Smith v. State, 439 S.E.2d 483 (Ga. 1994). · Go Syfert
Smith v. State, 439 S.E.2d 483 (Ga. 1994). Cases Citing This Book View Copy Cite
“if a mistrial is declared without a defendant's consent or over his objection, the defendant may be retried only if there was a 'manifest necessity' for the mistrial.”
89 citation events (49 in the last 25 years) across 3 distinct courts.
Strongest positive: Jasmine Brown v. State (gactapp, 2020-03-13)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
examined Cited as authority (quoted) Jasmine Brown v. State (4×) also: Cited as authority (rule), Cited "see"
Ga. Ct. App. · 2020 · signal: accord · quote attribution · 1 verbatim quote · confidence high
if a mistrial is declared without a defendant's consent or over his objection, the defendant may be retried only if there was a 'manifest necessity' for the mistrial.
discussed Cited as authority (rule) Meadows v. State
Ga. · 2018 · confidence medium
“For this reason, we have instructed trial courts to ‘give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes.’” Id. (quoting Smith v. State, 263 Ga. 782, 783 ( 439 SE2d 483 ) (1994)).
examined Cited as authority (rule) Honester v. the State (4×)
Ga. Ct. App. · 2016 · confidence medium
Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) The State v. Stockhoff
Ga. Ct. App. · 2015 · confidence medium
J., and Boggs, J., concur. 1 See OCGA § 16-8-13. 2 See OCGA § 16-9-93 (a). 3 Julian v. State, 319 Ga. App. 808 ( 738 SE2d 647 ) (2013) (punctuation and footnote omitted). 4 (Emphasis supplied.) [5] 5 (Emphasis supplied.) [6] 6 (Emphasis supplied.) 7 Julian, supra at 810 (punctuation and footnote omitted). [8] 8 The term fait accompli means “a deed accomplished.” Black’s Law Dictionary (10th ed. 2014). 9 (Emphasis supplied.) 10 State v. Johnson, 267 Ga. 305, 305-306 ( 477 SE2d 579 ) (1996) (citations omitted); State v. Grayson, 332 Ga. App. 862, 864 (1) ( 775 SE2d 222 ) (2015); see Howe…
examined Cited as authority (rule) Washington v. State (3×) also: Cited "see"
Ga. Ct. App. · 2015 · confidence medium
Smith, 263 Ga. at 783 (1); see also OCGA § 16-1-8 (a) (2) (“A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution... [w] as 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.”).
discussed Cited as authority (rule) Harvey v. State
Ga. · 2015 · confidence medium
For this reason, we have instructed trial courts to “give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes.” Smith v. State, 263 Ga. 782, 783 ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Harvey v. State
Ga. · 2015 · confidence medium
For this reason, we have instructed trial courts to “give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes.” Smith v. State, 263 Ga. 782, 783 ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Hogan v. the State
Ga. Ct. App. · 2015 · confidence medium
Further, Ottman was charged in the same indictment with the same offenses, hut it is unclear from the record how those charges were resolved. 3 Sowell v. State, 327 Ga. App. 532, 534 ( 759 SE2d 602 ) (2014). 4 Lee v. State, 317 Ga. App. 507, 508 ( 731 SE2d 768 ) (2012) (punctuation omitted). 5 Sowell, 327 Ga. App. at 534 (punctuation omitted). 6 See Rutledge v. State, 276 Ga. App. 580, 583 ( 623 SE2d 762 ) (2005) (finding the evidence sufficient to support a conviction for armed robbery when there was circumstantial evidence that the defendant displayed a plastic gun as he demanded money); Kir…
discussed Cited as authority (rule) Russell E. Julian v. State
Ga. Ct. App. · 2013 · confidence medium
A trial judge has acted within his sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition, even though in a strict, literal sense, the mistrial is not “necessary.” This great deference means that the availability of another alternative does not without more render a mistrial order an abuse of sound discretion.7 6 (Citation and punctuation omitted; emphasis supplied.) Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994). 7 (Citations and punctuation omitted.) Tubbs v. State, 276 Ga. 751, 754 (3) …
cited Cited as authority (rule) Julian v. State
Ga. Ct. App. · 2013 · confidence medium
(Citation and punctuation omitted; emphasis supplied.) Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Jackson v. State
Ga. Ct. App. · 2010 · confidence medium
Pope, Jr., concur. 1 Puplampu v. State, 257 Ga. App. 5, 5-6 ( 570 SE2d 83 ) (2002). 2 Burdett v. State, 285 Ga. App. 571 ( 646 SE2d 748 ) (2007). 3 Ogletree v. State, 300 Ga. App. 365, 369 ( 685 SE2d 351 ) (2009). 4 OCGA §§ 16-7-1 (a); 16-4-1. 5 OCGA § 16-7-20 (a). 6 The judge noted that there was no guarantee the witness would be available the next morning, and that the State was therefore asking to ‘ ‘waste’ ’ the time of both the jury and the court. 7 Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994). 8 Smith v. State, 171 Ga. App. 279, 280 ( 319 SE2d 113 ) (1984).' 9 …
discussed Cited as authority (rule) Payne v. State
Ga. Ct. App. · 2004 · confidence medium
J., and Johnson, P. J., concur. 1 Carson v. State, 259 Ga. App. 21, 23-24 (4) ( 576 SE2d 12 ) (2002). 2 See Pope v. State, 228 Ga. App. 897, 898 (2) ( 494 SE2d 345 ) (1997). 3 225 Ga. App. 680 ( 484 SE2d 751 ) (1997). 4 196 Ga. App. 523 ( 396 SE2d 271 ) (1990). 5 Id. at 525 (2). 6 Supra. 7 Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994). 8 162 Ga. App. 20 ( 288 SE2d 772 ) (1982). 9 See Dotson v. State, 213 Ga. App. 7, 8 (1) ( 443 SE2d 650 ) (1994); Venson v. Georgia, 74 F3d 1140 (11th Cir. 1996).
cited Cited as authority (rule) Perez v. State
Ga. Ct. App. · 2004 · confidence medium
Smith v. State, 263 Ga. 782, 783 ( 439 SE2d 483 ) (1994); Foody v. State, 205 Ga. App. 666 ( 423 SE2d 423 ) (1992).
cited Cited as authority (rule) Johnson v. State
Ga. Ct. App. · 2002 · confidence medium
(Citations and punctuation omitted.) Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Head v. State
Ga. Ct. App. · 2002 · confidence medium
