State v. Mitchell
326 Ga. App. 370
Ga. Ct. App.2014Background
- Mitchell was found guilty of DUI (less safe to drive) by a jury; verdict stood until a new trial was granted.
- The trial court granted Mitchell’s motion for a new trial because the state referenced his failure to take a breath test.
- On appeal, the state contends the references did not shift the burden, the inference from not taking the test was proper, and Mitchell waived error by not objecting.
- During closing, the assistant solicitor-general asserted Mitchell could have proved innocence by taking the breath test, implying a burden on Mitchell.
- The court instructed the state to reiterate that the burden remains with the state; the state’s clarification was found to potentially confuse the jury about the presumption of innocence.
- The appellate court held the closing arguments improperly burdened the defendant, rejected waiver, and affirmed the trial court’s grant of a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the closing remarks improperly burden shift? | Mitchell | State | Yes, improper burden shifting. |
| Was there waiver for the improper closing remarks? | Mitchell | State | Waiver did not bar review; objection preserved. |
| Were the breath-test references impermissible in inference or burden? | Mitchell | State | Impermissible inference and burden shifting. |
Key Cases Cited
- O’Neal v. State, 285 Ga. 361 (Ga. 2009) (de novo review for improper trial error when no fact-finding by trial court)
- Ford Motor Co. v. Conley, 294 Ga. 530 (Ga. 2014) (de novo review distinctions for extraordinary motions for new trial)
- Pinch v. State, 265 Ga. App. 1 (Ga. App. 2003) (breath-test comments can improperly exculpate by inference)
- Bolden v. State, 272 Ga. 1 (Ga. 2000) (objection preserves appellate review of improper argument)