306 Ga. 626 FINAL COPY
S19A0646. THE STATE v. JACKSON.
PETERSON, Justice.
The trial court granted a mistrial in the murder case against
Monquez Jackson, finding that the prosecutor’s closing argument
included an improper comment on matters not in evidence. After
making extensive findings that the prosecutor made that improper
comment intentionally in hopes that the comment would lead to a
mistrial, and thus an opportunity to retry the case, the trial court
determined that double jeopardy prohibited the State from retrying
Jackson. The State appeals. We conclude that the trial court did not
abuse its considerable discretion in granting the mistrial. We also
conclude that the trial court’s factual findings supported its jeopardy
ruling, and that those findings must stand given the deference we
afford them. We affirm.
Jackson was indicted with co-defendants Sade Britt (his wife),
Dwayne Britt (Sade’s brother), and Tomeka Porter for various crimes against Anthony Westbrook. Jackson alone was charged with
malice murder, while he, Sade, and Dwayne were charged with
felony murder, armed robbery, conspiracy to commit armed robbery,
kidnapping, financial transaction card theft, financial transaction
card fraud, and theft by taking. Porter was charged only with
conspiracy to commit armed robbery. Prior to Jackson’s trial, his
three co-defendants all entered into agreements with the State, with
the Britts pleading guilty to certain non-murder crimes and the
State saying it would dismiss the charge against Porter after she
testified.
Sade testified at trial that Jackson shot Westbrook after
Jackson held Westbrook at gunpoint and she used Westbrook’s ATM
card to withdraw money from his bank account. Sade testified that
Dwayne was also present when she made the ATM withdrawals and
was nearby when Westbrook was shot. Sade testified that Porter
and Jackson dropped her off near Westbrook’s van a few days later
so that Sade could attempt to clean the vehicle of any inculpatory
evidence.
2 Dwayne also testified for the State, but his testimony differed
from his sister’s in several respects. Dwayne said that he was high
on drugs and did not see Jackson with a gun that night. As
summarized by the district attorney before the trial court, Porter
stated in a pre-trial allocution under oath that Sade had confessed
to killing Westbrook. But Porter did not testify at Jackson’s trial.
This appeal concerns the State’s handling of its failure to call
Porter to testify. The DA served as lead counsel for the State at trial.
The defense made multiple hearsay objections at trial as to
statements allegedly made by Porter; for instance, a hearsay
objection was sustained by the trial court when the State attempted
to introduce prior statements by Porter during the direct testimony
of the State’s lead investigator.1 After the close of evidence, the State
made an oral motion seeking to preclude the defense from making
any reference to Porter during its closing arguments, adding that
1 At the time, the DA represented to the trial court, “I may or may not
call Ms. Porter.” He later testified at the hearing on the plea in bar that he “had no intentions of calling” her because he “anticipated that [she] was going to try to aid Mr. Jackson.” 3 the State would say nothing about her other than that “the State
elected not to call her.” Jackson’s lawyer responded that she should
be able to “talk about what [the DA] said in his opening statement,
that he planned to call her and that her charges have already been
resolved.” The trial court agreed with the defense that the defense
could “refer back to what was said in opening.”2 The discussion
concluded when the DA withdrew his motion and said that he would
“just adjust [his] argument accordingly.”
In her closing argument, defense counsel noted that the State
had not called Porter to testify, adding, “I wonder what she would
have had to say.” In his closing, the DA stated the following:
Everything is not needed to be proven. Every witness doesn’t need to be called. You have got direct evidence. There is other evidence through testimony that has told you what happened. Even Tomeka Porter, all she could tell you is[,] “yeah, we went back to the car to clean it up.” You have got the evidence to support that already that that happened. That is corroborated. Tomeka Porter wasn’t needed. All she can do is say, “Yeah, I went back and I saw her clean up the car.”
2 In fact, although the DA mentioned Porter several times in his opening
statement, including that she had received her “day in court,” he did not tell the jury that he planned to call her to testify. 4 The defense promptly objected on the basis that the State was
arguing facts not in evidence. The trial court agreed with the State
that its statement to the jury about Porter was a reasonable
inference from Sade’s testimony, but ruled that it would instruct the
jury that it could not consider any suggestion about what Porter
would have said had she testified. After a short recess, the defense
moved for a mistrial based on prosecutorial misconduct. After
arguments of counsel and multiple breaks, the trial court granted
the motion pursuant to OCGA § 17-8-75, saying a curative
instruction was insufficient.
