A Muscogee County judge declared a mistrial Wednesday afternoon in the case of a man accused of raping a 19-year-old woman during a 2009 home invasion.
Andre Grier, 26, was testifying in his own defense when Assistant District Attorney Doug Breault asked him a question about his failure to testify at a preliminary hearing. That question led defense attorney Stacey Jackson to object, arguing that Superior Court Chief Judge John Allen should declare a mistrial, Breault said.
“We were cross-examining him and I asked the question, isn’t it true that you had the chance to tell your version at the preliminary hearing and you didn’t testify, or words to that effect,” Breault said. “Arguably, the prosecution is not allowed to comment on the right to remain silent.”
Allen decided that the question was a serious error, and that the only solution was to declare a mistrial, Breault said.
Prosecutors allege that Grier was with three other suspects on June 16, 2009, when they burst into an East Heights Drive apartment, forced three men to the floor and robbed them. Three of the four suspects then raped a 19-year-old woman in a walk-in closet as a 10-month-old baby slept nearby.
Grier is the only suspect in the home invasion who’s been arrested. He faces accusations of rape, aggravated sodomy, burglary, false imprisonment, aggravated assault, armed robbery and weapons charges.
Attorneys on both sides of the case agreed that Grier’s DNA was found on the woman. Jackson, however, told jurors on Tuesday that his client dealt drugs and had a sex-for-drugs exchange that night.
Breault said he will retry the case. He also intends on researching the law on when a mistrial should be granted.
“The state’s position is that when a defendant takes the witness stand, he waives his right to remain silent and can be cross-examined like any witness,” Breault said. “And further, if it was an error for the state to ask that question, it could be remedied by a curative instruction.
“As (former Superior Court Judge) Doug Pullen used to say, the judge may not always be right but he’s always the judge.”
Jackson said Allen had the option of telling jurors to disregard Breault’s question. However, bringing up Grier’s silence in a preliminary hearing could have been an issue at appeal if the trial had continued.
“Generally, the prosecution cannot raise the issue of the Fifth Amendment right to remain silent,” Jackson said. “That Fifth Amendment is so strong and so strongly held that it’s kind of hard to unring that bell.”
Grier remains in the Muscogee County Jail with no bond.