Taylor v. State

• Decision Date: 24 October 2022
• Docket Number: A22A0645
• Parties: TAYLOR v. The STATE.
• Court: Georgia Court of Appeals

365 Ga.App. 700

879 S.E.2d 871

TAYLOR

v.The STATE.

A22A0645

Court of Appeals of Georgia.

October 24, 2022

Michael McKeever Hawkins, Hawkins Spizman Fortas, Atlanta, for Appellant.

Melissa Tatum, Assistant Solicitor-General, Barry Edward Morgan, Solicitor-General, Marietta, for Appellee.

Brown, Judge.

A jury found G. W. Taylor guilty of reckless driving, improper stop on a roadway, failure to maintain lane, and driving under the influence ("DUI") of alcohol less safe.¹ Taylor appeals, asserting that the trial court committed reversible error by admitting evidence that he refused to submit to a breath test and by instructing the jury that it could infer the presence of alcohol from his refusal. Taylor also asserts that he received ineffective assistance of counsel during the exercise of peremptory strikes during jury selection. Based upon the Supreme Court of Georgia's opinion in Elliott v. State , 305 Ga. 179, 824 S.E.2d 265 (2019), we reverse Taylor's DUI less safe conviction. We affirm his reckless driving conviction and remand the case for resentencing of the improper stop and failure to maintain a lane verdicts as we cannot determine whether the trial court merged them into the DUI less safe conviction or the reckless driving conviction. See Prickett v. State , 314 Ga. 435, 446 (4), 877 S.E.2d 573 (2022) (remanding case to trial court for resentencing and decision as to which verdicts should be merged).

The State presented evidence showing that on August 6, 2016, around 3:00 a.m., a patrol officer observed a vehicle parked perpendicular across both lanes of traffic. When the officer approached the vehicle, it began to reverse, then drive forward, stopping just short of a ditch. After the vehicle reversed again to get back into a lane of travel, it started traveling toward the officer's patrol car. The officer activated his emergency lights and blocked all lanes of travel. The officer testified that the "vehicle stopped just short of striking" his patrol car. The officer then approached the vehicle and initiated a conversation with the driver, later identified as Taylor, who had "noticeably slowed and slurred speech," along with "bloodshot watery eyes." The officer testified that these observations "are consistent with the consumption of alcohol in a DUI investigation" and prompted his request for Taylor to exit the vehicle. After Taylor left the vehicle, he "was unable to stand up by himself" and "stumbl[ed] a lot." At one point, the officer and his corporal, who also was present, caught Taylor as he lost his balance to prevent him from falling into the nearby ditch.

When the officer asked Taylor to perform sobriety evaluations to ensure that he was safe to drive, Taylor responded that he was "going to jail anyway," but ultimately agreed. The officer then attempted to conduct a walk-and-turn field sobriety test, but Taylor, who was shoeless, was unable to keep his feet together to perform the test. As Taylor's feet had to be separated due to his swaying and leaning, the officer terminated the test because he "didn't want anyone to get hurt and I knew that I wouldn't get good feedback." For the same reason, the officer also declined to conduct any other field sobriety tests, such as the one-leg stand test, and placed Taylor under arrest. While Taylor was being booked at jail, the booking officer marked "no" beside a form statement that read "Any signs/history of drug use?" The arresting officer testified that this form is normally completed "based on talking to the defendant."

The officer, who had one year of experience as a police officer, admitted at trial that after he terminated the walk-and-turn field sobriety test, no other tests were performed and his investigation ceased. He did not ask Taylor whether he had consumed any alcohol or drugs that evening and did not "observe an odor of alcohol" on Taylor. He was not aware of any alcoholic beverages in Taylor's possession or in his vehicle. The officer did not attempt a horizontal gaze nystagmus test because he lacked the training to administer it. Even though his patrol car would have been equipped with an alco-sensor, he did not use it because his "whole investigation for DUI ... stopped" once he determined "it was unsafe to move forward." When pressed during cross-examination as to why he had not used the alco-sensor, the officer replied:

I rarely employ the [alco-sensor].... So if I know it's alcohol, I have no reason to provide an [alco-sensor] if I believe it's going to antagonize or otherwise excite a person. If I'm using it as a tool to detect alcohol, I use it, and it's a very useful tool. In this case I believed it was alcohol, and didn't see a reason to use it. Normally, I would have employed it prior to doing evaluations.