Jackson filed a “Plea of Double Jeopardy, Plea in Bar, and
Motion to Dismiss,” arguing that a retrial would constitute double
jeopardy because the State’s closing argument was an attempt to
goad defense counsel into seeking a mistrial so that the State could
retry the case. After a hearing, the trial court granted Jackson’s
motion, citing the DA’s “shifting and conflicting explanations” as to
his closing argument — which the trial court said “was in violation
of the Court’s order on the District Attorney’s own motion in limine”
5 — and noting that it had admonished the DA three times prior to
his closing argument that he should not inject Porter’s statements
into the trial without first calling her to testify. The court cited the
“certainly not overwhelming” evidence presented against Jackson,
particularly given the “glaring inconsistencies” between the
testimony of Sade and Dwayne and the lack of corroboration of their
testimony. And the court cited the DA’s considerable experience as
indicating that the DA would be well aware that his comments
would lead to a mistrial, noting that the DA was also in that role
when we reversed an aggravated assault conviction out of his circuit
because of the trial court’s failure to take appropriate action in
response to another prosecutor addressing matters outside of the
record during closing argument. See Jones v. State, 292 Ga. 656,
660-662 (2) (740 SE2d 590) (2013). The State appeals, arguing that
the trial court erred both in ordering a mistrial and granting the
plea in bar.
1. The State argues that the trial court abused its discretion in
ordering a mistrial. We disagree.
6 “Where counsel in the hearing of the jury make statements of
prejudicial matters which are not in evidence, it is the duty of the
court to interpose and prevent the same . . .” OCGA §
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306 Ga. 626 FINAL COPY
S19A0646. THE STATE v. JACKSON.
PETERSON, Justice.
The trial court granted a mistrial in the murder case against
Monquez Jackson, finding that the prosecutor’s closing argument
included an improper comment on matters not in evidence. After
making extensive findings that the prosecutor made that improper
comment intentionally in hopes that the comment would lead to a
mistrial, and thus an opportunity to retry the case, the trial court
determined that double jeopardy prohibited the State from retrying
Jackson. The State appeals. We conclude that the trial court did not
abuse its considerable discretion in granting the mistrial. We also
conclude that the trial court’s factual findings supported its jeopardy
ruling, and that those findings must stand given the deference we
afford them. We affirm.
Jackson was indicted with co-defendants Sade Britt (his wife),
Dwayne Britt (Sade’s brother), and Tomeka Porter for various crimes against Anthony Westbrook. Jackson alone was charged with
malice murder, while he, Sade, and Dwayne were charged with
felony murder, armed robbery, conspiracy to commit armed robbery,
kidnapping, financial transaction card theft, financial transaction
card fraud, and theft by taking. Porter was charged only with
conspiracy to commit armed robbery. Prior to Jackson’s trial, his
three co-defendants all entered into agreements with the State, with
the Britts pleading guilty to certain non-murder crimes and the
State saying it would dismiss the charge against Porter after she
testified.
Sade testified at trial that Jackson shot Westbrook after
Jackson held Westbrook at gunpoint and she used Westbrook’s ATM
card to withdraw money from his bank account. Sade testified that
Dwayne was also present when she made the ATM withdrawals and
was nearby when Westbrook was shot. Sade testified that Porter
and Jackson dropped her off near Westbrook’s van a few days later
so that Sade could attempt to clean the vehicle of any inculpatory
evidence.
2 Dwayne also testified for the State, but his testimony differed
from his sister’s in several respects. Dwayne said that he was high
on drugs and did not see Jackson with a gun that night. As
summarized by the district attorney before the trial court, Porter
stated in a pre-trial allocution under oath that Sade had confessed
to killing Westbrook. But Porter did not testify at Jackson’s trial.
This appeal concerns the State’s handling of its failure to call
Porter to testify. The DA served as lead counsel for the State at trial.
The defense made multiple hearsay objections at trial as to
statements allegedly made by Porter; for instance, a hearsay
objection was sustained by the trial court when the State attempted
to introduce prior statements by Porter during the direct testimony
of the State’s lead investigator.1 After the close of evidence, the State
made an oral motion seeking to preclude the defense from making
any reference to Porter during its closing arguments, adding that
1 At the time, the DA represented to the trial court, “I may or may not
call Ms. Porter.” He later testified at the hearing on the plea in bar that he “had no intentions of calling” her because he “anticipated that [she] was going to try to aid Mr. Jackson.” 3 the State would say nothing about her other than that “the State
elected not to call her.” Jackson’s lawyer responded that she should
be able to “talk about what [the DA] said in his opening statement,
that he planned to call her and that her charges have already been
resolved.” The trial court agreed with the defense that the defense
could “refer back to what was said in opening.”2 The discussion
concluded when the DA withdrew his motion and said that he would
“just adjust [his] argument accordingly.”
