Retrial brings sodomy conviction

Published 1:55 am Wednesday, June 2, 2010

A Dalton man was found guilty by a Whitfield County jury of sodomy last week after a mistrial was declared in April on the same charge.

Clebourne Green Baker, 53, of 2110 Whaley Drive, was found not guilty of aggravated sexual battery in April, but that jury could not come to a unanimous agreement on the sodomy charge. Judge Jack Partain declared a mistrial and heard the case again last week.

District Attorney Kermit McManus said the trial was similar to the first.

“It was pretty much the same evidence on the same charge, which was the same charge (the last jury) got hung up on,” he said. “This time the jury was able to reach a verdict.”

McManus was asked about possible double jeopardy, where a defendant found not guilty cannot be tried again for the same offense.

“This trial, because of a ‘hung jury’ and retrying the case, is not double jeopardy,” he said.

Authorities said the case involved an adult relative of Baker’s who prosecutors said was asleep at the time of the incident in October.

Public defender Anna Johnson attempted to get Partain to grant a “mistake of fact” defense — based on consent of the female victim in the case — for a second time, but Partain denied the request again to “charge” the jury in that way.

“The judge said it didn’t fit the facts of the case (in the first trial), and in the second trial they again tried to get that charge from the judge to the jury, and the judge declined to give it again,” noted McManus. “So the jury never heard the issue of mistake of fact. The judge made a legal determination that it didn’t apply to the facts of the case.”

Johnson was unavailable for comment on Monday. Baker is scheduled to be sentenced on June 29.