Walsh v. State

• Decision Date: 05 March 2018
• Docket Number: S17G0884
• Citation: 811 S.E.2d 353
• Parties: WALSH v. The STATE.
• Court: Georgia Supreme Court

303 Ga. 276

811 S.E.2d 353

WALSH

v.The STATE.

S17G0884

Supreme Court of Georgia.

Decided: March 5, 2018

George Chadwell Creal, Jr., 480 John Wesley Dobbs Ave. NE, Unit 190, Atlanta, Georgia 30312, for Appellant.

Donna Coleman Stribling, Solicitor-General, William Thomas Kemp, III, Assistant Solicitor-General, Sherry Boston, District Attorney, Kenneth Tyler Edgerton, DEKALB COUNTY SOLICITOR GENERAL'S OFFICE, 556 N. McDonough Street, Suite 500, Decatur, Georgia 30030, for Appellee.

HINES, Chief Justice.

This Court granted certiorari to the Court of Appeals in State v. Walsh , 339 Ga.App. 894, 795 S.E.2d 202 (2016), to determine whether the Court of Appeals erred in reversing the trial court’s grant of James Roy Walsh’s motion to suppress the results of a horizontal gaze nystagmus ("HGN") test conducted on him in connection with his arrest and charges for driving under the influence of alcohol to the extent that it was less safe for him to drive and other traffic offenses. Finding that the Court of Appeals did so err, we reverse the judgment of that Court.

According to testimony during a hearing on Walsh’s motion, on June 5, 2015, a law enforcement officer investigated a report of a person asleep inside a vehicle in a traffic lane. The officer approached the car and discovered Walsh in the driver’s seat, with his head down on his chest and a foot on the brake pedal; the driver’s window was down; Walsh’s hand was on the gear shift; and the car was in drive and running. The officer smelled a strong odor of an alcoholic beverage, and observed that Walsh had no reaction to the flashing police lights. Walsh awoke after multiple attempts to wake him, but appeared confused and his eyes were bloodshot, glassy, and extremely watery. When asked to turn off the car’s engine, Walsh did not, and the officer reached into the car and turned it off; shortly thereafter, Walsh pressed the accelerator all the way to the floorboard. The officer asked Walsh to exit the vehicle and, after several unanswered requests, removed him from the car.

The officer then began administering field sobriety tests, including the HGN test. Nystagmus

is an involuntary jerking of the eye, and can occur as a result of impairment by depressants (including alcohol), inhalants, or dissociative anesthetics. During the HGN test, Walsh was wearing eyeglasses; the officer did not ask Walsh to remove his glasses and Walsh did not do so of his own volition. The officer testified that his training requires him to have the subject remove his eyeglasses before an HGN test is performed, and he could not recall any other case in the more than 800 HGN tests he had administered in which he did not ask the suspected offender to remove his eyeglasses. The officer further testified that the manner in which this test was conducted was a "substantial deviation" from his training regarding proper HGN procedures; he also testified that this deviation from the correct protocol was nonetheless "substantial compliance with the guidelines [that could] still yield informative results," did not cause a difference in the test results, and that he was still able to make a fair observation of the six validated clues of the HGN test.¹ Finding that the State failed to meet its burden to establish that the HGN test was performed in an acceptable manner, the trial court granted the motion to exclude evidence derived from it.

As the Court of Appeals noted in reversing,

the HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol. [Cit.]

Id. at 896, 795 S.E.2d 202. The acceptance of the HGN test as having "reached a state of verifiable certainty in the scientific community," is rooted in this Court’s decision in Harper v. State , 249 Ga. 519, 292 S.E.2d 389 (1992). The Harper opinion

guides a trial court’s determination of whether a scientific principle or technique is competent evidence in a criminal case:

[I]t is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific

stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure "rests upon the laws of nature." The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community.

(Citations and footnote omitted.) 249 Ga. at 525–526 (1), 292 S.E.2d 389. And "[o]nce a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature." Id. at 526 (1), 292 S.E.2d 389.

