Hightower v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: January 18, 2023
S22A0870. HIGHTOWER v. THE STATE.
MCMILLIAN, Justice.
Michelle Antoinette Hightower was charged with malice
murder and other crimes in connection with the shooting death of
Michael McGee on September 5, 2017. Hightower’s trial on these
charges began in the Superior Court of Fulton County on March 9,
2020, and four days later, on March 13, after the Chief Judge of the
Atlanta Judicial Circuit issued an order declaring a judicial
emergency due to the continued transmission of the COVID-19
virus, the trial court declared a mistrial in Hightower’s case, over
defense counsel’s objections. Hightower subsequently filed a plea in
bar and motion to dismiss the indictment (collectively, the “Plea in
Bar”), asserting that further prosecution of her case was barred by
the double jeopardy clauses of the state and federal constitutions
because there was no manifest necessity to declare a mistrial and
because the trial court did not exercise its discretion or consider
reasonable alternatives prior to declaring the mistrial. Following a
hearing, the trial court denied the Plea in Bar on May 21, 2021, and
Hightower appeals. 1 Because we conclude that the trial court acted
within its discretion in determining that there was a manifest
necessity for a mistrial, we affirm.
1. Voir dire in Hightower’s trial began on the morning of
Monday, March 9, 2020, and was completed the next day, on March
10. The jury was then selected and sworn. The same day, counsel
gave their opening statements, and the State presented the
testimony of three witnesses. On Wednesday, March 11, the trial
court heard argument on several motions, and the State presented
two additional witnesses. The parties also conducted voir dire of a
proposed expert witness whom the State wished to call to rebut
1 Although Hightower originally filed her appeal in 2021, at Hightower’s
request, the case was remanded to allow for completion of the record, and it
was re-docketed under the current case number when it returned to this Court.
The case was orally argued on August 23, 2022.
2
Hightower’s defense of battered-person syndrome, and the witness
was qualified as an expert. The trial court recessed the trial
proceedings for the next day, Thursday, March 12, to allow the
State’s expert to interview Hightower and to allow the parties to
prepare and exchange expert reports on the battered-person
defense.
That evening, Christopher S. Brasher, chief judge of both the
Atlanta Judicial Circuit and the Superior Court of Fulton County,
sent an email notifying all Fulton County superior and state court
judges, the Fulton County District Attorney’s office, and the county’s
Public Defender’s office,2 among others, of his intention to issue an
order declaring a judicial emergency effective Monday, March 16,
which would “suspend the calling and empaneling of all jurors and
the conduct of all jury trials” in Fulton County.
Chief Judge Brasher sent another email at 8:20 a.m. on Friday,
March 13, attaching a copy of his order, which was entered about an
2 Hightower was represented by the Public Defender’s office at trial.
3
hour later, at 9:23 a.m. The order, citing OCGA § 38-3-61,3 declared
a judicial emergency in the Atlanta Judicial Circuit, which “is
composed of the County of Fulton.” OCGA § 15-6-1 (3). This
declaration was based on a “serious health emergency” and a
determination that the emergency “substantially endangers or
infringes upon the normal functioning of the judicial system as it
relates to jury service, and any non-essential matters, unless they
can be conducted via video or teleconferencing.” The order defined
the nature of the emergency as “the continued transmission of
Coronavirus/COVID-19 throughout Fulton County and the potential
infection of those who are required to appear in our courts and
interact with large groups due to jury service.” The order further
provided that:
[T]he undersigned makes this declaration of a
judicial emergency affecting all courts and clerk’s offices
in Fulton County as it relates to jury service, including
3 OCGA § 38-3-61 (a) empowers an “authorized judicial official” to declare
judicial emergencies, and OCGA § 38-3-60 (1) (B) defines “[a]uthorized judicial
official” to include “[a] chief judge of a Georgia superior court judicial circuit[.]”
Chief Judge Brasher signed the Fulton County Order in both his capacities as
chief judge of the Superior Court of Fulton County and chief judge of the
Atlanta Judicial Circuit.
4
grand jury service and any non-essential matters, unless
they can be conducted via video or teleconferencing.
Accordingly, IT IS THE ORDER of the Court that no
jurors shall report and no jury trials shall be held for a
period of thirty (30) days from the date of the entry of the
Order (the “Fulton County Order”).
