State v. Barnes, A96A2160

• Decision Date: 24 September 1996
• Docket Number: No. A96A2160,A96A2160
• Citation: 222 Ga.App. 875,476 S.E.2d 646
• Parties: The STATE v. BARNES.
• Court: Georgia Court of Appeals

Page 646

476 S.E.2d 646

222 Ga.App. 875

The STATE v. BARNES.

No. A96A2160.

Court of Appeals of Georgia.

Sept. 24, 1996.

Benjamin F. Smith, Jr., Solicitor, Keith M. Olmert, Cindi T. Yeager, Barry E. Morgan, Assistant Solicitors, for appellant.

Judson R. Knighton, Marietta, for appellee.

ELDRIDGE, Judge.

The State appeals the order of the trial judge from the State Court of Cobb County granting appellee's plea in bar and the subsequent dismissal of the accusation charging appellee with the offense of DUI.

During the jury trial, Officer Christie Lynn Dale, a two-year veteran of the Cobb County Police Department, testified that she had been dispatched to an auto accident call at Cardell Road in Cobb County; Officer Dale was not the first officer called to the scene, and by the time she arrived, the vehicles involved in the accident were empty. Appellee, swaying and smelling strongly of alcohol, was standing alongside the cars.

Officer Dale had been instructed prior to trial not to mention anything she might have been told by other persons who were present on the scene, as this information would be inadmissible hearsay; therefore, Dale was unable, through her own testimony, to place appellee behind the wheel of one of the cars involved in the accident, although she was aware that he had been through information given to her from a bystander, James Freeman. Mr. Freeman was not available to testify at trial.

After court had concluded for the day, Officer Dale expressed to the prosecutor her frustration that, because of the hearsay rule, she had been unable to convey to the jury the extent of her knowledge of the incident; Officer Dale referred to her necessarily incomplete testimony as "lying" to the jury. Counsel for appellee overheard these comments and brought the matter to the court's attention before trial commenced the next morning. Defense counsel's position was that Dale's comments reflected that her testimony on the previous day had been false and that the jury had a right to this information. All parties agreed that the officer's reference to her testimony as "lying" was a proper subject for examination before the jury.

In an attempt to do "damage control," the prosecutor brought up the issue during her redirect of Officer Dale. Dale explained "I was angry. I don't remember my exact words. But the reason I feel the way I do is because I've been instructed--there's things I can't testify to. I can't say--and I feel like I'm--." Thereafter, defense counsel objected and made a motion for mistrial out of the presence of the jury on the grounds that Dale's explanation implied that the officer was being forced to "hide" information from the jury; the trial court denied the motion; Dale was instructed to refrain from giving the impression that evidence was being "suppressed"; and the examination continued.

The prosecutor again asked the officer to explain to the jury the reason for her comments about lying; Officer Dale explained "[t]here's issues that I've been instructed not to discuss. And that's really basically why I said what I said. It frustrates me. There's things I can't talk about." Defense counsel made another motion for mistrial outside the presence of the jury on the same grounds as before; defense counsel's argument included the notion that the officer should not have been allowed to explain her comments at all: "There is no reason for lying, Your [sic] Honor. She either said she lied or not." A lengthy discussion ensued which included the trial court's recognition of the validity of the officer's obvious frustration: "Well, I understand it's frustrating. But it's something that the more--the longer you're a police officer,...