The officer testified that based on his whole investigation, he "had ... reason to believe [Taylor] was under the influence of alcohol, not drugs," reasoning that he could distinguish between someone who is under the influence of alcohol versus drugs because "there are different signs and symptoms for alcohol consumption and drug consumption. Pupils restrict more on drugs, slurred speech — different things with alcohol and drugs, that are solely alcohol." The officer explained:

Everyone processes alcohol differently and drugs differently, so there's different signs in different people and different tolerances. Generally, alcohol would have slurred speech, slowed reaction time, imbalance, inability to function quickly and efficiently, and overall everything slows down. Different drugs could speed you up, some of them slow you down. They'll affect your eyes. There's all kinds of different things that can be affected by drugs and alcohol.

Based upon his conclusion that Taylor was under the influence of alcohol, the officer sought Taylor's consent for a breath test, rather than blood or urine, which Taylor refused.

At trial, Taylor's wife, who is a physician assistant, provided an alternative explanation for Taylor's behavior during the DUI investigation. Taylor's wife met him on August 9, 2016, three days after the DUI investigation, and the couple moved in together at the end of 2016. After the couple moved in together, Taylor's wife observed that he "stumbles in the middle of the night" and "gets up and has some pretty odd behaviors that are pretty concerning...." Taylor's wife stated that she has observed this odd behavior "[a]t least a half of dozen times." She explained that "he stumbles every morning when he gets up[, and it's] pretty consistent that he has disequilibrium. He knocks into furniture, walls. I've seen him hit his head on the oven range numerous times and cupboards." She stated that

[t]he most concerning incident to me was an episode where I woke up to find him in the closet. He was disoriented, and I tried to coax him out of the closet. [He] was not coherent, but he was courteous. He disagreed that we were in a closet, but he was preoccupied with trying to remove an imaginary stain from one of my items of clothes.

After observing this odd behavior, Taylor's wife referred him to the Veterans Affairs hospital for an evaluation, where he was screened. While Taylor's wife was not permitted to testify about any diagnosis related to his screening, the State asked numerous questions about traumatic brain injury

during its cross-examination. Taylor's wife testified that traumatic brain injury

can cause slurred speech and a flushed face, but she was not aware of traumatic brain injury

causing bloodshot, watery eyes.

The State initially charged Taylor with driving under the influence of alcohol less safe in violation of OCGA § 40-6-391 (a) (1), and later filed an amended accusation, adding charges of one count of reckless driving in violation of OCGA § 40-6-390, one count of improper stopping on a roadway in violation of OCGA § 40-6-123 (c), and one count of failure to maintain lane in violation of OCGA § 40-6-48. At trial, Taylor's counsel did not object to the officer's testimony that Taylor refused to submit to the breath test. During the jury charge conference, the trial court proposed a pattern jury charge that permitted the jury to infer the presence of alcohol from a breath test refusal.² Taylor objected to this charge for "appeal purposes," but it was overruled. The State made Taylor's refusal a central part of its closing argument and told the jury that it could infer the presence of alcohol from Taylor's refusal of the breath test.

1. In related enumerations of error, Taylor argues that the trial court erred in allowing the State to present evidence of his refusal to submit to a breath test and in its corresponding jury charge permitting the jury to infer the presence of alcohol from the refusal of the breath test.

Since Taylor did not object to the introduction of the refusal evidence, we review the trial court's admission of the evidence for plain error. See OCGA § 24-1-103 (a), (d) ; Hamlett v. State , 350 Ga. App. 93, 99 (2), 828 S.E.2d 132 (2019) ("Although [an appellate court] generally review[s] a challenge to [an] evidentiary ruling for abuse of discretion, where, as here, a defendant has not timely objected to the evidence, [the appellate court] review[s] for plain error.") (citation omitted). Similarly, although Taylor objected to the charge on the adverse inference during the charge conference, he failed to object after the jury was so charged. Accordingly, we review the jury charge for plain error as well. See OCGA § 17-8-58 (b) ; Williams v. State , 306 Ga. 717, 720 (2), 832 S.E.2d 805 (2019) ("Because an objection voiced at the charge conference does not preserve objections to the charge as subsequently given, the failure to object to the charge as given precludes appellate review unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.") (citation and punctuation omitted). The test for a finding of plain error has four prongs:

First, there must be

...