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Otis v. State

Double jeopardy barred retrial after the trial court erroneously sua sponte declared a mistrial when the murder defendant failed to provide notice before trial of his intent to present evidence of mental illness solely through lay witnesses.

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Appellant Geary Otis was charged in a seven-count indictment with malice murder and other offenses arising out of the death of one victim and the assault of another on June 17, 2013. On April 7, 2014, a jury was impaneled and sworn and the State and defense presented their opening statements. At the conclusion of its opening statement, the defense revealed its intent to pursue an insanity defense, for which it had not given prior notice to the State. Outside the presence of the jury, the State objected to the raising of this defense due to the lack of prior notice. In response, the defense asserted that because Otis would not be calling an expert witness to support the defense, he was not required to give advance notice pursuant to Uniform Superior Court Rule 31.11 and what is now Rule 31.5 B2 formerly Rule 31.4, and relied upon the holding in Abernathy v. State, 265 Ga. 754 462 SE2d 615 1995.

At a hearing on the issue the following day, the trial court, sua sponte, and over appellant’s objection, declared a mistrial and rescheduled the case for trial in two weeks. Appellant filed a plea in bar on the ground of double jeopardy and, after conducting a hearing on the double jeopardy issue, the trial court denied appellant’s plea in bar. On appeal, Otis asserts the trial court erred in declaring a mistrial and in denying his plea in bar. We agree, and reverse.

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