CourtListener 10680186

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315 Ga. 399
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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

Hightower’s defense of battered-person syndrome, and the witness

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
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 e-mail 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 e-mail at 8:20 a.m. on

Friday, March 13, attaching a copy of his order, which was entered

about an hour later, at 9:23 a.m. The order, citing OCGA § 38-3-61,3

2 Hightower was represented by the Public Defender’s office at trial.
3 OCGA § 38-3-61 (a) empowers an “authorized judicial official” to declare

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:

[T]he undersigned hereby makes this declaration of
a judicial emergency affecting all courts and clerk’s offices
in Fulton County as it relates to jury service, including
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

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
jurors or grand jurors shall report and no jury trials shall
be held for a period of thirty (30) days from the date of
the entry of this Order [(the “Fulton County Order”)].

(Emphasis in original.)

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

alternative, defense counsel suggested that the trial simply be

5
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

The following week, on March 19, 2020, the trial court entered

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
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 and death to those who contracted it”;

and that “medical professionals in the media were urging people to

stay at home to avoid contracting and transmitting the virus to

others.” The order also said that the trial court further “considered

the fact that the trial was not likely to conclude before the end of the

7
day and that the courtroom did not have adequate infrastructure in

place to prevent the contraction or spread of the coronavirus.” 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

6 The 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
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

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

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
United States 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

10
circumstances.” Laguerre, 301 Ga. at 124 (citation and punctuation

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; 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 (2) (a) (770 SE2d 840) (2015)

(citations and punctuation omitted) (quoting Illinois v. Somerville,

410 U.S. 458, 462 (II) (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) (citation and punctuation omitted).

11
Although trial courts should “give careful, deliberate, and

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)

(citation and punctuation omitted). See also Harvey, 296 Ga. at 832

(2) (a); 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) (citation

and punctuation 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

12
its underlying concerns for “community safety.” Hightower asserts

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

13
interest in fair trials designed to end in just judgments.” Id. at 480

(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, 296 Ga. at 833 (2) (b)

(“[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

14
(1) (471 SE2d 882) (1996) (trial 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

15
Coronavirus/COVID-19 throughout Fulton County.”

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

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
informed the parties of the Fulton County Order and that it was

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

acknowledgment 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 attempt 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
Decided January 18, 2023.

Murder, etc. Fulton Superior Court. Before Judge Cox.

Jessica M. Sully, Stephen R. Scarborough, for appellant.

Fani T. Willis, District Attorney, Lyndsey H. Rudder, Kevin C.

Armstrong, Ruth M. Pawlak, Simone M. Hylton, Assistant District

Attorneys; Christopher M. Carr, Attorney General, Patricia B.

Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, for appellee.

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

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).

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

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).