DOYLE
P. J., MCFADDEN, P. J., and HODGES, J.
Hodges, Judge.
This
case is back before this Court after having been remanded by
the Supreme Court of Georgia. State v. Henry, 312
Ga. 632 (864 S.E.2d 415) (2021) ("Henry
II"). After F. Bryant Henry was convicted for
driving under the influence per se and failure to dim lights
he appealed the denial of his motion for new trial. This
Court previously reversed that denial on the ground that
Henry's trial counsel was ineffective for failing to seek
to suppress the results of his State-administered blood test
on the basis that he was not provided the opportunity to
independently test his blood. Henry v. State, 355
Ga.App. 217, 222 (2) (843 S.E.2d 884) (2020) (Henry
I). Our holding was rooted in the law at the time of
Henry's trial, which provided that "[a]n
accused's right to have an additional, independent
chemical test or tests
administered is invoked by some statement that reasonably
could be construed, in light of the circumstances, to be
an expression of a desire for such test." (Emphasis
supplied.) Ladow v. State, 256 Ga.App. 726, 728 (569
S.E.2d 572) (2002). Our opinion held that, regardless of the
propriety of the standard espoused by Ladow and its
progeny, it was the law at the time of Henry's trial and
it was the standard by which we would judge the
reasonableness of Henry's counsel's actions.
Henry I, 355 Ga.App. at 221 (2), n. 5.
The
Supreme Court disagreed, finding that Henry could not be
prejudiced by his counsel's deficiency if the law which
counsel failed to invoke was unsound. Henry II, 312
Ga. at 635 (2) (finding that trial counsel cannot be found
deficient for failing to anticipate changes in the law, but
holding that the issue of prejudice "focuses on the
question whether counsel's deficient performance renders
the result of the trial unreliable or the proceeding
fundamentally unfair, and unreliability or unfairness does
not result if the ineffectiveness of counsel does not deprive
the defendant of any substantive or procedural right to which
the law entitles him.") (citation and punctuation
omitted). The Supreme Court then found Ladow and its
progeny to be unsound and, as discussed further below
reversed that body of case law and the "reasonably
could" standard they utilized. Id. at 639-640
(3) (c) - (d). The
Supreme Court reversed our opinion, and remanded the case
back to this Court for reconsideration in light of this
change in the law. Id. at 640 (3) (d). Upon
reconsideration on remand, we affirm the trial court's
denial of Henry's motion for new trial.
In
Henry II the Supreme Court adopted this Court's
recitation of the facts of this case, which are as follows:
On the night of June 17, 2017, Henry was pulled over by a
Georgia State Patrol trooper. The trooper observed
Henry's vehicle with its bright lights on driving in the
opposite direction from the trooper. When the trooper made
contact with Henry, his eyes were bloodshot and watery, and
his speech was slurred, though the trooper did not detect any
smell of alcohol. Henry agreed to the trooper's request
to perform field sobriety testing. Henry demonstrated four
clues of impairment on the horizontal gaze nystagmus test,
three clues of impairment on the walk and turn test, and two
clues of impairment on the one-leg stand test. After several
unsuccessful attempts to obtain a reading on the alco-sensor,
Henry finally provided an adequate sample which registered
positive for alcohol.
At that time, Henry was placed under arrest for driving under
the influence of alcohol. The officer read Henry the
age-appropriate implied consent notice, after which Henry
asked the officer "[s]o you're gonna let me do the
breathalyzer one more time?" The trooper responded that
"[w]e're past that bridge. We're past it."
The trooper read Henry the
implied consent notice again, after which Henry said "so
you are saying I can take, my blood, my blood, my doctor can
do my blood test and all that?" The trooper responded to
Henry's question by stating, "I need a yes or a no
right now. I did not ask anything about your doctor. I said
the State. Yes or no." Henry's response on the dash
camera video is inaudible. The trooper then asked Henry
"[i]s that a yes?" and Henry's response is
again inaudible on the dash camera video. Although it is not
discernible on the video, the trooper testified that Henry
consented to a blood test in a soft voice.
Henry's blood was drawn at the jail, and testing
performed by the GBI concluded that Henry's blood alcohol
concentration was 0.085 grams per 100 milliliters of blood,
with a variance, or margin of error, of plus or minus 0.004.
