State v. Henry
Decision Date | 19 October 2021 |
Docket Number | S20G1339 |
Parties | THE STATE v. HENRY. |
Court | Georgia Supreme Court |
Georgia law allows the results of chemical tests performed on the blood, urine, breath, or other bodily substances of persons accused of driving under the influence of alcohol, drugs, or other substances in violation of OCGA § 40-6-391 to be admitted into evidence. See OCGA § 40-6-392 (a). When such tests are performed at the behest of the State, OCGA § 40-6-392 (a) (3) provides that a suspect "may have a physician or a qualified technician, chemist registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer." Where an additional, independent chemical test is requested but not given, the law allows for the State's test to remain generally admissible as evidence against the driver where the failure to secure the independent test is "justifiable." OCGA § 40-6-392 (a) (3).
When this case was before the Court of Appeals, the State argued that Kemar Henry failed to make a request for additional independent chemical testing. In Ladow v. State, 256 Ga.App. 726 (569 S.E.2d 572) (2002), the Court of Appeals stated that a request for additional testing has been lawfully asserted when a suspect has made some statement that "reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test." Id. at 728. Citing Ladow, the Court of Appeals in this case applied the "reasonably could" standard in the context of evaluating a claim of ineffective assistance of counsel predicated on counsel's failure to object to the admission of a blood test conducted by the Georgia Bureau of Investigation (GBI) where the State allegedly failed to honor Henry's request for independent chemical testing. See Henry v. State, 355 Ga.App 217, 219-222 (2) (843 S.E.2d 884) (2020). In its analysis, the Court of Appeals held that Henry's statements met the "reasonably could" standard. See id. at 221.
We granted certiorari to consider whether the Court of Appeals has set forth the proper standard for determining when a person accused of driving under the influence has invoked his or her right to additional, independent chemical testing under OCGA § 40-6-392 (a) (3). As explained below, because we are unpersuaded that the standard established by the Court of Appeals for making this determination is consistent with the text and context of the statute, we reject it in favor of a "reasonably would" standard and overrule Ladow and all other decisions of the Court of Appeals that have applied the "reasonably could" standard. Accordingly, we reverse the Court of Appeals' judgment here and remand this case for further proceedings in light of the standard outlined below.
1. The Court of Appeals summarized the facts relevant to this appeal as follows:
Henry, 355 Ga.App. at 217-218.
Henry appealed the trial court's denial of his motion for new trial to the Court of Appeals, arguing, among other things, that his counsel had provided constitutionally ineffective assistance by failing to object to the admission of the blood test performed by the GBI because Henry had been denied his right to independent chemical testing upon request. Relying on the "reasonably could" standard set forth in Ladow, the Court of Appeals reversed the trial court's denial of the motion for new trial, agreeing that Henry's trial counsel was ineffective for failing to object to the introduction of the blood test result on the basis that Henry was denied the independent testing he requested. See Henry, 355 Ga.App. at 220 (2). We granted the State's petition for certiorari to review the standard set forth in Ladow.
2. In its analysis of Henry's ineffective assistance claim, the Court of Appeals held that his trial counsel performed deficiently by failing to file a motion to suppress the blood test results and that Henry was prejudiced because admission of the blood test results allowed the State to establish that Henry was driving under the influence. See Henry, 355 Ga.App. at 221-222 (2). See also Strickland v. Washington, 466 U.S. 668, 687 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984) (to prevail on a claim of ineffective assistance of counsel, the defendant must show that his counsel's performance was professionally deficient and that he was prejudiced as a result - that is, that but for the deficiency, there is a reasonable probability of a more favorable outcome at trial). The court further held that it could not "revisit" the "reasonably could" standard established by Ladow because the standard "was in place at the time of Henry's trial, and thus it is the standard which governs our analysis about the reasonableness of trial counsel's performance." Henry, 355 Ga.App. at 221 (2) n.5.
It is true that trial counsel cannot be judged deficient for failing to either attempt to change or anticipate changes in the law. See Esprit v. State, 305 Ga. 429, 438 (826 S.E.2d 7) (2019) ; Rhoden v. State, 303 Ga. 482, 486 (813 S.E.2d 375) (2018) ( . However, a defendant is not normally prejudiced by his lawyer's failure to pursue a legal argument that appeared to have merit at the time but is later determined to be meritless due to a subsequent change or development in the law. See Lockhart v. Fretwell, 506 U.S. 364, 372 (113 S.Ct. 838, 122 L.Ed.2d 180) (1993); see also Hillman v. Johnson, 297 Ga. 609, 614 (2) (b) (774 S.E.2d 615) (2015) ( ). Instead, the prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair[, ]" and "[u]nreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Lockhart, 506 U.S. at 372. Thus, the Court of Appeals erred in holding that it could not reconsider its Ladow standard in this case, and the fact that the State asked this Court to overrule Ladow and its progeny in the context of an ineffective assistance of counsel claim does not bar us from doing so.
3. We turn now to the question of whether Ladow's "reasonably could" standard is proper.
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