Coghlan v. State

319 Ga.App. 551

737 S.E.2d 332

COGHLAN

v.The STATE.

No. A12A2388.

Court of Appeals of Georgia.

Jan. 16, 2013.

William C. Head, Ashleigh Bartkus Merchant, Atlanta, for Appellant.

Carmen D. Smith, Atlanta, R. Leon Benham, for Appellee.

PHIPPS, Presiding Judge.

Donna J. Coghlan was charged with driving under the influence (DUI), driving on the wrong side of the road, and reckless driving. At trial, the court directed a verdict of acquittal on the charge of driving on the wrong side of the road, and the jury found Coghlan not guilty of reckless driving, but guilty of DUI. In this appeal from her DUI conviction, Coghlan challenges the sufficiency of the evidence, argues that the trial court erred by allowing certain remarks during the state's closing argument, and asserts that her sentence was the result of unconstitutional vindictiveness. We affirm.

1. Where, as here, the appellant challenges the sufficiency of the evidence to support a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ¹

The only witnesses who testified at the trial were two police officers called by the state. Their testimony showed the following. At about 2:00 a.m. on September 16, 2006, a uniformed patrol officer in a marked police cruiser observed a vehicle being driven on the wrong side of the road. The officer initiated a traffic stop of the vehicle, and approached the driver, Coghlan, who was alone in the vehicle. Upon asking Coghlan for her driver's license, the officer detected a “heavy odor of alcoholic beverage coming out of her person.” The officer told Coghlan to shut off the engine and to remain seated in her vehicle while he stepped away. Coghlan turned off the engine, and the officer walked back to his patrol cruiser, then summoned an officer who specialized in DUI investigation. But about two minutes later, Coghlan started her vehicle engine and drove away. With the lights and siren on his police cruiser activated, the officer pursued Coghlan. Coghlan stopped a few blocks down the road, and the officer walked to Coghlan. Within moments, a law enforcement officer assigned to a DUI task force responded to the scene and took over the roadside investigation.

As the responding officer walked to the driver's side of Coghlan's vehicle, he began “smelling a strong odor of alcoholic beverage coming from the car and [Coghlan was] the only person in the car.” The officer asked Coghlan to exit the vehicle. That officer recalled at trial, “It seemed like she stumbled out of the car and was very unsteady on her feet.” Once Coghlan was out of her vehicle, the officer noticed an odor of alcoholic beverage that was “[v]ery strong coming from her breath.” The officer further described Coghlan's speech: “It was slow. It was slurred. There were times I didn't understand what she was saying. Not that I didn't understand because I didn't understand the words, it was just she would ramble on about different things that, you know, I wasn't asking.” For example, the officer elaborated at trial, when he asked Coghlan whether she thought she should be driving, she answered something to the effect, “I don't know ..., but I don't want to impair myself,” which the officer discerned “makes no sense.” As another example, the officer described that Coghlan wanted to know why the police were following her. According to the officer, “nobody was following her. She didn't quite understand that she was stopped for an infraction by another officer and because she left the [initial] scene, the officer had no choice but to go after her and stop her.” The officer asked Coghlan whether she was willing to submit to field sobriety tests; she initially said no, next asked the officer for advice, then wavered in her answer. The officer asked Coghlan why she had consumed alcoholic beverages and then driven a vehicle. She responded: “That's a good question.”

Additionally, the officer recounted at trial that he had further observed Coghlan at the scene—her gait was unsteady, and her eyes were bloodshot and watery. Coghlan admitted to the officer having had “a little bit” to drink, later claiming to the officer that she had consumed two glasses of wine, both about eight or nine hours before she was stopped.

After testifying about his DUI training and his experience in patrolling a bar district where he routinely encountered intoxicated individuals, the officer testified that, based on his training and experience, along with his observations of Coghlan's speech, actions, and demeanor and his detection of the odor of alcoholic beverage on her breath, he had formed the opinion that Coghlan was under the influence of alcohol to the extent that she was a less safe driver.

