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State v. Jackson

Supreme Court of Georgia

August 5, 2019


          Peterson, Justice.

         The trial court granted a mistrial in the murder case against Monquez Jackson, finding that the prosecutor's closing argument included an improper comment on matters not in evidence. After making extensive findings that the prosecutor made that improper comment intentionally in hopes that the comment would lead to a mistrial, and thus an opportunity to retry the case, the trial court determined that double jeopardy prohibited the State from retrying Jackson. The State appeals. We conclude that the trial court did not abuse its considerable discretion in granting the mistrial. We also conclude that the trial court's factual findings supported its jeopardy ruling, and that those findings must stand given the deference we afford them. We affirm.

         Jackson was indicted with co-defendants Sade Britt (his wife), Dwayne Britt (Sade's brother), and Tomeka Porter for various crimes against Anthony Westbrook. Jackson alone was charged with malice murder, while he, Sade, and Dwayne were charged with felony murder, armed robbery, conspiracy to commit armed robbery, kidnapping, financial transaction card theft, financial transaction card fraud, and theft by taking. Porter was charged only with conspiracy to commit armed robbery. Prior to Jackson's trial, his three co-defendants all entered into agreements with the State, with the Britts pleading guilty to certain non-murder crimes and the State saying it would dismiss the charge against Porter after she testified.

         Sade testified at trial that Jackson shot Westbrook after Jackson held Westbrook at gunpoint and she used Westbrook's ATM card to withdraw money from his bank account. Sade testified that Dwayne was also present when she made the ATM withdrawals and was nearby when Westbrook was shot. Sade testified that Porter and Jackson dropped her off near Westbrook's van a few days later so that Sade could attempt to clean the vehicle of any inculpatory evidence.

         Dwayne also testified for the State, but his testimony differed from his sister's in several respects. Dwayne said that he was high on drugs and did not see Jackson with a gun that night. As summarized by the district attorney before the trial court, Porter stated in a pre-trial allocution under oath that Sade had confessed to killing Westbrook. But Porter did not testify at Jackson's trial.

         This appeal concerns the State's handling of its failure to call Porter to testify. The DA served as lead counsel for the State at trial. The defense made multiple hearsay objections at trial as to statements allegedly made by Porter; for instance, a hearsay objection was sustained by the trial court when the State attempted to introduce prior statements by Porter during the direct testimony of the State's lead investigator.[1] After the close of evidence, the State made an oral motion seeking to preclude the defense from making any reference to Porter during its closing arguments, adding that the State would say nothing about her other than that "the State elected not to call her." Jackson's lawyer responded that she should be able to "talk about what [the DA] said in his opening statement, that he planned to call her and that her charges have already been resolved." The trial court agreed with the defense that the defense could "refer back to what was said in opening."[2] The discussion concluded when the DA withdrew his motion and said that he would "just adjust [his] argument accordingly."

         In her closing argument, defense counsel noted that the State had not called Porter to testify, adding, "I wonder what she would have had to say." In his closing, the DA stated the following:

Everything is not needed to be proven. Every witness doesn't need to be called. You have got direct evidence. There is other evidence through testimony that has told you what happened. Even Tomeka Porter, all she could tell you is[, ] "yeah, we went back to the car to clean it up." You have got the evidence to support that already that that happened. That is corroborated. Tomeka Porter wasn't needed. All she can do is say, "Yeah, I went back and I saw her clean up the car."

         The defense promptly objected on the basis that the State was arguing facts not in evidence. The trial court agreed with the State that its statement to the jury about Porter was a reasonable inference from Sade's testimony, but ruled that it would instruct the jury that it could not consider any suggestion about what Porter would have said had she testified. After a short recess, the defense moved for a mistrial based on prosecutorial misconduct. After arguments of counsel and multiple breaks, the trial court granted the motion pursuant to OCGA § 17-8-75, saying a curative instruction was insufficient.

