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Ward v. State

Court of Appeals of Georgia, Fifth Division

July 2, 2019


          MCFADDEN, C.J., MCMILLIAN, P.J., and GOSS, J.


         After Michael Charles Ward was acquitted of stalking, he was tried and convicted by a jury of aggravated stalking against the same victim. He appeals, pro se, following the denial of his motion for new trial, as amended, raising claims of double jeopardy, prosecutorial misconduct, a biased judiciary, ineffective assistance of counsel, a defective and improper indictment, and improper and insufficient evidence to support his conviction. As more fully set forth below, we now reverse.

         Construed so as to support the jury's verdict, the record shows that Ward and the victim[1] began dating in 2005 and had an on-again, off-again relationship for the next several years. During this time, Ward lived in Marietta, Georgia, and the victim lived alone in a house located in a somewhat remote area in Oconee County, and she also had a vacation home on a lake in another county. By the summer of 2007, the victim and Ward were once again having problems, and the victim told him she did not want to continue seeing him. Over the summer, Ward showed up at the victim's various residences unannounced, and on at least one occasion he brought a handgun that he told the victim he planned to use to shoot whomever he found her with.

         In early August 2007, the victim told Ward not to call her anymore, but Ward came to her home while she was out of town. Later in August, the victim sent an email to Ward reiterating that their relationship was over and that he needed to come pick up his belongings, and Ward showed up at her house unannounced a few days later. The victim helped him pack up his things and then told him once again that the relationship was over. However, the victim kept receiving long emails from Ward reiterating his love for her, and he showed up at her home again in early September in hopes of a reconciliation but the victim once again told him they were through and requested he leave. And on September 6, 2007, the victim sent Ward another email with the subject line "NO MORE," in which she emphatically told him not to contact her in any way. Nevertheless, around September 18, 2007, Ward showed up at her house with gifts and asked her to marry him. She declined and told him to leave. However, he was waiting for her when she came home the night of October 2, 2007, and she told him he was frightening her with his behavior and asked him to leave.

         During this time frame, the victim also detected signs that someone had been in her home while she was away. Because of her concerns about Ward's behavior, the victim contacted an attorney she knew in early October 2007.[2] The attorney called Ward and told him that the victim did not want to have any further contact with him and that he would be sending him a letter to that effect, which he sent shortly afterwards; this letter was read to the jury at trial. On October 22, 2007, the victim's housekeeper and teenage daughters[3] saw a man dressed in camouflage walking around the outside of the victim's Oconee County house and in the nearby woods. The housekeeper called police and showed them a picture of Ward and "suggested" it might be him. At the responding officer's suggestion, the victim made a request for a security check, which alerted officers of the need to patrol her property more frequently, and which contained a specific notation that Ward was not allowed to be on the property.

         After a telephone call with Ward at the end of October during which he called the victim a "whore" and was screaming at her, the victim went to the Oconee County Sheriff's office and talked to a Detective.[4] On November 2, 2007, the Detective contacted Ward and told him that he had talked to the victim and she had made it clear that she did not want any further contact with Ward of any kind whatsoever. He said that Ward told him that he had already ended all contact with the victim.

         A few days later, on November 5, 2007, the victim's nephew, [5] spotted a car on property near the victim's house and noticed it was registered to the county where Ward lived at the time. The nephew called the police and then noticed Ward walking out of the woods wearing camouflage. The Detective came to the scene where he recovered a number of items from Ward's car, including a number of personal items that appeared to be taken from the victim's home, information about her friends, phone numbers taken from the caller identification on her phone, and various tools that could be used to break into her house, which Ward admitted to police he planned to use to gain access to the victim's home.[6]

         Following this incident, Ward was arrested and then released on a "no-contact" bond on Tuesday, November 6, 2007. On November 20, 2007, a multi-count indictment was returned against Ward charging him with multiple counts of burglary, computer theft, theft by taking, possession of tools in the commission of a crime, and stalking. In early December 2007, Ward ordered a book called "Redeeming Love" off and had it delivered to the victim's house.[7] Ward was arrested for violating his no-contact bond and subsequently indicted on the felony offense of aggravated stalking on January 24, 2008.

