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Ledford v. State

Court of Appeals of Georgia, Fourth Division

April 12, 2017

LEDFORD
v.
THE STATE

          DILLARD, P. J., RAY and SELF, JJ.

          Self, Judge.

         Natasha 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).

         Here, 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 redacted.

         During 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.

         The trial court agreed, and the jury returned to the courtroom.

         The 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 ...

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