Roscoe v. State

Some evidence supported the trial court's finding on motion for reconsideration that the state did not goad the defendant into moving for a mistrial.

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Tyshawn Roscoe was indicted for malice murder, felony murder, and hijacking a motor vehicle, and his trial date was set for April 27, 2009. Earlier, it had been discovered that Bernadette Davy, a firearms examiner for the State, had not been performing the required number of ballistics tests in each of her cases, and she was terminated for this breach of protocol. Davy had performed the testing on the alleged murder weapon in Roscoe’s case. During pre-trial proceedings on April 24, 2009, the prosecutor informed the trial court that he intended to call George Stanley as witness during trial. Stanley is a GBI firearms examiner who had been asked to retest all firearms that had been previously examined by Davy. Because the State had not notified the defense at least 10 days prior to trial of its intention to call Stanley as a witness or introduce his report, see OCGA § 17-16-4 a 4, the trial court granted Roscoe’s motion in limine to exclude this evidence, and the State was instructed to go forward with Davy as its sole expert firearms witness in its case in chief.

During opening statements on April 28, 2009, however, the prosecutor told the jury that the alleged murder weapon had been linked to Roscoe by Davy’s testing, that Davy had since been terminated, and that another examiner would be called to testify that he had reached the same result as Davy. At this point, Roscoe made a motion for a mistrial, contending that the prosecutor had violated the trial court’s grant of his motion in limine. The prosecutor responded that, although retesting had not yet been completed, he intended to call an additional expert from the crime lab other than Stanley to rehabilitate Davy’s testimony following her impeachment regarding the reasons for her termination. The trial court rejected this argument and granted the motion for a mistrial.

Roscoe v. State

Some evidence supported the trial court's finding on motion for reconsideration that the state did not goad the defendant into moving for a mistrial.

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