Henry v. State

• Decision Date: 27 May 2020
• Docket Number: A20A0501
• Citation: 843 S.E.2d 884,355 Ga.App. 217
• Parties: HENRY v. THE STATE.
• Court: Georgia Court of Appeals

355 Ga.App. 217

843 S.E.2d 884

HENRY

v.THE STATE.

A20A0501

Court of Appeals of Georgia.

May 27, 2020

George Chadwell Creal Jr., Atlanta, for Appellant.

Pamela M. Bettis, Solicitor-General, Jefferson F. Upchurch, Joseph L. Stone, Assistant Solicitors-General, for appellee.

Hodges, Judge.

Kemar Henry was convicted by a jury of driving under the influence of alcohol per se ( OCGA § 40-6-391 (a) (5) ) and for failure to dim his headlights ( OCGA § 40-8-31 ).¹ Henry moved for a new trial, which the trial court denied. He now appeals, contending that OCGA § 40-6-392 (e) is unconstitutional because it violates his right to confront witnesses called against him. He also contends that his trial counsel was ineffective for (1) failing to object to the admission of the State-administered blood test result which was obtained in violation of his right to be free from unreasonable search and seizure; (2) failing to object to the admission of the State-administered blood test result because he was denied his right to independent testing after having requested it; (3) failing to have his blood independently tested after obtaining a court order to permit it; and (4) failing to obtain the underlying documents to the GBI's summary blood test report. For the reasons that follow, we reverse the denial of Henry's motion for new trial and remand the case for further proceedings consistent with this opinion.

"On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Citation and punctuation omitted.) Walker v. State , 349 Ga. App. 188, 825 S.E.2d 578 (2019).

So viewed, the evidence shows that 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 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. Henry now appeals his DUI conviction.

1. Henry contends that OCGA § 40-6-392 is unconstitutional because it violates his right to confront his accusers. The Supreme Court found this enumeration waived.

Henry initially filed this appeal in the Supreme Court of Georgia. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). However, our Supreme Court transferred Henry's appeal to this Court, finding:

[R]egardless of whether [Henry's] Confrontation Clause claim might otherwise invoke [the Supreme Court's] constitutional question jurisdiction, his failure to raise this issue until the filing of his amended motion for new trial prevents its assertion as a basis for [the Supreme Court's] jurisdiction. See Hardeman v. State , 272 Ga. 361, 529 S.E.2d 368 (2000) (transferring appeal where constitutional question was raised for the first time in motion for new trial); Kolokouris v. State , 271 Ga. 597 (1), 523 S.E.2d 311 (1999) (constitutional challenge cannot be raised for first time after a guilty verdict has been returned).

"As a result, this enumeration is without merit because the Supreme Court's determination in its transfer order is final and binding. Accordingly, this enumeration provides nothing for us to review." (Citation and punctuation omitted.) Vaughn v. State , 352 Ga. App. 32, 37 (2), 833 S.E.2d 723 (2019).

2. Henry also contends that his trial counsel was ineffective for failing to object to the introduction of the blood test result because he was denied the independent testing he requested.² We agree.

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).

To determine whether it was ineffective for trial counsel to fail to file a motion to suppress the blood test result or otherwise object to its admission, Henry is required to make a strong showing that such a motion would have been granted. Thrasher , 300 Ga. App. at 155 (1), 684 S.E.2d 318. "Reversal is required when a showing is made that a motion to suppress would have been meritorious and when there is a reasonable likelihood that the outcome of the trial would have been different if evidence had been suppressed." Id. Accordingly, we must analyze the merits a motion to suppress would have had in this case.

Georgia law provides that a person who consents to chemical testing of his blood, urine, breath, or other bodily substance

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. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer[.]

OCGA § 40-6-392 (a) (3). "[A]n accused's right to have an independent test performed does not attach until the State performs its test, but the right to request an independent test may be exercised when the accused is read [his] informed consent rights." (Citation, punctuation and emphasis omitted.) Ladow v. State , 256 Ga. App. 726, 729, 569 S.E.2d 572 (2002). "An 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.) Id. at 728, 569 S.E.2d 572.

Implied consent warnings ask an accused to submit to a State-administered test; they do not ask the accused whether he wants an additional, independent chemical test. And none specifies to the accused any requirements for requesting that test – linguistically, temporally, or otherwise.

(Citation and punctuation omitted.) McGinn v. State , 268 Ga. App. 450, 452, 602 S.E.2d 209 (2004). Indeed,

[b]y its terms, "reasonably could" means we must treat a defendant's statements as a request if reasonable people could disagree about whether those statements expressed a desire for an independent test. The fact that [an ambiguous statement] reasonably could support two different interpretations – either as a request for an independent test or not – requires us to resolve the ambiguity in [the defendant's] favor, because his statements "reasonably could" be construed as a request for an independent test.

Wright v. State , 338 Ga. App. 216, 224 (1) (c), 789 S.E.2d 424 (2016). "If an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against him unless the failure to obtain the test is...