State v. Traylor

642 S.E.2d 700, 281 Ga. 730, 2007 Fulton County D. Rep. 807, 2007 Ga. LEXIS 228
CourtSupreme Court of Georgia
DecidedMarch 19, 2007
DocketS06A2163
StatusPublished
Cited by14 cases

This text of 642 S.E.2d 700 (State v. Traylor) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Traylor, 642 S.E.2d 700, 281 Ga. 730, 2007 Fulton County D. Rep. 807, 2007 Ga. LEXIS 228 (Ga. 2007).

Opinions

CARLEY, Justice.

Maricus Traylor and Sherila Carmichael (Appellees) were indicted for murder and other offenses. After admitting that he fired a rifle, but claiming that he did so in self-defense, Traylor led police to the location where he had hidden the weapon. At trial, the assistant district attorney, Jason Green, entered into a written stipulation with defense counsel regarding the chain of custody for Traylor’s gun and other items of evidence. Thereafter, Green presented a rifle to an expert witness for the State, who testified that it was not the alleged murder weapon. The prosecutor informed defense counsel that the rifle used by Traylor was missing, and the trial court granted a mistrial pursuant to a defense motion. The District Attorney’s office subsequently located the rifle. The trial court later granted a plea in bar, based on double jeopardy, although it found the following:

Green relied on other staffers within the District Attorney’s office, including but not limited to his investigator. The transcript and Mr. Green’s surprise, confirm that [he] first discovered the State did not have possession of the rifle at issue ... while [he] was opening the box to present the rifle [731]*731to the GBI firearms examiner. Mr. Green brought the matter to the attention of the defense, the court and the jury by his questioning of the firearms examiner.... The Court can not discern whether or not Mr. Green intended to goad the defense into moving for a mistrial.

The trial court based its grant of the plea in bar on the finding that staff members of the District Attorney’s office were aware that the rifle could not be located, but failed to bring this fact to Green’s attention, even though they were present during trial and knew or should have known about the stipulation and the fact that the defense was calling a firearms expert of their own. The trial court held as follows:

Withholding this information under these circumstances should be imputed to the Assistant District Attorney, in much the same way that documents “possessed by the prosecutor or anyone over whom the prosecutor has authority” are attributed to the State and must be disclosed in compliance with Brady v. Maryland, 373 U. S. 83 [(83 SC 1194, 10 LE2d 215)] (1963). See Zant v. Moon, 264 Ga. 93, 100 [(440 SE2d 657)] (1994).

The trial court further stated that it “is not a mind reader in the instant case and can not divine whether the State hoped for another bite at the apple, and additional time to locate the actual weapon, when the motion for mistrial ensued.” Nevertheless, finding that the State benefitted from the mistrial and had caused the case to linger an excessively long time, the trial court concluded that, in the totality of circumstances, the State had acted “in such a manner as to harass [Appellees], to deprive [them] of evidence needed in their defense, to fail to marshal the State’s evidence in the initial trial, such that the provisions of double jeopardy should bar a retrial in this case.” The State appeals from the trial court’s order granting the plea in bar.

When a mistrial is granted at the defendant’s request due to prosecutorial misconduct, the general rule is that the Double Jeopardy Clause does not bar the State from retrying the case. Weems v. State, 268 Ga. 142, 143 (2) (485 SE2d 767) (1997); Hardy v. State, 258 Ga. 523 (371 SE2d 849) (1988). “There is a ‘narrow exception’where the prosecutorial misconduct was intended to goad the defendant into moving for a mistrial. [Cit.]” Weems v. State, supra. However,

in order to prevail on such a claim the defendant must show that the State was purposefully attempting through its prosecutorial misconduct to secure an opportunity to retry [732]*732the 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. [Cit.]

Davis v. State, 278 Ga. 305, 306 (1) (602 SE2d 563) (2004). The bar of double jeopardy is not raised by even intentional prosecutorial misconduct, “ ‘notwithstanding the fact that the defendant was thereby deprived of due process of law, unless the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause. (Cits.)’ [Cit.]” Dinning v. State, 267 Ga. 879, 881 (485 SE2d 464) (1997).

Perhaps the most heinous form of prosecutorial misconduct, which also constitutes one type of Brady violation, consists of the prosecutor’s knowing use of perjured testimony to obtain a conviction, and, even in that situation, retrial has not been held to be barred by the Double Jeopardy Clause. [Cits.]

Williams v. State, 258 Ga. 305, 312 (1) (A) (369 SE2d 232) (1988).

The fact that the government blunders at trial and the blunder precipitates a successful motion for a mistrial does not bar a retrial. (Cits.) Yet the blunder will almost always be intentional — the product of a deliberate action, not of a mere slip of the tongue. . . . (U)nless (the prosecutor) is (intentionally) trying to abort the trial, his misconduct will not bar a retrial. It doesn’t even matter that he knows he is acting improperly, provided that his aim is to get a conviction. The only relevant intent is (the) intent to terminate the trial, not (the) intent to prevail at... trial by impermissible means. [Cit.]

Williams v. State, 268 Ga. 488, 490 (491 SE2d 377) (1997).

Contrary to the trial court’s analysis, the rule whereby constructive knowledge is attributed to the prosecutor pursuant to Brady is not applicable to the double jeopardy issue of whether there was intentional prosecutorial misconduct designed to produce a mistrial. State v. Wittsell, 66 P3d 831, 839 (Kan. 2003); State v. Zamora, 538 S2d 95, 96 (Fla.App. 1989). Consistent with the overwhelming weight of authority, we have held that even if a detective intentionally frames his testimony on behalf of the State so as to goad the defense into seeking a mistrial, his instigative intent will not be imputed to the prosecutor. Weems v. State, 269 Ga. 577, 580 (4) (501 SE2d 806) (1998). See also State v. Barnes, 222 Ga. App. 875 (476 SE2d 646) [733]*733(1996); Ex parte Washington, 168 SW3d 227, 238 (Tex. App. 2005) (“every federal or state court that has addressed the issue . . . has rejected such imputation. [Cits.]”); State v. Jaimes, 715 NW2d 669, 673 (Wis. App. 2006) (following other jurisdictions and rejecting imputation in the absence of collusion).

For double jeopardy to apply, it is not sufficient that an intent to instigate a mistrial was possessed only by an agent of the State whose scope of employment and authority differs from the prosecutor, since “the ‘narrow exception,’ above articulated, was not meant to be extended to embrace conduct other than that of the judge and the prosecutor.” State v. Maddox, 185 Ga. App. 674, 676 (365 SE2d 516) (1988).

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State v. Traylor
642 S.E.2d 700 (Supreme Court of Georgia, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
642 S.E.2d 700, 281 Ga. 730, 2007 Fulton County D. Rep. 807, 2007 Ga. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-traylor-ga-2007.