         Jackson filed a "Plea of Double Jeopardy, Plea in Bar, and Motion to Dismiss," arguing that a retrial would constitute double jeopardy because the State's closing argument was an attempt to goad defense counsel into seeking a mistrial so that the State could retry the case. After a hearing, the trial court granted Jackson's motion, citing the DA's "shifting and conflicting explanations" as to his closing argument - which the trial court said "was in violation of the Court's order on the District Attorney's own motion in limine" - and noting that it had admonished the DA three times prior to his closing argument that he should not inject Porter's statements into the trial without first calling her to testify. The court cited the "certainly not overwhelming" evidence presented against Jackson, particularly given the "glaring inconsistencies" between the testimony of Sade and Dwayne and the lack of corroboration of their testimony. And the court cited the DA's considerable experience as indicating that the DA would be well aware that his comments would lead to a mistrial, noting that the DA was also in that role when we reversed an aggravated assault conviction out of his circuit because of the trial court's failure to take appropriate action in response to another prosecutor addressing matters outside of the record during closing argument. See Jones v. State, 292 Ga. 656, 660-662 (2) (740 S.E.2d 590) (2013). The State appeals, arguing that the trial court erred both in ordering a mistrial and granting the plea in bar.

         1. The State argues that the trial court abused its discretion in ordering a mistrial. We disagree.

         "Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same." OCGA § 17-8-75. On objection, the trial court has the discretion to order a mistrial if the prosecutor is the offender. Id. A decision whether to grant a mistrial based on an improper argument is reserved to the broad discretion of the trial court. See Harvey v. State, 296 Ga. 823, 831 (2) (a) (770 S.E.2d 840) (2015). The question of whether a remedy for an improper comment during closing argument is sufficient depends on the degree of prejudice created by the comment. See Jones, 292 Ga. at 662 (2). And assessing that degree of prejudice involves consideration of the weight of the evidence. See id. (finding that general instruction about arguments not being evidence was an inadequate cure for prosecutor's improper argument where evidence was not overwhelming). "A trial judge's decision to declare a mistrial based on his assessment of the prejudicial impact of improper argument is entitled to great deference on appeal, and we will affirm the trial court's rejection of possible alternatives to a mistrial if reasonable judges could differ about the proper disposition." Harvey, 296 Ga. at 835 (2) (d) (citations and punctuation omitted).

         The State argues that the trial court erred in ordering a mistrial because the comment at issue was both a reasonable inference from the evidence and an invited response to the defense's reference to Porter in closing. The State notes that, when the defense objected to the State's argument, the trial court's initial response was to agree with the State that its argument was a reasonable inference from Sade's testimony. But the trial court also indicated that it would instruct the jury that it could not consider any suggestion as to how Porter might have testified. And it would not be reasonable for the jury to assume from Sade's testimony "all" of what Porter would have said had she testified.

         As for the State's argument that the DA's statements amounted to a permissible invited response, the cases the State relies on do not hold that it is proper for a prosecutor to reference matters not in evidence simply because the reference is responsive to a defense argument.[3] Rather, we have said that such prosecutorial comments ordinarily are not prejudicial "if, taken in context, they were 'invited' by defense counsel's opening salvo and did no more than respond substantially in order to right the scale." Powell v. State, 291 Ga. 743, 749 (2) (b) (733 S.E.2d 294) (2012) (emphasis added). Here, the State's argument went beyond a response that "right[ed] the scale." In its closing argument, the defense noted that the State did not call Porter to testify, and the defense appeared to invite the jury to consider what Porter might have said had she testified. The State did not respond to the defense argument by telling the jury that it ought not speculate about what Porter would have said if she testified. Instead, the State purported to tell the jury "all" that Porter would have said had she testified - while omitting that Porter had said that Sade had confessed to killing Westbrook. Although the State contends that its comments about what Porter would have said if called to testify were not prejudicial because they did not implicate Jackson in particular and addressed events that occurred after the murder, the trial court concluded that the State's argument effectively introduced a statement by Porter that the jury might view as providing corroboration of the testimony of Sade, Jackson's accomplice, while omitting Porter's significant exculpatory pretrial statement. Finding that the evidence presented against Jackson at trial was not overwhelming, the trial court concluded that the State's comments were so prejudicial as to create an unfair trial for Jackson. Indeed, at the hearing on the plea in bar, the DA acknowledged that the State's lead investigator testified at trial both (1) that there was no physical evidence to connect Jackson to the victim's vehicle or the crime and (2) that law enforcement was unable to corroborate any of Sade's ...

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