N.Y. 1999); United States v. Marquez, 319 FSupp. 1016, 1023 (S.D.N.Y. 1970), aff’d, 449 F2d 89 (2nd Cir. 1971), cert. denied, Marquez v. United States, 405 U. S. 963 (92 SC 1173, 31 LE2d 239) (1972). 11 McClure, supra, 734 F2d at 491. 12 155 Ga. App. 844 ( 273 SE2d 225 ) (1980). 13 Saleem v. State, 169 Ga. App. 952, 954 (2) ( 315 SE2d 487 ) (1984). 14 Whitehead v. State, 237 Ga. App. 551, 552 (2) ( 515 SE2d 866 ) (1999). 15 (Citations and punctuation omitted.) Johnson v. State, 236 Ga. App. 764, 765 (1) ( 513 SE2d 291 ) (1999). 16 251 Ga. 451, 452-453 (1) ( 307 SE2d 471 ) (1983). 17 Smith v.…
discussed Cited as authority (rule) Bair v. State (2×)
Ga. Ct. App. · 2001 · confidence medium
Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Putnam v. State (2×)
Ga. Ct. App. · 2000 · confidence medium
Because declaring a mistrial over a defendant’s objection has severe consequences, a trial court must “give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes.” (Citation omitted.) Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994).
cited Cited as authority (rule) Hernandez v. State
Ga. Ct. App. · 2000 · confidence medium
Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Pleas v. State (2×) also: Cited "see, e.g."
Ga. · 1998 · confidence medium
“If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a ‘manifest necessity’ for the mistrial. [Cit.]” Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Cooke v. State
Ga. Ct. App. · 1998 · confidence medium
Once jeopardy attaches, “[i]f a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a ‘manifest necessity for the mistrial.” Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ).
discussed Cited as authority (rule) Griffin v. State
Ga. Ct. App. · 1998 · confidence medium
See Crane v. Kentucky, 476 U. S. 683, 688-690 (106 SC 2142, 90 LE2d 636) (1986) (holding that the defendant had the right to present a complete defense and, therefore, was entitled to introduce testimony about the environment in which the confession was obtained, since this kind of evidence is often relevant to its reliability and probative weight, as well as “to the ultimate factual issue of the defendant’s guilt or innocence”); Smith v. State, 263 Ga. 782, 784 ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Laster v. State
Ga. · 1997 · confidence medium
V. 2 Jones v. State, 232 Ga. 324, 326 ( 206 SE2d 481 ) (1974). 3 Arizona v. Washington, 434 U. S. 497 (98 SC 824, 54 LE2d 717) (1978); Smith a State, 263 Ga. 782, 783 ( 439 SE2d 483 ) (1994). 4 Arizona v. Washington, 434 U. S. at 505 , quoted in Burleson v. State, 259 Ga. 498, 500 ( 384 SE2d 659 ) (1989). 5 See, e.g., Griffin v. State, 264 Ga. 232 ( 443 SE2d 612 ) (1994). 6 Arizona v. Washington, 434 U. S. at 507-509 ; see, e.g., Chatham v. State, 247 Ga. 95 ( 274 SE2d 473 ) (1981) (no manifest necessity when the trial court and district attorney were at fault in creating the condition that re…
examined Cited as authority (rule) Jefferson v. State (4×) also: Cited "see, e.g."
Ga. Ct. App. · 1996 · confidence medium
It “should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess *10 if necessary and feasible to guard against hasty mistakes. [Cit.]” Smith, supra, 263 Ga. at 783 (1).
examined Cited as authority (rule) State v. Battaglia (5×) also: Cited "see"
Ga. Ct. App. · 1996 · confidence medium
“A manifest necessity to declare a mistrial may exist ‘under urgent circumstances,’ [cit.], such as where ‘an impartial verdict cannot be reached, or (where) a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.’ [Cit.] Because of £ “the severe consequences of ordering a mistrial without the accused’s consent,” (cit.),’ [cit.], a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternati…
discussed Cited as authority (rule) Bailey v. State
Ga. Ct. App. · 1995 · confidence medium
“If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a ‘manifest necessity’ for the mistrial.” Smith v. State, 263 Ga. 782, 783 ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Stevens v. State (2×)
Ga. Ct. App. · 1994 · confidence medium
"Because of the severe consequences of ordering a mistrial without the accused's consent, a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives...." (Citations and punctuation omitted.) Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ) (1994).
discussed Cited as authority (rule) Dotson v. State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 1994 · confidence medium
In Smith v. State, 263 Ga. 782, 783 (1) ( 439 SE2d 483 ), the Supreme Court recently clarified the effect of mistrial thusly: “If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a ‘manifest necessity’ for the mistrial. [Cits.] At a minimum, the mistrial in this case was without [appellant’s] consent, and could [also] be considered over his objection.” (Emphasis supplied.) The State contends in its brief that appellant disobeyed the prior instructions of the trial court not to divulge the alcosensor reading t…
discussed Cited "see" Cecil Johnson v. State (2×)
Ga. Ct. App. · 2021 · signal: see · confidence high
XVIII (“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”). 14 criminal laws.”21 Consequently, after a jury is impaneled and sworn, “jeopardy attaches, and the defendant normally has a right to have [his] trial completed by that particular tribunal.”22 Thus, if a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried “only if there was a ‘manifest necessity’ for the mistrial.”23 But importantly, the retria…
discussed Cited "see" Devin Washington v. State (2×)
Ga. Ct. App. · 2015 · signal: see · confidence high
XVIII (“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”). 4 vital interest in enforcement of criminal laws.”7 Thus, after a jury is impaneled and sworn, “jeopardy attaches, and the defendant normally has a right to have [his] trial completed by that particular tribunal.”8 Accordingly, if a mistrial is declared without a defendant’s consent or over his objection, “the defendant may be retried only if there was a ‘manifest necessity’ for the mistrial.”9…
Retrieving the full opinion text from the archive…
Smith
v.
the State
S93A1582.
Supreme Court of Georgia.
Feb 7, 1994.
439 S.E.2d 483
Rickey L. Richardson, for appellant., Lewis R. Slaton, District Attorney, Herman L. Sloan, Rebecca A. Keel, Assistant District Attorneys, Michael J. Bowers, Attorney General, for appellee.
Sears-Collins.
Cited by 35 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 59%
Citer courts: Court of Appeals of Georgia (1)
Sears-Collins, Justice.

