Swanson v. State
| Decision Date | 01 February 2023 |
| Docket Number | A22A1554 |
| Parties | SWANSON v. THE STATE. |
| Court | Georgia Court of Appeals |
Following his conviction for driving under the influence of alcohol to the extent that it was less safe for him to drive ("DUI less safe"), Joel K. Swanson appeals from the denial of his motion for new trial. Swanson contends that his trial counsel was ineffective in failing to object to testimony of a State's witness that allegedly went to the ultimate issue, to move for a mistrial when a State's witness allegedly commented on his right to remain silent, and to file a motion to suppress evidence of his refusal to submit to a State-administered blood test. For the reasons that follow, we affirm.
Viewed in the light most favorable to the jury's verdict,[1] the trial evidence showed the following.
On the evening of July 14,2017, a witness was driving past Swanson's house in Murray County. She observed a white SUV in a ditch by the driveway and a man, later identified as Swanson, lying in the driveway. The witness pulled into the driveway and shouted out to Swanson to see if he was okay but he only made a "grunting sound" and then stumbled towards his house. She called 911, and after she saw Swanson go into the house, she drove away. The witness later was called back to the scene and spoke with law enforcement about what she had observed.
Deputies with the Murray County Sheriffs Office responded to the witness's 911 call. When they arrived at the scene, the deputies found a white SUV that "appeared to have entered the ditch line of [Swanson's] property[,]" and to have had an accident either entering or exiting the driveway.
The deputies approached the front door of Swanson's home, and they looked through a window in the door and saw Swanson lying on the couch. When the deputies knocked on the front door to get his attention, Swanson had trouble maintaining his balance as he came over to the door, and his speech was slow and slurred. Swanson had the keys to the SUV with him, and he appeared to be intoxicated and refused to identify himself to the deputies. The deputies detained Swanson out of concern for their safety, and a Georgia State Patrol Officer ("Officer") was called to the scene to continue the DUI investigation.
When the Officer arrived, he observed that Swanson was unsteady on his feet, that he had red, bloodshot eyes and slurred speech and that he strongly smelled of alcohol. He also saw that Swanson's clothes were muddy. The Officer spoke with Swanson, who identified himself for the first time and admitted to having consumed alcohol. Additionally, the Officer went over to the ditch to look at the SUV, and he noted that the hood was still warm to the touch. Swanson's wallet with his driver's license in it was on the floorboard in front of the driver's seat, the car "reeked" of alcohol, and there was an unopened beer can in the vehicle. The license tag on the SUV was registered to Swanson. According to the Officer, no one else was present at the scene other than Swanson who could have driven the SUV.
Though Swanson initially refused medical assistance, Swanson later told the Officer that his head hurt, that he would in fact like medical assistance, and that he no longer wanted to talk with the Officer. Consequently, an ambulance was called to the scene, and the Officer was unable to conduct any field sobriety tests. When the ambulance arrived to take Swanson to the hospital, the Officer informed Swanson he was under arrest for DUI, read him the implied consent notice for suspects over 21 years old, and requested a blood test. At the hospital, Swanson told the Officer he did not consent to a blood test and refused to take it.
Law enforcement officers subsequently were notified that Swanson had left the hospital on foot. They found Swanson sitting on the ground in front of a grocery store, where they detained him on the DUI charge and transported him to the jail.
At the ensuing jury trial, the witness who drove by Swanson's house and saw him in the driveway, one of the responding deputies, and the Officer testified to events as set out above. Additionally, the State introduced into evidence an audio-video recording from the camera in the Officer's patrol car. After the State rested, Swanson elected to testify and acknowledged that on the day in question, he had been under the influence of alcohol and had been in the SUV when it crashed, but he claimed that his girlfriend had been driving. Swanson did not call any defense witnesses.
The jury found Swanson guilty of DUI less safe. Swanson thereafter filed a motion for new trial, as amended, contending that his trial counsel rendered ineffective assistance in several respects. Following a hearing in which Swanson's trial counsel testified, the trial court denied the motion, leading to this appeal.