In her closing argument, defense counsel noted that the State
had not called Porter to testify, adding, “I wonder what she would
have had to say.” In his closing, the DA stated the following:
Everything is not needed to be proven. Every witness doesn’t need to be called. You have got direct evidence. There is other evidence through testimony that has told you what happened. Even Tomeka Porter, all she could tell you is[,] “yeah, we went back to the car to clean it up.” You have got the evidence to support that already that that happened. That is corroborated. Tomeka Porter wasn’t needed. All she can do is say, “Yeah, I went back and I saw her clean up the car.”
2 In fact, although the DA mentioned Porter several times in his opening
statement, including that she had received her “day in court,” he did not tell the jury that he planned to call her to testify. 4 The defense promptly objected on the basis that the State was
arguing facts not in evidence. The trial court agreed with the State
that its statement to the jury about Porter was a reasonable
inference from Sade’s testimony, but ruled that it would instruct the
jury that it could not consider any suggestion about what Porter
would have said had she testified. After a short recess, the defense
moved for a mistrial based on prosecutorial misconduct. After
arguments of counsel and multiple breaks, the trial court granted
the motion pursuant to OCGA § 17-8-75, saying a curative
instruction was insufficient.
Jackson filed a “Plea of Double Jeopardy, Plea in Bar, and
Motion to Dismiss,” arguing that a retrial would constitute double
jeopardy because the State’s closing argument was an attempt to
goad defense counsel into seeking a mistrial so that the State could
retry the case. After a hearing, the trial court granted Jackson’s
motion, citing the DA’s “shifting and conflicting explanations” as to
his closing argument — which the trial court said “was in violation
of the Court’s order on the District Attorney’s own motion in limine”
5 — and noting that it had admonished the DA three times prior to
his closing argument that he should not inject Porter’s statements
into the trial without first calling her to testify. The court cited the
“certainly not overwhelming” evidence presented against Jackson,
particularly given the “glaring inconsistencies” between the
testimony of Sade and Dwayne and the lack of corroboration of their
testimony. And the court cited the DA’s considerable experience as
indicating that the DA would be well aware that his comments
would lead to a mistrial, noting that the DA was also in that role
when we reversed an aggravated assault conviction out of his circuit
because of the trial court’s failure to take appropriate action in
response to another prosecutor addressing matters outside of the
record during closing argument. See Jones v. State, 292 Ga. 656,
660-662 (2) (740 SE2d 590) (2013). The State appeals, arguing that
the trial court erred both in ordering a mistrial and granting the
plea in bar.
1. The State argues that the trial court abused its discretion in
ordering a mistrial. We disagree.
6 “Where counsel in the hearing of the jury make statements of
prejudicial matters which are not in evidence, it is the duty of the
court to interpose and prevent the same . . .” OCGA § 17-8-75. On
objection, the trial court has the discretion to order a mistrial if the
prosecutor is the offender. Id. A decision whether to grant a mistrial
based on an improper argument is reserved to the broad discretion
of the trial court. See Harvey v. State, 296 Ga. 823, 831 (2) (a) (770
SE2d 840) (2015). The question of whether a remedy for an improper
comment during closing argument is sufficient depends on the
degree of prejudice created by the comment. See Jones, 292 Ga. at
662 (2). And assessing that degree of prejudice involves
consideration of the weight of the evidence. See id. (finding that
general instruction about arguments not being evidence was an
inadequate cure for prosecutor’s improper argument where evidence
was not overwhelming). “A trial judge’s decision to declare a mistrial
based on his assessment of the prejudicial impact of improper
argument is entitled to great deference on appeal, and we will affirm
the trial court’s rejection of possible alternatives to a mistrial if
7 reasonable judges could differ about the proper disposition.” Harvey,
296 Ga. at 835 (2) (d) (citations and punctuation omitted).
The State argues that the trial court erred in ordering a
mistrial because the comment at issue was both a reasonable
inference from the evidence and an invited response to the defense’s
reference to Porter in closing. The State notes that, when the defense
objected to the State’s argument, the trial court’s initial response
was to agree with the State that its argument was a reasonable
inference from Sade’s testimony. But the trial court also indicated
that it would instruct the jury that it could not consider any
suggestion as to how Porter might have testified. And it would not
be reasonable for the jury to assume from Sade’s testimony “all” of
what Porter would have said had she testified.
