to allow the parties to
¶36prepare and exchange expert reports on the battered-person
¶37defense.
¶38 That evening, Christopher S. Brasher, chief judge of both the
¶39Atlanta Judicial Circuit and the Superior Court of Fulton County,
¶40sent an email notifying all Fulton County superior and state court
¶41judges, the Fulton County District Attorney’s office, and the county’s
¶42Public Defender’s office,2 among others, of his intention to issue an
¶43order declaring a judicial emergency effective Monday, March 16,
¶44which would “suspend the calling and empaneling of all jurors and
¶45the conduct of all jury trials” in Fulton County.
¶46 Chief Judge Brasher sent another email at 8:20 a.m. on Friday,
¶47March 13, attaching a copy of his order, which was entered about an
¶48 2 Hightower was represented by the Public Defender’s office at trial.
¶49 3 hour later, at 9:23 a.m. The order, citing OCGA § 38-3-61,3 declared
¶50a judicial emergency in the Atlanta Judicial Circuit, which “is
¶51composed of the County of Fulton.” OCGA § 15-6-1 (3). This
¶52declaration was based on a “serious health emergency” and a
¶53determination that the emergency “substantially endangers or
¶54infringes upon the normal functioning of the judicial system as it
¶55relates to jury service, and any non-essential matters, unless they
¶56can be conducted via video or teleconferencing.” The order defined
¶57the nature of the emergency as “the continued transmission of
¶58Coronavirus/COVID-19 throughout Fulton County and the potential
¶59infection of those who are required to appear in our courts and
¶60interact with large groups due to jury service.” The order further
¶61provided that:
¶62 [T]he undersigned makes this declaration of a judicial emergency affecting all courts and clerk’s offices in Fulton County as it relates to jury service, including
¶63 3 OCGA § 38-3-61 (a) empowers an “authorized judicial official” to declare judicial emergencies, and OCGA § 38-3-60 (1) (B) defines “[a]uthorized judicial official” to include “[a] chief judge of a Georgia superior court judicial circuit[.]” Chief Judge Brasher signed the Fulton County Order in both his capacities as chief judge of the Superior Court of Fulton County and chief judge of the Atlanta Judicial Circuit. 4 grand jury service and any non-essential matters, unless they can be conducted via video or teleconferencing. Accordingly, IT IS THE ORDER of the Court that no jurors shall report and no jury trials shall be held for a period of thirty (30) days from the date of the entry of the Order (the “Fulton County Order”).
¶64 The proceedings in Hightower’s case later recommenced at 9:51
¶65a.m., outside the presence of the jury, and after addressing
¶66preliminary evidentiary matters, the trial court announced that it
¶67would be taking judicial notice of the Fulton County Order and that
¶68it was also anticipating a similar statewide order from then-Chief
¶69Justice Harold D. Melton of this Court. As a result, the trial court
¶70said it anticipated that it would be declaring a mistrial in
¶71Hightower’s case and asked counsel if they wanted to “place
¶72something on the record.”
¶73 The State had no objections, but Hightower’s counsel objected
¶74to the mistrial and asked the court to consider less drastic
¶75alternatives. Defense counsel proposed that the trial continue
¶76through the weekend with the belief that it could be concluded by
¶77Sunday “before the judicial emergency has been declared.” In the
¶78 5 alternative, defense counsel suggested that the trial simply be
¶79continued until it could be reconvened with the same jury and a new
¶80trial date set “once the judicial emergency is over.” After the jurors
¶81returned to the courtroom, the trial court informed them of the
¶82Fulton County Order declaring a judicial emergency, 4 and
¶83announced that it was declaring a mistrial based on the judicial
¶84emergency. The trial court then released the jury from further
¶85service. 5
¶86 4 The Court explained to the jury that [t]he existence of the judicial emergency in Fulton County is related to the continued transmission of the coronavirus, COVID- 19 virus, throughout Fulton County and the potential infection of those who are required to appear in our courts and interact with large groups due to jury service including grand jury service or other large nonessential calendars. 5 The then-Chief Justice of this Court issued the first in a series of orders
¶87declaring a statewide judicial emergency the next day, on Saturday, March 14, 2020. That order provided, in pertinent part: [T]rials in any criminal case for which a jury has been empaneled and the trial has commenced as of the date of this order shall continue to conclusion, unless good cause exists to suspend the trial or declare a mistrial. The decision whether to suspend a criminal trial or declare a mistrial rests with the judge presiding over the case. Although this statewide order contradicted the Fulton County Order by allowing criminal trials in progress to continue to conclusion, it had not yet been issued when the trial court declared the mistrial.
