BAILEY v. STATE

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Court of Appeals of Georgia.

BAILEY v. The STATE.

No. A13A1084.

Decided: July 26, 2013

Jackie Glenn Patterson, for Appellant. Carmen D. Smith, for Appellee.

A Fulton County jury found Christopher Bailey guilty of driving under the influence of alcohol with an unlawful blood alcohol concentration in violation of OCGA § 40–6–391(a)(5).1 On appeal from his judgment of conviction, Bailey contends that the trial court erred in charging the jury and in failing to grant a mistrial after the bailiff improperly communicated with the jury. We agree with Bailey that the trial court erred in charging the jury, and reverse.

1. Bailey contends that the trial court erred in charging the jury as follows:

Now, ladies and gentlemen, I'm going to give you the law as it relates to the inspection of the Intoxilyzer 500[0]. A chemical analysis of a person's breath shall be considered valid under Georgia law if it has been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all of its electronic and operating components described by its manufacturer properly attached in a good working order and by an individual possessing a valid permit issued by the Division of Forensic Services for the Sciences for this purpose.

(Emphasis supplied.) After the trial court instructed the jury, it asked the parties for exceptions. Bailey objected to the foregoing charge and complained that the instruction improperly shifted the burden of proof in that “[t]he jury was told that the State's test had a conclusive presumption of validity.” Bailey then moved for a mistrial. The trial court acknowledged that Bailey had preserved his objection to the charge and then denied his motion.

Bailey contends, and we agree, that the issue is controlled by Muir v. State, 248 Ga.App. 49, 545 S.E.2d 176 (2001). The language of the charge in this case, as in Muir,2 was generally derived from OCGA § 40–6–392(a)(1)(A), which “deals with the admissibility of chemical test results.” Burke v. State, 233 Ga.App. 778, 779(3), 505 S.E.2d 528 (1998). As given, the charge “impl[ied] that the analysis or result for a particular individual ‘shall be considered valid,’ “3 and “mandated that the jury find valid the test results showing that [Bailey's] blood alcohol level exceeded the legal limit.” Muir, 248 Ga.App. at 52(1), 545 S.E.2d 176(a), (b). Compare Dougherty v. State, 259 Ga.App. 618, 621–622(1)(c), 578 S.E.2d 256 (2003) (although breathalyzer results may be properly admitted, “[a] defendant remains free to challenge the weight and credibility of that evidence before the [factfinder]”) (footnote omitted); Burke, 233 Ga.App. at 779(3), 505 S.E.2d 528 (the weight to be given chemical test results is for the jury). Accordingly, as in Muir, we find the trial court's charge both erroneous and harmful.4

The State concedes that the charge at issue in Muir involved “nearly identical wording.” The State suggests, however, that Bailey acquiesced to the charge as given and so any error was induced by the conduct of his trial attorney.5 We disagree. On appeal “[o]ne cannot complain of a result he procured or aided in causing, and induced error is not an appropriate basis for claiming prejudice.” Borders v. State, 285 Ga.App. 337, 340–341(2), 646 S.E.2d 319 (2007) (punctuation omitted). Thus, for example, we have found that a defendant cannot make a written request to charge and then claim on appeal that the requested charge was erroneous and requires reversal. Pincherli v. State, 295 Ga.App. 408, 414(3)(a), 671 S.E.2d 891 (2008).

In this case, it does not appear that Bailey was the source of the erroneous charge. A discussion between defense counsel and the trial court shows that the trial court “indicated that [it was] going to give the law under [OCGA § ] 40–6–392” during an off-the-record bench conference following defense counsel's closing argument. Defense counsel did not then object, but it is not necessarily error for a trial court to give an instruction that touches on the foundational requirements for the admission of the chemical analysis of a person's breath under OCGA § 40–6–392. See Goethe v. State, 294 Ga.App. 232, 233–234(1), 668 S.E.2d 859 (2008) (finding that it was not error to charge the jury with an “accurate reflection of the law,” citing OCGA § 40–6–392(a)(1)(A)).6 After the trial court gave the actual instruction, however, defense counsel made an appropriate objection. We cannot conclude that the trial court's error in charging the jury was induced by defense counsel.

2. During deliberations, the jury asked the bailiff if their verdict had to be unanimous and he responded, yes. See, e.g., Lindsey v. State, 277 Ga.App. 18, 20, 625 S.E.2d 431 (2005) (finding that “[w]here the bailiff's communication with the jury is, in effect, a supplemental charge, it is a communication which should have been delivered to the jury by the trial judge in open court”). After Bailey claimed that this was an improper communication, the trial court instructed the jury that “all charges of law and all instructions regarding the law come from me.” Notwithstanding the curative instruction, Bailey moved for a mistrial, which the trial court denied. Pretermitting whether the trial court erred in doing so, it is unlikely that this issue will reoccur on retrial, and we decline to address it here. See Benton v. State, 265 Ga. 648, 650(6), 461 S.E.2d 202 (1995).

Judgment reversed.

ANDREWS, Presiding Judge.

DILLARD and McMILLIAN, JJ., concur.