The officer arrested Coghlan for DUI less safe, then read her the Georgia Implied Consent Notice.² Coghlan stated that she would submit to a state-administered chemical test of her breath. But, the officer testified, when he instructed Coghlan to blow into a particular part of the Intoxilyzer 5000 machine, “[Coghlan] wouldn't put any air into the instrument at all.” Consequently, the testing instrument could not provide any proper reading, and the “results” of the breath test were deemed: “refused.” ³ The state also presented at trial a redacted recording of Coghlan's encounter with the DUI task force officer who was summoned to the scene.

On appeal, Coghlan contends that the evidence was insufficient because the state adduced no evidence of field sobriety test results, nor any actual results of a test performed upon her blood, breath, or urine. There is no merit in her contention.

Methods of proof to show impairment may include evidence of (i) erratic driving behavior, (ii) refusal to [submit to state-administered chemical testing], and (iii) the officer's own observations (such as smelling alcohol and observing strange behavior) and resulting opinion that the alcohol made it less safe for the defendant to drive. Here the State used all three methods. ⁴

When the police officer initially stopped Coghlan, collected her license, and told her to turn off the vehicle engine and remain seated at the scene, Coghlan drove away—leaving behind both the officer and her driver's license. When she was stopped by police soon thereafter and ordered to exit her vehicle, she stumbled out of it and thereafter was unsteady on her feet. Her eyes were bloodshot and watery. Her speech was slow and slurred. Her breath emitted a very strong odor of alcoholic beverage. She admitted having consumed alcoholic beverages earlier that evening. And instead of giving specific, coherent answers to several police questions, she “rambled on about different things.” The officer who was assigned to a DUI task force formed the opinion that Coghlan was under the influence of alcohol to the extent that it was less safe for her to drive.⁵ Moreover, the evidence authorized the jury to find that Coghlan had refused to submit to a chemical test of her bodily substance (breath).⁶ Despite the lack of any evidence of field sobriety evaluations,⁷ the state's evidence of Coghlan's conduct and manifestations, as observed and recounted by the two law enforcement officers who encountered her at the time in question, suffices to sustain her DUI conviction.⁸

2. Coghlan contends that the trial court erred by permitting the prosecutor to make certain remarks, citing three portions of the state's closing argument.

(a) In one portion, Coghlan asserts, the state impermissibly disparaged defense counsel by stating that her attorney—who moments prior had delivered closing argument on her behalf—had employed a “smoke and mirrors” strategy. “Closing arguments are judged in the context in which they are made.” ⁹

The transcript shows that, at the beginning of the state's closing argument, the prosecutor revealed that, earlier in his legal career, he had “[done] some criminal defense work. And by doing that work I found myself sometimes not addressing certain issues.” There were occasions, the prosecutor continued, when there was “a little smoke in the room; the more smoke that came in the room, the better for me. But what I want to do today is I want to just be this big ceiling fan and just suck out some of the smoke that's in this room today.” The prosecutor next reminded the jurors of the testimony given by the officer who stopped Coghlan:

[That officer] said the reason he stopped her was because she was driving on the wrong side of the street and he asked for a license and insurance and went back to his car, you know, told her to wait, told the Defendant to wait, and went back to his car to verify the information. Now, this is the part where as a defense attorney, that's a very important part that I often overlooked. You see, [the defense attorney] in his closing, he did not mention the Defendant driving off while [that officer] had her license and her insurance. He told her not to go anywhere. He didn't mention that [the officer] had put on his lights as well as his siren to pull the Defendant over. That's sort of the smoke and mirror stand. Not only did [the officer] pull the Defendant over for driving on the wrong side of the road—

Defense counsel interposed,

Your Honor, I'm going to object to that because, again, she's not charged with leaving the scene or eluding, that was misstating the evidence. That's not what she's charged with. The smoking mirror is an improper inference because it castigates bad intent on the defense for no reason in this case. That's part of the evidence that he can't use that type of analogy and make a personal attack on defense counsel.

The trial court ruled, “I don't think his comments—I think they purport with the evidence, even though it may or may not have been charged. I think it's permissible for him to draw attention to it.”

On appeal, Coghlan...