The trial court granted the state’s motion for a mistrial in Ivan Edward Smith’s jury trial for murder, felony murder, and aggravated assault. The mistrial was declared after Smith testified on redirect examination by defense counsel that the custodial statement he gave to police had been coerced. [1] The trial court stated that such an allegation should have been raised in a Jackson-Denno hearing, and that she could not “cure the defendant’s testimony about [the statement being forced] because he said it several times.” Prior to retrial for the same offenses, Smith filed a plea of former jeopardy seeking to bar[*783] the second prosecution. The trial court denied the plea in bar. We reverse.

1. “Once [Smith’s] jury was impaneled and sworn, jeopardy attached, and he was entitled to be acquitted or convicted by that jury.” Morris v. State, 262 Ga. 446, 447 (421 SE2d 524) (1992). If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a “manifest necessity” for the mistrial. Jones v. State, 232 Ga. 324, 327 (206 SE2d 481) (1974); see also OCGA § 16-1-8 (a) (1). At a minimum, the mistrial in this case was without Smith’s consent, and could be considered over his objection. [2]

A manifest necessity to declare a mistrial may exist “under urgent circumstances,” United States v. Perez, 22 U. S. 576 (6 LE 165) (1824), such as where “an impartial verdict cannot be reached, or [where] a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial,” Illinois v. Somerville, 410 U. S. 458, 464 (93 SC 1066, 35 LE2d 425) (1973). Because of “ ‘the severe consequences of ordering a mistrial without the accused’s consent,’ [cit.],” Cherry v. State Bd. of Corrections, 613 F2d 1262, 1266 (5th Cir. 1980), a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes, see id.

