*1 physician. December
Decided denied Reconsideration December 1994. Saia, Meinken, Joseph Saia, appellants. & J. for Richardson Currie, Hiers, Hiers, Jr., & B. Swift, McGhee James Susan A. Dewberry, appellees. for THE
A94A1563. STEVENS v. STATE. Judge.
Johnson, obstructing Matel Stevens was indicted for a of- law enforcement ficer, interfering government property, driving with without head- license, insurance, without lights, driving driving a without driv- trial, ing while under the influence of state During alcohol. the the tendered into evidence a being Stevens and others tested jury on intoximeter machine. The state the that section tape showing inadvertently Stevens’ test showed few seconds of next suspect’s Immediately test. court admit- tape, attorney expressed ted the Stevens’ concern that it contained matters specifically unrelated the instant case. The trial court it stated would address issue the proper “at time.” When the later state asked about suggested copy court state tape added, relevant tape. onto another The court “[o]therwise, state put piece chosen to of evidence into [the has] court, simple. you it is in If put court. Pure and a textbook evi- dence, example, going that textbook is down to the clerk’s office to you substitution, If documented. wish to make an offer of xerox copies instead, some put out the textbook and into evidence videotape. that is fine. tape tape Same Put the evidence.” state did not substitute another for the one already admitted. During closing argument, Stevens’ counsel showed jury videotape depicting suspect’s another test preceded Stevens’ test and previously which had not shown to the then “I jury, Counsel told the chose that to demon- something you. strate Officer every per- Lamb testified . . point, prosecutor son. .’’At that moved claiming for a mistrial Stevens’ improperly commented evidence unrelated instant case. The out was taken coun- courtroom. Stevens’ thought sel stated the court had said the entire was in evi- dence. The court counsel’s showing discussed motive for that segment alternatives, less drastic discussion without of the granted time, the court mistrial. At the same for a state’s motion pre- plea contempt. attorney in bar to filed a held vent charges, court which the trial on the same the state her retrial appeals. denied. Stevens court erred 1. Stevens contends *2 improperly jeopardy grounds was the mistrial because bar on double interrupt pro- power granted. agree. to of a trial court “The We by declaring prosecutor’s ceedings mistrial a motion on its own or the permissible only stringent a subject Retrial is limitations. to is if necessity the mistrial lest the declaration existed for justice manifest otherwise ifest public defeated; man- existence of be the ends right by weighing necessity the defendant’s is to be determined particular against completed tribunal before the to have his designed just judg- having public to end fair trials interest ments; sur- all the take into consideration the decision must punctu- original; rounding (Emphasis in citations circumstances.” (439 omitted.) App. 318, State, 211 319 SE2d v. Ga. ation Bradfield 100) (1993). ordering consequences mis- a “Because of severe give careful, consent, a court should accused’s trial without the deliberate, whether the circumstances and studious consideration to eye other, drastic, mistrial, a keen toward less alterna- with a demand omitted.) (Citations punctuation State, v. 263 . .” Smith tives. . (1) (439 483) (1994). 782, SE2d Ga. 783 any ne- manifest Our of the record does not reveal examination declaring cessity in this The of Stevens’ a mistrial case. actions type public defeat the ends of which would justice prevent First, a lati- or fair trial. law allows counsel wide closing argument upon during facts to remark evidence and tude which (2) (c) jury. 474, State, v. are Alexander 263 Ga. 476 before 187) (435 (1993). response pros- SE2d court’s comments inquiry im- about whether the entire was evidence ecutor’s copied plied that if the onto another relevant not not the entire struct viously would remain evidence. trial court did pre- upon parts not counsel not use or comment to conclude, under these circum- shown to the We cannot flagrantly Moreover, stances, unfair. counsel’s conduct was impossible prejudicial have so that it would be conduct must supra resulting. proceed injustice Bradfield, with the trial without See prejudicial be so at 320. We do not find counsel’s words or conduct to Finally, that the a the record must disclose as warrant mistrial. declaring mis- trial court less drastic alternatives considered before 650) (1994). (1) (443 App. 7, State, v. Ga. 8 SE2d trial. Dotson this 213 transcript case, the trial court there is no indication declaring any Indeed, before a mistrial. sidered alternative remedies 720 case, might of this curative instructions have
under the circumstances possible being nothing to undo harm. There been sufficient necessity record to indicate a manifest remedies, explore having alternative the trial court erred failed 320; Bradfield, supra jeopardy. of double See 423) State, 666, (1992). Foody v. App. 205 Ga. 668 SE2d appeals 2. also from the trial court’s her finding order attorney in not contempt of court. We do reach this issue for two First, appeal untimely from that reasons. order because it days not filed within 30 the order was 5-6- entered. See OCGA § (a). Secondly, not standing challenge 38 Stevens does have an order finding attorney contempt. person may her It is well-settled that a adversely challenge ruling which has his affected or her own See, State, (2) (388 691) rights. Lawton v. e.g., 259 Ga. SE2d (1990); (3) (431 State, v. App. Johnson Ga. (1993). Although perhaps there are in which circumstances a criminal by might contempt defendant harmed the issuance of a citation against attorney, present his or her such circumstances are not here. adversely Stevens was entry not affected judg- contempt Any ment of attorney. appeal from the con- tempt judgment would therefore be brought attorney have to *3 in his own name.
Judgment part reversed in and in appeal part. Pope, dismissed J., J., Birdsong, Ruffin, JJ., C. P. McMurray, Blackburn and concur. J., J., Beasley, Smith, JJ., P. P. Andrews and Presiding Judge, dissenting.