As for the State’s argument that the DA’s statements
amounted to a permissible invited response, the cases the State
relies on do not hold that it is proper for a prosecutor to reference
matters not in evidence simply because the reference is responsive
8 to a defense argument.3 Rather, we have said that such prosecutorial
comments ordinarily are not prejudicial “if, taken in context, they
were ‘invited’ by defense counsel’s opening salvo and did no more
than respond substantially in order to right the scale.” Powell v.
State, 291 Ga. 743, 749 (2) (b) (733 SE2d 294) (2012) (citation and
punctuation omitted; emphasis added). Here, the State’s argument
went beyond a response that “right[ed] the scale.” In its closing
argument, the defense noted that the State did not call Porter to
testify, and the defense appeared to invite the jury to consider what
Porter might have said had she testified. The State did not respond
to the defense argument by telling the jury that it ought not
speculate about what Porter would have said if she testified.
Instead, the State purported to tell the jury “all” that Porter would
have said had she testified — while omitting that Porter had said
that Sade had confessed to killing Westbrook. Although the State
3 Indeed, in the decision most heavily relied on by the State, we said that
the “invited” remarks at issue — in which the prosecutor implied in her closing argument that prosecutors seek the indictment only of guilty people — were “highly improper.” See Powell v. State, 291 Ga. 743, 745-746 (2) (733 SE2d 294) (2012). 9 contends that its comments about what Porter would have said if
called to testify were not prejudicial because they did not implicate
Jackson in particular and addressed events that occurred after the
murder, the trial court concluded that the State’s argument
effectively introduced a statement by Porter that the jury might
view as providing corroboration of the testimony of Sade, Jackson’s
accomplice, while omitting Porter’s significant exculpatory pretrial
statement. Finding that the evidence presented against Jackson at
trial was not overwhelming, the trial court concluded that the
State’s comments were so prejudicial as to create an unfair trial for
Jackson. Indeed, at the hearing on the plea in bar, the DA
acknowledged that the State’s lead investigator testified at trial
both (1) that there was no physical evidence to connect Jackson to
the victim’s vehicle or the crime and (2) that law enforcement was
unable to corroborate any of Sade’s statements regarding Jackson’s
involvement, and the DA also acknowledged that the only witnesses
who provided testimony about Jackson’s involvement were his co-
defendants Sade and Dwayne and that there were several
10 inconsistencies between the testimony of those two witnesses. The
trial court was in the best position to judge the possible prejudicial
impact of the State’s argument. See Varner v. State, 285 Ga. 334,
336 (676 SE2d 209) (2009). The State has not shown that the trial
court abused its discretion in ordering a mistrial.
2. The State also argues that the trial court erred in granting
the plea in bar. Given the deference we afford to the trial court’s
factual findings underlying its ruling, we cannot conclude that the
trial court erred.
“Throughout history, people have worried about the vast
disparity of power between governments and individuals, the
capacity of the state to bring charges repeatedly until it wins the
result it wants, and what little would be left of human liberty if that
power remained unchecked.” Gamble v. United States, ___ U.S. ___
(139 SCt 1960, 1996, 204 LE2d 322) (2019) (Gorsuch, J., dissenting).
As a result, both the United States and Georgia Constitutions
prohibit the government from placing a defendant “in jeopardy”
more than once for “the same offense.” See U.S. Const. Amend. V
11 (“No person shall . . . be subject for the same offence to be twice put
in jeopardy of life or limb[.]”); Ga. Const. of 1983, Art. I, Sec. I, Par.
XVIII (“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.”).4
Although the Fifth Amendment’s Double Jeopardy Clause
generally does not bar the State from retrying a case after a mistrial
4 Jackson asserted both federal and Georgia constitutional arguments in
the trial court, but the trial court’s ruling references only the United States Constitution. We note that the text of the federal and Georgia constitutional provisions differed slightly the first time that a double jeopardy provision entered the Georgia Constitution. Compare Ga. Const. of 1861, Art. I, Par. 12 (“No person shall be put in jeopardy of life or liberty more than once for the same offence.”) with U.S. Const. Amend. V (“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb[.]”). This difference grew with the addition of the phrase “in case of mistrial” in 1865. See Ga. Const. of 1865, Art. I, Par. 9 (“No person shall be put in jeopardy of life or liberty more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial.”). A substantially identical provision has appeared in every Georgia Constitution since. See Ga. Const. of 1868, Art. I, Sec. 8; Ga. Const. of 1877, Art. I, Sec. I, Par. VIII; Ga. Const. of 1945, Art. I, Sec. I, Par. VIII; Ga. Const. of 1976, Art. I, Sec. I, Par. XV; Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII. Given these textual differences, it is possible that the federal and state provisions carry different meanings. But the parties do not draw any meaningful distinctions between the two provisions in their arguments before this Court, and we need not consider any such distinctions given our resolution of this appeal in Jackson’s favor under the federal provision. We also note that the Georgia Code imposes double-jeopardy- type restrictions on prosecutions that exceed those of the federal Constitution as interpreted by the United States Supreme Court. See OCGA § 16-1-8. 12 is granted at the defense’s request due to prosecutorial misconduct,
a retrial may be barred where the misconduct was intended to goad
the defendant into moving for a mistrial. See Roscoe v. State, 286
Ga. 325, 326 (687 SE2d 455) (2009). In particular,
the defendant must show that the State was purposefully attempting through its prosecutorial misconduct to secure an opportunity to retry the case, to avoid reversal of the conviction because of prosecutorial or judicial error, or to otherwise obtain a more favorable chance for a guilty verdict on retrial.
