Samuels v. State

335 Ga.App. 819

783 S.E.2d 344

SAMUELS

v.The STATE.

No. A15A1804.

Court of Appeals of Georgia.

Feb. 25, 2016.

Justin David Maines, Savannah, for Appellant.

Margaret Heap, Andre Pretorius, Vandana Murty, for Appellee.

DILLARD, Judge.

Following trial, a jury convicted Martina Samuels of one count of driving under the influence of alcohol to the extent it was less safe for her do to so (DUI less safe) and one count of disorderly conduct. On appeal, Samuels contends that the trial court erred in admitting hospital records because these records constituted hearsay and violated her right to confrontation, and in failing to rebuke the State's prosecutor and provide sufficient curative instructions when the prosecutor made improper comments during closing argument. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that around 10:30 p.m. on May 22, 2012, the Savannah– Chatham Metropolitan Police Department received a 911 call from a motorist traveling on a nearby section of the interstate, indicating that another vehicle had been involved in an accident. Within a few minutes, a dispatched patrol officer arrived on the scene and observed that an SUV had crashed into the guardrail on the shoulder of the interstate, spun around, and come to rest facing oncoming traffic. Upon making contact with the driver of the SUV (ultimately identified as Samuels), and the three passengers, the officer determined that no one seemed to be seriously injured. However, the officer also noticed an alcoholic-beverage odor upon speaking with Samuels.

Shortly thereafter, two other patrol officers arrived on the scene, and both also noticed an alcoholic-beverage odor when speaking to Samuels. In addition, one of the officers observed that Samuels seemed unsteady on her feet and slurred her speech. Samuels admitted to drinking a beer earlier that afternoon, and one of the officers administered an alco-sensor breath test, which returned a positive result. One of the officers then asked Samuels to perform the ABC test, which she failed. Consequently, the officers decided that Samuels was impaired and, therefore, arrested her for DUI less safe. At that point, Samuels became belligerent and began punching one of the officers. But the officers quickly subdued and handcuffed her, and EMTs then transported her to the hospital. There, Samuels refused treatment and the State-administered breath test, and one of the officers took her to jail after hospital staff confirmed that she was not seriously injured.

The State later charged Samuels, via accusation, with one count each of DUI less safe, endangering a child by DUI, driving too fast for conditions, disorderly conduct, and simple battery. At Samuels's trial, the three police officers who were dispatched to the scene of the accident testified regarding their investigation, and the State introduced, over Samuels's objection, hospital records, which were completed the night of the accident and which noted that Samuels presented as "intoxicated." Samuels also testified in her own defense, and at the conclusion of her trial, the jury convicted her on the charges of DUI less safe and disorderly conduct but acquitted her on all the other charges. Subsequently, Samuels filed a motion for new trial, which the trial court denied. This appeal follows.

1. In her first enumeration of error, Samuels contends that the trial court erred in admitting the hospital records, which stated that she presented as "intoxicated." Specifically, she argues that the records constituted inadmissible hearsay, not subject to the business- records exception, and violated the Sixth Amendment's Confrontation Clause.² We disagree.

At the outset, we note that, as a general rule, "admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse."³ Turning first to Samuels's contention that the hospital records violated her Sixth Amendment right to confront witnesses, in Crawford v. Washington,⁴ the Supreme Court of the United States held that "the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination."⁵ And statements are "testimonial in nature" when their "primary purpose" is to "establish or prove past events potentially relevant to later criminal prosecution."⁶ Nevertheless, statements made by witnesses to questions of investigating officers are "nontestimonial when they are made primarily to enable police assistance to meet an ongoing emergency."⁷

Here, the hospital records at issue consist primarily of an "Emergency Department Assessment Sheet," which on the first page under "Triage/Initial Assessment" notes that "PT PRESENTS TO ER S/P MVC AND INTOXICATED. NEEDS TO BE CLEARED TO GO TO JAIL." Samuels argues that the admission of this document violated the Confrontation Clause because no one responsible for completing the form testified at trial. However, the Supreme Court of Georgia has specifically held that "[m]edical records created for treatment purposes are not testimonial."⁸ And in this matter, Samuels's hospital records are not testimonial in nature because "the circumstances surrounding their creation and the statements and actions of the parties objectively indicate that the records were prepared with a primary purpose of facilitating [her] medical care."⁹ Indeed, despite describing Samuels as intoxicated, the records at issue were not requested by the investigating police officers for the purpose of aiding the State's prosecution, but rather, were simply emergency room intake forms that are completed for every incoming patient. Given these particular circumstances, the hospital records were not testimonial in nature, and thus, their admission did not violate Samuels's rights under the Confrontation Clause.¹⁰

Turning now to Samuels's hearsay objection to the records, this Court has previously held that "[o]nce a determination is made that a statement is nontestimonial for purposes of the Confrontation Clause, the statement is admissible if it falls under one or more exceptions to the rule against hearsay." ¹¹

In this matter, prior to Samuels's trial, the State filed a notice of its intent to offer records into evidence¹² under OCGA §§ 24–8–803 and 24–9–902.¹³ And following pretrial argument, the trial court ruled that the hospital records were admissible under OCGA § 24–8–803(6), the business-records exception to hearsay. Samuels argues that the trial court erred in doing so, but we disagree.

In considering this aspect of Samuels's argument, we necessarily begin our analysis with the text of OCGA § 24–8–803(6), which provides:

Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24–9–902 or by any other statute permitting certification. The term "business" as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit ....

As this Court has previously explained, because our new Evidence Code is comparable to the Federal Rules of Evidence, this Court will "give consideration and great weight to constructions placed on the Federal Rules by the federal courts."¹⁴ And those courts have held that "hospital records, including medical opinions, are ... admitted under [Federal Rule of Evidence 803(6) ], which expressly permits ‘opinions' and ‘diagnoses.’ "¹⁵ Given this construction of Federal Rule of Evidence 803(6),¹⁶ the fact that OCGA § 24–8–803(6) is nearly identically worded,¹⁷ and, as previously noted, the fact that these records were made to facilitate Samuels's treatment and not in anticipation of prosecution, the trial court did not err in admitting the hospital records under OCGA § 24–8–803(6).¹⁸

2. Samuels also contends that the trial court erred in failing to rebuke the State's prosecutor and failing to provide sufficiently curative instructions when the prosecutor claimed during closing argument that the hospital records indicated Samuels had a history of alcohol abuse. We disagree.

OCGA § 17–8–75 provides that when

counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

And it is well established that the decision of whether to grant a mistrial because of improper conduct by counsel rests with the trial court, and such decision will not be overturned absent a manifest abuse of discretion.¹⁹ Indeed, this Court has repeatedly held that

if the trial judge acts immediately, and in the exercise of his discretion takes such action as in his judgment prevents harm to the accused as a result of such improper statements, a new trial will not be granted unless it is

...