Appellant Stuart Kelly Mathis was charged with speeding, driving under the influence, and an open container violation. A jury trial ensued during which the trial court granted Mathis’ motion for mistrial made after the prosecutor made improper comments during closing argument. Mathis subsequently filed a motion for acquittal and discharge contending double jeopardy barred his further prosecution. The trial court denied the motion finding the prosecutor had not intended to subvert the protections afforded by the double jeopardy clause. Mathis appeals the trial court’s denial of his motion for discharge and acquittal. Because the trial court’s findings are supported by the record, we affirm. During closing argument, the prosecutor contended that Mathis was the president of a nationally renowned company and was a “wealthy man that’s trying to buy his way out of a DUI.” Mathis objected and moved for mistrial contending that the prosecutor’s comments were based on facts not introduced into evidence and were improper and inflammatory.1 The trial court granted Mathis’ motion for a mistrial, but denied his subsequent plea in bar based on double jeopardy. In general, when a defendant makes a motion for a mistrial he waives any claim of double jeopardy. But, where the prosecutor has goaded the defense into making a motion for a mistrial in order for the prosecution 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, the Double Jeopardy Clause will stand as a bar to retrial. The Supreme Court of Georgia has adopted the test set out in Oregon v. Kennedy, 456 U.S. 667 102 SC 2083, 72 LE2d 416 1982. The inquiry is whether the prosecutor intended to goad the defendant into moving for a mistrial and thus terminate the trial. What is critical is the objective of the prosecutor’s conduct. Citations omitted. Spradley v. State, 242 Ga. App. 340, 341, 1 529 SE2d 647 2000. See also Oregon, 456 U.S. at 676.
Even where the prosecutor’s misconduct is intentional and sufficient to justify a grant of mistrial, his or her misconduct will not prohibit a retrial unless the record shows that the prosecutor’s objective was to abort the trial and to subvert the protections afforded by the Double Jeopardy Clause. Haralson v. State, 227 Ga. App. 118 1 488 SE2d 497 1997; Dinning v. State, 267 Ga. 879, 881 485 SE2d 464 1997. The question of whether the prosecutor intended to goad the defendant into moving for a mistrial is a question of fact for the trial court to resolve.” Citations omitted. Spradley, 242 Ga. App. at 341 1. The trial court’s resolution of fact will be upheld unless clearly erroneous. State v. Thomas , 275 Ga. 167, 168 562 SE2d 501 2002.