The proceedings in Hightower’s case later recommenced at 9:51
a.m., outside the presence of the jury, and after addressing
preliminary evidentiary matters, the trial court announced that it
would be taking judicial notice of the Fulton County Order and that
it was also anticipating a similar statewide order from then-Chief
Justice Harold D. Melton of this Court. As a result, the trial court
said it anticipated that it would be declaring a mistrial in
Hightower’s case and asked counsel if they wanted to “place
something on the record.”
The State had no objections, but Hightower’s counsel objected
to the mistrial and asked the court to consider less drastic
alternatives. Defense counsel proposed that the trial continue
through the weekend with the belief that it could be concluded by
Sunday “before the judicial emergency has been declared.” In the
5
alternative, defense counsel suggested that the trial simply be
continued until it could be reconvened with the same jury and a new
trial date set “once the judicial emergency is over.” After the jurors
returned to the courtroom, the trial court informed them of the
Fulton County Order declaring a judicial emergency, 4 and
announced that it was declaring a mistrial based on the judicial
emergency. The trial court then released the jury from further
service. 5
4 The Court explained to the jury that
[t]he existence of the judicial emergency in Fulton County is
related to the continued transmission of the coronavirus, COVID-
19 virus, throughout Fulton County and the potential infection of
those who are required to appear in our courts and interact with
large groups due to jury service including grand jury service or
other large nonessential calendars.
5 The then-Chief Justice of this Court issued the first in a series of orders
declaring a statewide judicial emergency the next day, on Saturday, March 14,
2020. That order provided, in pertinent part:
[T]rials in any criminal case for which a jury has been empaneled
and the trial has commenced as of the date of this order shall
continue to conclusion, unless good cause exists to suspend the
trial or declare a mistrial. The decision whether to suspend a
criminal trial or declare a mistrial rests with the judge presiding
over the case.
Although this statewide order contradicted the Fulton County Order by
allowing criminal trials in progress to continue to conclusion, it had not yet
been issued when the trial court declared the mistrial.
6
The following week, on March 19, 2020, the trial court entered
a written order regarding the grant of the mistrial in Hightower’s
case, which recited the events surrounding the Fulton County
Order, and stated:
By declaring a mistrial in this case, the Court declares
explicitly that a manifest necessity warranted the
declaration of the mistrial in this case, specifically the
existence of a judicial emergency in Fulton County.
Further, this Court specifically declares that the entry of
the order of mistrial, in this case, is designed to ensure
that the ends of justice will be served.
Hightower filed the Plea in Bar over one year later, on April 7,
2021. After an evidentiary hearing, the trial court denied the Plea
in Bar in a written order entered May 21, 2021. That order recited
that in making the decision to declare a mistrial, the trial court was
aware that “a judicial emergency was being declared due to the
[c]oronavirus/COVID-19”; that COVID-19 “was highly contagious
and could cause severe illness or death to those who contracted it”;
and that “medical professionals in the media were urging people to
stay at home to avoid contracting and spreading the virus to others.”
The order also said that the trial court further “considered the fact
7
that the trial was not likely to conclude by the end of the day and
that the courtroom did not have adequate infrastructure in place to
prevent the contraction or spread of the virus.” Based on these
factors, the trial court concluded “that a high degree of necessity
existed such that a mistrial was warranted.”
2. Hightower asserts on appeal that her Plea in Bar should
have been granted because the trial court erred in declaring a
mistrial sua sponte over her objection without carefully exercising
sound discretion, without considering less drastic alternatives, and
without a manifest necessity.
“The Double Jeopardy Clause of the Fifth Amendment, which
applies to the states through the Fourteenth Amendment, says ‘[n]o
person shall be . . . subject for the same offence to be twice put in
jeopardy of life or limb[.]’” Meadows v. State, 303 Ga. 507, 510 (2)
(813 SE2d 350) (2018); U. S. Const. Amend. V. See also Ga. Const.
of 1983, Art. I, Sec. I, Par. XVIII; OCGA § 16-1-8 (a).6 “Jeopardy
6The double jeopardy clause of the Georgia Constitution provides: “No
person shall be put in jeopardy of life or liberty more than once for the same
8
attaches when the jury has been impaneled and sworn.” Blake v.
