☢ test - Í

Cox v. State, 293 Ga.App. 98, 666 S.E.2d 379 (June 11, 2008). No error where trial court allowed State to exercise strike after juror accepted by defense, based on prosecutor’s error in counting strikes used. Based on Thompkins v. State , 181 Ga.App. 158, 159(2), 351 S.E.2d 475 (1986), where “the court clerk mistakenly informed the State that it had exercised all of its peremptory challenges. After the defense accepted the next prospective juror, the prosecutor determined that the State actually had one remaining peremptory challenge. The trial court then allowed the State to question the last seated juror and to exercise its remaining strike to excuse that juror. [Cit.] This Court found that the trial court did not err in denying a motion for new trial under OCGA § 15-12-166, because the trial court's actions in correcting the clerk’s mistake were intended to preserve the strikes allowed to the State and not to circumvent OCGA § 15-12-166. Id.” No harm alleged by defendant: “Cox does not assert that any of the remaining jurors was unacceptable or that the procedure used by the trial court forced him to use one of his peremptory strikes improperly. Rather, ‘[h]is claim of error is directed only at the procedure used, with no evidence – or assertion – of harm resulting therefrom.’ (Footnote and punctuation omitted.) Chambers v. State, 252 Ga.App. 190, 193(3) (556 S.E.2d 444) (2001).” HH. VERDICT 1. DIRECTED VERDICT See PROCEDURE – DIRECTED VERDICT, below 2. FORM OF Frost v. State, 328 Ga.App. 337, 761 S.E.2d 875 (July 15, 2014). In prosecution for DUI and related offenses, trial court erred in denying plea in bar based on double jeopardy. In defendant’s first trial, jury announced that it had reached verdicts as to charges of striking a fixture and open container, but was deadlocked on the DUI count. Over defendant’s objection, trial court declared a mistrial as to all counts rather than accepting the two unanimous verdicts. “‘We find that jeopardy attached when the jury was seated and sworn and that [Frost] was entitled to receive any verdict reached by that jury. Further, unless manifest necessity existed for granting a mistrial as to the counts decided by the jury, double jeopardy bars any retrial on those counts. The [S]tate bears the “heavy” burden of showing such manifest necessity where, as here, a mistrial is granted over the defendant's objection.’ (Citations and punctuation omitted.) Bair v. State, 250 Ga.App. 226, 551 S.E.2d 84 (2001). … The State argues that manifest necessity was demonstrated because there was no verdict form in the case, and thus no evidence that a verdict was returned. … Other than the fact that the jury was unable to reach a unanimous verdict on the DUI count, there is no other indication that there existed a manifest necessity for a mistrial, or that the trial court had so determined. … [A]lthough much was made of the absence of the verdict form, ‘[w]e know of no law which requires the verdict to be written upon any particular paper, and we are not cited to any decision or statute to that effect. Where it is held that while the better practice is that the verdict shall be written upon the initial pleading, dated, and signed by one of the jury as the foreman, none of these details are essential to a legal verdict.... Verdicts acquire their legality from return and publication.’ (Citations and punctuation omitted.) Martin v. State, 73 Ga.App. 573, 578(4), 37 S.E.2d 411 (1946). Accordingly, in this case ‘[b]ecause the trial court could easily have followed the less drastic alternative of accepting the jury's verdict on the decided counts and declaring a mistrial only on the ... undecided count, we find that no manifest necessity existed for granting a mistrial as to the counts decided by the jury. Accordingly, [as the retrial of the two counts would constitute double jeopardy] the trial court abused its discretion in granting a mistrial on the charges of [striking a fixed object and open container.]’ (Citations and punctuation omitted.) Johnson v. State, 256 Ga.App. 730, 732(1), 569 S.E.2d 625 (2002). See also Bair, 250 Ga.App. at 227, 551 S.E.2d 84.” Reversed on a different issue, 297 Ga. 296, 773 S.E.2d 700 (June 15, 2015). Newsome v. State, 323 Ga.App. 15, 747 S.E.2d 99 (July 15, 2013). Drug conviction reversed; verdict purported to convict defendant of a lesser offense for which he wasn’t charged, and trial court’s effort to rehabilitate the verdict was ineffective. Defendant was charged with cocaine trafficking; jury returned hand-written verdict “stating: ‘[W]e the jury, find the Defendant ... Guilty [of] drug possession, sale, manufacture, with the intent to distribute.’ The jury foreman orally stated that the jury found Newsome not guilty as to the offense of trafficking in cocaine. Counsel for both the defense and the prosecution were allowed to examine the verdict form. No objections were made by the prosecution or the defense counsel, and it was published in open court. The trial court then dismissed the jury. At Newsome's sentencing hearing, the trial court determined that the language of the jury's verdict form meant that they intended to find Newsome guilty of possession with intent to distribute.” This was improper procedure; correct practice, pursuant to State v. Freeman, 264 Ga. 276, 278 (444 S.E.2d 80) (1994), “‘is for the trial court and counsel to review the verdict prior to its publication in open court, and if the verdict is not proper in that it finds the defendant guilty of an offense with regard to which the trial court did not instruct the jury,’ the trial court should send the jury to continue their deliberations with instructions to return a verdict consistent with the jury instructions provided to them at the close of evidence. Id. at 278. Accord Brooks v. State, 311 Ga.App. 857, 859–860(2) (717 S.E.2d 490) (2011) (when a jury