Dougherty County Double Jeopardy murder case goes before Georgia Supreme Court

Tracy Lashawn Smith in a 2011 photo from the Dougherty County Sheriff's Office. / Dougherty County Jail

A man convicted of aggravated assault and aggravated battery in the June 2011 death of Jerome Walden will have his case heard before the Georgia Supreme Court.

According to officials with the Georgia Supreme Court, 34-year-old Tracy Lashawn Smith was indicted along with Calvin Brooks and Demarcus Lewis for felony murder, aggravated assault and aggravated battery for the beating death of Jerome Walden.

Smith was convicted on aggravated assault and aggravated battery, but the jury was hung on the felony case according to the official.

Smith's attorney James Finkelstein put forth the argument that by retrying Smith for the murder charge, the double jeopardy clause of the Fifth Amendment is being violated.

The Georgia Supreme Court will hear the case on January 8th.

The full facts and arguments of the case as released by the Georgia Supreme Court can be read below:

Tracy Lashawn Smith was indicted along with two co-defendants for felony murder, aggravated assault and aggravated battery for the beating death of Jerome Walden. According to the state's case against him, on June 24, 2011, Albany police responded to an emergency call regarding a fight in progress in Albany. Responding officers found Walden lying on the ground unresponsive with swollen eyes and blood flowing from his mouth. He died later from his wounds. The state's witnesses testified that earlier in the day Walden, a drug abuser, had disrespected Smith, a drug dealer, regarding a drug debt. Smith had sold Walden $30 of crack cocaine but Walden hadn't paid him. Walden bested Smith in a fist fight over the debt, the state claimed, and Smith became incensed that a drug abusing "client" had insulted him by engaging in a fight. Smith returned later in the day with the two co-defendants and waited for Walden to come outside. When he did, a witness said she saw Smith and the others beating Walden before they fled the scene in a white pick-up truck. The witness gave police the street names of two of the men she said she saw beating Walden: "Wocka-Flocka" and "Short." Short is what Smith is called. Eventually, Smith and the other two were arrested for Walden's murder.

In December 2011, Smith was tried separately before a jury. During the trial, the judge allowed the state to introduce "similar transaction evidence," which included a 1999 conviction for possession of cocaine with intent to distribute and a prior conviction for simple battery involving an altercation with his girlfriend. On Dec. 20, 2011, the jury found Smith guilty of aggravated assault and aggravated battery, but the jury was hung on the felony murder charge, and the judge declared a mistrial on that count. The state then announced its intention to retry Smith for felony murder. Prior to a retrial, however, Smith filed a plea based on double jeopardy grounds. The trial court denied Smith's "plea of former jeopardy," and Smith now appeals to the state Supreme Court.

Smith's attorney argues the trial court erred in denying his plea of former jeopardy. "The State seeks to retry this Appellant for felony murder, but under the United States Supreme court's binding precedent interpreting the Double Jeopardy Clause of the Fifth Amendmentâ|that retrial is barred," the attorney argues in briefs. "The State cannot retry Appellant for felony murder without retrying Appellant and proving guilt beyond a reasonable doubt on either or both underlying counts in the indictment." And Smith already has been prosecuted for those underlying counts â" aggravated assault and aggravated battery â" which are the lesser included offenses required to prove felony murder. In its 1969 decision in North Carolina v. Pearce, the U.S. Supreme Court stated: "The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal." It also stated: "It protects against a second prosecution for the same offense after conviction." "The key point is that the word is not 'conviction,' but 'prosecution,'" Smith's attorney argues. "In other words, a second trial prosecuting the accused for the same crime violates Double Jeopardyâ|." The attorney argues that the U.S. Supreme Court also noted that "where an accused is convicted of a lesser included offense, but not convicted on the greater, double jeopardy principles apply." Also, under its 2010 decision in Williams v. State, the "Supreme Court of Georgia has held that where an accused was convicted of a lesser included offense, but no guilty verdict was returned on the greater offense, a retrial on the greater offense is barred, even where the lesser included offense is set aside on appeal and will be retried," Smith's attorney argues. If the case is remanded for a retrial, however, the state should not be permitted to admit the similar transaction evidence it did in the first trial. The trial court erred in allowing in a 1999 drug conviction and a 2001 misdemeanor domestic simple battery charge. "Appellant was not charged with a crime involving drugs," his attorney argues. "Appellant was not charged with a crime involving domestic violence. In no way was either prior conviction 'similar' to the charges Appellant was facing." "The State is not permitted to introduce similar transaction evidence 'to show a propensity to commit criminal acts in general or a certain type crime in particular,'" Smith's attorney argues. Introducing evidence of unrelated independent crimes to put Smith's character at issue is a violation of his constitutional right to due process.

The state argues the trial court did not err in denying Smith's plea to bar a retrial. "Based upon current case law the retrial of Appellant for felony murder will not violate double jeopardy protections," the district attorney argues in briefs. In its 1996 decision in Rower v. State, the Georgia Supreme Court ruled that where "the State seeks to prosecute a defendant for two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense." The facts of Rower's case are nearly identical to the facts of Smith's case, the state argues. "The case law from around the country is completely in line with this principle that a retrial on a greater, inclusive offense, following a declaration of mistrial because of a hung jury, is not barred by double jeopardy principles notwithstanding the fact that a guilty verdict was accepted and a sentence imposed with respect to a lesser, included offense," the state contends, quoting the Rower decision. The trial court also did not err in admitting evidence of Smith's two prior crimes. "The similar act of possession of cocaine was admissible to show Appellant's motive for committing the offenses charged, and the similar act of simple battery was admitted to show Appellant's course of conduct in resolving his disputes," the state argues. Furthermore, the court held a hearing before admitting the similar transaction evidence and the court did not abuse its discretion in admitting it.

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