Dotson v. State
Decision Date | 13 April 1994 |
Docket Number | No. A94A0825,A94A0825 |
Citation | 213 Ga.App. 7,443 S.E.2d 650 |
Parties | DOTSON v. The STATE. |
Court | Georgia Court of Appeals |
W. Henry Toler, III, for appellant.
Ralph T. Bowden, Jr., Sol., Gwendolyn R. Keyes, W. Cliff Howard, Asst. Sols., for appellee.
Gregory J. Dotson appeals his judgment of conviction of DUI and speeding. During direct examination appellant revealed the numerical reading of the field alcosensor test; the State moved for a mistrial which the trial court immediately granted, dismissing the jury. A new jury subsequently was selected and sworn. Appellant's counsel moved for dismissal on grounds of double jeopardy; the motion was denied. Appellant was convicted of DUI (OCGA § 40-6-391(a)(1)), driving with an unlawful alcohol concentrate (DWUAC) (OCGA § 40-6-391(a)(4)) and speeding.
The trial record discloses the following colloquy during the direct examination of appellant: ] (Emphasis supplied.) Held:
1. Jeopardy attached in this case. Once the jury has been impaneled and sworn, jeopardy attaches. Morris v. State, 262 Ga. 446, 447, 421 S.E.2d 524. "Retrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the ends of public justice be defeated; the existence of 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." (Citations, punctuation and emphasis omitted.) Bradfield v. State, 211 Ga.App. 318, 319, 439 S.E.2d 100. While the trial court exercises sound discretion as to these matters, "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." Jones v. State, 232 Ga. 324, 326-327, 206 S.E.2d 481; Bradfield, supra. Compare Abdi v. State, 249 Ga. 827, 294 S.E.2d 506. However, " 'manifest necessity for a mistrial can exist alongside less drastic alternatives, so long as the record discloses that the trial court considered alternatives before declaring mistrial.' " (Emphasis supplied.) Moss v. State, 200 Ga.App. 253, 255, 407 S.E.2d 477. In Smith v. State, 263 Ga. 782, 783(1), 439 S.E.2d 483, the Supreme Court recently clarified the effect of mistrial thusly: (Emphasis supplied.)
The State contends in its brief that appellant disobeyed the prior instructions of the trial court not to divulge the alcosensor reading to the jury and that this flaunting of the court's authority, in conjunction with the prohibited testimony, supports the court's granting of a mistrial. However, factual assertions in briefs unsupported by the record cannot be considered on appellate review. Behar v. Aero Med Intl., 185 Ga.App. 845, 846(1), 366 S.E.2d 223. Examination of the record does not affirmatively reveal that such an instruction was given either to appellant or to the arresting officer. But the State contends that this caution was given in an unreported side-bar conference. The trial transcript of the first trial affirmatively reflects that an unreported conference was held, following an objection by appellant's counsel as to testimony by the arresting officer that a positive alcosensor reading meant appellant "had had too much to be ... driving." However, the transcript also affirmatively reflects that the conference was attended only by the court and counsel, and was conducted out of the hearing of the jury. Thus, the record fails to support the claims of the State. Moreover, examination of the testimony of appellant reveals that during a non-responsive narrative account of the sequence of events leading to the obtaining of an alcosensor reading, appellant ultimately revealed the alcosensor reading of .08. The manner in which appellant testified is more consistent with an inadvertent, rather than an intentional, evidentiary infraction. Further, after questioning whether the State had any motions to make and immediately declaring a mistrial as soon as the mistrial motion was made in response to the question, the trial court admonished defense counsel as to the latter's failure for having prepared his client not to mention alcosensor test results; at no point did the trial court assert appellant or his counsel either had violated a previous court instruction or had participated in an intentional evidentiary infraction. We are satisfied that the record, as constituted, reflects appellant did not engage in an intentional evidentiary infraction and did not knowingly violate any prior instruction by the trial court not to divulge such information to the jury.
The State asserts that its ability to prosecute its case was prejudiced to the point that only the grant of mistrial would suffice to cure the taint. In particular the State argues that by appellant's testifying to an alcosensor reading of .08, he deprived the State of its fair trial right to prosecute him for having an alcohol content of .10 within three hours of being in control of a motor vehicle. Appellant was tried on three counts. The testimony regarding the alcosensor reading in no way prejudiced the State's ability to try appellant for speeding. This testimony also could not have prejudiced the State's ability to convict appellant of DUI. Pursuant to OCGA § 40-6-392(b)(3), "[i]f there was at that time [time of authorized chemical testing] an alcohol concentration of 0.08 grams or more, it shall be presumed that the person was under the influence of alcohol, as prohibited by paragraphs (1), (2), and (3) of subsection (a) of Code Section 40-6-391." Thus, appellan...
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