DILLARD, P. J., RAY and SELF, JJ.
Ledford appeals from the trial court's order denying her
plea in bar on double jeopardy grounds. In her sole
enumeration of error, Ledford asserts that the trial court
should have granted her plea in bar because the
prosecutor's intentional conduct goaded her into
requesting a mistrial. For the reasons explained below, we
disagree and affirm.
The general rule is that where a mistrial is granted at the
behest of the defendant, a retrial is not barred by
principles of double jeopardy unless the governmental conduct
in question is intended to goad the defendant into moving for
a mistrial. Even where a prosecutor's conduct is
sufficient to justify a grant of mistrial, the conduct
nevertheless does not bar retrial absent intent on the part
of the prosecutor to subvert the protections afforded by the
double jeopardy clause. To authorize the grant of a plea of
double jeopardy, the facts must warrant the conclusion that
there was such an instigative intention.
(Citations and punctuation omitted.) Spears v.
State, 234 Ga.App. 498, 499 (506 S.E.2d 446) (1998).
the record shows that the trial court granted Ledford's
motion to suppress the results of a horizontal gaze nystagmus
test ("HGN"). At the beginning of the trial, the
State provided to Ledford's counsel a video of her arrest
from which the portions relating to the HGN test had been
direct examination at trial of the police officer who
arrested Ledford, the State asked, "What have you been
trained, as far as how many clues [on the walk-and-turn
evaluation] indicate impairment?" When the officer
attempted to link a number of clues to "BAC level,
" defense counsel objected. After the State attempted to
lay a foundation for testimony about the correlation between
clues on a field sobriety test and blood-alcohol content
outside the presence of the jury, the trial court sustained
the defendant's objection to testimony "as to
percentages" of blood alcohol. Before the jury returned
to the courtroom, defense counsel stated:
Your Honor, before we bring the jury back in - - it was
actually - - I was watching [the solicitor] trying to make
sure that we are all aware, including [the o]fficer , that
the evidence of the horizontal gaze nystagmus test was
suppressed so that we don't end up making a mistake of
that. We're not going to talk about HGN, at all, and that
way we don't end up having a mistrial. My client
can't afford to try this case twice.
trial court agreed, and the jury returned to the courtroom.
State resumed direct examination of the police officer and
she testified about the clues from various field sobriety
tests indicating Ledford's impairment, Ledford's
arrest, the reading of the implied consent notice, and
Ledford's refusal to consent to a test. After
establishing that the officer's patrol car was equipped
with a camera that took a video, the following transpired:
Q. Was the camera functioning on the day you had this
interaction with the defendant?
A. Yes, ma'am.
Q. And have you had a chance to view the video prior to