State, 304 Ga. 747, 749 (2) (822 SE2d 207) (2018). But “[e]ven after
jeopardy has attached, trial courts may declare a mistrial over the
defendant’s objection, without barring retrial, whenever, in their
opinion, taking all the circumstances into consideration, there is a
manifest necessity for doing so.” Rios v. State, 311 Ga. 639, 643 (2)
(859 SE2d 65) (2021) (citation and punctuation omitted). See also
offense except when a new trial has been granted after conviction or in case of
mistrial.” Art. I, Sec. I, Par. XVIII. Georgia also has a statutory prohibition
against multiple prosecutions for the same conduct. OCGA § 16-1-8 (a)
provides:
A prosecution is barred if the accused was formerly
prosecuted for the same crime based upon the same material facts,
if such former prosecution:
(1) Resulted in either a conviction or an acquittal; or
(2) Was terminated improperly after the jury was impaneled
and sworn or, in a trial before a court without a jury, after the first
witness was sworn but before findings were rendered by the trier
of facts or after a plea of guilty was accepted by the court.
We note that
[i]n determining whether a second trial is permitted on the same
charges following a mistrial, our case law has treated all forms of
double jeopardy claims, whether under the Constitution of the
United States, under the Georgia Constitution, or under the
Georgia Code, in a manner consistent with case law from the
United States Supreme Court regarding the Fifth Amendment[.]
Carman v. State, 304 Ga. 21, 25 (2) (815 SE2d 860) (2018). And Hightower does
not argue that a different analysis should apply under the Georgia
Constitution.
9
U.S. v. Dinitz, 424 U.S. 600, 606-07 (II) (96 SCt 1075, 47 LE2d 267)
(1976) (if “a mistrial has been declared without the defendant’s
request or consent,” “the question whether under the Double
Jeopardy Clause there can be a new trial . . . depends on whether
‘there is a manifest necessity for the (mistrial)’” (citation omitted)).
The manifest necessity standard requires a “high degree of
necessity” to grant a mistrial. Laguerre v. State, 301 Ga. 122, 124
(799 SE2d 736) (2017) (citation and punctuation omitted). See also
Tubbs v. State, 276 Ga. 751, 754 (3) (583 SE2d 853) (2003)
(“Manifest necessity can exist for reasons deemed compelling by the
trial court, especially where the ends of substantial justice cannot
be attained without discontinuing the trial.” (citation and
punctuation omitted)). “Whether such necessity exists is to be
determined by weighing the defendant’s right to have his trial
completed before the particular tribunal against the interest of the
public in having fair trials designed to end in just judgments; and
the decision must take into consideration all the surrounding
circumstances.” Laguerre, 301 Ga. at 124 (punctuation and citation
10
omitted).
Therefore, in the absence of prosecutorial misconduct, “the
decision whether to grant a mistrial is reserved to the ‘broad
discretion’ of the trial judge.” Carman v. State, 304 Ga. 21, 27 (2) (a)
(815 SE2d 860) (2018) (punctuation omitted and emphasis in
original), quoting Renico v. Lett, 559 U.S. 766, 774 (II) (130 SCt 1855,
176 LE2d 678) (2010). See also Laguerre, 301 Ga. at 125; Tubbs, 276
Ga. at 754-55 (3).
The decisions of this Court and the U.S. Supreme Court
emphasize that whether the required degree of necessity
for a mistrial has been shown is a matter best judged by
the trial court. The propriety of declaring a mistrial in the
varying and often unique situations arising during the
course of a criminal trial cannot be determined by the
application of any mechanical formula.
Harvey v. State, 296 Ga. 823, 831-32 (2) (a) (770 SE2d 840) (2015)
(citations and punctuation omitted) (quoting Illinois v. Somerville,
410 U.S. 458, 462 (93 SCt 1066, 35 LE2d 425) (1973)). And “great
deference is accorded to a decision that a mistrial was necessary.”
Blake, 304 Ga. at 750 (2).
Although trial courts should “give careful, deliberate, and
11
studious consideration to whether the circumstances demand a
mistrial, with a keen eye toward other, less drastic, alternatives, a
court’s rejection of other alternatives is a proper exercise of the
court’s discretion—and not an abuse—if reasonable judges could
differ about the proper disposition.” Blake, 304 Ga. at 749 (2). See
also Harvey, 296 Ga. at 832 (2); Tubbs, 276 Ga. at 754-55 (3). A trial
court “is not required to make explicit findings of manifest necessity
nor to articulate on the record all the factors which informed the
deliberate exercise of his discretion,” but the record must at least
“show that the trial court actually exercised its discretion.” Blake,
304 Ga. at 749 (2) (punctuation and citation omitted). See also
Laguerre, 301 Ga. at 125.
