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Court of Appeals of Georgia.


No. A09A2111.

Decided: February 23, 2010

Monte Kevin Davis, Atlanta, for Bruce. Charles Alan Spahos, Jefferson Frisby Upchurch, for The State.

After the trial court declared a mistrial during Michael Bruce's trial for driving under the influence, Bruce filed a plea in bar requesting the dismissal of the accusation on double jeopardy grounds. Following a hearing, the trial court denied the plea in bar, and Bruce appeals. We affirm because, based on the limited record before us, we cannot determine that the trial court abused its discretion in finding a manifest necessity for the mistrial.

As a rule, if the trial court declares a mistrial over the defendant's objection or without his consent, the defendant may be retried, but only if there was a “manifest necessity” for the mistrial.1 “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.”2 “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.”3 The trial court's judgment that there was a manifest necessity to grant a mistrial is entitled to great deference.4

There is no transcript of the DUI trial because Bruce waived the presence of a court reporter. According to the trial court's order denying the plea in bar, the State was prejudiced during cross-examination of one of its witnesses, a police officer, when, over the State's objection, defense counsel asked the officer about a prior conversation between the officer and defense counsel. The trial court characterized the prejudice as defense counsel's “interject[ion][of] plea negotiations into trial.” It appears from the motion hearing that the State requested a mistrial, which was opposed by the defense. In its order denying the plea in bar, the trial court found that “it was manifestly necessary for the Court to grant a mistrial.”

Bruce argues that during the trial his defense counsel properly questioned an adverse witness about a prior inconsistent statement and that there was no evidentiary infraction that justified a mistrial.5 Notwithstanding Bruce's arguments, we cannot review the question which the trial court found to be prejudicial because there is no transcript of the trial, and the question is not otherwise established by the record.6 “Deference to the judge's sound discretion ․ precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived a defendant of constitutional rights.”7

Significantly, the trial court found that defense counsel, who “raised his voice, speaking over the State, asking the Officer his question,” acted intentionally in seeking the prejudicial information. A trial court “is especially empowered to avoid the absurdity of a defendant benefitting from the prejudicial error he created.”8 We cannot, based on the record before us, find that the trial court abused its discretion in granting a mistrial. It follows that the trial court did not err in refusing Bruce's plea in bar.9

Judgment affirmed.

DOYLE, Judge.

BLACKBURN, P.J., and ADAMS, J., concur.

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