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Johnson v. State7/9/2004
Randy Scott Johnson appeals after a jury convicted him of DUI, Less Safe under OCGA § 40-6-391(a)(1), and driving with no license. Johnson argues that the trial court erred by refusing to grant a mistrial after the prosecutor's opening statement and failing to give the jury instruction that he requested. Additionally, Johnson argues that the trial court erred by admitting evidence of his refusal to submit to alco-sensor screening without first establishing a foundation for its admissibility and for denying his motion to suppress as to the initial search of Johnson. After reviewing the record, we conclude that there was no reversible error and affirm.
The evidence at trial was as follows. On January 26, 2003, the Cherokee County Sheriff's Department was called to Johnson's house by his ex-wife to check on their children. Deputy Shinall of the Cherokee County Sheriff's Department arrived at the house at midnight and was informed by one of the children that Johnson was at a Super Bowl party. The children, three girls under the age of 13, were at home alone and Johnson's ex-wife indicated that he was supposed to be at home supervising them.
Johnson arrived home at 1:00 a.m. and Deputy Shinall approached the car and asked him to get out of the car. After refusing at first, Johnson then got out of the car with difficulty, having to use the door to balance himself. Johnson also informed Deputy Shinall that *427 he did not have a Georgia driver's license. Deputy Shinall testified that an odor of alcohol was emanating from Johnson and that he had slurred speech and red eyes.
Johnson refused a request to take an alco-sensor test and then admitted to having consumed two beers prior to the Super Bowl game. Deputy Shinall then read the Miranda warnings and requested that Johnson submit to a field sobriety evaluation. Johnson declined and Deputy Shinall placed him under arrest. Subsequently, Deputy Shinall read the implied consent warnings and asked Johnson to submit to a State-administered chemical breath test, which he refused to do.
1. In his first enumeration of error, Johnson argues that the trial court erred by declining to grant a mistrial after the prosecutor's opening statement.
In his opening statement, the prosecutor informed the jury that "for various legal reasons[,] we will not be talking about field sobriety tests." Johnson argues that this is an improper reference to his refusal to take the field sobriety tests. The trial court suppressed evidence of his refusal because Johnson refused the tests after receiving his Miranda warnings. Johnson argues that the implication of this statement is that the prosecutor had incriminating evidence that could not be shown to the jury for legal reasons and that the trial court should have granted a mistrial following the prosecutor's remarks.
Johnson relies on Rodriguez v. State, 184 Ga.App. 819, 820-821, 363 S.E.2d 23 (1987), which discussed the improper use of hearsay evidence in the opening statement. But, as Johnson acknowledges in his brief, the prosecutor's reference to inadmissible hearsay evidence in his opening statement did not lead to a mistrial in that case. Id. Additionally, even assuming that a reference to hearsay evidence is necessarily analogous to a reference to suppressed evidence, the prosecutor's reference to the inadmissible hearsay in that case was of a highly specific nature and concerned an allegation of criminal activity. Id. This is distinguishable from the present case where the prosecutor made no similar allegation of wrongdoing by the defendant and simply informed the jury that an expected part of DUI cases would not be heard.
**180 The standard of review for the trial court's refusal to grant a mistrial is abuse of discretion. Underwood v. State, 2
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