Prosecutors Intention to Cause a Mistrial In Order to Gain a Delay
In Wilson v. State, 233 Ga. App. 327 (503 S.E.2d 924) (1998), the prosecutor was cross-examining the defendant and asked, "'Mr. Wilson, did you try to negotiate a nolo contendere plea in this charge?'" Id. at 330. In that instance, this Court said that prosecutors are generally too well trained and knowledgeable to ask that question and, therefore, the prosecutor must have intended the mistrial.
In Haralson v. State, 227 Ga. App. 118 (488 S.E.2d 497) (1997), the trial court instructed the prosecutor not to elicit any testimony about the defendant's gang membership.
Because there was evidence that the robbers wore a certain color bandanna, the prosecutor asked if she could question a witness about what color bandannas the robbers were wearing.
The court said she could, and she then proceeded to question a co-defendant about wearing bandannas and gang membership: whether the other co-defendants were members of gangs, what color bandannas they wore and what color bandanna the defendant wore.
The trial court granted a mistrial, and after the subsequent hearing to bar retrial, the trial court found that the prosecutor's intention was to convict Haralson, not to cause a mistrial. Id. at 120. This Court concluded that the trial court would have been authorized to reach the opposite result, but because there was evidence to support the trial court's finding of fact, the defendant's plea in bar was properly denied. Id. at 121.
Likewise, in this case, the trial court could have reached the opposite result. But, there was evidence that the prosecutor did not intend to cause a mistrial in order to gain a delay and was prepared to try the case again immediately.
Therefore, because the trial court's finding of fact was authorized by the evidence in the record, we conclude that the trial court properly denied X's plea in bar on the grounds of double jeopardy. Haralson, supra at 121.
In Cantrell v. State, 266 Ga. 700 (469 S.E.2d 660) (1996), the trial court instructed the jury that it must first consider the greater offense of possession with intent to distribute before it could consider the lesser included offense of possession. Id.
Likewise, in Kunselman v. State, 232 Ga. App. 323 (501 S.E.2d 834) (1998), the trial court instructed the jury that it must first find the defendant not guilty of burglary before it could consider the lesser included offense of criminal trespass. id. at 324.