Double jeopardy. Walton Superior Court. Before Judge Ozburn.
Matthew J. Karzen, for appellant.
Layla H. Zon , District Attorney, Ronald V. McNease, Jr. , Assistant District Attorney, for appellee.
BRANCH, Judge. Phipps, C. J., and Ellington, P. J., concur.
Horance W. Whatley appeals from orders of the Walton County Superior Court denying his plea in bar on double jeopardy grounds and his plea in bar based on an alleged violation of his constitutional [326 Ga.App. 82] right to a speedy trial. Whatley contends that the trial court erred in denying his double jeopardy claim because the evidence showed that the prosecutor intentionally provoked a mistrial for the purpose of having the opportunity to retry Whatley under more favorable circumstances. He contends that the trial court erred in denying his speedy trial claim because when ruling on this claim, the trial court considered only the amount of time that had elapsed since Whatley's first trial ended in a mistrial, rather than the entire amount of time that had elapsed since Whatley's arrest on the charges at issue. We find no error and affirm.
The record shows that Whatley was arrested on May 20, 2008, on charges of sexual
battery, enticing a child for indecent purposes, child molestation, cruelty to a child, and sexual assault. The victim of Whatley's alleged acts was his then seven-year-old daughter, B. W. Whatley was released on bond within two days of his arrest, and has remained free on bond since that time. On December 18, 2009, Whatley was indicted on one count of child molestation, one count of sexual battery, and one count on enticing a child for indecent purposes. He thereafter appeared at calendar calls and announced ready for trial on November 15, 2010, February 7, 2011, and August 8, 2011.
In February 2011, Walton County hired a new prosecutor, who had considerable experience prosecuting crimes against children, and this prosecutor was assigned Whatley's case. Believing that there were some problems with the wording of Whatley's original indictment, the prosecutor re-indicted the case. The new indictment, which was filed on October 28, 2011, charged Whatley with three counts of child molestation and one count of enticing a child for indecent purposes. Following his second indictment, Whatley appeared at calendar calls and announced ready for trial on November 7, 2011, March 26, 2012, and August 13, 2012. Whatley's case was called for trial on October 15, 2012.
At the outset of his case, Whatley had opted for reciprocal discovery under OCGA § 17-16-1 et seq., and was therefore given access to the prosecution's evidentiary file. When reviewing that file, defense counsel noted that law enforcement had advised B. W.'s mother (who was Whatley's ex-wife) to take the child to Children's Healthcare of Atlanta (" CHOA" ) for a medical exam. Additionally, the file showed that one detective had taken steps to assist the mother in scheduling such an exam. No copy of any medical report appeared in the prosecution's file or was otherwise provided to defense counsel pursuant to the State's continuing discovery obligations. Accordingly, defense counsel assumed that the mother had never taken B. W. for the recommended medical exam.
[326 Ga.App. 83] During opening argument, defense counsel asserted that the case against Whatley was the result of a vendetta by Whatley's ex-wife, who had raised the allegations at issue after Whatley filed a motion to reduce his child support payments. As part of this argument, defense counsel emphasized that despite being advised by law enforcement to take her daughter for a medical exam, the mother had never done so.
The mother was the second witness called at trial. During direct examination, the mother testified that after becoming concerned about B. W.'s behavior, she took the child to a therapist. B. W. made her outcry statement to the therapist, who then reported the child's allegations to the appropriate authorities. Immediately after this testimony, the following exchange took place between the mother and the prosecutor:
PROSECUTOR: What was the next contact you had after meeting with [the therapist] [and learning about B. W.'s allegations of sexual abuse by her father]? ...
MOTHER: Well, we, I kept her [B. W.] going to [the therapist] ... and I had to take her [B. W.] to ...