Maricus Traylor and Sherila Carmichael Appellees were indicted for murder and other offenses. After admitting that he fired a rifle, but claiming that he did so in self-defense, Traylor led police to the location where he had hidden the weapon. At trial, the assistant district attorney, Jason Green, entered into a written stipulation with defense counsel regarding the chain of custody for Traylor’s gun and other items of evidence. Thereafter, Green presented a rifle to an expert witness for the State, who testified that it was not the alleged murder weapon. The prosecutor informed defense counsel that the rifle used by Traylor was missing, and the trial court granted a mistrial pursuant to a defense motion. The District Attorney’s office subsequently located the rifle. The trial court later granted a plea in bar, based on double jeopardy, although it found the following: Green relied on other staffers within the District Attorney’s office, including but not limited to his investigator. The transcript and Mr. Green’s surprise, confirm that he first discovered the State did not have possession of the rifle at issue . . . while he was opening the box to present the rifle to the GBI firearms examiner. Mr. Green brought the matter to the attention of the defense, the court and the jury by his questioning of the firearms examiner. . . . The Court can not discern whether or not Mr. Green intended to goad the defense into moving for a mistrial. The trial court based its grant of the plea in bar on the finding that staff members of the District Attorney’s office were aware that the rifle could not be located, but failed to bring this fact to Green’s attention, even though they were present during trial and knew or should have known about the stipulation and the fact that the defense was calling a firearms expert of their own. The trial court held as follows: Withholding this information under these circumstances should be imputed to the Assistant District Attorney, in much the same way that documents ‘possessed by the prosecutor or anyone over whom the prosecutor has authority’ are attributed to the State and must be disclosed in compliance with Brady v. Maryland , 373 U.83 83 SC 1194, 10 LE2d 215 1963. See Zant v. Moon , 264 Ga. 93, 100 440 SE2d 657 1994. The trial court further stated that it “is not a mind reader in the instant case and can not divine whether the State hoped for another bite at the apple, and additional time to locate the actual weapon, when the motion for mistrial ensued.” Nevertheless, finding that the State benefitted from the mistrial and had caused the case to linger an excessively long time, the trial court concluded that, in the totality of circumstances, the State had acted “in such a manner as to harass Appellees, to deprive them of evidence needed in their defense, to fail to marshal the State’s evidence in the initial trial, such that the provisions of double jeopardy should bar a retrial in this case.” The State appeals from the trial court’s order granting the plea in bar.
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 State from retrying the case. Weems v. State , 268 Ga. 142, 143 2 485 SE2d 767 1997; Hardy v. State , 258 Ga. 523 371 SE2d 849 1988. “There is a ‘narrow exception’ where the prosecutorial misconduct was intended to goad the defendant into moving for a mistrial. Cit.” Weems v. State , supra. However, in order to prevail on such a claim the defendant must show that the State 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. Cit. Davis v. State , 278 Ga. 305, 306 1 602 SE2d 563 2004. The bar of double jeopardy is not raised by even intentional prosecutorial misconduct, ” ‘notwithstanding the fact that the defendant was thereby deprived of due process of law, unless the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause. Cits.’ Cit.” Dinning v. State , 267 Ga. 879, 881 485 SE2d 464 1997.