Henry was charged by accusation of driving under the
influence of alcohol per se, driving under the influence of
alcohol to the extent he was less safe, failure to maintain a
lane, and failure to dim headlights. Prior to trial,
Henry's counsel secured an order to obtain additional
independent testing of Henry's blood, but no additional
testing was performed. Henry was convicted of driving under
the influence per se and failure to dim lights, and he was
acquitted of driving under the influence to the extent he was
less safe and failure to maintain lane. Henry timely filed a
motion for new trial, which the trial court denied following
an evidentiary hearing. He then appealed.
(Punctuation omitted.) 312 Ga. at 633-634 (1).
Henry
argues that his trial counsel was ineffective in several
regards, which we will address in turn.[1] When this Court
reviews a ruling on a claim of ineffective assistance of
counsel
we accept the trial court's factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts. To
prevail on a claim of ineffective assistance of trial
counsel, a defendant bears the burden of showing both that
trial counsel was deficient and that he was prejudiced by the
deficiency. To demonstrate deficient representation, a
convicted criminal defendant must show that counsel's
representation fell below an objective standard of
reasonableness.
(Citations and punctuation omitted.) Thrasher v.
State, 300 Ga.App. 154 (684 S.E.2d 318) (2009).
a.
Request for Independent Chemical Testing
As
Henry II acknowledged,
Georgia law allows the results of chemical tests performed on
the blood, urine, breath, or other bodily substances of
persons accused of driving
under the influence of alcohol, drugs, or other substances in
violation of OCGA § 40-6-391 to be admitted into
evidence. See OCGA § 40-6-392 (a). When such tests are
performed at the behest of the State, OCGA § 40-6-392
(a) (3) provides that a suspect "may have a physician or
a qualified technician, chemist, registered nurse, or other
qualified person of his own choosing administer a chemical
test or tests in addition to any administered at the
direction of a law enforcement officer." Where an
additional, independent chemical test is requested but not
given, the law allows for the State's test to remain
generally admissible as evidence against the driver where the
failure to secure the independent test is
"justifiable." OCGA § 40-6-392 (a) (3).
312 Ga. at 632.
At the
time of Henry's trial, the law provided that "[a]n
accused's right to have an additional, independent
chemical test or tests administered is invoked by some
statement that reasonably could be construed, in
light of the circumstances, to be an expression of a desire
for such test." (Emphasis supplied.) Ladow, 256
Ga.App. at 728. As we recited in Henry I,
"after Henry was read the implied consent notice and
asked to consent to a blood test for the second time, he
asked the trooper, 'so you are saying I can take, my
blood, my blood, my doctor can do my blood test and all
that?' The trooper responded to Henry's question by
stating, 'I need a yes or a no right now. I did not ask
anything about your doctor. I said the State. Yes or
no.'" 355 Ga.App. at 221 (2).
Relying on Ladow and other cases following it, we
found this statement ambiguous and thus held that it
"reasonably could" have been a request for
independent chemical testing. See id. at 220-221 (2).
Accordingly, we found that Henry's trial counsel was
ineffective for failing to move to suppress the blood result
because he made a strong showing that such a motion would
have been granted. Id. at 222 (2).
On
certiorari, the Supreme Court found the reasoning of
Ladow and its progeny unsound. It held
[w]hile the term "justifiable" is not explicitly
defined in OCGA § 40-6-392 (a) (3), the context of the
statute's language makes clear that the "justifiable
failure or inability to obtain an additional test"
refers to the officer's failure or inability to obtain
the additional test, not the defendant's. Thus, it is the
officer's conduct that must be justified in order for the
State's test to be admissible. . . . While there may be
various excuses or reasons that could justify a law
enforcement officer's failure or inability to obtain
additional, independent chemical testing, the only relevant
excuse at issue here is a law enforcement officer's
explanation that the officer did not understand that the
defendant wanted such testing. When a reasonable officer
would understand that a suspect has requested an
additional, independent chemical test but ignores that
request, that failure is not justifiable. But when a
reasonable officer would not understand that a suspect
has made a request for additional, independent chemical
testing, the failure to obtain such testing is
justifiable. An officer does not unjustifiably fail to obtain
an additional, independent chemical test when a suspect makes
only an unclear, ambiguous, or equivocal statement that
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