Hightower argues that the trial court abused its discretion in
determining that there was a manifest necessity to declare a
mistrial and in failing to consider less drastic alternatives. She
asserts that the trial court based its mistrial decision, not on any
problem with her trial, but rather on the Fulton County Order and
its underlying concerns for “community safety.” Hightower asserts
12
that such concerns are unrelated to any problem that occurred at
her trial and therefore not appropriate to consider in determining
whether to grant a mistrial.
However, in considering the issue of double jeopardy, the
United States Supreme Court has recognized that considering the
health of trial participants can be integral to conducting a criminal
trial. The Court has acknowledged that
a criminal trial is, even in the best of circumstances, a
complicated affair to manage. The proceedings are
dependent in the first instance on the most elementary
sort of considerations, e.g., the health of the various
witnesses, parties, attorneys, jurors, etc., all of whom
must be prepared to arrive at the courthouse at set times.
United States v. Jorn, 400 U.S. 470, 479-80 (II) (91 SCt 547, 27 LE2d
543) (1971). Thus, the Supreme Court concluded that application of
a mechanical rule barring retrial whenever a jury is discharged
without a defendant’s consent would be unworkable; rather, “a
defendant’s valued right to have his trial completed by a particular
tribunal must in some instances be subordinated to the public’s
interest in fair trials designed to end in just judgments.” Id. at 480
13
(II) (citation and punctuation omitted). See also Arizona v.
Washington, 434 U.S. 497, 505 (II) (98 SCt 824, 54 LE2d 717) (1978)
(“Because of the variety of circumstances that may make it
necessary to discharge a jury before a trial is concluded,” which “do
not invariably create unfairness to the accused,” a defendant’s
“valued right to have the trial concluded by a particular tribunal is
sometimes subordinate to the public interest in affording the
prosecutor one full and fair opportunity to present his evidence to
an impartial jury.”).
Moreover, we do not view the trial court’s decision to declare a
mistrial in hindsight, but rather from the court’s perspective at the
time it exercised its discretion. See Harvey v. State, 296 Ga. 823, 833
(2) (b) (770 SE2d 840) (2015) (“[T]he question before us is not
whether the trial court exercised its discretion to grant a mistrial
with care and full deliberation or whether, with the benefit of
hindsight, we would say that a mistrial was necessary. Our task is
only to decide whether the trial court abused its broad discretion.”);
Tankersley v. Stepp, 266 Ga. 892, 892 (1) (471 SE2d 882) (1996) (trial
14
court did not abuse its discretion in denying a continuance or
mistrial where witness “evidenced an inability to respond” to cross-
examination questions, even though hindsight may have revealed
that witness had a serious illness during trial).
At the time the trial court declared a mistrial in this case, the
COVID-19 pandemic had created an unexpected and unprecedented
global health crisis, which posed a potential threat to the health of
the parties, including the defendant, witnesses, jurors, counsel, and
court personnel required to appear in court and, as the Fulton
County Order stated, “substantially endanger[ed] or infringe[d]
upon the normal functioning of the judicial system as it relates to
jury service.” Hightower’s trial took place early in the pandemic,
when very little was understood about the nature or spread of the
COVID-19 virus, understandably prompting caution by public
officials in addressing the crisis based on the circumstances in the
surrounding area. The Fulton County Order declared that an
emergency existed based on “the continued transmission of
Coronavirus/COVID-19 throughout Fulton County.”
15
The trial court was also aware that health issues already had
arisen among the participants in Hightower’s trial. On Tuesday,
March 10, one juror informed the court that she was concerned she
had “strep” as she had a sore throat that had “progressively gotten
worse,” and the State informed the trial court that one of its
witnesses called to report that she had “flu-like” symptoms that
were “getting worse.”7 These circumstances, demonstrate that,
contrary to Hightower’s argument, community health concerns
potentially arising from COVID-19 presented a problem for
Hightower’s trial. Moreover, the record belies Hightower’s assertion
that the trial court abused its discretion by not considering less
drastic alternatives. Before declaring a mistrial, the trial court
informed the parties of the Fulton County Order and that it was
7 The juror volunteered to visit an urgent care facility, and the trial court
accepted her offer, asking the juror to give the court an update on her condition.
