Rolland v. State

• Decision Date: 30 April 2013
• Docket Number: No. A13A0081.,A13A0081.
• Parties: ROLLAND v. The STATE.
• Court: Georgia Court of Appeals

321 Ga.App. 661

742 S.E.2d 482

ROLLAND

v.The STATE.

No. A13A0081.

Court of Appeals of Georgia.

April 30, 2013.

Jo Carol Nesset–Sale, Athens, for Appellant.

Carroll Rudolph Chisholm, Jr., Sol.-Gen., Barbara Pfundstein Quilliams, Asst. Sol.-Gen., for Appellee.

BARNES, Presiding Judge.

A jury found Keno Rolland guilty of driving under the influence to the extent it was less safe for him to drive (“DUI less safe”), driving under the influence of alcohol with an unlawful blood-alcohol concentration (“DUI per se”), and failure to maintain a lane. Rolland filed a motion for new trial, which the trial court denied. On appeal, Rolland contends that (1) the trial court impermissibly commented on the evidence in violation of OCGA § 17–8–57; (2) the trial court abused its discretion in denying his motion for funds to hire an expert to testify at the new trial hearing; and (3) his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury's verdict. Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). So viewed, the evidence showed that at approximately 1:00 a.m., a patrol officer with the Athens–Clarke County Police Department observed a vehicle driven by Rolland traveling westbound on Lexington Road. The officer determined by radar that the vehicle was traveling 62 mph in a posted 45 mph zone and observed that the vehicle failed to maintain its lane twice. The officer activated his emergency lights, but Rolland traveled an additional half a mile before stopping his vehicle. Once Rolland brought his vehicle to a complete stop, half of his vehicle was still on the road and half was on the shoulder of the road. Concerned that the vehicle was only partially off the road, the officer approached Rolland and requested that he move his vehicle to a safer location, and Rolland complied.

When the officer again approached the vehicle, Rolland presented his driver's license, apologized for failing to maintain his lane, and told the officer that he had drifted out of his lane because he had been looking at the cover of a video he had just purchased. As Rolland spoke, the officer smelled alcohol on his breath and observed that his eyes were bloodshot. The officer asked Rolland if he had been drinking alcohol. Rolland initially denied drinking, but ultimately admitted that he had consumed two beers and a shot of vodka.

The officer asked Rolland to exit from his vehicle and submit to a series of field sobriety tests. After obtaining Rolland's consent, the officer administered three field sobriety tests—the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one-leg stand. Rolland exhibited six out of six clues of impairment on the HGN test, four out of eight clues on the walk and turn test, and four out of four clues on the one-leg stand test. He also tested positive for the presence of alcohol on the officer's handheld alco-sensor breath testing device.

Based on his observations, the officer formed the opinion that Rolland was under the influence of alcohol to the extent that he was less safe to drive. He arrested Rolland and read to him the implied consent warning for drivers over the age of 21. Rolland agreed to a State-administered breath test. The officer transported Rolland to jail and administered two breath tests on the Intoxilyzer 5000. The first breath sample taken at 1:47 a.m. showed a blood-alcohol concentration of 0.087 grams, and the second sample taken three minutes later showed a concentration of 0.086 grams.

Rolland was charged by accusation with DUI less safe, DUI per se, and failure to maintain a lane. At trial, the sole witness was the patrol officer who had conducted the traffic stop and administered the breath test, and he testified to the events as set out above. The officer further testified that he had a valid permit to operate the Intoxilyzer 5000, that the machine appeared to be in good working order with no components or parts missing on the day of Rolland's arrest, and that the machine successfully passed all self-diagnostic tests that were performed when Rolland's breath samples were taken. Additionally, through the officer's testimony, the State introduced two certificates of inspection for the Intoxilyzer 5000, reflecting that the machine had been thoroughly inspected and tested by the Georgia Bureau of Investigation, Division of Forensic Sciences, approximately two months before Rolland's arrest and three months after his arrest.