         In August 2009, Ward was tried on the first indictment charging him with misdemeanor stalking and various other crimes. Despite the evidence of Ward's unsolicited and alarming contacts with the victim, a jury acquitted him of all charges except for possession of tools in the commission of a crime. Ward did not appeal that conviction.

         Following Ward's acquittal on the misdemeanor stalking charge, the State moved to dead docket the pending aggravated stalking charge, but Ward objected and the trial court denied the State's request. In January 2010, just five months after his acquittal on the stalking and other charges, a jury convicted Ward of aggravated stalking, [8] and he was sentenced to the maximum of ten years with credit for time served. Ward filed a motion for new trial on February 3, 2010, and following several amendments and a lengthy delay, a hearing was held on the motion on September 21, 2017. The trial court denied the motion on December 14, 2017, and Ward timely filed a notice of appeal to this Court on January 8, 2018.

         1. We first address the issue of the troublesome delay in this case between the time of trial and the ruling on the motion for new trial, which delayed the docketing of this appeal. As noted above, well over seven years passed between the time Ward filed his motion for new trial and when the trial court held the hearing on the motion[9] such that Ward's timely notice of appeal was not filed in this case until almost eight years after his conviction. Ward was in jail from the time he was re-arrested on the aggravated stalking charge, and according to his brief, he completed serving his sentence and was released from prison in February 2018.

This sort of extraordinary post-conviction, pre-appeal delay puts at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. It is the duty of those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. That duty unfortunately was not fulfilled in this case.

Robinson v. State, 334 Ga.App. 646, 647 (1) (780 S.E.2d 86) (2015).

         2. In several related enumerations of error, Ward argues that his prosecution on the aggravated stalking charge violated principles of double jeopardy and that the trial court should have have granted his motion in limine to exclude admission or reference to the evidence introduced during Trial 1. Specifically, he argues that because he had been acquitted of stalking in Trial 1, evidence from trial had been "used up" and could not be introduced to convict him of aggravated stalking in Trial 2. He also asserts that the crimes should have been prosecuted together under OCGA §§ 16-1-7 (b) & 16-1-8 (b) (1). Under the facts of this case, we agree that reversal is required.[10]

         We begin our analysis by stating our standard of review. "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 findings support its conclusion." (Citation and punctuation omitted.) Garrett v. State, 306 Ga.App. 429, 429 (702 S.E.2d 470) (2010). However, "we review de novo the trial court's application of the law to undisputed facts." (Citation and punctuation omitted.) Id.

         The Double Jeopardy Clause in the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life and limb." Likewise, the Georgia Constitution and Georgia statutory law prohibit the government from placing a defendant in jeopardy twice for the same offense following either an acquittal or a conviction and also prohibit multiple punishments for the same offense.[11]

         The Supreme Court of the United States has recognized that the Double Jeopardy Clause of the federal Constitution protects two vital interests. Yeager v. United States, 557 U.S. 110, 117 (II) (129 S.Ct. 2360, 174 L.Ed.2d 78) (2009). First, the State is prohibited from making repeated attempts to convict an individual for the same offense, thereby subjecting him to the ordeal and anxiety of successive prosecutions. Id. at 117-18 (II). In particular, "[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceedings. This is central to the objective of the prohibition against successive trials." Burks v. United States, 437 U.S. 1, 11 (98 S.Ct. 2141, 57 L.Ed 2d 1) (1978). "The second interest is the preservation of the finality of judgments." (Citation and punctuation omitted.) Yeager, 557 U.S. at 118 (II).

         Our Supreme Court has similarly recognized that under the shield of double jeopardy

[a] defendant is protected . . . from attempts to re-litigate the facts after an acquittal and from attempts to secure additional punishment after a prior conviction and sentence. In addition to the risk of enhanced punishment for the same offense, successive prosecutions allow the State to unfairly rehearse its presentation of the evidence and hone its trial strategy, while also incrementally increasing the burden on the defendant to defend himself.

(Citations and punctuation omitted.) Perkinson v. State, 273 Ga. 491, 493-94 (1) (542 ...

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