The trial court granted an oral motion for mistrial asserted by Cedric Rafael Demory in his trial on charges of burglary, felony obstruction of an officer and misdemeanor possession of marijuana. Demory subsequently filed a “Plea of Former Jeopardy” on the ground that the mistrial was caused by the intentional misconduct of the prosecutor. The trial court denied that plea, and Demory appeals. Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to goad the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial. Whether the prosecutor intended to goad the defendant into moving for mistrial calls for the trial court to make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances. When the trial court sits as the factfinder, its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous. A trial court’s findings of fact will not be deemed to be clearly erroneous 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. Citations and punctuation omitted. Brown v. State , 303 Ga. App. 814 694 SE2d 385 2010. “It doesn’t even matter that the prosecutor knows he is acting improperly, provided that his aim is to get a conviction. The only relevant intent is the intent to terminate the trial, not the intent to prevail at trial by impermissible means.” Citation and punctuation omitted. State v. Traylor, 281 Ga. 730, 732 642 SE2d 700 2007. The evidence at trial showed that the home of Jack and Violet Waldrip was burglarized on November 5, 2009. It appeared that someone broke into the Waldrips’ house by breaking a glass door leading to a porch at the rear of the home and reaching in to unlock a deadbolt. Police lifted what appeared to be recent fingerprints from the door area and one of the prints was matched to Demory, who was subsequently arrested for the crime. Some of the items taken from the Waldrips’ home were later produced by Shacara Rucker, a friend of the Waldrips and Demory’s cousin, or recovered by Sheklia Rucker, Shacara’s sister.
During the State’s examination at trial of Dan Schraeder, an investigator with the Gainesville Police Departmernt, the prosecutor asked whether Schraeder ever had the chance to meet Demory after his fingerprints had been discovered at the scene. Schraeder responded that he did meet Demory. Demory’s attorney moved for a mistrial, arguing that this question was a violation of Demory’s Fifth Amendment right to remain silent because there was no testimony that he had spoken to Demory as he had testified regarding other individuals. His attorney argued that the clear intent of the question was to let the jury know that “everybody else spoke to the police,” but Demory had not. The prosecutor informed the trial court that, to the contrary, she had instructed the investigator not to comment on Demory’s right to remain silent. The trial court denied Demory’s motion.