¶88 6 The following week, on March 19, 2020, the trial court entered
¶89a written order regarding the grant of the mistrial in Hightower’s
¶90case, which recited the events surrounding the Fulton County
¶91Order, and stated:
¶92 By declaring a mistrial in this case, the Court declares explicitly that a manifest necessity warranted the declaration of the mistrial in this case, specifically the existence of a judicial emergency in Fulton County. Further, this Court specifically declares that the entry of the order of mistrial, in this case, is designed to ensure that the ends of justice will be served.
¶93 Hightower filed the Plea in Bar over one year later, on April 7,
¶942021. After an evidentiary hearing, the trial court denied the Plea
¶95in Bar in a written order entered May 21, 2021. That order recited
¶96that in making the decision to declare a mistrial, the trial court was
¶97aware that “a judicial emergency was being declared due to the
¶98[c]oronavirus/COVID-19”; that COVID-19 “was highly contagious
¶99and could cause severe illness or death to those who contracted it”;
¶100and that “medical professionals in the media were urging people to
¶101stay at home to avoid contracting and spreading the virus to others.”
¶102The order also said that the trial court further “considered the fact
¶103 7 that the trial was not likely to conclude by the end of the day and
¶104that the courtroom did not have adequate infrastructure in place to
¶105prevent the contraction or spread of the virus.” Based on these
¶106factors, the trial court concluded “that a high degree of necessity
¶107existed such that a mistrial was warranted.”
¶108 2. Hightower asserts on appeal that her Plea in Bar should
¶109have been granted because the trial court erred in declaring a
¶110mistrial sua sponte over her objection without carefully exercising
¶111sound discretion, without considering less drastic alternatives, and
¶112without a manifest necessity.
¶113 “The Double Jeopardy Clause of the Fifth Amendment, which
¶114applies to the states through the Fourteenth Amendment, says ‘[n]o
¶115person shall be . . . subject for the same offence to be twice put in
¶116jeopardy of life or limb[.]’” Meadows v. State, 303 Ga. 507, 510 (2)
¶117(813 SE2d 350) (2018); U. S. Const. Amend. V. See also Ga. Const.
¶118of 1983, Art. I, Sec. I, Par. XVIII; OCGA § 16-1-8 (a).6 “Jeopardy
¶119 6The double jeopardy clause of the Georgia Constitution provides: “No person shall be put in jeopardy of life or liberty more than once for the same
¶120 8 attaches when the jury has been impaneled and sworn.” Blake v.
¶121State, 304 Ga. 747, 749 (2) (822 SE2d 207) (2018). But “[e]ven after
¶122jeopardy has attached, trial courts may declare a mistrial over the
¶123defendant’s objection, without barring retrial, whenever, in their
¶124opinion, taking all the circumstances into consideration, there is a
¶125manifest necessity for doing so.” Rios v. State, 311 Ga. 639, 643 (2)
¶126(859 SE2d 65) (2021) (citation and punctuation omitted). See also
¶127offense except when a new trial has been granted after conviction or in case of mistrial.” Art. I, Sec. I, Par. XVIII. Georgia also has a statutory prohibition against multiple prosecutions for the same conduct. OCGA § 16-1-8 (a) provides: A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal; or (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. We note that [i]n 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[.] Carman v. State, 304 Ga. 21, 25 (2) (815 SE2d 860) (2018). And Hightower does not argue that a different analysis should apply under the Georgia Constitution.
