After a mistrial was granted in his first trial, the State retried Michael Anthony Davis and a jury convicted him of felony murder, aggravated assault and possession of a firearm during the commission of a felony arising out of the shooting death of Kevin Collins and an assault on Latrice Dale. He appeals from the denial of his motion for a new trial,1 asserting that his second trial was barred by double jeopardy and that the trial court erred by refusing to accept the jury’s initial verdict of voluntary manslaughter. 1. We find no error in the trial court’s denial of appellant’s plea in bar based on double jeopardy. While appellant is correct that a defendant does not waive a double jeopardy claim by moving for a mistrial when the defendant is goaded into that action by the State’s behavior, Oregon v. Kennedy , 456 U.S. 667, 673 102 SC 2083, 72 LE2d 416 1982, 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. Nance v. State , 274 Ga. 311-312 553 SE2d 794 2001.
Whether the prosecutor intended to goad the defendant into moving for mistrial called for the trial court to “make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances.” Oregon v. Kennedy , supra, 456 U.S. at 675. The trial court based its ruling on the events that occurred at appellant’s first trial, during which he testified that he shot and killed Collins at the home of Latrice Dale who was Collins’ current girlfriend and appellant’s former girlfriend in order to defend himself after the half-naked Collins attacked him from behind and repeatedly punched him with his fists. On cross-examination the prosecutor established that appellant is six-foot four-inches high and at the time of the crimes weighed 240 pounds and was fully dressed. The prosecutor then repeated appellant’s statement that Collins “was coming at appellant with his fists up” and asked appellant, “And you’re better at fighting women than men; right” Based on this question the trial court granted appellant’s motion for a mistrial. In hearing appellant’s plea in bar, the trial court found that although the question was improper, the prosecutor did not ask the question in order to goad appellant into moving for a mistrial. When the trial court sits as the factfinder, its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous. Cits. A trial court’s findings of fact will not be deemed to be clearly erroneous if there is any evidence to support them, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them. Cit. State v. Thomas , 275 Ga. 167, 168 562 SE2d 501 2002. In this case, the trial court’s findings were authorized by the evidence in the record and are not clearly erroneous. Therefore, we conclude that the trial court properly denied appellant’s plea in bar on the grounds of double jeopardy.
