Hopkins v. State
| Decision Date | 21 February 2007 |
| Docket Number | No. A06A2332.,A06A2332. |
| Citation | 642 S.E.2d 356,283 Ga. App. 654 |
| Parties | HOPKINS v. The STATE. |
| Court | Georgia Court of Appeals |
Sexton, Key & Hendrix, Joseph S. Key, Stockbridge, for appellant.
Gregory R. Barton, Solicitor-General, Evelyn Proctor, Assistant Solicitor-General, for appellee.
On August 9, 2005, a jury found Marty Raymond Hopkins guilty of driving under the influence (DUI) to the extent that it was less safe for him to drive, OCGA § 40-6-391(a)(1), and of violating the open container law, OCGA § 40-6-253. On December 30, 2005, the trial court granted his motion for an out-of-time appeal. Thereafter, Hopkins filed a timely motion for new trial, asserting, inter alia, that his trial counsel rendered ineffective assistance by tendering into evidence the police report, which contained the numeric result of his alco-sensor test. Following a hearing, the trial court denied Hopkins' motion for new trial without explanation. Hopkins challenges this decision on appeal and further argues that the trial court erred by overruling his continuing witness objection to including the police report in the exhibits sent out with the jury. Finding no error warranting reversal, we affirm his convictions.
1. Although not enumerated as error, we address the sufficiency of the evidence, given its bearing upon the prejudice prong of his ineffective assistance claim. Viewed in the light most favorable to the verdict, the evidence shows that on August 6, 2003, at nearly 2:00 a.m., Sergeant Brad Stafford of the Douglasville Police Department responded to a call from a citizen indicating that someone "appeared to be asleep or passed out at the wheel" at a traffic light. When Stafford arrived, he saw several other vehicles waiting behind the vehicle at the light. Stafford approached the driver, later identified as Hopkins, and tried to get him to respond. Hopkins, however, was asleep, and Stafford had to open the door and shake him to get him to wake up. Stafford testified that he first put the car in park and turned off the motor, because Hopkins was asleep and his foot was on the brake, which was the only thing preventing the car from proceeding into the intersection.
According to Stafford, Hopkins was disoriented when he first woke up, but he stepped outside the car as requested. Stafford looked inside the car and noticed an open, partially consumed can of beer in a cooler on the floorboard, and well as two additional empty beer cans, one on the passenger seat and another in the back. Stafford testified that Hopkins' speech was slurred and that his eyes were bloodshot and watery. Stafford did not recall any odor of alcohol on Hopkins' person. When questioned by Stafford, Hopkins stated that he had been drinking at a nearby bar.
Stafford further testified that he administered an alco-sensor test to Hopkins, and the result was positive for the presence of alcohol.1 Finally, he asked Hopkins to perform two field sobriety tests. According to Stafford, Hopkins failed the test requiring him to touch his nose with his finger but passed the test requiring him to recite the alphabet. Stafford did not ask Hopkins to perform any tests requiring him to balance because he had leg problems.
Based on his observations of Hopkins, as well as his training and experience, Stafford concluded that Hopkins was under the influence of alcohol to the extent that it was less safe for him to drive. Construing the evidence most favorably to the state, we find it sufficient to support the verdict under the standard of Jackson v. Virginia.2
2. Hopkins contends that his trial counsel rendered ineffective assistance by tendering into evidence Stafford's incident/arrest report, which contained, among other things, the numeric result of his alco-sensor test, which was 0.130 grams.
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable probability, i.e., a probability sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors the result of the proceeding would have been different. The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct.3
A trial court's determination that a defendant was afforded effective assistance of counsel will be upheld unless it is clearly erroneous.4
In the case at bar, the record shows that counsel attempted to use the report to impeach Stafford during cross-examination. Although Stafford had testified on direct that Hopkins' speech was slurred, Stafford had checked the code for "normal" rather than "slurred" speech on the front page of the report. When counsel first sought to question Stafford on this subject, the state objected, arguing that counsel could not use the report unless she admitted it into evidence. The court stated, Counsel then tendered the report. The court queried, "You're tendering it?" Counsel replied, "Yes, Your Honor." Thereafter, Stafford testified that he should have marked the code for slurred speech. On redirect, Stafford testified that he had written in the narrative portion of his report that Hopkins had had slurred speech, bloodshot and watery eyes, and difficulty focusing on Stafford's questions.