¶128 9 U.S. v. Dinitz, 424 U.S. 600, 606-07 (II) (96 SCt 1075, 47 LE2d 267)
¶129(1976) (if “a mistrial has been declared without the defendant’s
¶130request or consent,” “the question whether under the Double
¶131Jeopardy Clause there can be a new trial . . . depends on whether
¶132‘there is a manifest necessity for the (mistrial)’” (citation omitted)).
¶133 The manifest necessity standard requires a “high degree of
¶134necessity” to grant a mistrial. Laguerre v. State, 301 Ga. 122, 124
¶135(799 SE2d 736) (2017) (citation and punctuation omitted). See also
¶136Tubbs v. State, 276 Ga. 751, 754 (3) (583 SE2d 853) (2003)
¶137(“Manifest necessity can exist for reasons deemed compelling by the
¶138trial court, especially where the ends of substantial justice cannot
¶139be attained without discontinuing the trial.” (citation and
¶140punctuation omitted)). “Whether such necessity exists is to be
¶141determined by weighing the defendant’s right to have his trial
¶142completed before the particular tribunal against the interest of the
¶143public in having fair trials designed to end in just judgments; and
¶144the decision must take into consideration all the surrounding
¶145circumstances.” Laguerre, 301 Ga. at 124 (punctuation and citation
¶146 10 omitted).
¶147 Therefore, in the absence of prosecutorial misconduct, “the
¶148decision whether to grant a mistrial is reserved to the ‘broad
¶149discretion’ of the trial judge.” Carman v. State, 304 Ga. 21, 27 (2) (a)
¶150(815 SE2d 860) (2018) (punctuation omitted and emphasis in
¶151original), quoting Renico v. Lett, 559 U.S. 766, 774 (II) (130 SCt 1855,
¶152176 LE2d 678) (2010). See also Laguerre, 301 Ga. at 125; Tubbs, 276
¶153Ga. at 754-55 (3).
¶154 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. The propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial cannot be determined by the application of any mechanical formula.
¶155Harvey v. State, 296 Ga. 823, 831-32 (2) (a) (770 SE2d 840) (2015)
¶156(citations and punctuation omitted) (quoting Illinois v. Somerville,
¶157410 U.S. 458, 462 (93 SCt 1066, 35 LE2d 425) (1973)). And “great
¶158deference is accorded to a decision that a mistrial was necessary.”
¶159Blake, 304 Ga. at 750 (2).
¶160 Although trial courts should “give careful, deliberate, and
¶161 11 studious consideration to whether the circumstances demand a
¶162mistrial, with a keen eye toward other, less drastic, alternatives, a
¶163court’s rejection of other alternatives is a proper exercise of the
¶164court’s discretion—and not an abuse—if reasonable judges could
¶165differ about the proper disposition.” Blake, 304 Ga. at 749 (2). See
¶166also Harvey, 296 Ga. at 832 (2); Tubbs, 276 Ga. at 754-55 (3). A trial
¶167court “is not required to make explicit findings of manifest necessity
¶168nor to articulate on the record all the factors which informed the
¶169deliberate exercise of his discretion,” but the record must at least
¶170“show that the trial court actually exercised its discretion.” Blake,
¶171304 Ga. at 749 (2) (punctuation and citation omitted). See also
¶172Laguerre, 301 Ga. at 125.
¶173 Hightower argues that the trial court abused its discretion in
¶174determining that there was a manifest necessity to declare a
¶175mistrial and in failing to consider less drastic alternatives. She
¶176asserts that the trial court based its mistrial decision, not on any
¶177problem with her trial, but rather on the Fulton County Order and
¶178its underlying concerns for “community safety.” Hightower asserts
¶179 12 that such concerns are unrelated to any problem that occurred at
¶180her trial and therefore not appropriate to consider in determining
¶181whether to grant a mistrial.
¶182 However, in considering the issue of double jeopardy, the
¶183United States Supreme Court has recognized that considering the
¶184health of trial participants can be integral to conducting a criminal
¶185trial. The Court has acknowledged that
¶186 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.
