Cooke v. State

• Decision Date: 23 January 1998
• Docket Number: No. A98A0305,A98A0305
• Citation: Cooke v. State, 496 S.E.2d 337, 230 Ga.App. 326 (Ga. App. 1998)
• Parties: , 98 FCDR 515 COOKE v. The STATE.
• Court: Georgia Court of Appeals

Page 337

496 S.E.2d 337

230 Ga.App. 326, 98 FCDR 515

COOKE v.The STATE.

No. A98A0305.

Court of Appeals of Georgia.

Jan. 23, 1998.

Certiorari Denied May 22, 1998.

Jamie S. Wingler, Atlanta, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

BIRDSONG, Presiding Judge.

James Randolph Cooke appeals from an order denying his motion for discharge and acquittal and plea in bar based on double jeopardy grounds.

Appellant was brought to trial for two counts of DUI; a jury was impaneled and sworn.A videotape was made of appellant's arrest; this tape in part showed appellant's fiance, who was a passenger in appellant's vehicle, in an apparent intoxicated condition.Prior to trial, the trial court granted appellant's motion in limine in part to "exclude anything on the videotape past whatever point there is where the conduct of [appellant's] fiance becomes the essential focal point of this videotape as opposed to anything the [appellant] did."The trial court made this ruling to preclude getting "into a situation of vicarious criminal responsibility and having that assessed against [appellant] for something that his fiance may have done."During trial, the State showed a videotape of the incident investigation.During the viewing, the trial judge was seated two chairs to the left of the bailiff and an alternate juror was seated immediately on the other side of the bailiff.When the tape showed appellant's fiance prior to appellant's arrest, the bailiff remarked, "she sure looks intoxicated."The trial court overheard this comment and declared a mistrial sua sponte.Appellant subsequently was brought to trial and entered a motion for discharge and acquittal.In denying the motion the trial court pertinently held: "[T]he Court granted [a mistrial] sua sponte based on information immediately available to the Court for conduct occurring in the direct presence of the Court.During discussions outside the presence of the jury, Counsel for the parties were informed that a mistrial would be declared based on what had transpired in Court.Counsel for Defendant asked only that, if a mistrial were declared, the same be done with prejudice.Subsequent to the declaring of the mistrial, Counsel for Defendant stated his objection to the mistrial without prejudice for the purpose of perfecting the record."The hearing transcript reveals that after asking the court that any mistrial to be granted be done so with prejudice, appellant's counsel further stated: "And we were all in there when you gave strict instructions to witnesses not to testify among each other or make any comments.The jurors are not supposed to discuss this amongst each other, and now we've got an officer of the Court who has done this..."The transcript also reveals appellant's mistrial objection was made only after the mistrial had been declared and the jury dismissed.Held:

"Once the jury has been impaneled and sworn, jeopardy attaches."Dotson v. State, 213 Ga.App. 7, 8(1), 443 S.E.2d 650.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 S.E.2d 483.

"Recognizing the constitutional right of a criminally accused to have his or her trial proceed to an acquittal or conviction once a jury has been impaneled, 'the power of the trial judge to interrupt the proceedings on his own or the prosecutor's motion by declaring a mistrial is subject to stringent limitations....(R)etrial is permissible only if a ... "manifest necessity" 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.(Cits.)' "Reed v. State, 267 Ga. 482, 483-484(1), 480 S.E.2d 27.The decision whether any unauthorized statement, communicated to the jury either individually or as a group, is so prejudicial as to warrant a mistrial is in the discretion of the trial court.Roberts v. State, 267 Ga. 669, 674(8), 482 S.E.2d 245."Some of the factors and circumstances to be reviewed in determining whether the trial court abused its discretion in denying the motion for mistrial include the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety."Id.Examining the surrounding circumstances in their totality, we are satisfied that a "manifest necessity" existed for the declaration of a mistrial.At the commencement of this trial, defense had exhibited its grave and warranted concern that appellant's fair trial rights might be tainted by the jury's viewing of evidence revealing that appellant's passenger, a female companion, was laboring under the influence of alcohol.Equally concerned, the trial court attempted to fashion a balanced remedy which allowed the government to present that relevant evidence which was not substantially outweighed by its potential for prejudice of the jury.The statement at issue brought attention to the very type of collateral evidence that the trial court was concerned might bring irreparable harm to appellant and influence the jury to convict him based on a guilt by association analysis.To compound the error, the remark was made during the course of the proceedings in the presence of the jury by the bailiff--an officer of the court designated, by virtue of his courtroom duties, as an unbiased administrative attendant who has charge of a court session in the manner of keeping order, custody of the jury, and custody of prisoners while in the court.See generally...