In reviewing the record on appeal, we could find no further mention of the juror
in the trial transcript. As to the State’s witness, the trial court directed the
State to inform the witness that she was to honor the subpoena served upon
her. The State did not call the ailing witness to testify before the mistrial was
declared on March 13, but the prosecutor represented that day that the State
believed that it would be able to present the witness’s testimony in court
although no date was given for the witness’s availability.
16
anticipating declaring a mistrial, but it nonetheless solicited
argument from counsel on the matter. The State raised no objection,
but the defense objected and was given an opportunity to argue the
issue. Defense counsel suggested two options: (1) holding the trial
over the weekend to be completed “before the judicial emergency has
been declared” on Monday, March 16, and (2) ordering a continuance
until “the judicial emergency is over” when the trial could be reset
before the same jury. After hearing and having the opportunity to
consider the defense’s argument and suggestions, the trial court
declared the mistrial.
We conclude that, under the circumstances present in this
case, rejecting the defendant’s suggested alternatives was within
the trial court’s discretion. The first alternative proposed a
procedure that would have violated the Fulton County Order, which
had already declared a judicial emergency as of March 13 and
ordered that jurors should not appear for jury service for 30 days
17
after that date. 8 And nothing in this proposal would have addressed
the concerns underlying that order for protecting the trial
participants’ health. Moreover, implied in this suggestion is an
acknowledgement by the defense that the trial could not have been
completed on March 13, and thus it represents an implicit
concession that proceeding with the trial that day would not have
resulted in a verdict. 9 The second alternative would have
necessitated a continuance for an indefinite period of time. In light
of the uncertainties surrounding the pandemic, no one could predict
when the judicial emergency would be over, and there was no
assurance that the same jury would have been available to continue
the trial at an unknown point in the future. See Carman, 304 Ga. at
33 (2) (b) (affirming denial of plea in bar following mistrial because
8 Although the statewide order issued on March 14 allowed criminal jury
trials in progress “to continue to conclusion, unless good cause exists to
suspend the trial or declare a mistrial,” as previously noted, the trial court did
not have the benefit of this order in considering alternatives. And, in any event,
the trial court found a manifest necessity to declare a mistrial, which is “good
cause.”
9 At the beginning of Hightower’s trial, counsel estimated that the trial
would take a week to complete, but the trial had already been recessed for one
full day to allow the State’s expert to interview Hightower and the parties to
exchange expert reports on her battered-person defense.
18
defense counsel was experiencing severe emotional distress
following suicide of close family member and it was unclear when
counsel would be able to return to try the case). See also State v.
Smith, 465 N.J. Super. 515, 542 (III) (B) (ii) (244 A3d 296) (App. Div.
2020) (affirming grant of mistrial where continuance or
adjournment for an indefinite period was not feasible given the state
of the COVID-19 pandemic).
Accordingly, given the COVID-related judicial emergency and
30-day prohibition on jury service in Fulton County, and the
potentially COVID-related health concerns among the trial’s
participants, we conclude that the trial court did not abuse its
discretion in declaring a mistrial based on manifest necessity or in
denying Hightower’s Plea in Bar. 10 See Carman, 304 Ga. at 33 (2) (b)
(no abuse of discretion in declaring mistrial due to severe emotional
10 Although the existence of a judicial emergency based on the
widespread transmission of the COVID-19 virus in Fulton County alone may
have justified a mistrial and even without a showing that the trial participants
were actually affected by the virus, we need not definitively decide that
question in this case because participants in Hightower’s trial were also
experiencing health concerns potentially related to the COVID-19 pandemic.
19
distress of defense counsel who had worked on the death penalty
case for two years where backup counsel had only been involved for
two weeks); Laguerre, 301 Ga. at 126 (no abuse of discretion in
declaring mistrial after the trial court “reasonably decided that the
jury unit likely could not be preserved in the circumstances”);
Spearman v. State, 278 Ga. 327, 329 (1) (602 SE2d 568) (2004) (no
abuse of discretion in declaring mistrial based on prosecution
witness’s unavailability, which was due solely to an unforeseeable
accident that occurred the weekend before the trial, where there was
no evidence that prosecution knew of witness’s unavailability before
beginning trial).
Judgment affirmed. All the Justices concur.
20