Henry v. State

364 Ga.App. 307

874 S.E.2d 852

HENRY

v.STATE.

A20A0501

Court of Appeals of Georgia.

June 15, 2022

George Chadwell Creal Jr., Atlanta, for Appellant.

Patrician B. Attaway Burton, Christopher Michael Carr, Atlanta, Pamela M. Bettis, Joseph Lee Stone, Paula Khristian Smith, Atlanta, Jefferson Frisby Upchurch, for Appellee.

Hodges, Judge.

This case is back before this Court after having been remanded by the Supreme Court of Georgia. State v. Henry , 312 Ga. 632, 864 S.E.2d 415 (2021) (" Henry II "). After F. Bryant Henry was convicted for driving under the influence per se and failure to dim lights, he appealed the denial of his motion for new trial. This Court previously reversed that denial on the ground that Henry's trial counsel was ineffective for failing to seek to suppress the results of his State-administered blood test on the basis that he was not provided the opportunity to independently test his blood. Henry v. State , 355 Ga. App. 217, 222 (2), 843 S.E.2d 884 (2020) ( Henry I ). Our holding was rooted in the law at the time of Henry's trial, which provided that "[a]n accused's right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test." (Emphasis supplied.) Ladow v. State , 256 Ga. App. 726, 728, 569 S.E.2d 572 (2002). Our opinion held that, regardless of the propriety of the standard espoused by Ladow and its progeny, it was the law at the time of Henry's trial and it was the standard by which we would judge the reasonableness of Henry's counsel's actions. Henry I , 355 Ga. App. at 221 (2), n. 5, 843 S.E.2d 884.

The Supreme Court disagreed, finding that Henry could not be prejudiced by his counsel's deficiency if the law which counsel failed to invoke was unsound. Henry II , 312 Ga. at 635 (2), 864 S.E.2d 415 (finding that trial counsel cannot be found deficient for failing to anticipate changes in the law, but holding that the issue of prejudice "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair, and unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.") (citation and punctuation omitted). The Supreme Court then found Ladow and its progeny to be unsound and, as discussed further below, reversed that body of case law and the "reasonably could" standard they utilized. Id. at 639-640 (3) (c) - (d), 864 S.E.2d 415. The Supreme Court reversed our opinion, and remanded the case back to this Court for reconsideration in light of this change in the law. Id. at 640 (3) (d), 864 S.E.2d 415. Upon reconsideration on remand, we affirm the trial court's denial of Henry's motion for new trial.

In Henry II the Supreme Court adopted this Court's recitation of the facts of this case, which are as follows:

On the night of June 17, 2017, Henry was pulled over by a Georgia State Patrol trooper. The trooper observed Henry's vehicle with its bright lights on driving in the opposite direction from the trooper. When the trooper made contact with Henry, his eyes were bloodshot and watery, and his speech was slurred, though the trooper did not detect any smell of alcohol. Henry agreed to the trooper's request to perform field sobriety testing. Henry demonstrated four clues of impairment on the horizontal gaze nystagmus test, three clues of impairment on the walk and turn test, and two clues of impairment on the one-leg stand test. After several unsuccessful attempts to obtain a reading on the alco-sensor, Henry finally provided an adequate sample which registered positive for alcohol.

At that time, Henry was placed under arrest for driving under the influence of alcohol. The officer read Henry the age-appropriate implied consent notice, after which Henry asked the officer "[s]o you're gonna let me do the breathalyzer one more time?" The trooper responded that "[w]e're past that bridge. We're past it." The trooper read Henry the implied consent notice again, after which Henry said "so you are saying I can take, my blood, my blood, my doctor can do my blood test and all that?" The trooper responded to Henry's question by stating, "I need a yes or a no right now. I did not ask anything about your doctor. I said the State. Yes or no." Henry's response on the dash camera video is inaudible. The trooper then asked Henry "[i]s that a yes?" and Henry's response is again inaudible on the dash camera video. Although it is not discernible on the video, the trooper testified that Henry consented to a blood test in a soft voice.

