Stevens v. State , 215 Ga. App. 718 ( 1994 )

Johnson, Judge.

Matel Stevens was indicted for obstructing a law enforcement officer, interfering with government property, driving without headlights, driving without a license, driving without insurance, and driving while under the influence of alcohol. During the trial, the state tendered into evidence a videotape of Stevens and others being tested on an intoximeter machine. The state played for the jury that section of the tape showing Stevens’ test and inadvertently showed a few seconds of the next suspect’s test. Immediately after the court admitted the tape, Stevens’ attorney expressed concern that it contained matters unrelated to the instant case. The trial court specifically stated it would address the issue “at the proper time.” When the state later asked about the tape, the court suggested the state copy relevant portions of the tape onto another tape. The court added, “[o]therwise, [the state has] chosen to put that piece of evidence into court, it is in court. Pure and simple. If you put a textbook into evidence, for example, that textbook is going down to the clerk’s office to be documented. If you wish to make an offer of substitution, xerox some copies out of the textbook and put that into evidence instead, that is fine. Same with a videotape. Put the tape in evidence, the tape is evidence.” The state did not substitute another tape for the one already admitted. During closing argument, Stevens’ counsel showed the jury a portion of the videotape depicting another suspect’s test which preceded Stevens’ test and which had not previously been shown to the jury. Counsel then told the jury, “I chose that to demonstrate something to you. Officer Lamb testified that every person. . . .’’At that point, the prosecutor moved for a mistrial claiming Stevens’ counsel improperly commented on evidence unrelated to the instant case. The jury was taken out of the courtroom. Stevens’ counsel stated he thought the court had said the entire tape was in evidence. The court discussed counsel’s motive for showing that segment of the tape and, without any discussion of less drastic alternatives, granted the state’s motion for a mistrial. At the same time, the court held Stevens’ attorney in contempt. Stevens filed a plea in bar to prevent her retrial by the state on the same charges, which the trial court denied. Stevens appeals.

1. Stevens contends the trial court erred in denying her plea in bar on double jeopardy grounds because the mistrial was improperly granted. We agree. “The power of a trial court to interrupt the proceedings on its own or the prosecutor’s motion by declaring a mistrial is subject to stringent limitations. Retrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the ends of public justice be defeated; the existence of manifest necessity is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.” (Emphasis in original; citations and punctuation omitted.) Bradfield v. State, 211 Ga. App. 318, 319 (439 SE2d 100) (1993). “Because of the severe consequences of ordering a mistrial without the accused’s consent, a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives. . . .” (Citations and punctuation omitted.) Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994).

Our examination of the record does not reveal any manifest necessity for declaring a mistrial in this case. The actions of Stevens’ counsel were not of the type which would defeat the ends of public justice or prevent a fair trial. First, the law allows counsel wide latitude during closing argument to remark upon the evidence and facts which are before the jury. Alexander v. State, 263 Ga. 474, 476 (2) (c) (435 SE2d 187) (1993). The court’s comments in response to the prosecutor’s inquiry about whether the entire tape was in evidence implied that if the relevant portion was not copied onto another tape, the entire tape would remain in evidence. The trial court did not instruct counsel not to use or comment upon parts of the tape not previously shown to the jury. We cannot conclude, under these circumstances, counsel’s conduct was flagrantly unfair. Moreover, the conduct must have been so prejudicial that it would be impossible to proceed with the trial without injustice resulting. See Bradfield, supra at 320. We do not find counsel’s words or conduct to be so prejudicial as to warrant a mistrial. Finally, the record must disclose that the trial court considered less drastic alternatives before declaring mistrial. Dotson v. State, 213 Ga. App. 7, 8 (1) (443 SE2d 650) (1994). In this case, there is no indication in the transcript the trial court considered any alternative remedies before declaring a mistrial. Indeed, under the circumstances of this case, curative instructions might have been sufficient to undo any possible harm. There being nothing in the record to indicate a manifest necessity for declaring a mistrial and, having failed to explore alternative remedies, the trial court erred in denying Stevens’ plea of double jeopardy. See Bradfield, supra at 320; Foody v. State, 205 Ga. App. 666, 668 (423 SE2d 423) (1992).

2. Stevens also appeals from the trial court’s order finding her attorney in contempt of court. We do not reach this issue for two reasons. First, the appeal from that order is untimely because it was not filed within 30 days after the order was entered. See OCGA § 5-6-38 (a). Secondly, Stevens does not have standing to challenge an order finding her attorney in contempt. It is well-settled that a person may only challenge a ruling which has adversely affected his or her own rights. See, e.g., Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691) (1990); Johnson v. State, 208 Ga. App. 747, 749 (3) (431 SE2d 737) (1993). Although there are perhaps circumstances in which a criminal defendant might be harmed by the issuance of a contempt citation against his or her attorney, such circumstances are not present here. Stevens was not adversely affected by the trial court’s entry of a judgment of contempt against her attorney. Any appeal from the contempt judgment would therefore have to be brought by the attorney in his own name.

Judgment reversed in part and appeal dismissed in part.

Pope, C. J., Birdsong, P. J., Blackburn and Ruffin, JJ., concur. McMurray, P. J., Beasley, P. J., Andrews and Smith, JJ., dissent.