Murder. Clayton Superior Court. Before Judge Simmons.
Lloyd J. Matthews, for appellant.
Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Kathryn L. Powers, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine L. Iannuzzi,
Assistant Attorney General, for appellee.
NAHMIAS, Justice. All the Justices concur.
Appellant Kajul Harvey challenges the trial court's denial of her plea in bar based on double jeopardy after her first trial for murder and other crimes ended in a mistrial. We conclude that the trial court did not abuse its discretion in determining that Appellant's counsel violated the court's pretrial ruling on a motion in limine and improperly referred to evidence that may well not be admissible when he referred to Appellant's police interview during his opening statement, and the court also did not abuse its discretion in deciding that alternatives short of a mistrial were insufficient to cure the harm. Accordingly, we uphold the denial of the plea in bar. Our rejection of Appellant's double jeopardy claim on the merits makes it unnecessary for us to decide whether the
trial court erred in finding that the [296 Ga. 824] claim was frivolous and allowing her retrial to proceed. We therefore affirm the trial court's judgment.
1. In February 2013, Appellant and her boyfriend, Latoris Grovner, were indicted for malice murder and other crimes in connection with the brutal beating death of Appellant's mother and subsequent attempts to access her bank accounts in June 2011. Appellant had been interviewed by the police for several hours, and the interview was videotaped. On April 15, 2013, the first day of Appellant's trial, the State filed a motion in limine to preclude " the defense from making opening statements that reference self[-]serving hearsay statements made by the defendant[ ]" or asking witnesses for the State or the defense any questions that reference such statements " until the door is opened by the State or until after the defendant testifies."
The trial court held a hearing on the motion, during which the prosecutor revealed that the State did not intend to introduce the videotape of Appellant's police interview during its case-in-chief. At that point, Appellant's attorney, assistant public defender Lloyd Matthews, indicated that he might seek to admit a redacted version of the interview, and the court asked the prosecutor, " What happens if ... the defense puts that interview in ... ?" The prosecutor responded that the State would object to any attempt by the defense to introduce Appellant's police interview, directed the court's attention to the State's written motion, and argued, " as it relates to the interview, we don't believe that it should be referenced." Matthews urged the court to deny the State's motion, explaining that in his view, as the evidence unfolded, it was " inevitable" that at least part of the interview would be played for the jury, and that " once [the jurors] find out there's a video tape, they're going to want to ... see that video tape."
The trial court granted the motion in limine, saying:
The third motion was about the self[-]serving hearsay in the defendant's [police interview]. The State's asking that that not be allowed to [be gone] into unless and until the defendant testifies. And I will instruct the parties not to go into any statements, any contents of her statements to the police until such time.
A jury was then impaneled and sworn.
[296 Ga. 825] The next morning, the State made its opening statement, making no reference to Appellant's police interview. Matthews followed with the opening statement for Appellant, telling the jury as he began:
[T]his case ultimately boils down to a case of a mistaken rush to judgment. ... The police immediately glom onto my client as the co-perpetrator and they never deviate from their scenario. ... I mean the ... lead detective, Joanne Sutherland[,] and her fellow detectives ... . This whole case is not a plan for the deceased['s] demise, but a rush to judgment to blame my client. Now when I say rush to judgment, that necessarily implies that something is being overlooked.
Matthews reviewed what he said the evidence would show, telling the jury that there would be no evidence of a plan or conspiracy involving Appellant. He then said: " My client, on being interviewed by the police was very cooperative with the police. She submitted herself to several hours of interview --."
At that point, the prosecutor objected, and the court held a bench conference. The prosecutor argued:
[T]he very fact that he's referencing this interview and the fact that it existed is a violation of the self-serving [hearsay] motion that we had in reference to that interview. ... [T]he mere fact that she gave one is in direct violation of the Motion in Limine.
Matthews claimed that he understood the State's motion as seeking to preclude him from mentioning the contents of Appellant's statement to the police, not from referring to the fact that an interview had taken place. Matthews also claimed that Appellant would testify as part of the defense case, but the court observed, " that still doesn't mean the
interview comes in." Matthews then said, " I wasn't going to talk about the actual substance of the interview. I was just going to say that she was cooperative."
The State requested a mistrial, and the court sent out the jury so the court could hear further argument from counsel. After quoting the State's motion in limine, the prosecutor argued that " by indicating that [Appellant] ... spoke to the police for hours, that's a direct reference." Matthews reiterated his claim that he understood the State's motion to mean that the prosecutor " did not want me to actually mention the content of the statements. I didn't think ... there was a big deal about whether I mentioned the fact that there was an [296 Ga. 826] interview." As he had in the hearing before the motion was granted, Matthews again asserted that the fact of the police interview was " inevitably going to come out" once Appellant testified, because the State would then use her interview responses to impeach her testimony. Matthews added that even if he violated the court's pretrial ruling, an instruction to the jury to disregard his remarks would be sufficient to cure any harm.
The court responded to this suggested remedy by saying:
[T]he jury has just heard that your client gave a three hour interview to the police. ... You've just told the jury [Appellant] has been cooperative, she gave a lengthy interview to the police after ...