McCabe v. State

• Decision Date: 21 November 2012
• Docket Number: No. A12A0861.,A12A0861.
• Citation: 318 Ga.App. 720,734 S.E.2d 539
• Parties: McCABE v. The STATE.
• Court: Georgia Court of Appeals

318 Ga.App. 720

734 S.E.2d 539

McCABE

v.The STATE.

No. A12A0861.

Court of Appeals of Georgia.

Nov. 21, 2012.

Rebecca Torres Kozycki, for McCabe.

Carmen D. Smith, R. Leon Benham, for The State.

PHIPPS, Presiding Judge.

Based on remarks defense counsel made during closing argument in Marissa McCabe's trial for driving under the influence of alcohol, the trial court granted the state's motion for a mistrial.McCabe filed a plea in bar on double jeopardy grounds seeking dismissal of the accusation.McCabe appeals from the denial of her plea in bar.We affirm.

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”Brown v. Ohio,[cit.].See1983 Ga. Const., Art. I, Sec. I, Par. XVIII (“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”).¹

As a rule, if the trial court declares a mistrial over the defendant's objection or without [her] consent, the defendant may be retried, but only if there was a “manifest necessity” for the mistrial.Manifest necessity can exist for reasons deemed compelling by the trial court, especially where the ends of substantial justice cannot be attained without discontinuing the trial.Manifest necessity exists when the accused's right to have the trial completed by a particular tribunal is subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.The trial court's judgment that there was a manifest necessity to grant a mistrial is entitled to great deference.²“THE APPELLATE STANdard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion.”³

The record reveals that on November 26, 2005, a state trooper initiated a traffic stop of McCabe's vehicle and, based upon his observations and McCabe's performance on field sobriety tests, placed McCabe under arrest for driving under the influence of alcohol.The state trooper transported McCabe to a pre-trial detention center, where he administered a test of McCabe's breath on an Intoxilyzer 5000 machine.McCabe was subsequently charged by accusation with DUI-less safe and DUI per se.

At the trial, the state called as a witness the state trooper who had conducted the traffic stop and administered the breath test.Through the state trooper's testimony, the state introduced a copy of the certificate of inspection for the machine used to test McCabe's breath on November 26, 2005(State's ExhibitNo. 4).The certificate indicated that the machine was thoroughly inspected and tested on November 15, 2005, and that “all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.”When asked what he remembered about the machine the night of McCabe's test, the state trooper testified that the machine appeared to be working properly; he added that anytime the machine is turned on, it runs a self-diagnostic check and, if the machine is running properly, it notifies the tester to proceed with the breath test.He later clarified that the machine was working properly “for [him] and this defendant” on November 26, 2005, and that when he performed the diagnostic check, “it checked out okay and it allowed” him to test McCabe's breath.

After the state rested, McCabe called as a witness a records manager at the pre-trial detention center.Through the records manager's testimony, defense counsel introduced (as Defendant's ExhibitNo. 1), a copy of a certificate of inspection identical to the one introduced by the state(State's ExhibitNo. 4); the defendant's exhibit, however, also included attachments of other subjects' test results.The exhibit was admitted.

In addition, the records manager presented a certificate of inspection for the same Intoxilyzer 5000 machine, dated February 27, 2007(Defendant's ExhibitNo. 2), the relevance of which the state questioned; two Georgia Bureau of Investigation (GBI) log sheets for the same machine (Defendant's ExhibitNos. 3 and 4); and an invoice dated January 11, 2007(Defendant's ExhibitNo. 5).The court admitted Defendant's ExhibitNos. 2 through 4(subject to later possible redaction).

Reading aloud from Defendant's ExhibitNo. 3(a GBI log sheet for the machine), the records manager testified that on January 24, 2006, a notation was made thereon stating “intox taken out of service will not pass diagnostic test ... bad motor, to be sent to factory.”The witness testified that the exhibit also had a date of December 9, 2005, and the notation “VOID.”Reviewing Defendant's ExhibitNo. 2, the witness testified that an entry on February 27, 2007 stated “intox returned from factory, quarterly checks completed, all okay, put back into service.”The records manager could not find and did not produce inspection certificates for the first through fourth quarters of 2006.

After both sides rested, outside of the presence of the jury, the state moved for a mistrial, asserting that Defendant's ExhibitNos. 2 through 5 should not have been admitted because those documents were not relevant to the operating condition of the machine on November 26, 2005, when McCabe was tested, and that the jury's perspective had been tainted with evidence suggesting that there were problems with the machine when she was tested.⁴At this point the court denied the state's motion for a mistrial; it ruled that the defendant's exhibits relating to the certificates of inspection were admissible,but that Defendant's ExhibitNos. 3 and 4, the log sheets involving tests subsequent to McCabe's test, were not admissible.

When the jurors returned, the court instructed them as follows: McCabe's test was administered November 26, 2005; the records manager had identified two documents-Defendant's ExhibitNos. 3 and 4, which were log sheets; the log sheets showed dates starting in December, after McCabe's test; those documents, those logs, and any testimony about subsequent performance of the machine was irrelevant and was to be disregarded.

Thereafter, counsel proceeded with closing arguments.Defense counsel argued: “On November 26, 2005, ... [McCabe] trusted that machine....She did not know everything that she knows now that the machine had a serious history of problems.”The state objected, and the court excused the jurors.

Outside the presence of the jury, defense counsel explained that although she had not been allowed to “bring in” the log sheets, she believed she was permitted to discuss the fact that there were gaps in the inspection certificates.Arguing that the machine's subsequent history was inadmissible, the state renewed its motion for mistrial.The court instructed defense counsel that she was permitted to argue that the machine was taken out for repair after the date of McCabe's test, but not permitted to argue about subsequent test results.The jury returned.

In continuing her closing argument, defense counsel told the jury, “there's a lot of reasons ... why you should distrust that test.”She asserted that after McCabe was tested, the machine was taken out of service for over a year beginning the first quarter of 2006, and that

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