Beasley, I concur in 2 opinion, Division which appeal that the holds from dismissed, the order of I contempt must be but dissent from judgment. reversal of the in denying trial court did not err defendant’s in bar jeopardy grounds.
double carefully detailed the order describes sequence of up grant events which led de during mistrial fense closing argument. explains counsel’s It that the court had found that defense displayed during argument closing which counsel knew had not been admitted in and had also found that what shown not relevant and was prejudicial court, to the State.1 The trial unlike court, this saw what unrelated matter jury by was shown de fendant was in position, court, and it unlike this assess the effect order, on the In the the court problem stated that the could not have been by which, rectified curative instruction judg- the court’s 1 argued Defense counsel himself had earlier there were related to case.
721 conclusion was evil. This same ment, only exacerbated would have shortly contempt entered mistrial and order of stated findings fully the court’s transcript supports The trial trial. aborted its conclusions. warrants and clause of jeopardy is on the double plea in bar based
Defendant’s
Constitution,
the double
to the United States
Fifth Amendment
16-1-8
Bill of
and OCGA
Georgia’s
Rights,2
§
provision
jeopardy
below,
no distinction
(2).
she made
(a)
letter-brief
In her briefs and
argument
presented
separate
no
the two constitutions
between
independent ground. See
as
respect
constitution
to the state
with
1201)
(103
3469, 77 LE2d
Michigan
Long,
U. S. 1032
SC
v.
463
that neither
statute
(1983).
impliedly concluded
The trial court
by
grant
of mistrial
had
violated
either constitution
nor
Abdi,
State v.
162 Ga.
three
dealing
it
cases
all
bases:
cited
506)
(294
772)
(288
(1982),
Ga. 827
SE2d
20
SE2d
aff’d 249
App.
(11th
1984);
Ga.,
(1982);
744
Cir.
v. State
F2d 1500
Abdi
Bradfield
(439
(1993).
100)
State,
App.
211
318
SE2d
v.
Ga.
argues
all
the three sources but
them
appeal,
On
defendant cites
She
indiscriminately,
though they are not
same.
together,
even
infringed
them
will
rights
has not shown
her
under
one
trial,
support
is
to a conclusion.
brought
another
one that
grant mis-
jeopardy
retrial because the
contention that double
bars
State,
v.
that it was exer- eschewing short of mistrial. cise of discretion remedies Presiding McMurray Judge I am authorized to state that join Judge Andrews Judge, dissenting.
Smith, Presiding Judge Beasley agree I that the trial court did not plea err in a mistrial or in bar on double jeopardy grounds. position judge in the The trial court was best to jury; properly conduct of counsel and its effect on the the trial court injected resulting in a concluded that and dissent defense the matter jeopardy not I that bars double therefore were breached. separately emphasize ample the more than basis on which that court concluded counsel jected resulting in matter mistrial. plea The order on defendant’s bar former
jeopardy fully granting deny- sets forth the basis for the mistrial and ing expressed The bar. trial court found counsel’s be- videotape incredible, lief that entire was evidence because initially point portions counsel raised the of the were suggested fully they fact, inadmissible be excluded. Counsel participated creating discussion redacted and he was preserve ap- aware of the reason for the redaction: to the record for peal returning footage while the video other intoximeter tests to police department for later use. Noting recognition inadmissibility this initial subse- quent events, chain of the trial court concluded that counsel’s failure part to ask for clarification on the use of a deliberate portions tape. scheme misuse soned that when the irrelevant of the court rea- jury, caught for the counsel glimpse subject brief of another intoximeter without handcuffs. Im- mediately thereafter, Lamb, counsel cross-examined Officer the intox- operator, every subject imeter as to whether test was handcuffed. He response: “[e]very elicited the adult that comes room has handcuffs on.” only question- noted,
As the trial court reason for this line of ing predicate playing was as a the irrelevant attempt impeachment. during closing argument, fact, an counsel jury: something you. stated to the “I chose that to demonstrate every person being Officer Lamb testified . . .” before cut short by person” objection. concerning “every Lamb testified to one fact — every person was handcuffed. gave varying The trial court further noted that and flicting explanations manipulation videotape during of his a re- regarding admissibility. cess and his belief its bailiff’s courtroom *5 also during the recess conduct testimony regarding counsel’s explanation. with counsel’s flicted counsel, having already elicited concluded that
The trial court attempt impeachment, testimony he needed his and closing argument videotape during irrelevant used earlier comments. court’s he “misunderstood” claimed had observa- supported by the thoroughly conclusion is That and Both the trial court’s conclusion to the record. and citations tions in af- this court should noted for it in the record the basis subse- a mistrial and its decision to declare the trial court’s firming in bar. quent denial Judge joins Andrews authorized to state that
I am Decided December denied December
Reconsideration Bell, Finkelstein, Donaldson, Martin, Hall, Garvey & N. James III, George appellant. P. Donaldson Edwards, Assis- Attorney, Gregory W. Priddy, R. District
Britt Attorney, for appellee. tant District CAUSEY v. THE STATE.
A94A1582. (452 SE2d Judge.
Ruffin, Causey, was tried convicted Appellant, Robert and appeals and the conviction. battery against his wife he aggravated bruised, severely beaten Causey’s wife was The evidence showed diag- hospital. brought in a he her to the She coma when hematoma, commonly as more understood with a subdural nosed vegeta- Causey Mrs. is now a bleeding on the surface the brain. tive state. custody, given incident, Causey night was taken inter- videotape. During rights
his Miranda interviewed slapped argued he wife had and he had view he confessed that and his her off her, finger marks on face and one strike “bounced left addition, nurse for the the wall.” confession was Causey how his Causey asked attended Mrs. testified she who “just he off” and replied went injuries wife’s were caused and wall.” “threw her trial, however, slapping even his wife Causey
At denied evening use that from cocaine sisted that she had suffered a seizure floor, hit her head in turn her to on the bathroom caused fall