Foody v. State

• Decision Date: 02 October 1992
• Docket Number: No. A92A0773,A92A0773
• Citation: 205 Ga.App. 666,423 S.E.2d 423
• Parties: FOODY v. The STATE.
• Court: Georgia Court of Appeals

Page 423

423 S.E.2d 423

205 Ga.App. 666

FOODY v. The STATE.

No. A92A0773.

Court of Appeals of Georgia.

Oct. 2, 1992.

Billy L. Spruell, Brian M. Dubuc, Atlanta, for appellant.

Ralph T. Bowden, Jr., Sol., Andrew T. Rogers, W. Cliff Howard Asst. Solicitors, for appellee.

CARLEY, Presiding Judge.

By way of accusation, appellant was charged with driving under the influence. After a jury had been sworn, the trial court found appellant's counsel to be in criminal contempt. Appellant's counsel was immediately incarcerated and the trial court, sua sponte, declared a mistrial. The contempt citation was reversed on appeal. In re Spruell, 200 Ga.App. 218, 407 S.E.2d 451 (1991). When appellant's case was recalled, he filed a plea of double jeopardy. In the instant case, appellant appeals directly from the denial of that plea.

The power of a trial court "to interrupt the proceedings on [its] own or the prosecutor's motion by declaring a mistrial is subject to stringent limitations.... [R]etrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the end[s] 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. [Cits.]" Jones v. State, 232 Ga. 324, 327, 206 S.E.2d 481 (1974).

"[T]he question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant's request or consent depends on whether 'there is a manifest necessity for the (mistrial), or the ends of public justice would otherwise be defeated.' [Cits.]" United States v. Dinitz, 424 U.S. 600, 606-607(II), 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). "In cases in which there is no manifest necessity for aborting a trial rather than using other less drastic remedies to cure problems, in the absence of defendant's motion for a mistrial, the granting of a mistrial is an abuse of discretion. [Cit.] The rule that only 'manifest necessity' justifies a mistrial ... indicates that a consideration of alternative remedies is highly important." Haynes v. State, 245 Ga. 817, 819, 268 S.E.2d 325 (1980). " 'In the absence of ... a [defendant's] motion [for mistrial], the ... doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option [to have his trial completed by a particular tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. [Cit.]' [Cit.]" United States v. Dinitz, supra, 424 U.S. at 607-608(II), 96 S.Ct. at 1080.

Unlike Chatham v. State, 247 Ga. 95, 96(1), 274 S.E.2d 473 (1981), there is no indication that, in the instant case, "once the trial court had sent appellant's counsel off to jail it had no choice other than to call a mistrial." See In re Spruell, supra. "It is apparent from the exchange between court and counsel and from the hearing on the plea in bar that the defendant was afforded [no] opportunity to object and to suggest alternatives to the mistrial. [Cit.]" Burleson v. State, 259 Ga. 498, 500, 384 S.E.2d 659 (1989). Compare United States v. Dinitz, supra, 424 U.S. at 604, 96 S.Ct. at 1078 (wherein the trial court "set forth three alternatives courses that might be followed"); Haynes v. State, supra, 245 Ga. at 819, 268 S.E.2d 325 (wherein the trial court "carefully considered alternative remedies").

Moreover, the record does not indicate that the trial court had no other choice but to order the immediate incarceration of appellant's counsel. There appears to be no reason why the trial court, having found outside the jury's presence that appellant's counsel was in contempt, could not have allowed the trial to proceed with appellant's counsel being incarcerated only at the conclusion of the proceedings. There is no question that a trial court is authorized to punish what it considers to be a contempt of court committed in its presence. However, that authority must be weighed against "the defendant's 'valued right to have his trial completed by a particular tribunal' ... [Cits.]" United States v. Dinitz, supra, 424 U.S. at 606(II), 96 S.Ct. at 1079. The subsequent incarceration of appellant's co...