ATLANTA — Under an opinion from the Georgia Supreme Court, a man whose trial ended in a mistrial may not be retried for murder, as that would violate his constitutional protection against double jeopardy — which prohibits defendants from being prosecuted more than once for the same offense.
In the decision, written by Justice Nels S.D. Peterson, the high court has upheld a Dougherty County judge’s rulings, granting a mistrial to Monquez Jackson and concluding that double jeopardy prohibited the state from retrying him based on District Attorney Greg Edwards' improper closing argument in which he commented on matters that had not been brought into evidence.
The trial judge made “extensive findings,” the opinion said, that the district attorney intentionally made the improper statement knowing it would lead to a mistrial and an opportunity to retry the case.
“We conclude that the trial court did not abuse its considerable discretion in granting the mistrial,” the opinion said. “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.”
In April 2015, Jackson was indicted with his wife, Sade Britt, her brother Dwayne Britt and Tomeka Porter for various crimes against Anthony Westbrook. Jackson alone was charged with malice murder, while he, his wife and brother-in-law were charged with felony murder, armed robbery and other crimes.
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 less serious crimes in exchange for their testimony.
The state agreed to dismiss the charge against Porter if she testified. Sade Britt testified at trial that her husband shot Westbrook after the couple held him at gunpoint and she used his ATM card to steal money. She testified that her brother, Dwayne Britt, was present when she made the ATM withdrawals and nearby when Westbrook was shot.
She said that a few days later, Porter and Jackson dropped her off near Westbrook’s van so she could attempt to clean the vehicle of any incriminating evidence. Dwayne Britt also testified for the state, although his testimony differed from his sister’s in several respects. He said he was high on drugs that night and did not see Jackson with a gun. Porter, who stated in advance of the trial that Sade Britt had confessed to killing Westbrook, never did testify.
The appeal in this case concerns the state’s handling of Porter’s failure to testify at Jackson’s trial. The elected district attorney served as lead counsel for the state at the trial, which began on July 31, 2017. At trial, the defense made multiple hearsay objections as to statements allegedly made by Porter. During the direct testimony of the state’s lead investigator, the state attempted to introduce prior statements by Porter, but a hearsay objection was sustained by the trial court.
At that point, Edwards left open the possibility of calling Porter to the stand, but he never did so. 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 the district attorney would say nothing about her other than that “the state elected not to call her.”
The trial court agreed with the defense that the defense could mention Porter to the limited extent that the state had mentioned her in its opening, by saying that the charges against Porter had been resolved. 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 district attorney 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.’”
The state omitted any reference to Porter’s earlier statement that Sade Britt had confessed to killing Westbrook.
The defense attorney promptly objected on the basis that Edwards was arguing facts not in evidence. The trial court agreed with Edwards that his argument was a reasonable inference from Sade Britt’s testimony, but the judge ruled that he 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. The trial judge granted the motion, saying a “curative” instruction to jurors would have been insufficient.
Jackson then filed a plea of double jeopardy and a motion to dismiss, arguing a retrial would constitute double jeopardy because the district attorney’s closing argument was an attempt to goad defense counsel into seeking a mistrial so Edwards could retry the case. The trial court held a hearing on the motion, at which he testified that he “did not intentionally goad counsel into trying to ask for a mistrial” and in fact thought he was “winning the case.”
The trial court granted the defendant’s motion, citing Edwards' “shifting and conflicting explanations” as to his closing argument and the “certainly not overwhelming” evidence presented against Jackson. The trial court also cited the district attorney’s experience and noted he would have been well aware that his comments would lead to a mistrial.
The state then appealed the trial court’s decision to the Supreme Court, arguing that the trial court abused its discretion in ordering a mistrial.
“We disagree,” the opinion said.
According to Georgia Code § 17-8-75, “Where counsel in the hearing of the jury makes statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same.” Once an objection is made, if the prosecuting attorney is the offender, the statute says, the judge “may order a mistrial.”
“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 reasonable judges could differ about the proper disposition,” the opinion said, quoting the Georgia Supreme Court’s 2015 decision in Harvey v. State.
“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,” the opinion said.
The state’s lead investigator testified at trial there was no physical evidence connecting Jackson to the crime and that law enforcement could not corroborate any of his wife’s statements regarding Jackson’s involvement. Edwards acknowledged the only witnesses who testified about Jackson’s involvement were his wife and brother-in-law, and there were inconsistencies in their testimony.
“The trial court was in the best position to judge the possible prejudicial impact of the state’s argument,” the opinion said.
As to the trial court’s ruling on double jeopardy, the opinion says that although the U.S. Constitution’s double jeopardy clause does not bar the state from retrying a case after a mistrial is granted due to prosecutorial misconduct, “a retrial may be barred where the misconduct was intended to goad the defendant into moving for a mistrial.” In particular, “The defendant must show that the state was purposefully attempting through its prosecutorial misconduct to secure an opportunity to retry the case.”
Here, the trial court found that the district attorney “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 opinion said. “The trial court thus made the requisite findings, applying the correct standard.”