304 Ga. 21 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, 248 Ga. 875,
875-877 (287 SE2d 7) (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,
437 U. S. 28, 38 (II) (B) (98 SCt 2156, 57 LE2d 24) (1978) (“The federal rule
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, 259 Ga. 498, 498 (384 SE2d 659) (1989) (equating all such forms of
double jeopardy claims). See also Benton v. Maryland, 395 U. S. 784, 794
(III) (89 SCt 2056, 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
As we have noted, many questions of double jeopardy are properly addressed under Georgia’s double jeopardy statutes. See Prater v. State, 273 Ga. 477, 480 (4) (545 SE2d 864) (2001). See also Stephens v. Hopper, 241 Ga. 596, 598-599 (1) (247 SE2d 92) (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, 22 U. S. 579, 580 (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, 434 U. S. 497, 506 (II) (98 SCt 824, 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, 559 U. S. 766, 774 (II) (130 SCt 1855, 176 LE2d
678) (2010) (quoting Illinois v. Somerville, 410 U. S. 458, 462 (II) (93 SCt
1066, 35 LE2d 425) (1973) (emphasis supplied)). See Harvey v. State, 296
Ga. 823, 831-832 (2) (a) (770 SE2d 840) (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, 559 U. S. at 775 (II) (quoting Washington, 434 U. S. at 510 n.28, 514
(III)). See Meadows v. State, 303 Ga. 507 (813 SE2d 350) (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, 336 U. S. 684 (69 SCt 834, 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, 142 U. S. 148, 154-155 (12
SCt 171, 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, 372 U. S. 734, 737-738 (83 SCt 1033, 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, 367 U. S. 364, 367
(81 SCt 1523, 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.
Id. at 368-370. 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, 372 U. S. at 736. 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, 400 U. S.
470, 482-484 (II) (91 SCt 547, 27 LE2d 543) (1971) (plurality opinion)
(discussing Gori, 367 U. S. 364, 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, 410
U. S. at 471 (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, 400 U. S. at 485 (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, 400 U. S. at 485 (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.
Id. at 479-480 (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, 410 U. S. at 469 (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, 120 Fed. Appx. 930, 933
(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, 336 U. S. at 689 (“[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, 298 Ga. 544, 544-545 (782 SE2d 654)
(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, 279 Ga. 826, 827 (II) (A) (620 SE2d 829) (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, 434 U. S. at 515-516 (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, 400 U. S. at 487 (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, 303 Ga. at 513-514 (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, 112 F3d 131,
137 (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, 559 U. S. at 779 (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, 2008 Conn. Super.
LEXIS 1431, 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, 766 P2d 298, 303 (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, 400 U.S. at 487
(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, 795 F3d 88, 95-96 (II) (B) (D.C. Cir. 2015) (emphasis supplied). See
State v. Kirby, 236 SE2d 33, 35 (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, 276 Ga. 751, 754 (3)
(583 SE2d 853) (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, 278 Ga. 817, 817 (1) (607
SE2d 586) (2005) (quoting Amadeo v. State, 259 Ga. 469, 470-471 (2) (384
SE2d 181) (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, 273 Ga. 760, 771 (31) (546 SE2d 472) (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.