Yarbrough v. State, 303 Ga. 594, 596 (2) (814 SE2d 286) (2018)
(citation and punctuation omitted). Whether the prosecutor
intended to goad the defendant into moving for a mistrial is a
question of fact that will not be overruled unless clearly erroneous.
Roscoe, 286 Ga. at 327. “A trial court’s findings of fact will not be
deemed to be clearly erroneous if there is any evidence to support
them, and this holds true even if the findings are based upon
circumstantial evidence and the reasonable inferences which flow
from them.” Id. (citation and punctuation omitted).
The State argues that the trial court erred by applying the
wrong legal standard in that it equated “egregious” prosecutorial
13 conduct with the sort of intentional goading that bars a retrial. But
the trial court clearly found that the DA made the offending
comments in hopes that they would result in a mistrial. It found that
the DA made the comments “intentionally and strategically after
realizing the evidence was not overwhelming” and “well aware that
there was a high probability that this action would result in an
immediate motion for mistrial[.]” And the trial court in particular
found that the DA “acted with specific and deliberate intent to
subvert the protections afforded by the Double Jeopardy Clause by
goading the defendant into moving for a mistrial.” The trial court
thus made the requisite findings, applying the correct standard.
The State argues that the trial court’s finding that the DA
acted with the intent to goad the defense into moving for a mistrial
is not supported by the evidence. In particular, the State faults the
trial court for focusing on the DA’s lengthy experience as a
prosecutor without making any finding that he had acted similarly
in past cases, and argues that the trial court’s decision was
“predicated on a grossly speculative notion” about the DA’s ability
14 to predict the outcome of the case had it gone to verdict. But we do
not find any clear error in the trial court’s assumption that an
experienced prosecutor is more likely than an inexperienced
prosecutor to know that comments to the jury on a matter not in
evidence may result in a mistrial. Nor do we find clear error in the
trial court’s consideration of the strength of the case the State had
presented in determining whether the DA intended to goad the
defense into moving for a mistrial. See State v. Thomas, 275 Ga. 167,
167-168 (562 SE2d 501) (2002) (concluding that trial court’s finding
that prosecutor intentionally provoked a mistrial was supported by
evidence that the prosecutor had been a member of the bar for nine
years and tried numerous felony cases, and that the prosecutor stood
to gain by aborting the trial due to testimony favorable to the
defense). And the State points to no authority that a finding that the
prosecutor acted with the requisite intent must be supported by
evidence that he had committed such an action in the past.
The State also appears to complain that the trial court faulted
the DA for violating an order of the court when no such order had
15 been issued. But no order was necessary to put a prosecutor on
notice that a comment to the jury on a matter not in evidence may
result in a mistrial; OCGA § 17-8-75 does that. And to the extent
that the trial court supported its finding about the DA’s intent with
reference to prior discussions among the parties and the court, those
discussions certainly were relevant at least to the extent that they
showed that the issues surrounding Porter were sensitive to the
defense such that improper comment about her would result in a
defense motion for a mistrial. On this record, and especially in the
light of weaknesses in the case presented against Jackson at trial,
we cannot say that the trial court’s finding that the DA acted with
the requisite intent was clearly erroneous. The State therefore has
not shown that the trial court erred in granting the plea in bar.
Judgment affirmed. All the Justices concur.
DECIDED AUGUST 5, 2019 – RECONSIDERATION DENIED SEPTEMBER 3,
16 2019.
Murder. Dougherty Superior Court. Before Judge Lockette. Gregory W. Edwards, District Attorney, Harold R. Moroz, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant. Ingrid P. Driskell, for appellee. Lee Darragh, District Attorney, Robert W. Smith, Jr., amici curiae.