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Steward v. State

Although the prosecutor inadequately instructed the state's witnesses about what they could and could not say, there was no evidence that the prosecutor intended its witness to violated the ultimate issue rule.

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During Michael Steward’s trial on counts of rape, incest and two counts of aggravated sodomy, the court declared a mistrial when the state’s expert witness introduced evidence that violated the ultimate issue rule. Steward then filed a plea in bar to prevent re-trial on the grounds that another trial would constitute double jeopardy because the mistrial was caused by intentional prosecutorial misconduct. The trial court denied the motion, and Steward appeals.

“Generally, where a mistrial is granted on the defendant’s motion, double jeopardy does not bar a retrial unless it is established that the State intended to ‘goad’ the defendant into moving for a mistrial to avoid a reversal or to obtain a more favorable chance of a guilty verdict on retrial. Williams v. State, 268 Ga. 488, 489 491 SE2d 377 1997; Mobley v. State, 262 Ga. 808 2 426 SE2d 150 1993.” Weems v. State, 269 Ga. 577, 580 4 501 SE2d 806 1998. If the record does not show that the prosecutor’s conduct was for these improper purposes, the defendant may be retried. Dinning v. State, 267 Ga. 879, 880-881 485 SE2d 464 1997. The intent of the prosecutor is a fact question for the trial court to resolve. Haralson v. State, 227 Ga. App. 118 488 SE2d 497 1997. Even though the trial court may have been authorized to reach the opposite result, we will affirm if there is evidence to support the trial court’s finding. Spradley v. State, 242 Ga. App. 340, 342-343 529 SE2d 647 2000.

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