O'Shields v. State

• Decision Date: 11 September 2019
• Docket Number: A19A0899
• Court: Georgia Court of Appeals
• Parties: O'SHIELDS v. The STATE.

351 Ga.App. 800

833 S.E.2d 290

O'SHIELDS

v.The STATE.

A19A0899

Court of Appeals of Georgia.

September 11, 2019

Manning Peace, Holly Yelton Peace, Peachtree City, for Appellant.

Tracy Graham Lawson, District Attorney, Jeffrey M. Hawkins, Elizabeth C. Rosenwasser, Assistant District Attorneys, for appellee.

Markle, Judge.

Following a jury trial, Robert O'Shields was convicted of two counts of homicide by vehicle in the first degree ( OCGA § 40-6-393 (a) ); two counts of DUI less safe ( OCGA § 40-6-391 (a) ); and one count of possession of methamphetamine ( OCGA § 16-13-30 (a) ).¹ He now appeals from the trial court's denial of his motion for new trial, as amended, arguing that (1) the trial court should have granted his motion to suppress the results of his blood test; (2) the trial court erred in refusing to charge the jury on a lesser included offense; and (3) he received ineffective assistance of counsel. After a thorough review of the record, and for the reasons that follow, we affirm the denial of the motion to suppress, but we reverse the denial of the motion for new trial, and remand the case for further proceedings.

Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the record shows that, in the early morning hours of May 25, 2015, O'Shields rear-ended a fire truck that was stopped on the expressway in Clayton County due to a previous, unrelated accident. The passenger in O'Shields’s car was killed, and O'Shields was injured in the accident. O'Shields was taken to the hospital, where Georgia State Patrol troopers interviewed him while he was awaiting surgery.

At the time of the interview, O'Shields was able to answer questions, was aware of the accident, and asked the troopers about the passenger. He told the troopers that his passenger, who was a heavy man, had collapsed on him, and he was taking the passenger to the hospital when the accident occurred. Although he seemed cognizant, the troopers noticed he spoke with slurred speech and had likely received pain medication prior to the interview. The two state troopers interviewing O'Shields believed he might have been under the influence at the time of the accident, and one of them asked him for consent for a blood test. O'Shields gave consent, and the blood test results were positive for methamphetamine, amphetamine

, and alprazolam (Xanax ).

Before he was taken into surgery, O'Shields gave his belongings to hospital staff, including a tin box that he told staff was "special" and which he instructed the staff not to open. Police later determined the contents of the box to be 5.05 grams of methamphetamine.

Investigators obtained crash data from the airbag modules in O'Shields’s car. The data showed that O'Shields had been traveling 76 miles per hour seconds before the accident, and 74 miles per hour at impact. The posted speed limit was 65 miles per hour. The data also showed that he had applied his brakes in the seconds leading to the crash. A trooper testified that methamphetamine could slow a driver's response time.

O'Shields requested that the trial court instruct the jury on the lesser included offense of second degree vehicular homicide because the police initially alleged that O'Shields had been following too closely.² The trial court declined to do so based on the manner in which O'Shields was indicted. The jury convicted O'Shields of two counts each of vehicular homicide in the first degree and DUI less safe based on the drugs, and one count of possession of methamphetamine.³

Thereafter, O'Shields filed a motion for new trial and an amended motion for new trial. As is relevant to this appeal, O'Shields argued that the trial court erred in failing to (1) suppress the results of his blood test, and (2) instruct the jury on the lesser included offense of homicide by vehicle in the second degree. He further alleged that he received ineffective assistance of counsel when trial counsel prematurely moved to exclude evidence, which alerted the State to its failure to prove the possession charge.

At a hearing on the motion for new trial, trial counsel testified that, prior to the State resting its case-in-chief, she moved to exclude any evidence of the methamphetamine because the State had not presented a witness to establish possession. She was aware that the State had a witness on its list, but thought the witness was not going to testify. She admitted, however, that she understood the State could still add witnesses at that point in the trial. The trial court denied the motion for new trial, as amended, and this appeal followed.

