Scott v. State

365 Ga.App. 191

877 S.E.2d 852

SCOTT

v.The STATE.

A22A0989

Court of Appeals of Georgia.

August 26, 2022

The Pilgrim Law Group, Jerry Mac Christian Pilgrim, for Appellant.

Sherry Boston, District Attorney, Decatur, Jason Matthew Rea, Assistant District Attorney, Atlanta, for Appellee.

McFadden, Presiding Judge.

Anthony James Scott was tried before a jury on charges of serious injury by vehicle, homicide by vehicle, speeding, and reckless driving. Before the jury returned a verdict, the trial court granted Scott's motion for a mistrial on the ground that the state had failed to disclose material, exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Scott then filed a plea in bar, arguing that a second trial would constitute double jeopardy. The trial court denied Scott's plea. He filed this direct appeal in reliance on the collateral order doctrine.¹ Scott argues that the state intentionally goaded him into moving for a mistrial, so retrial is barred. We disagree. So we affirm.

When a mistrial is granted at the defendant's request due to prosecutorial misconduct, the general rule is that the Double Jeopardy Clause does not bar the [s]tate from retrying the case. There is a narrow exception where the prosecutorial misconduct was intended to goad the defendant into moving for a mistrial. However, in order to prevail on such a claim the defendant must show that the [s]tate was purposefully attempting through its prosecutorial misconduct to secure an opportunity to retry the case, to avoid reversal of the conviction because of prosecutorial or judicial error, or to otherwise obtain a more favorable chance for a guilty verdict on retrial.

State v. Traylor , 281 Ga. 730, 731-732, 642 S.E.2d 700 (2007) (citations and punctuation omitted). The trial court acts as the factfinder in determining whether a prosecutor intended to goad the defendant into moving for a mistrial, and the court's "resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous." Roscoe v. State , 286 Ga. 325, 327, 687 S.E.2d 455 (2009) (citation and punctuation omitted). "[W]e will not reverse the factual findings of the court below if there is any evidence to support them, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them." Yarbrough v. State , 303 Ga. 594, 596-597 (2), 814 S.E.2d 286 (2018) (citation and punctuation omitted).

Viewed with these principles in mind, the record shows the following. On the night of September 26, 2015, Scott, then a Georgia State Trooper, was driving in his patrol car on Highway 27 headed north. Scott was speeding, although he was not responding to a call. Another driver was headed south on Highway 27, driving a Nissan Sentra with three passengers. As the other driver proceeded to turn left across the highway, Scott's patrol car collided with the Nissan. Two of the Nissan's passengers were killed, and the other passenger and the driver suffered severe injuries.

Scott's trial began on May 13, 2019, and the jury began deliberations on May 20. That evening, defense counsel learned of something that led to his allegation of the Brady violation. Specifically, counsel learned that the two state troopers who had investigated the incident had developed a new theory based on an enhanced version of Scott's dash cam video. This theory was that one of the decedents in the Nissan may have been seated in or leaning forward into the front passenger compartment of the Nissan, rather than in the back seat as previously thought. The troopers concluded that this new theory was relevant to the cause of the collision because of the possibility that the decedent had obstructed the driver's view as he turned left into the path of Scott's patrol car. The trial court concluded² that the state's failure to turn over the new theory to the defense was based on a misunderstanding of the law and amounted to a Brady violation, and he granted Scott's motion for a mistrial over the state's objection.

Scott argues that the state goaded him into moving for a mistrial because the state did not believe it could secure an appeal-proof conviction. But the trial court found otherwise. Among other things, the court looked to the circumstances surrounding the jury deliberations — where the state repeatedly urged the court to allow the jury to continue deliberations, even after learning of the jury's difficulty in reaching a unanimous verdict — as evidence of the state's intent. As the trial court found, the jury received the case at 11:15 a.m. on Monday, May 20, 2019. The jury deliberated, and the court recessed for that day. Deliberations resumed the next morning, and at some point, the jury sent a note stating that, "We have decided on two counts and are undecided on four of the counts. No possibility of unanimous decision."

The parties agreed that it was premature to give an Allen charge, see Allen v. United States , 164 U. S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), so the trial court instructed the jury to continue deliberating. Before recessing for lunch, the court asked for a numerical vote count for each count of the indictment, without an indication of whether the votes were guilty or not guilty. The vote was: Count 1, five to seven; Count 2, seven to five; Count 4, ten to two; Count 5, ten to two; Count 6, twelve to zero; and Count...