Following the charge conference, counsel asked that the court "reconsider the earlier ruling requiring [her] to enter the police officer's report into evidence prior to using it to impeach him." The court pointed out, The court noted that counsel could have laid the foundation for impeachment by use of a prior inconsistent statement by alternative methods. Counsel then argued that the report should not go out with the jury because to do so would violate the continuing witness rule.5
In Georgia the "continuing witness" objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.6
The court noted that counsel herself had tendered the report and had not introduced it for any limited purpose. The court ruled that since the report "came in the way it did, I am going to leave it in as an exhibit, and it will go out with the jury."
Thereafter, during closing argument, the prosecutor urged the jury to Counsel moved for a mistrial, arguing that the alco-sensor results were inadmissible,7 but the court denied the motion, commenting that the problem was that counsel herself had introduced the narrative containing those results.
(a) Deficient performance. At the hearing on Hopkins' motion for new trial, counsel testified that she intended to show the report to Stafford to refresh his recollection, but she was "flustered and caught off guard" when the court did not overrule the state's objection to her failure to introduce the report into evidence. Believing that the court had ruled that she would be required to introduce the report to use it for impeachment, counsel tendered the document. Counsel testified that she had no strategic reason for not asking the court to clarify its ruling, and that she made a mistake in tendering the document, "especially considering the fact that the blood alcohol level was contained in the narrative portion of the report." As counsel recognized, "there is no requirement in Georgia law that a witness's prior inconsistent statement be admitted into evidence prior to its use for impeachment."8 And, "it is impermissible to testify to the results of an alcosensor test giving a numeric reading as to the amount of alcohol in the person's blood."9 We conclude that tendering the report into evidence, knowing that it contained the otherwise inadmissible numeric result of the alco-sensor test, fell below the standard of reasonable professional conduct.10 Hopkins thus has satisfied his burden of proving that counsel's performance was deficient.
( b) Prejudice. We recognize that, to show that counsel's deficient performance so prejudiced him that the outcome of trial would have been different but for counsel's error, "[Hopkins'] burden is to show only 'a reasonable probability' of a different outcome, not that a different outcome would have been certain or even `more likely than not.'"11 Nevertheless, we conclude that Hopkins has not carried this burden because the evidence of his guilt is overwhelming.12 Stafford found Hopkins passed out behind the wheel of his vehicle in the left turn lane at an intersection controlled by a traffic light, where he was holding up traffic. The officer had to put the vehicle in park to keep it from rolling into the intersection. Hopkins had to be roused from sleep and was disoriented. He admitted that he had been drinking, and he failed a field sobriety test. Despite the emphasis placed on the report by the state during closing argument, we conclude that nothing contained therein reasonably could have affected the outcome of the trial.
3. Hopkins contends that the trial court erred in sending the police report to the jury over his continuing witness objection. Hopkins is correct that allowing the narrative portion of a police report to go out with the jury may violate the continuing witness rule.13 In the case at bar,...
To continue reading
Request your trial
-
Gant v. State
...again during deliberations, while oral testimony is received but once. (Punctuation and footnote omitted.) Hopkins v. State, 283 Ga.App. 654, 656–657(2), 642 S.E.2d 356 (2007). 4. Notably, at the new trial hearing, trial counsel testified that she and Gant had discussed State's Exhibit 2, w......
-
Clark v. State, S08A1225.
...overwhelming. Summage v. State, 248 Ga.App. 559, 561(1), 546 S.E.2d 910 (2001). That opinion would also overrule Hopkins v. State, 283 Ga.App. 654, 658(3), 642 S.E.2d 356 (2007). The other opinion took issue with the first opinion's determination that the error was not self-induced merely b......
-
Johnson v. State
... ... 15. Indeed, Johnson concedes in his brief that the officer's testimony regarding one of the witnesses "was cumulative." ... 16. See Clemmons v. State, 282 Ga.App. 261, 263(1), 638 S.E.2d 409 (2006) ("the erroneous admission of cumulative evidence provides no basis for reversal"); Hopkins v. State, 283 Ga. App. 654, 659(4), 642 S.E.2d 356 (2007); Mikell v. State, 281 Ga.App. 739, 746(5), 637 S.E.2d 142 (2006) ... 17. The victim's appearance had changed since the shooting; he had altered his hair style and gained 30 to 40 pounds at the time of the trial ... 18. See Court of Appeals ... ...
- Bills v. State, A06A2405.