¶187United States v. Jorn, 400 U.S. 470, 479-80 (II) (91 SCt 547, 27 LE2d
¶188543) (1971). Thus, the Supreme Court concluded that application of
¶189a mechanical rule barring retrial whenever a jury is discharged
¶190without a defendant’s consent would be unworkable; rather, “a
¶191defendant’s valued right to have his trial completed by a particular
¶192tribunal must in some instances be subordinated to the public’s
¶193interest in fair trials designed to end in just judgments.” Id. at 480
¶194 13 (II) (citation and punctuation omitted). See also Arizona v.
¶195Washington, 434 U.S. 497, 505 (II) (98 SCt 824, 54 LE2d 717) (1978)
¶196(“Because of the variety of circumstances that may make it
¶197necessary to discharge a jury before a trial is concluded,” which “do
¶198not invariably create unfairness to the accused,” a defendant’s
¶199“valued right to have the trial concluded by a particular tribunal is
¶200sometimes subordinate to the public interest in affording the
¶201prosecutor one full and fair opportunity to present his evidence to
¶202an impartial jury.”).
¶203 Moreover, we do not view the trial court’s decision to declare a
¶204mistrial in hindsight, but rather from the court’s perspective at the
¶205time it exercised its discretion. See Harvey v. State, 296 Ga. 823, 833
¶206(2) (b) (770 SE2d 840) (2015) (“[T]he question before us is not
¶207whether the trial court exercised its discretion to grant a mistrial
¶208with care and full deliberation or whether, with the benefit of
¶209hindsight, we would say that a mistrial was necessary. Our task is
¶210only to decide whether the trial court abused its broad discretion.”);
¶211Tankersley v. Stepp, 266 Ga. 892, 892 (1) (471 SE2d 882) (1996) (trial
¶212 14 court did not abuse its discretion in denying a continuance or
¶213mistrial where witness “evidenced an inability to respond” to cross-
¶214examination questions, even though hindsight may have revealed
¶215that witness had a serious illness during trial).
¶216 At the time the trial court declared a mistrial in this case, the
¶217COVID-19 pandemic had created an unexpected and unprecedented
¶218global health crisis, which posed a potential threat to the health of
¶219the parties, including the defendant, witnesses, jurors, counsel, and
¶220court personnel required to appear in court and, as the Fulton
¶221County Order stated, “substantially endanger[ed] or infringe[d]
¶222upon the normal functioning of the judicial system as it relates to
¶223jury service.” Hightower’s trial took place early in the pandemic,
¶224when very little was understood about the nature or spread of the
¶225COVID-19 virus, understandably prompting caution by public
¶226officials in addressing the crisis based on the circumstances in the
¶227surrounding area. The Fulton County Order declared that an
¶228emergency existed based on “the continued transmission of
¶229Coronavirus/COVID-19 throughout Fulton County.”
¶230 15 The trial court was also aware that health issues already had
¶231arisen among the participants in Hightower’s trial. On Tuesday,
¶232March 10, one juror informed the court that she was concerned she
¶233had “strep” as she had a sore throat that had “progressively gotten
¶234worse,” and the State informed the trial court that one of its
¶235witnesses called to report that she had “flu-like” symptoms that
¶236were “getting worse.”7 These circumstances, demonstrate that,
¶237contrary to Hightower’s argument, community health concerns
¶238potentially arising from COVID-19 presented a problem for
¶239Hightower’s trial. Moreover, the record belies Hightower’s assertion
¶240that the trial court abused its discretion by not considering less
¶241drastic alternatives. Before declaring a mistrial, the trial court
¶242informed the parties of the Fulton County Order and that it was
¶243 7 The juror volunteered to visit an urgent care facility, and the trial court accepted her offer, asking the juror to give the court an update on her condition. In reviewing the record on appeal, we could find no further mention of the juror in the trial transcript. As to the State’s witness, the trial court directed the State to inform the witness that she was to honor the subpoena served upon her. The State did not call the ailing witness to testify before the mistrial was declared on March 13, but the prosecutor represented that day that the State believed that it would be able to present the witness’s testimony in court although no date was given for the witness’s availability. 16 anticipating declaring a mistrial, but it nonetheless solicited
¶244argument from counsel on the matter. The State raised no objection,
¶245but the defense objected and was given an opportunity to argue the
¶246issue. Defense counsel suggested two options: (1) holding the trial
¶247over the weekend to be completed “before the judicial emergency has
¶248been declared” on Monday, March 16, and (2) ordering a continuance
¶249until “the judicial emergency is over” when the trial could be reset
¶250before the same jury. After hearing and having the opportunity to
¶251consider the defense’s argument and suggestions, the trial court
¶252declared the mistrial.