To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was professionally deficient and that the deficiency prejudiced the outcome of the case. Brown v. State, 303 Ga. 617, 618-619 (2) (814 S.E.2d 364) (2018), citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). With respect to the deficiency prong of the analysis, the defendant must establish "that his counsel's acts or omissions were objectively unreasonable, considering all the circumstances at the time and in the light of prevailing professional norms." Brown, 303 Ga. at 619 (2). And there is a strong presumption that the performance of counsel was reasonable. Henry v. State, 364 Ga.App. 307, 313 (c) (874 S.E.2d 852) (2022). With respect to the prejudice prong of the analysis, the defendant must show a reasonable probability that, but for counsel's deficient performance, a different outcome would have resulted. Brown, 303 Ga. at 619 (2). Courts need not address both deficient performance and prejudice where there is an insufficient showing on either prong. Grier v. State, 313 Ga. 236,246 (4) (896 S.E.2d 423) (2022). Guided by these principles, we turn to Swanson's specific claims of ineffective assistance.
1. Swanson argues that his trial counsel was ineffective in failing to object to testimony of the Officer about accident investigations that allegedly violated the ultimate issue rule. Specifically, the Officer was asked: "So, when you arrive on the scene, that's when you make the determination whether you will do an accident investigation and/or additional DUI investigation?" The Officer testified in response:
I'm going to say, to me, an accident investigation - every impact investigation involves some possibility of drugs or alcohol involved; you've ran off the road for some reason. Now it could be that you were texting or doing something else, but those two are kind of joined at the hip, if you know what I mean.
According to Swanson, the Officer's testimony went to the ultimate issue in the case and invaded the province of the jury, and his trial counsel was deficient in failing to object on that basis.
In arguing that the ultimate issue rule was violated, Swanson directs us to Pyatt v. State, 298 Ga. 742 (784 S.E.2d 759) (2016) in support of his argument. But Pyatt is of little support to Swanson because it was decided under Georgia's old Evidence Code. See id. at 746 (2), n. 7. Under the new Evidence Code, which is applicable in this case,[2] the general rule is that "testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact." OCGA § 24-7-704 (a). See Fisher v. State, 309 Ga. 814, 821 (3) (848 S.E.2d 434) (2020). There is an exception in the limited circumstance where an expert who is "testifying with respect to the mental state or condition of an accused in a criminal proceeding ... state[s] an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto." OCGA § 24-7-704 (b). See Washington v. State, 313 Ga. 771, 776 (3) (d) (873 S.E.2d 132) (2022); Taylor v. State, 365 Ga.App. 30, 33 (877 S.E.2d 286) (2022) (per curiam). However, that exception clearly does not apply to the Officer's testimony, and Swanson therefore has failed to show that his counsel was deficient in failing to object on the basis of the ultimate issue rule. See Young v. State, 305 Ga. 92,97 (5) (823 S.E.2d 774) (2019) ().
Nor has Swanson met his burden of showing prejudice. The evidence against Swanson, although circumstantial, was very strong. In this respect, Swanson was observed lying on the ground near his wrecked SUV, the hood of which was still warm and the interior of which smelled of alcohol; Swanson by his own admission was under the influence of alcohol and was in the SUV when it crashed; Swanson's wallet and driver's license were found on the floorboard of the driver's side of the SUV; and the Officer testified that there was no one else present at the scene who could have driven the SUV. In addition to the strong evidence of Swanson's guilt, the Officer's complained-of testimony concerned accident investigations in general, and the Officer noted only the "possibility" of drugs or alcohol being involved when there is an accident. Indeed, the Officer later further qualified his testimony about what can cause an accident:
Now, from my professional opinion, it can be just as well as - it can be texting. It can be somebody trying to pour a drink, it could be a lot of things. So, . . . you have to stop them and then investigate. You can't...
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