Willie Anderson appeals from the trial court’s order denying his plea in bar based on double jeopardy. Anderson claims that because the prosecutor intentionally goaded him into moving for a mistrial, the State cannot retry him. Because the prosecutor’s conduct violated one of the most basic rules of prosecutorial procedure, we conclude that the trial court erred by denying Anderson’s plea in bar of double jeopardy. The record shows that the prosecutor produced documents in discovery showing that Anderson refused to speak with police and requested a lawyer after being read his Miranda rights. The prosecutor therefore knew or should have known that Anderson exercised his right to remain silent and seek counsel before trial. It is elementary that a “defendant has the right to remain silent and to be represented by counsel and the exercise of these rights is not to be used as evidence against him. Cit.” Hosch v. State , 246 Ga. 417, 419 2 271 SE2d 817 1980. Despite this well-established law, during the direct examination of a police officer, the prosecutor elicited testimony that Anderson refused to sign a waiver of his rights after being arrested. The following colloquy then took place: Q. After that, did you attempt to take a statement or have an interview with him of any kind A. Yes, sir, I did. Q. What did you do A. Once I read him the waiver of rights, I told him that I wanted to get a statement and get his side of the story, and he said that he had nothing to say to me and that he wanted a lawyer. Defense counsel immediately objected and moved for a mistrial. The prosecutor argued that he had done nothing improper. The trial court granted the mistrial, stating, “I think it’s as basic as basic can be. A defendant has the right to remain silent and the State cannot comment on his right to remain silent and the State cannot comment on his invocation of his right to counsel. . . . It’s as plain as the nose on your face.”
Following the grant of the mistrial, Anderson filed a plea in bar and plea of former jeopardy.1 During the hearing, defense counsel presented evidence showing that the prosecutor knew before trial that Anderson had invoked his right to remain silent and had requested an attorney. Defense counsel argued that the prosecutor, who had been an attorney for over 30 years, “knows better” than to ask questions seeking such clearly inadmissible evidence and that he intentionally goaded the defense into moving for a mistrial. The trial court denied the defendant’s plea in bar. The trial court did so without explanation and without any findings of fact with regard to the prosecutor’s intent.
