Mitchell v. State

• Decision Date: 26 June 2017
• Docket Number: S17A0459
• Parties: MITCHELL v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 563

802 S.E.2d 217

MITCHELL

v.The STATE.

S17A0459

Supreme Court of Georgia.

Decided: June 26, 2017

D. Benjamin Sessions, for appellant.

Jamie K. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Audrey D. Cruzan, Assistant Solicitors-General, for appellee.

Boggs, Justice.

Appellant Quinton Mitchell appeals from the denial of his motion to suppress and motions in limine. Because the trial court failed to require the proper foundation for the Romberg field sobriety test under Harper v. State, 249 Ga. 519, 524-526 (1), 292 S.E.2d 389 (1982), we reverse on that ground. We affirm the remainder of the trial court's rulings.

When reviewing a trial court's ruling on a motion to suppress, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. This means that the reviewing court generally must accept the trial court's findings as to disputed facts unless they are clearly erroneous, although the reviewing court may also consider facts that definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility, such as facts indisputably discernible from a videotape.

(Citations and punctuation omitted.) State v. Allen, 298 Ga. 1, 2 (1) (a), 779 S.E.2d 248 (2015).

So viewed, the facts show that Mitchell was stopped after a Fayette County sheriff's deputy noticed him failing to maintain his lane. When the deputy approached Mitchell, he smelled a strong odor of alcohol and noticed that he had difficulty removing his license from his wallet. Mitchell denied having had anything to drink, and when asked if he would perform field sobriety tests, he declined. He also declined to get out of his car. The deputy noted his slurred speech, and though Mitchell avoided eye contact, the deputy eventually saw that his eyes were "bloodshot and glassy."

A Fayetteville Police Department officer arrived on the scene shortly afterwards, and the deputy told him that Mitchell had declined to perform field sobriety tests. The officer approached the car and had a short colloquy with Mitchell, who again refused to get out. The officer announced, "We got two ways we can do this. You can either get out of the car on your own, or we can get you out of the car.

Okay. One way or another, you're coming out of the car." Mitchell complied, and then stumbled and leaned against the car door for support. When Mitchell again refused to perform any field sobriety tests, the officer testified:

[I] told him that based on all the things that I observed already, which was the strong smell of alcohol coming from him; his mild slurred speech; his bloodshot, glassy eyes; the fact that he had to use the vehicle for ... balance, and his drunk-like appearance, his impaired appearance, that I believed that he was an impaired driver and that if he did not perform field sobriety, I had no option but to arrest him for DUI; or he could perform field sobriety and maybe he would, maybe he wouldn't; but that—there was no choice if not, so he submitted to field sobriety.¹

Mitchell then agreed to perform the tests. After the officer and deputy stepped aside to discuss the matter, leaving Mitchell standing alone, the officer administered the tests. The officer testified that Mitchell "exhibited all six clues" on the horizontal gaze nystagmus

(‘‘HGN’’) test, all eight clues in the walk and turn test, and declined to perform the one leg stand due to knee problems. Mitchell was outside the typical time estimation on the Romberg balance test, and during that test his eyes did not remain closed, he swayed back and forth, and his speech remained mildly slurred. The officer concluded that Mitchell was a less safe driver and so informed the deputy, who arrested Mitchell and read the implied consent warnings.

Mitchell was charged by accusation in the State Court of Fayette County with driving under the influence (less safe) and failure to maintain lane. He moved in limine to exclude, inter alia, the results of the field sobriety tests, and moved to suppress the evidence obtained by the police during the traffic stop. He also challenged the constitutionality of OCGA § 24-7-707, governing the admissibility of expert opinion testimony in criminal cases. At the hearing on Mitchell's motions, both officers testified, and the video of the traffic stop was played for the trial court. The trial court denied the motions and granted a certificate of immediate review. Mitchell filed an application for interlocutory appeal, which was granted by this Court.

