Double jeopardy. Clayton State Court. Before Judge Garrett.
Tasha M. Mosley, Solicitor-General, Shalonda Jones-Parker, Assistant Solicitor-General, for appellant.
Lister & Holt, Steven E. Lister, Rashida A. Davis, Reginald B. McClendon, Audrey A. Lewis, for appellees.
DOYLE, Chief Judge. Phipps, P. J., and Boggs, J., concur.
Doyle, Chief Judge.
Laderyle Eugene Grayson was accused of committing multiple counts of battery and simple battery. During the ensuing trial, the court sua sponte declared a mistrial, and soon thereafter Grayson filed a plea in bar,
which the court granted on double jeopardy and constitutional speedy trial grounds. The State now appeals, contending that (1) retrial was not barred by double jeopardy because the State did not request the mistrial and Grayson did not object to the mistrial, and (2) the trial court erred in its speedy trial analysis. For the reasons that follow, we reverse.
The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's factual findings support its legal conclusion. [Q]uestions of law are reviewed de novo. Where the basis for the mistrial was the unavailability of critical prosecution evidence, including the unavailability of prosecution witnesses, the strictest scrutiny is appropriate.
[332 Ga.App. 863] The record shows that the State filed an accusation against Grayson in August 2012, alleging six counts of battery and seven counts of simple battery. On November 19, 2013, the first day of trial, a jury was empaneled and sworn, and the State called its first witness, a police officer. The State attempted to have the officer authenticate recordings of 911 calls made by the victim, who was under subpoena but had failed to appear at trial. Rather than hold a hearing on the admissibility of the 911 recordings as nontestimonial statements or as a necessity in light of the victim's unexpected absence, the trial court granted a request by Grayson's counsel to recess for the day and hear the issue the next morning.
The next morning, the trial court held a hearing on whether the victim's statements in the 911 calls would be admissible under the hearsay exception in OCGA § 24-8-804 (b) for unavailable witnesses. During the hearing, it became clear that the 911 caller made reference to Grayson's alleged cocaine use, but Grayson's counsel apparently had been unaware of this content in the recording. The trial court then announced as follows:
COURT: This case has a plethora of issues with it, none intentionally caused by [the State. The 911 recording] is just a statement that [defense counsel] did not have before the trial started concerning his client had been using cocaine; is that correct, [defense counsel]?
DEFENSE COUNSEL: Yes, Your Honor.
COURT: All right. Also, the [S]tate was ambushed by the witness who didn't show up for court and said she'd be there. It is a fact that [defense counsel] didn't have the statement that he needed as far as to provide a proper representation for Mr. Grayson. I erred by not granting a mistrial yesterday. It's not something anyone requested, but I should have given a ...