Cert. applied for.
Double jeopardy. Cobb State Court. Before Judge Campbell.
George C. Creal, Jr., for appellant.
Barry E. Morgan , Solicitor-General, Emily B. Keener , Cara M. Convery , Assistant Solicitors-General, for appellee.
BARNES, Presiding Judge. Boggs and Branch, JJ., concur.
Barnes, Presiding Judge.
Gary Glen Frost appeals from the denial of his plea in former jeopardy. Frost was tried for Driving Under the Influence of Alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1) (DUI less safe); striking a fixture, OCGA § 40-6-272; and open container, OCGA § 40-6-253. After the jury reached a unanimous verdict on two counts, but was deadlocked on the remaining count, over Frost's objection, the trial court granted a mistrial on all three counts. Frost contends on appeal that the trial court erred in failing to grant his request to accept the jury's unanimous verdicts on the two counts of the three count accusation where the jury was hung only on one count. He also asserts that the trial court erred in admitting evidence of two prior DUI convictions under OCGA § § 24-4-417 and 24-4-404 (b). Following our review, we reverse the denial of Frost's [328 Ga.App. 338] plea in bar as to the two decided counts. We also reverse the trial court's ruling on the admissibility of the prior DUI convictions.
The record reflects that on June 24, 2012, at approximately 2:48 a.m., the concierge at the condo complex where Frost lived heard a " loud bang," which he believed was caused by a car running into one of the entrance gates at the condominium. He observed from a security monitor that the gate was damaged and called police when it appeared that a vehicle was leaving the scene. Each condominium resident's vehicle is equipped with an electronic identification decal, and when he checked the monitor, the concierge saw that the car belonged to Frost. He continued to observe the car on the monitors and saw that it eventually entered the parking deck through a visitor's gate. When the concierge went to investigate, he observed Frost sitting in the driver's seat in the parked car, with the engine and lights still on, and music playing. Frost appeared to be asleep.
When the responding officer arrived, he also observed the damaged gate and that Frost was sitting in the driver's seat with " his head ... slumped over his chest as if he was sleeping." He further observed that " all of the windows were rolled down. There was loud music playing, and the car was still running." The officer ran the license plate and identified Frost as the owner of the car. Based on his observations that Frost smelled of alcohol, had glassy and bloodshot eyes, and had urinated on himself, the officer suspected that Frost was intoxicated and requested that Frost perform an alco-sensor test. Frost refused, and he also refused to perform any field sobriety tests, after which he was arrested and later charged by accusation with DUI, striking a fixture and open container.
The case proceeded to trial on June 17, 2013, and the jury started its deliberation at the end of evidence on June 18. The jury did not reach a verdict on the first day, so deliberations continued into the next day. During the second day of deliberations the jury had several questions, including whether they could get a copy of the trial court's charge and the protocol for operation of the video recorder. The trial court also recharged the jury on the open container law. As deliberations continued, the trial court received a note from the jury stating, " five/one on one charge. How long do we deliberate?" The trial court brought the jury in
and gave them an Allen  charge and directed the jury to continue their deliberations " for about thirty to forty-five minutes."
Before the jury was reconvened in the courtroom, Frost indicated that he would object to the trial court granting a mistrial on the [328 Ga.App. 339] counts on which the jury had reached a verdict, and requested that " their verdict be read into the record, just for purposes of appeal as to the two counts that they reached a verdict on." The trial court denied his request and stated that " [i]f there is a mistrial, there is going to be a mistrial on all counts." It further instructed that, " once the jury comes [into the courtroom,] I'm going to read the note on the record and ask them if there's been any change of their minds. If there has not, I'm going to declare a mistrial."
The jury reconvened in the courtroom, at which time the trial court read another note from the jury that stated, " not-guilty person stated they will not change their mind. We cannot reach a verdict on DUI. We are dead-locked, five, dash, one." When asked, the foreman then stated that the jury had reached a unanimous decision on two of the counts. The trial court asked if they were able to reach a unanimous decision on the " whole case ... on all the counts," and the foreman responded that they had not. The trial court then declared a mistrial on all three counts and dismissed the jury.
Frost filed a plea in former jeopardy and moved for the dismissal of the two counts on which the jury had reached a verdict -- striking a fixture and open container. After a hearing, the trial court denied the motion, essentially agreeing with the State's position and finding a " manifest necessity" for the ...