When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of the law to the undisputed facts. To the extent an issue concerns a mixed question of fact and law, we accept the trial court's findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.

(Citations omitted.) Jones v. State, 291 Ga. 35, 36-37 (1), 727 S.E.2d 456 (2012). And we consider the officer's conduct of the traffic stop in its entirety. Cf. State v. Allen, supra, 298 Ga. at 1, 779 S.E.2d 248.

1. Mitchell asserts that the trial court erred in holding that the Romberg field sobriety test is not a scientific test requiring that a foundation be laid under Harper. We agree.

The Harper decision guides a trial court's determination of whether a scientific principle or technique is competent evidence in a criminal case:

[I]t is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure "rests upon the laws of nature." The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community.

(Citations and footnote omitted.) 249 Ga. at 525-526 (1), 292 S.E.2d 389. But a threshold issue is presented in determining whether the procedure or technique "deal[s] with scientific principles [or] observation and comparison of physical objects, with matters not of science but of skill and experience."

Belton v. State, 270 Ga. 671, 674 (4), 512 S.E.2d 614 (1999).²

In Belton, this Court looked to Court of Appeals decisions on field sobriety tests to determine, by analogy, that the comparison of shoe prints with shoes is not "a matter of scientific principle or technique." Id. at 674 (4), 512 S.E.2d 614. Similarly, in determining the applicability of the Harper analysis to field sobriety tests, the Court of Appeals has considered whether the principles or techniques in question are properly a subject of scientific analysis under Harper, or are merely well-known consequences of intoxication, "as obvious to the layperson as to the expert." Hawkins v. State, 223 Ga. App. 34, 36 (1), 476 S.E.2d 803 (1996). We must therefore determine whether the Romberg test

falls into the category of a simple physical dexterity exercise observable by the average layperson, such as the walk and turn test or the one-leg stand test, or a scientific test which must meet standards of validity and reliability, such as the HGN test. See generally Stewart v. State, 280 Ga. App. 366, 368-369 (2), 634 S.E.2d 141 (2006) ; State v. Pastorini, 222 Ga. App. 316, 318-319 (2), 474 S.E.2d 122 (1996).³

In the case before us, the only witnesses at the hearing on the motions in limine were the police officers, and only the city police officer testified with respect to "the Romberg balance [sic.]." He testified that the subject is instructed to shut his eyes, tilt his head backwards, and estimate the passage of 30 seconds. He added that "[t]he main purpose of [the test] is to get a person's—excuse me—to gauge a person's internal clock, to figure out if their internal clock is correct or accurate, given that certain drugs, alcohol being one of them, that could impair your ability to interpret the passage of time or perceive it." The officer elaborated that he was also looking for "eyelid tremors" and that "pretty much anybody that's unimpaired and of reasonable faculty can estimate, can get within five seconds, plus or minus, of that 30-second mark."

On cross-examination, however, the officer acknowledged that he was not aware of any validation studies for the Romberg test

, "not like there are for the other three tests, no, sir." He also acknowledged that the range of plus or minus five seconds as an indication of impairment had not been established. His knowledge of the test was based on his participation in DRE or "drug recognition expert" school. No scientific or medical testimony was presented at the hearing.⁴

We conclude that, on the basis of the evidence presented at the hearing in this case, admissibility of the Romberg test

is subject to the Harper standard. The significance of eyelid tremors or an individual's "internal clock," how they may be affected by the consumption of alcohol, and particularly whether a range of five seconds above or below the actual passage of 30 seconds establishes impairment, are not matters of common sense or experience, nor are they obvious to the average lay observer.⁵ The trial court therefore erred in failing to conduct a Harper analysis, whether through the evaluation of expert testimony or through the examination of exhibits, treatises, or the law of other jurisdictions. Harper, supra, 249 Ga. at 525-526 (1), 292 S.E.2d 389. We therefore reverse this portion of the trial court's order.

2. Mitchell also contends the trial court erred in denying his ...