Renado Jackson appeals from the denial of his motion for discharge and acquittal, arguing that the trial court erred in declaring a mistrial, over Jackson’s objection, based on the State’s failure to subpoena its only two material witnesses. We agree and reverse. “The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s factual findings support its legal conclusion.” Punctuation omitted. Puplampu v. State .1 See also Burdett v. State 2 questions of law are reviewed de novo. Where “the basis for the mistrial was the unavailability of critical prosecution evidence,” including the unavailability of prosecution witnesses, “the strictest scrutiny is appropriate.” Punctuation omitted. Ogletree v. State .3
The record shows that Jackson was indicted on a single count each of criminal attempt to commit burglary4 and possession of tools for the commission of a crime.5 The case against Jackson proceeded to trial on August 18, 2009. A jury was seated, opening arguments heard, and the State began to present its case, calling two police officers to testify. After the second officer completed his testimony, the State informed the court that its “chief witness,” who was not under subpoena, had traveled to Alabama because of an emergency with his mother, and was therefore unavailable. The prosecutor further explained that the State was attempting to locate a second witness, who also was not under subpoena, who could testify in lieu of the “chief witness.” The trial judge responded by stating: “I have spent the entire morning selecting a jury . . . and you tell me that your people are not subpoenaed I can’t take any action including issuing a bench warrant, except to declare a mistrial if you don’t have witnesses.” The State then asked for a recess until the following morning, to have the opportunity to get the witness back from Alabama. The trial court refused to grant the recess unless the district attorney’s office would agree to pay the juror expenses for the following day.6 The district attorney’s office declined this offer, at which point the trial court sua sponte declared a mistrial.