The jury found Rolland guilty of the three charged offenses. Rolland moved for a new trial, contending, among other things, that his trial counsel had been ineffective. To support his ineffective assistance of counsel claim, Rolland also moved for funds to hire an expert to testify at the new trial hearing about the accuracy of the Intoxilyzer 5000 results. The trial court denied Rolland's motion for funds to hire an expert, and, after conducting an evidentiary hearing, denied his motion for new trial. This appeal followed. ¹

1. Rolland contends that the trial court impermissibly commented on the evidence on two separate occasions by making statements in the presence of the jury “about the history and accuracy of Georgia's Intoxilyzer machines.” “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” OCGA § 17–8–57. Regardless of whether defense counsel objected, if the trial court violates this statutory provision, we are “required to order a new trial, and there can be no finding of harmless error.” (Footnotes omitted.) Sauerwein v. State, 280 Ga. 438, 439(2), 629 S.E.2d 235 (2006). See State v. Gardner, 286 Ga. 633, 634, 690 S.E.2d 164 (2010). Mindful of these principles, we turn to the two occasions in which Rolland contends that the trial court made impermissible comments.

(a) During defense counsel's cross-examination of the patrol officer, counsel asked a series of questions regarding the history of the Intoxilyzer 5000 model. The following exchange occurred:

DEFENSE COUNSEL: And you transported [Rolland] to the jail where there is an Intox 5000.

OFFICER: I did.

DEFENSE COUNSEL: Now that is the model that is used here in Georgia as you stated earlier, and that is the model that Georgia actually adopted in 1994. Is that correct?

OFFICER: I can't speak to when it was adopted. I do know that's the only unit used in Georgia.

DEFENSE COUNSEL: How long have you been on the force you said?

OFFICER: Since 2003.

DEFENSE COUNSEL: And that's been the machine you used the entire time.

OFFICER: That's correct.

DEFENSE COUNSEL: And the Intox model was being used well before that.

OFFICER: It's my assumption, yes.

DEFENSE COUNSEL: Would it surprise you to know that it's been used for over 25 years in Georgia?

OFFICER: No.

PROSECUTOR: Your Honor, I don't believe that that's correct information that she's giving the witness. There [have] been other models of the Intoxilyzer that have been used, but this officer can't testify as to what was used prior to his becoming a police officer. I think this is an improper line of questioning.

TRIAL COURT: I don't think that this officer has any ability to testify, but I think that your question is inaccurate to begin with because there have been various models since the fifties that have been breath testing instruments.

DEFENSE COUNSEL: Yes, sir, since the fifties, absolutely.

TRIAL COURT: Right. But ... I think your question was inappropriate and inaccurate because I don't think that the instrument that's being used and has been used most recently has been in use for 25 years.

DEFENSE COUNSEL: No, sir, not the individual model.

TRIAL COURT: ... [W]ell, that's what you said, as I understood you said for 25 years, and I don't think that's an accurate statement but you may proceed.

DEFENSE COUNSEL: And just to clarify, you said since you joined the force in 2003 the Intox 5000 was being used by Georgia.

OFFICER: Well, I became certified to operate the Intox in 2005, and I know for a fact since then, that has been what has been used in Georgia.

Contrary to Rolland's argument, the colloquy between the trial court and defense counsel did not violate OCGA § 17–8–57. Read in context, the trial court's remarks were aimed at redirecting defense counsel away from a series of questions about the history of the Intoxilyzer 5000 that required the testifying officer to speculate and that assumed facts not in evidence about how long that model had been used in Georgia. OCGA § 17–8–57 does not prohibit a trial court from inquiring into the direction defense counsel is going with a particular line of questioning and encouraging counsel to move forward. See Butler v. State, 290 Ga. 412, 416(4), 721 S.E.2d 876 (2012); Creed v. State, 255 Ga.App. 425, 427(1), 565 S.E.2d 480 (2002). See also Adams v. State, 282 Ga.App. 819, 824(4), 640 S.E.2d 329 (2006) (trial courts are authorized “to control the conduct of the trial and to guide the defense attorney to ensure a fair trial and the orderly administration of justice”) (punctuation omitted).

Rolland, however, argues that the trial court's comments went beyond redirecting defense counsel's line of questioning about the history of the Intoxilyzer 5000 because the court assumed certain things as facts that had not been proven during the trial of the case. Specifically, the trial court stated that “there have been various models since the fifties,” and “I don't think that the instrument that's being used and has been used most recently has been in use for 25 years.” As Rolland points out, there was no testimony at trial reflecting that various models of the Intoxilyzer had been used since the 1950s or that the current model, the Intoxilyzer 5000, had been in use for...