Muthu v. State, 337 Ga. App. 97, 786 SE2d 696 (2016). Muthu appealed his conviction after a jury found him guilty of DUI per se, DUI less safe, and failure to maintain lane. Muthu alleged improper judicial comment, restricting of his DUI Expert regarding the effects of acid reflux or GERD on the State Administered breath testing device, by failing to declare a mistrial after a jury twice communicated it was deadlocked and by refusing to consider a juror affidavit that the verdict was not unanimous.
First, the Trial Judge in ruling on the State’s objection stated “to the extent you are asking him…to testify as to a medical condition, I don’t think he is competent to testify to that.” Muthu argued that the court violated OCGA 17-8-57 which provides, “It is an error for any judge…to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved…” Judicial comment objections are subject to a super-plain error review meaning that they may be raised on appeal without objection and if found require reversal. The Court of Appeals found that a Trial Court stating the legal basis for a ruling does not constitute judicial comment under OCGA 17-8-57. See, Corley v. State, 192 Ga App 35, 36, 383 SE2d 586 (1989).
Second, Muthu argued that the Trial Court improperly restricted his DUI expert’s testimony about acid reflux or GERD could affect an alcohol breath test. The State objected and the Court sustained the objection stating that the DUI expert that was qualified on standardized field sobriety evaluations, forensic breath testing, and the Intoxilyzer 5000 could not testify as to medical issues related to a specific person, Lott v. State, 281 Ga App 373, 375, 636 SE2d 102 (2006), and there were no facts in evidence that the Defendant had GERD from which the DUI expert could base a hypothetical. Columbus v. State, 270 Ga. 658, 666, 513 SE2d 498 (1999). Thus, the GERD testimony was outside the scope of his expertise or based on facts not in evidence.
Finally, the Court denied Muthu’s motion for a mistrial. After deliberating for some time, the jury twice returned the question, “Do we have to agree on all counts or can we be deadlocked on one?” Muthu moved for a mistrial. The Trial Court denied the motion and gave an Allen charge after the second communication of deadlock after which the jury returned a unanimous verdict. The granting of a mistrial is within the sound discretion of the trial court and will not be disturbed absent a showing that a mistrial is essential to the preservation of a fair trial.” Evans v. State, 328 Ga App 16, 19, 761 SE2d 443 (2014). The post-conviction juror affidavit alleging a non-unanimous verdict is an attempt to impeach the verdict which is not allowed. OCGA 24-6-606(b). Only when a juror affidavit alleges extraneous prejudicial information, the outside influence was brought to bear, or that there was an error in filling out the verdict form.
-Author: George C. Creal, Jr.