Rios v. State

311 Ga. 639

859 S.E.2d 65

RIOS

v.The STATE.

Carter

v.The State.

S21A0243, S21A0402

Supreme Court of Georgia.

Decided: June 1, 2021

Cathy Morris Alterman, for Appellant in (case no. S21A0243).

The Smith Legal Group, LLC, Frank Tyrone Smith, for Appellant in (case no. S21A0402).

Daniel J. Porter, District Attorney, Daniel Sanmiguel, Assistant District Attorney, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, for Appellee.

Warren, Justice.

Appellants Jefrey Rios and Justin Carter, along with Marco Cruz, were jointly indicted for three counts of felony murder and other crimes in connection with the shooting death of Cristian Carrillo. The State could not locate Cruz after the crimes, and the case proceeded to trial against Rios and Carter. On the first day of witness testimony, the trial court declared a mistrial, finding that critical evidence had not been disclosed to the defense until that day because of a Georgia Bureau of Investigation (GBI) computer error and that the trial could not proceed as a result. Rios and Carter filed a joint plea in bar, but the trial court denied it and concluded that double jeopardy did not preclude the State from retrying them. Rios and Carter appeal, and we affirm.

1. Because the trial was terminated after the testimony of the third witness on the first day that evidence was presented, we begin by recounting parts of the opening statements to provide context for what led to the mistrial in this case. In the State's opening statement, the prosecutor said that he expected the evidence to show that Rios drove Carter and Cruz to a hotel where they intended to purchase marijuana from Carrillo, who was 17 years old. Five other teenagers were in the hotel room with Carrillo. According to the prosecutor, Rios waited outside in his car while Carter and Cruz went into the hotel room. Carrillo had a gun beside him on a bed, but, before Carter and Cruz arrived, it had "jammed" when "one of the guys in the room fired into a mattress." Within a few minutes of entering the room, Carter "pistol whipped" Carrillo, and Cruz shot Carrillo three times, killing him. Cruz fled shortly after the crimes and has not been seen since. When law enforcement officers "picked up" Carter four days later, he was in possession of a 9mm handgun, which officers took into evidence.

During Carter's opening statement, his counsel noted that the evidence would show that Carter had "a gun on him" in the hotel room; that he carried it in a holster under his clothing; and that he had "a permit to be able to carry a concealed weapon."

GBI Agent Josh Ellis, who performed the forensic investigation of the hotel room, testified that he found several 9mm shell casings and cartridges in Room 132, which is where the shooting occurred. He also found a bullet that had traveled through the wall of Room 132 and lodged in the wall of an adjacent room, Room 133. The agent did not specify what type of bullet was found in the wall of Room 133.

After Agent Ellis testified, the prosecutor informed the trial court that he had received new information at about 11:45 that morning from a GBI firearms examiner, Noah Burdick, who was scheduled to testify the next day. Burdick previously had prepared three expert ballistics reports that the State had turned over to defense counsel. According to the prosecutor, Burdick said that, while preparing for his testimony the next day, he had printed off copies of the reports he had prepared and realized that a fourth report "had been generated at some time in July" and was sent "through a software program from his computer to a device that publishes that report via website. There was some sort of software error, [and] the report never populated to be published or distributed to anyone." In other words, as the prosecutor explained to the trial court,

the GBI did a report, we didn't know about the report. I, specifically, asked on Friday [September 20, 2019, the Friday before the trial began], via e-mail, about any outstanding reports and was told there were no reports. I now have in my possession a report dated September 26, 2019, or today, in the same case.

The prosecutor acknowledged that before his most recent communication with Burdick on September 26, the prosecutor had told Carter's attorney on Friday, September 20, that there were no new expert reports. The prosecutor also told the trial court that he had been prosecuting cases for 16 years and that he had "never in [his] career seen this."

