State v. Henry

• Decision Date: 19 October 2021
• Docket Number: S20G1339
• Citation: 312 Ga. 632,864 S.E.2d 415
• Parties: The STATE v. HENRY.
• Court: Georgia Supreme Court

312 Ga. 632

864 S.E.2d 415

The STATE

v.HENRY.

S20G1339

Supreme Court of Georgia.

Decided: October 19, 2021

Jefferson Frisby Upchurch, Assistant Solicitor-General, Henry County Judicial Center, 44 John Frank Ward Boulevard, Suite 350, McDonough, Georgia 30253, for Appellant.

Omeeka P. Loggins, Solicitor-General, Augusta-Richmond County Solicitor, General's Office, 735 James Brown Blvd, Suite 2500, Augusta, Georgia 30901, Robert Wright Smith, Jr., Gilbert Alexander Crosby, Prosecuting Attorneys’ Council of Georgia, 1590 Adamson Parkway, 4th Floor, Morrow, Georgia 30260-1755, for Amicus Appellant.

George Chadwell Creal, Jr., George C. Creal, Jr., P.C., 480 John Wesley Dobbs Avenue, NE, Unit 190, Atlanta, Georgia 30312, for Appellee.

Greg Allen Willis, Willis Law Firm, 6000 Lake Forrest Drive, Suite 375, Atlanta, Georgia 30328, Hunter Joseph Rodgers, Paulding County Public Defender's Office, 280 Constitution Blvd Suite 1086, Dallas, Georgia 30132, David Edward Clark, Clark & Towne, PC, 1755 North Brown Road, Suite 200, Lawrenceville, Georgia 30043, Kimberly A. Dymecki, 50 Technology Pkwy. South, Peachtree Corners, Georgia 30092, for Amicus Appellee.

Bethel, Justice.

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, 569 S.E.2d 572. 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, 843 S.E.2d 884.

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:

[O]n the night of June 17, 2017, Henry was pulled over by a Georgia State Patrol trooper. The trooper observed Henry's vehicle with its bright lights on driving in the opposite direction from the trooper. When the trooper made contact with Henry, his eyes were bloodshot and watery, and his speech was slurred, though the trooper did not detect any smell of alcohol. Henry agreed to the trooper's request to perform field sobriety testing. Henry demonstrated four clues of impairment on the horizontal gaze nystagmus test

, three clues of impairment on the walk and turn test, and two clues of impairment on the one-leg stand test. After several unsuccessful attempts to obtain a reading on the alco-sensor, Henry finally provided an adequate sample which registered positive for alcohol.

At that time, Henry was placed under arrest for driving under the influence of alcohol. The officer read Henry the age-appropriate implied consent notice, after which Henry asked the officer "[s]o you're gonna let me do the breathalyzer one more time?" The trooper responded that "[w]e're past that bridge. We're past it." The trooper read Henry the implied consent notice again, after which Henry said "so you are saying I can take, my blood, my blood, my doctor can do my blood test and all that?" The trooper responded to Henry's question by stating, "I need a yes or a no right now. I did not ask anything about your doctor. I said the State. Yes or no." Henry's response on the dash camera video is inaudible. The trooper then asked Henry "[i]s that a yes?," and Henry's response is again inaudible on the dash camera video. Although it is not discernable on the video, the trooper testified that Henry consented to a blood test in a soft voice.

Henry's blood was drawn at the jail, and testing performed by the GBI concluded that Henry's blood alcohol concentration was 0.085 grams per 100 milliliters of blood, with a variance, or margin of error, of plus or minus 0.004. Henry was charged by accusation of driving under the influence of alcohol per se, driving under the influence of alcohol to the extent he was less safe, failure to maintain a lane, and failure to dim headlights. Prior to trial, Henry's counsel secured an order to obtain additional independent

testing of Henry's blood, but no additional testing was performed. Henry was convicted of driving under the influence per se and failure to dim lights, and he was acquitted of driving under the influence to the extent he was less safe and failure to maintain lane. Henry timely filed a motion for new trial, which the trial court denied following an evidentiary hearing.

Henry , 355 Ga. App. at 217-218, 843 S.E.2d 884.

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), 843 S.E.2d 884. 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), 843 S.E.2d 884. 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, 843 S.E.2d 884.

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) ("A criminal defense attorney does not perform deficiently when he fails to advance a legal theory that would require an extension of existing precedents and the adoption of an unproven theory of law." (citation and punctuation omitted)); Rhoden v. State , 303 Ga. 482, 486, 813 S.E.2d 375 (2018) ("[T]here is no requirement for an attorney to prognosticate future law in order to render effective representation.... Counsel is not obligated to argue beyond existing precedent." (citations and punctuation omitted)). 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) (petitioner cannot show Strickland prejudice from counsel's failure to challenge sentences based on Court of Appeals cases later determined to be incorrect). Instead, the prejudice component of the Strickland test "focuses on the...