Spencer v. State , 302 Ga. 133, 135, 805 S.E.2d 886 (2017) (Footnote omitted.)

In Hawkins v. State , 223 Ga. App. 34, 37–38 (1), 476 S.E.2d 803 (1996), using the Harper standard, the Court of Appeals examined treatises, as well as the rationale of the opinions of various courts, and concluded that the HGN test "has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol." Id. at 38 (1), 476 S.E.2d 803. Thus, the Hawkins Court ruled, "the HGN test, may be admitted into evidence without first obtaining expert testimony regarding the scientific validity of the tests. [Cits.]" Id. at 39 (1), 476 S.E.2d 803. Hawkins also held that "field sobriety tests must be administered properly under law enforcement guidelines." Id. at 38 (1), 476 S.E.2d 803. However, Hawkins left some question about the allocation of the burden of proof regarding any issue of whether the tests were properly administered when it said that

we concur with appellant that field sobriety tests must be administered properly under law enforcement guidelines; however, a challenge to the administration of the tests is not the same as a challenge to the foundation for admission of the tests pursuant to Harper , supra. [Cit.] A challenge to the method by which an admissible test is administered would be the subject of a timely motion or objection at trial and a subsequent analysis thereon by the trial court on a case–by–case basis. [Cits.] The burden would be on the party raising

objection to show error in the administration of the tests. [Cit.]

Id.

Recognizing that Hawkins might cause some confusion as to the burden of proof regarding the proper administration of HGN tests, in State v. Tousley , 271 Ga. App. 874, 611 S.E.2d 139 (2005), the Court of Appeals sought to clarify the matter. Thus, the Court noted that

[t]he foundation for evidence based on a scientific principle or technique requires two findings regarding the evidence's reliability: such evidence is admissible upon a showing by the party offering the evidence that (1) the general scientific principles and techniques involved are valid and capable of producing reliable results, and (2) the person performing the test substantially performed the scientific procedures in an acceptable manner.

Id. at 876 (1) (a), 611 S.E.2d 139 (Citations, punctuation, and footnote omitted.) And, applying those concepts to the context of an HGN test, the Court specifically noted that the test has two components, and that

[a]lthough a trial court may judicially notice that the standardized HGN test generally has been established with verifiable certainty, the State, as the party offering the evidence, must still satisfy the second component of the foundation, that is, that the tester "substantially performed the scientific procedures in an acceptable manner." [Cit.]

Id. at 879 (1) (b) (ii), 611 S.E.2d 139. Further, the Court of Appeals addressed its prior language in Hawkins regarding the burden of proof, and specified that

the State, as the party offering the evidence, must show that the officer "substantially performed the scientific procedures in an acceptable manner," that is, "properly under law enforcement guidelines." The burden to show error in the administration of the tests shifts to the defendant, as the party raising a foundational objection, only after the State fully satisfies its foundational burden. [Cit.] To the extent that our opinion in Hawkins v. State can be read to suggest that HGN test results are not subject to the foundational requirement that the tester substantially performed the scientific procedures in an acceptable manner, we take this

opportunity to limit that statement of the law, consistent with this opinion. To the extent this misstatement was incorporated into our later opinions, [Cits.], we take this opportunity to limit those opinions as well.

Id. at 880 (n. 8), 611 S.E.2d 139. Thus, Tousley left no question that for the admission of HGN test results, the State has a two-prong burden: (1) to show that the general scientific principles and techniques involved are valid and capable of producing reliable results—a burden which can be met by the trial court taking judicial notice of that fact in the case of HGN testing—and (2) that the person performing the test substantially performed the scientific procedures in an acceptable manner. And, in recognizing that the proper administration of a test is part of the foundation for scientific evidence such as the results of an HGN test, the Court of Appeals was acting in accord with prior decisions of this Court. See Monroe v. State , 272 Ga. 201, 204 (n. 4), 528 S.E.2d 504 (2000) ; Caldwell v. State , 260 Ga. 278, 285 (1) (b), 393 S.E.2d 436 (1990). As to the trial court’s determination regarding the second prong...