¶253 We conclude that, under the circumstances present in this
¶254case, rejecting the defendant’s suggested alternatives was within
¶255the trial court’s discretion. The first alternative proposed a
¶256procedure that would have violated the Fulton County Order, which
¶257had already declared a judicial emergency as of March 13 and
¶258ordered that jurors should not appear for jury service for 30 days
¶259 17 after that date. 8 And nothing in this proposal would have addressed
¶260the concerns underlying that order for protecting the trial
¶261participants’ health. Moreover, implied in this suggestion is an
¶262acknowledgement by the defense that the trial could not have been
¶263completed on March 13, and thus it represents an implicit
¶264concession that proceeding with the trial that day would not have
¶265resulted in a verdict. 9 The second alternative would have
¶266necessitated a continuance for an indefinite period of time. In light
¶267of the uncertainties surrounding the pandemic, no one could predict
¶268when the judicial emergency would be over, and there was no
¶269assurance that the same jury would have been available to continue
¶270the trial at an unknown point in the future. See Carman, 304 Ga. at
¶27133 (2) (b) (affirming denial of plea in bar following mistrial because
¶272 8 Although the statewide order issued on March 14 allowed criminal jury trials in progress “to continue to conclusion, unless good cause exists to suspend the trial or declare a mistrial,” as previously noted, the trial court did not have the benefit of this order in considering alternatives. And, in any event, the trial court found a manifest necessity to declare a mistrial, which is “good cause.” 9 At the beginning of Hightower’s trial, counsel estimated that the trial
¶273would take a week to complete, but the trial had already been recessed for one full day to allow the State’s expert to interview Hightower and the parties to exchange expert reports on her battered-person defense. 18 defense counsel was experiencing severe emotional distress
¶274following suicide of close family member and it was unclear when
¶275counsel would be able to return to try the case). See also State v.
¶276Smith, 465 N.J. Super. 515, 542 (III) (B) (ii) (244 A3d 296) (App. Div.
¶2772020) (affirming grant of mistrial where continuance or
¶278adjournment for an indefinite period was not feasible given the state
¶279of the COVID-19 pandemic).
¶280 Accordingly, given the COVID-related judicial emergency and
¶28130-day prohibition on jury service in Fulton County, and the
¶282potentially COVID-related health concerns among the trial’s
¶283participants, we conclude that the trial court did not abuse its
¶284discretion in declaring a mistrial based on manifest necessity or in
¶285denying Hightower’s Plea in Bar. 10 See Carman, 304 Ga. at 33 (2) (b)
¶286(no abuse of discretion in declaring mistrial due to severe emotional
¶287 10 Although the existence of a judicial emergency based on the widespread transmission of the COVID-19 virus in Fulton County alone may have justified a mistrial and even without a showing that the trial participants were actually affected by the virus, we need not definitively decide that question in this case because participants in Hightower’s trial were also experiencing health concerns potentially related to the COVID-19 pandemic. 19 distress of defense counsel who had worked on the death penalty
¶288case for two years where backup counsel had only been involved for
¶289two weeks); Laguerre, 301 Ga. at 126 (no abuse of discretion in
¶290declaring mistrial after the trial court “reasonably decided that the
¶291jury unit likely could not be preserved in the circumstances”);
¶292Spearman v. State, 278 Ga. 327, 329 (1) (602 SE2d 568) (2004) (no
¶293abuse of discretion in declaring mistrial based on prosecution
¶294witness’s unavailability, which was due solely to an unforeseeable
¶295accident that occurred the weekend before the trial, where there was
¶296no evidence that prosecution knew of witness’s unavailability before
¶297beginning trial).
¶298 Judgment affirmed. All the Justices concur.
¶299 20