Strong v. State

• Decision Date: 29 November 1973
• Docket Number: No. 28130,28130
• Citation: 202 S.E.2d 428,231 Ga. 514
• Parties: , 72 A.L.R.3d 317 Earnest STRONG v. The STATE.
• Court: Georgia Supreme Court

Page 428

202 S.E.2d 428

231 Ga. 514, 72 A.L.R.3d 317

Earnest STRONG v. The STATE.

No. 28130.

Supreme Court of Georgia.

Nov. 29, 1973.

Rehearing Denied Dec. 17, 1973.

Richard M. Nichols, Macon, for appellant.

Fred Hasty, Dist. Atty., Walker P. Johnson, Jr., Walter M. Matthews, Law Student, Macon, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

The appellant was convicted of murder in the Superior Court of Bibb County and sentenced to life imprisonment in the State Penitentiary. The appeal from this conviction and sentence presents for decision whether the trial court erred in admitting into evidence against appellant over his objection the results of a blood test using blood taken from the defendant without his consent while he was unconscious.

The essential facts may be stated as follows: On July 8, 1972, appellant and three companions were driving from Gray, Georgia, to Macon, Georgia, in an automobile owned by one of the occupants but driven by appellant. As they proceeded southerly out of Gray, their automobile attracted the attention of Officer Robert Lowery, of the Gray Police Department, when he observed their automobile twice weave across the center line of the two-lane roadway. Officer Lowery pursued the vehicle driven by appellant and it came to a stop. Chief Jackson, of the Gray Police Department, observed Officer Lowery stopping the vehicle and drove over to assist him. As both officers got out of their patrol cars to approach the vehicle driven by appellant, it 'took off' and a chase ensued at speeds in excess of 100 miles per hour in a southerly direction toward Macon. As the automobile driven by appellant approached Macon, it ran two cars off the road and proceeded into the city limits of Macon. Appellant continued to drive through a road construction area near Walnut Creek at high speed and hit one automobile traveling in the same direction and then hit another automobile in the rear before coming finally to rest against some steel beams stacked along the edge of the roadway. Susan Long, a passenger in one of the vehicles struck in the rear by the automobile driven by appellant, died of injuries she received from the collision. Appellant was found by Gray Police Chief Jackson several hundred feet away from his vehicle at the foot of an embankment near Walnut Creek. The odor of alcohol on appellant was very strong and he was unsteady on his feet. Chief Jackson found in the wrecked automobile which had been driven by appellant an empty beer can and an empty wine bottle. Chief Jackson took custody of appellant and turned him over to Officer Lowery who placed handcuffs on him and then helped appellant to the police wagon of the Macon Police Department. The Macon police had been alerted by the Gray officers and upon their arrival, Lt. Hunnicutt, of that police department, took charge of the investigation. He ascertained the circumstances of the accident from the Gray officers and also detected the odor of alcohol in the vehicle which had been driven by appellant. After surveying the accident scene and learning appellant had been driving the vehicle which struck the other vehicles in the rear, Lt. Hunnicutt proceeded to the hospital where appellant had been taken. Appellant was unconscious and Lt. Hunnicutt was unable to rouse him. He detected the odor of alcohol on the unconscious appellant's breath and decided to order the withdrawal of a blood sample from appellant by a medical technician at the hospital. The blood sample was transmitted to the State Crime Laboratory and found upon analysis to consist of .20 percent alcohol. Testimony at the trial by passengers in the vehicle driven by appellant also revealed that appellant had been drinking earlier in the afternoon and evening prior to the chase and that appellant definitely was the driver of the vehicle which struck the automobile in which the deceased Susan Long had been a passenger.

Appellant contends that the taking of his blood and admission into evidence at the trial of the results of the test analyzing the alcohol content of his blood violated the Constitutions of the United States and of the State of Georgia. In addition to the constitutional questions presented by appellant, the contention is also made that there is no statutory authority in Georgia for the taking of the blood of an unconscious person and using the results of a test analyzing the blood as evidence against him in a criminal case. Appellant cites Code Ann. § 68-1625.1 (the implied consent statute) and observes that its provisions apply only to a conscious person who is entitled thereunder to make a choice to submit either to a blood test or a breath test to determine the extent of intoxication, if any. Appellant argues that, as he was unconscious and not given a choice, the test using blood taken from him without his consent cannot be used as evidence against him.

Appellant's argument that the State was required to comply with the Implied Consent Statute, in order to use the test results as evidence, is without merit if the evidence is otherwise admissible. This statute (Code Ann. § 68-1625.1) deals only with the administrative sanction of driver license suspensions and has no bearing on the issues presented in this criminal prosecution.

More difficult of resolution is appellant's argument that the taking of his blood and the use of the test results as evidence against him denied appellant basic constitutional protections. Let us move now to a consideration of these important issues.

First, we note that the constitutional questions relate primarily to two areas of concern: (1) search and seizure; and (2) self-incrimination. All counsel in the case note in their briefs the decision of the United States Supreme Court in Schmerber v. California, 384 U.S. 757 (86 S.Ct. 1826, 16 L.Ed.2d 908). It is a leading case dealing with the taking of blood. In that case, the defendant was convicted in California for driving an automobile while under the influence of intoxicating liquor. After his arrest, while the defendant was in the hospital receiving treatment for injuries suffered in the automobile accident, a blood sample was taken by a physician, at the direction of police authorities acting without a search warrant, over defendant's refusal to consent even though his counsel advised him to allow it. The test indicating defendant was intoxicated was admitted in evidence over defendant's objection at trial that the compulsory blood test and admission of the results in evidence violated defendant's right to due process of law under the Fourteenth Amendment, his privilege against self-incrimination under the Fifth Amendment, and his right against unreasonable search and seizure under the Fourth Amendment-applicable to the States through the Fourteenth Amendment. A divided U.S. Supreme Court rejected defendant's contentions and affirmed the conviction. The taking of the blood was considered to be an appropriate incident to his arrest and hence not an unreasonable search and seizure. Defendant's Fifth Amendment argument that he was compelled to give evidence against himself was rejected on the basis that the constitutional privilege against self-incrimination relates only to testimonial or communicative evidence, not physical evidence.

Appellant acknowledges that Schmerber 'would appear to reject any Fourth Amendment argument that the defendant in this case, Earnest Strong, was the subject of an illegal search and seizure.' However, appellant's counsel argues that Schmerber is distinguishable because here there was no arrest and no probable cause for an arrest at the time defendant's blood was taken from him. The trial transcript discloses that Lt. Hunnicutt, of the Macon Police Department, was asked on cross examination if he had appellant 'arrested for anything that night,' and that he replied, 'No sir, I think he stayed in the hospital that night. I usually try not to make a case against the person until I gather all the evidence and all the facts in the case and question all the witnesses.' The officer also testified that the...