Aal v. State

Mohamed Hussein Aal was found guilty by a Gwinnett County jury of driving under the influence less safe, failure to maintain a lane, and speeding. His motion for new trial was denied, and he appeals, asserting that the trial court erred in denying his motion for a mistrial after a witness’s nonresponsive comment, and that the trial court also erred in refusing to allow an expert to give an opinion in a particular area of expertise. Finding no error, we affirm. 1. Aal first complains that the trial court erred in denying his motion for mistrial after the arresting officer gave a non-responsive answer to a question regarding the HGN or horizontal gaze nystagmus test. “If we observe the involuntary jerking of the eyes we have an indication that it is above an .08 level.”

As the trial court correctly noted, this was general testimony with respect to the test, not particular testimony with respect to the defendant. Moreover, after Aal indicated that he wished the trial court to give a curative instruction, the jury was instructed to “disregard any mention of any numerical value assigned to the giving of the horizontal gaze nystagmus test.” But Aal did not thereafter renew his earlier motion for a mistrial. “Where the record shows that the defendant acquiesced in the trial court’s decision to give curative instructions and did not renew his motion for mistrial after the instructions were given, the defendant has waived the issue for purposes of appeal.” Citations and footnotes omitted. Northern v. State , 285 Ga. App. 303, 306 2 645 SE2d 701 2007. This enumeration of error therefore has been waived.