2. The state contends that Smith repeatedly injected irrelevant and prejudicial matters in the trial despite instructions from the court, [3] see Miller v. State, 204 Ga. App. 562, 565 (420 SE2d 12)[*784] (1992), making a mistrial necessary to ensure that both Smith and the state receive a fair trial, see Abdi v. State, 249 Ga. 827, 828 (294 SE2d 506) (1982).

(a) First, we note that the lack of a Jackson-Denno hearing with respect to Smith’s custodial statement did not make a mistrial necessary. Absent a proper objection to a statement’s admission, due process does not require a separate hearing as to the voluntariness of the statement. Wainwright v. Sykes, 433 U. S. 72, 86-91 (97 SC 2497, 53 LE2d 594) (1977). See also Dent v. State, 243 Ga. 854 (2) (257 SE2d 241) (1979); McNair v. State,^ 190 Ga. App. 412 (2) (379 SE2d 424) (1989). Smith did not complain about the admission of the custodial statement at any time before or after it was presented to the jury because, according to Smith, the statement supported his justification defense. Even when Smith testified that he felt coerced when he gave the statement, he did not claim that the statement should not have been admitted into evidence. As Smith did not complain about, and in fact desired, the statement’s admission, a Jackson-Denno hearing was not required to ensure that Smith received a fair trial, Wainwright, supra, and the failure to hold such a hearing was not an “obvious procedural error” or a threat to an impartial verdict creating a “manifest necessity” for a mistrial.

(b) Furthermore, a mistrial was not necessary because of the introduction of Smith’s testimony regarding the taking of his statement.

[T]he circumstances surrounding the taking of a confession can be highly relevant to . . . the purely legal question of its voluntariness, . . . [but] can also be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence.

Crane v. Kentucky, 476 U. S. 683, 689 (106 SC 2142, 90 LE2d 636) (1986). “[E]vidence about the manner in which a confession was secured will often be germane to its probative weight.” Id. at 688. Furthermore, “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” (Citations omitted.) Id. at 690.

We find that evidence regarding the circumstances surrounding[*785] Smith’s custodial statement was relevant to the probative value of the statement, either as a whole or in part. Smith could desire the custodial statement’s admission because it supported his justification defense, yet at the same time want the jury to be aware of the environment under which it was obtained. Based on evidence of a coercive environment, the jury could have chosen to give no weight whatsoever to the statement, thus discounting a major part of the state’s case. Therefore, as Smith’s testimony was relevant and should have been admitted to ensure Smith the “opportunity to present a complete defense,” id., we find that there was no manifest necessity for a mistrial based on Smith’s testimony.

Decided February 7, 1994. Rickey L. Richardson, for appellant. Lewis R. Slaton, District Attorney, Herman L. Sloan, Rebecca A. Keel, Assistant District Attorneys, Michael J. Bowers, Attorney General, for appellee.

Judgment reversed.

All the Justices concur.
1

The state’s motion for mistrial was also based on testimony by Smith’s sister that the victim had previously killed someone; however, the trial judge agreed to instruct the jury not to consider the character of the victim, and expressly granted the motion for mistrial based only on Smith’s testimony that his statement was forced.

2

A review of defense counsel’s responses to the state’s motion further supports the application of this standard:

The Court: Do you have a motion?
The Prosecutor: I have a motion for mistrial.
The Court: Mr. Richardson?
Defense Counsel: Your honor, I think curative instructions with regard to [Smith’s sister’s] statement will satisfy I guess whatever prejudice occurred when she blurted out her statement.
The Court: I don’t believe that I can cure the defendant’s testimony about the — because he said it several times, about implying that Officer Champion got the statement from him under coercion.
Defense Counsel: I don’t think enough evidence came out that he even implied it.
The Court: It was simply statements of his.
Defense Counsel: I don’t think the jury’s intelligent enough to infer that.
The Court: I cannot make that assumption, and I will grant a mistrial.
3

The state complains of the following exchange, which took place on redirect examination:

Defense Counsel: Ivan, you gave the statement to Officer Champion, didn’t you?
Witness: Yes.
Defense Counsel: And no one twisted your arm or made you give that state[*784] ment, is that correct?
Witness: In so many words they didn’t, but sort of they did.
Defense Counsel: But I mean she didn’t force you?
Witness: She didn’t force me physically, no.

At that point a bench conference was held, and the court instructed defense counsel that the testimony was not relevant. After resuming his examination, defense counsel asked appellant if he had signed a waiver of counsel sheet, and the appellant said “Yes, forcibly.” The state then made its motion for mistrial.