With respect to the contents of Burdick's fourth report, the prosecutor informed the trial court that it contained new information showing that the bullet that had lodged in the wall of Room 133 was a .38-caliber bullet. The prosecutor explained that this new information was "notable" because "[w]e anticipate all the evidence would be, all the witnesses would testify, [that] any—all firearms were semi[-]automatic weapons. But a .38 can only be fired from a revolver. So that's inconsistent with witness testimony." He added that if the court excluded the fourth report from evidence, the State was still prepared to move forward with the trial, and that he was not seeking a continuance.

Following the prosecutor's disclosure of the fourth report, a lengthy discussion ensued between the trial court, the prosecutor, and defense counsel outside the presence of the jury, with counsel having the opportunity to raise with the trial court issues such as the importance of the report, whether it was feasible to exclude the report, and whether it was feasible to proceed without discharging the jury. During that exchange, Carter's counsel informed the trial court that "[b]ased upon this new evidence, ... I would not feel comfortable being able to move forward"; that "I don't see how to be able to salvage the case at this point"; and that "I know that the case as it stands right now can't move forward." He added that he would need to have his ballistics expert review the fourth report.

In response, the trial court asked Carter's counsel "how long [it would] take to get [his] ballistics expert[ ] ... up to speed on this." Carter's counsel responded that he was "unsure if [he could] answer that question" because he would "need to make arrangements" to get "copies of the physical evidence" from the State and because he was "not sure what his [expert's] schedule [was] at this point." The trial court and counsel agreed that it was unlikely that the case could be tried in one week, and Carter's counsel stated that it was his understanding that "this was the last 2 week calendar that the Court had for this year. So I imagine by the time this pops up again that I would have what I would need to have if the case just continued as opposed to dismissed." After this discussion of a possible continuance, Carter's counsel reiterated that "this new information ... is material to our defense," but further stated "I don't see how we can possibly move forward," suggesting that he did not believe that a continuance was feasible.

Rios's counsel said that "I think we will all agree ... that the information we've just received is vital to our defense" and that

[w]e cannot use this jury which means we would have to start all over again. And we simply cannot go forward even if this is excluded. We can't go forward because it's vital not only to their offense, but to my defense. And I need to be able to evaluate that.... I don't have time right now to evaluate what they have presented to me.

With respect to the possibility of excluding the report, Carter's counsel at one point said that "if the Court says that ... the State can't use this report, when Mr. Burdick is on the stand and I ask certain inferences it's gonna come right back to this report." He later added that

[e]xcluding this information is, obviously, an option. However, if the examiner is going to testify in court I don't see a way around us asking certain questions and it not bring this report back up. He would, essentially, have to be on the stand and lie in order to be able to exclude this report and him still testify and us have a thorough cross-examination based upon our theories of the case.

Carter moved for a mistrial based on the newly discovered report, and Rios moved to dismiss the charges. The prosecutor stated that he did "not oppose a mistrial" and "recognize[d] ... this late breaking report is critical information." The trial court found that the prosecutor's "explanation [was] credible"; that the State had not "intentionally suppressed any evidence"; and that there had been no prosecutorial misconduct. The court also concluded that "[w]e can't exclude the evidence. It's obvious that's gonna be critical to the defense's case." The trial court granted a mistrial and denied Rios's motion to dismiss.

Rios and Carter later filed a joint plea in bar, contending that double jeopardy principles barred their retrial. More specifically, they moved for dismissal of the indictment "due to the misconduct of the State for failure to comply with the rules of discovery and for failing to deliver exculpatory evidence prior to trial." Rios amended his plea in bar, contending that the failure to disclose the fourth report before trial "was ... an intentional act on behalf of the prosecution in order to induce a mistrial." Similarly, at the hearing, Rios and Carter contended that the State had engaged in intentional misconduct designed to goad them into moving for a mistrial. The trial court denied the plea in bar, ruling that Rios and Carter had not established "intentional prosecutorial misconduct," "that the person in control of the prosecution instigated any alleged misconduct," "an intent on the part of the prosecution to gain an advantage at the retrial of this case," or "an intent to goad [Rios and Carter] into moving for a mistrial."

Case No. S21A0243

2. Rios concedes on appeal that he has abandoned...