Puckett v. State, A13A0264.

• Decision Date: 17 May 2013
• Docket Number: No. A13A0264.,A13A0264.
• Citation: 321 Ga.App. 785,743 S.E.2d 466
• Parties: PUCKETT v. The STATE.
• Court: Georgia Court of Appeals

321 Ga.App. 785

743 S.E.2d 466

PUCKETT

v.The STATE.

No. A13A0264.

Court of Appeals of Georgia.

May 17, 2013.

Lawrence Jason Zimmerman, for appellant.

Barry Edward Morgan, Sol.-Gen., Latonia P. Hines, Asst. Sol.-Gen., for appellee.

RAY, Judge.

Following a jury trial, Shannon Puckett was convicted on two counts of driving under the influence (OCGA § 40–6–391(a)(1) (less safe) and (5) (alcohol concentration 0.08 or more)) and one count of speeding (OCGA § 40–6–181). Puckett appeals from her convictions, challenging the trial court's decision to sequester her expert witness during the presentation of the State's case. For the reasons that follow, we affirm.

Under OCGA § 24–9–61,¹ either party has the right to have the witnesses of the other party examined out of the hearing of each other. This statute, known as the rule of sequestration, has been broadly applied by trial courts to exclude all witnesses from hearing the testimony of any other witnesses, and this practice has been expressly approved by this Court. See Axelburg v. State, 294 Ga.App. 612, 619(3), 669 S.E.2d 439 (2008); Gray v. State, 222 Ga.App. 626, 631(2), 476 S.E.2d 12 (1996). And “[t]he trial court is vested with broad discretionary powers in enforcement of the sequestration rule, which will not be controlled absent abuse of discretion.” (Citation omitted.) Lassiter v. State, 175 Ga.App. 338, 340(5), 333 S.E.2d 412 (1985). We therefore review the record to determine if that abuse was committed.

This case stems from a traffic stop of a vehicle driven by Puckett on January 28, 2010. Based on the officer's observations at the time of the stop, the officer suspected that Puckett was driving under the influence of alcohol, and a DUI Task Force officer was summoned to complete the investigation.

Officer Joshua Ferguson, a DUI Task Force officer trained in the administration of standardized field sobriety testing, arrived at the scene and performed a series of field sobriety tests on Puckett, which included the horizontal gaze nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg-stand test. The results of each of these tests indicated impairment. Although a video camera mounted inside the officer's patrol car recordedmost of the field sobriety evaluations, Officer Ferguson's administration of the HGN test was performed outside the view of the camera. Based on the results of the field sobriety testing and both officers' observations of Puckett at the scene, Puckett was placed under arrest and charged with driving under the influence of alcohol.

Prior to trial, Puckett filed a motion to suppress which challenged, inter alia, Officer Ferguson's failure to administer properly the HGN test. After an evidentiary hearing in which Officer Ferguson testified, the trial court denied the motion.

On the first day of trial, the State called Officer Ferguson as a witness and had him testify as to his training and experience in conducting standardized field sobriety tests, including the HGN test. Officer Ferguson testified as to how to conduct the HGN test and what clues to look for to indicate impairment. Officer Ferguson further testified that Puckett exhibited all of the clues to indicate impairment under the HGN test.

On the second day of trial, Puckett's counsel brought a defense witness, Tony Corroto, into the courtroom to observe the continuation of Officer Ferguson's testimony, and the State requested that the rule of sequestration be invoked. In response, Puckett's counsel stated that she planned to call Corroto later as an expert on the subject of field sobriety evaluations, and she requested that Corroto be permitted to stay in the courtroom to assist in the defense and to observe Officer Ferguson's testimony regarding the administration of the HGN test because such information was not recorded on the video of the traffic stop. The trial court denied Puckett's request and applied the rule of sequestration equally to both parties. During the cross-examination of Officer Ferguson, Puckett twice renewed her request that Corroto be permitted in the courtroom so that he could observe Officer Ferguson demonstrate his method of administering the HGN test. The State objected, arguing that Puckett's expert could offer his opinion as to Officer Ferguson's administration of the HGN test in the context of hypothetical questioning from counsel. After acknowledging that Puckett's counsel had the benefit of Officer Ferguson's prior testimony regarding the administration of the HGN test from the hearing on the motion to suppress, the trial court denied counsel's renewed requests and maintained its earlier decision to...