Henry's blood was drawn at the jail, and testing performed by the GBI concluded that Henry's blood alcohol concentration was 0.085 grams per 100 milliliters of blood, with a variance, or margin of error, of plus or minus 0.004. Henry was charged by accusation of driving under the influence of alcohol per se, driving under the influence of alcohol to the extent he was less safe, failure to maintain a lane, and failure to dim headlights. Prior to trial, Henry's counsel secured an order to obtain additional independent testing of Henry's blood, but no additional testing was performed. Henry was convicted of driving under the influence per se and failure to dim lights, and he was acquitted of driving under the influence to the extent he was less safe and failure to maintain lane. Henry timely filed a motion for new trial, which the trial court denied following an evidentiary hearing. He then appealed.

(Punctuation omitted.) 312 Ga. at 633-634 (1), 864 S.E.2d 415.

Henry argues that his trial counsel was ineffective in several regards, which we will address in turn.¹ When this Court reviews a ruling on a claim of ineffective assistance of counsel

we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. To prevail on a claim of ineffective assistance of trial counsel, a defendant bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency. To demonstrate deficient representation, a convicted criminal defendant must show that counsel's representation fell below an objective standard of reasonableness.

(Citations and punctuation omitted.) Thrasher v. State , 300 Ga. App. 154, 684 S.E.2d 318 (2009).

a. Request for Independent Chemical Testing

As Henry II acknowledged,

Georgia law allows the results of chemical tests performed on the blood, urine, breath, or other bodily substances of persons accused of driving under the influence of alcohol, drugs, or other substances in violation of OCGA § 40-6-391 to be admitted into evidence. See OCGA § 40-6-392 (a). When such tests are performed at the behest of the State, OCGA § 40-6-392 (a) (3) provides that a suspect "may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer." Where an additional, independent chemical test is requested but not given, the law allows for the State's test to remain generally admissible as evidence against the driver where the failure to secure the independent test is "justifiable." OCGA § 40-6-392 (a) (3).

312 Ga. at 632, 864 S.E.2d 415.

At the time of Henry's trial, the law provided that "[a]n accused's right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test." (Emphasis supplied.) Ladow , 256 Ga. App. at 728, 569 S.E.2d 572. As we recited in Henry I , "after Henry was read the implied consent notice and asked to consent to a blood test for the second time, he asked the trooper, ‘so you are saying I can take, my blood, my blood, my doctor can do my blood test and all that?’ The trooper responded to Henry's question by stating, ‘I need a yes or a no right now. I did not ask anything about your doctor. I said the State. Yes or no.’ " 355 Ga. App. at 221 (2), 843 S.E.2d 884. Relying on Ladow and other cases following it, we found this statement ambiguous and thus held that it "reasonably could" have been a request for independent chemical testing. See id. at 220-221 (2), 843 S.E.2d 884. Accordingly, we found that Henry's trial counsel was ineffective for failing to move to suppress the blood result because he made a strong showing that such a motion would have been granted. Id. at 222 (2), 843 S.E.2d 884.

On certiorari, the Supreme Court found the reasoning of Ladow and its progeny unsound. It held

[w]hile the term "justifiable" is not explicitly defined in OCGA § 40-6-392 (a) (3), the context of the statute's language makes clear that the "justifiable failure or inability to obtain an additional test" refers to the officer's failure or inability to obtain the additional test, not the defendant's. Thus, it is the officer's conduct that must be justified in order for the State's test to be admissible.... While there may be various excuses or reasons that could justify a law enforcement officer's failure or inability to obtain additional, independent chemical testing, the only relevant excuse at issue here is a law enforcement officer's explanation that the officer did not understand that the defendant wanted such testing. When a reasonable officer would understand that a suspect has requested an additional, independent chemical test but ignores that request, that failure is not justifiable. But when a reasonable officer would not understand that a suspect has made a request for additional, independent chemical testing, the failure to obtain such testing is justifiable. An officer does not unjustifiably

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