Carman v. State
Carman v. State
Opinion of the Court
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. 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 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:
*863Ms. 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 *864with 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 ,
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.
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 ,
Nevertheless, those words [manifest necessity] do not describe a standard that can be applied mechanistically 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 ,
The Supreme Court has also stated, at least regarding cases not involving bad faith by the prosecution or the trial judge, "The decision whether to grant a mistrial is reserved to the 'broad discretion ' of the trial judge." Renico v. Lett ,
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 ,
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 ,
Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of 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 more effective protection of the accused.
At times the valued right of a defendant to have his trial completed by the particular tribunal to sit in judgment on him may be subordinated to the public interest-when there is an imperious necessity to do so.
Downum ,
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 proceedings.
b. Turning more specifically to Carman's case, we note that, even in discussing the need for such a "scrupulous exercise of judicial discretion,"
[I]t is also true that a criminal trial is, even in the best 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.
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 ,
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.
*868See Otis v. State ,
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 ,
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 *869to 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 ,
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 ,
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 ,
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 *870with the 'legal and factual complexities of the case.' " Grant v. State ,
Judgment affirmed.
All the Justices concur, except Melton, P. J., who concurs in judgment only.
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 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 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.
As we have noted, many questions of double jeopardy are properly addressed under Georgia's double jeopardy statutes. See Prater v. State ,
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