1. O'Shields argues that the trial court erred by refusing to suppress the results of the blood test because the State failed to meet its burden to prove that he gave consent. He explains that he was not read the implied consent notice, he was confused and under the influence of pain medication when he was asked for consent, he did not sign a written consent form, and the trooper who testified about obtaining consent was merely a witness to the interview and was not the officer who actually requested consent.⁴ We are not persuaded.

A suspect's right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution. In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.

(Citation omitted.) Williams v. State , 296 Ga. 817, 819, 771 S.E.2d 373 (2015). "[I]t is well settled in the context of a DUI blood draw that a valid consent to a search eliminates the need for either probable cause or a search warrant." Id. at 821, 771 S.E.2d 373. And, where the State points to consent as the basis for the search, "the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances." (Citations and punctuation omitted.) Id.

Specifically, under Georgia law, voluntariness must reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority. Consequently, the voluntariness of consent to search is measured by evaluating the totality of the circumstances, which includes factors such as prolonged questioning; the use of physical punishment; the accused's age, level of education, intelligence, length of detention, and advisement of constitutional rights; and the psychological impact of these factors on the accused.

(Citations and punctuation omitted.) State v. Bowman , 337 Ga. App. 313, 317, 787 S.E.2d 284 (2016). Other factors relevant to the issue of consent include a lack of fear, intimidation, or threats to obtain the consent; the suspect's affirmative response to the request; and the failure to object to the test or change one's mind after giving consent. MacMaster v. State , 344 Ga. App. 222, 226-227 (1) (a), 809 S.E.2d 478 (2018). When reviewing the denial of a motion to suppress, we may consider all of the testimony presented at both the suppression hearing and the trial. Lindsey v. State , 287 Ga. App. 412, 651 S.E.2d 531 (2007).

Here, O'Shields moved to suppress the blood test results on the ground that the State had not shown that he had given valid consent. At a hearing, the state trooper who spoke with O'Shields at the hospital testified that he asked for and received consent for the blood test. The trooper testified that O'Shields appeared to be under the influence and "kind of out of it," which led him to request the test, but that O'Shields understood the request and gave coherent and accurate answers to the trooper's other questions. Additionally, the trooper did not make any promises or threats in order to obtain O'Shields’s consent. The trooper further explained that he did not read O'Shields the implied consent law before requesting consent because O'Shields was not under arrest.

The trial court denied the motion without explanation or any factual findings.⁵ "The trial court, however, is not required to make express findings of fact after a hearing on a motion to suppress. In such a case, we nevertheless construe the evidence most favorably to uphold the trial court's judgment." (Citation omitted.) State v. Brogan , 340 Ga. App. 232, 234, 797 S.E.2d 149 (2017).

Construing that evidence in this case most favorably to uphold the trial court's denial of the motion to suppress, we must conclude that O'Shields’s consent was voluntary. The trooper's testimony established that O'Shields was aware of the accident, understood the request for consent, and gave consistent and appropriate responses to the trooper's questions. Moreover, there was no evidence or testimony that O'Shields was threatened or intimidated into giving consent or that he changed his mind after initially giving consent.

The fact that O'Shields may have been under the influence of drugs at the time would not automatically negate his consent. MacMaster , 344 Ga. App. at 227 (1) (a), 809 S.E.2d 478 ; see also State v. Depol , 336 Ga. App. 191, 200, 784 S.E.2d 51 (2016). Nor does the absence of the implied consent notice change the outcome. Even assuming that the troopers should have given O'Shields the implied consent notice, such notice does not equate with voluntary consent. See Williams , 296 Ga. at 821-822, 771 S.E.2d 373 ; see also MacMaster , 344 Ga. App. at 226-227 (1) (a), 809 S.E.2d 478 (recognizing that an affirmative response to the implied consent notice does not automatically mean actual voluntary consent to a blood test).

"[I]n the absence of evidence of record demanding a finding contrary to the judge's determination," we will not reverse the trial court's ruling. (Citations and punctuation...