Scott v. State

332 Ga.App. 559

774 S.E.2d 137

SCOTT

v.The STATE.

No. A15A0740.

Court of Appeals of Georgia.

June 18, 2015.

Haddad Law Group, Juwayn Nadim Haddad, Decatur, for Appellant.

Russell Spivey Thomas, Solicitor-General, Atlanta, for Appellee.

Opinion

McMILLIAN, Judge.

Carol Scott was charged with driving under the influence to the extent it was less safe to drive in violation of OCGA § 40–6–391(a)(1) (“DUI less safe”), driving under the influence with a blood alcohol concentration in excess of the legal limit in violation of OCGA § 40–6–391(a) (5) (“DUI per se”), and failure to maintain lane in violation of OCGA § 40–6–48. A jury convicted Scott of DUI less safe and acquitted her of the remaining charges. Scott filed a motion for new trial, which the trial court denied following a hearing. She appeals, arguing that her trial counsel was ineffective and that the trial court erred in numerous ways, including by refusing to dismiss a juror, denying her motion in limine to exclude certain evidence, denying her motion for mistrial based on improper testimony, violating OCGA § 17–8–57, and refusing to give a requested jury charge. Having carefully considered these contentions, we now affirm.

The evidence, construed to support the jury's verdict,¹ shows that on the night of January 4, 2013, Trooper Thomas Bailey with the Georgia State Patrol initiated a traffic stop of the vehicle Scott was driving after he saw her cross at least one tire over the center line on four different occasions. Trooper Bailey noticed a very strong odor of an alcoholic beverage coming from inside the vehicle and asked Scott if she had been drinking. Scott told him that she had consumed one glass of wine, which Trooper Bailey did not think was consistent with the strong odor of alcohol he detected, and he asked Scott to step outside the vehicle. Trooper Bailey testified that the odor of alcohol coming from Scott's person as she stood outside the vehicle was “very intense,” and that he noticed she had other signs of impairment, such as blood shot, watery eyes. Based on these observations, Trooper Bailey asked Scott if she would submit to a preliminary roadside breath test. Scott said she would “rather not” take the roadside breath test, but agreed to submit to other field sobriety tests, including the horizontal gaze nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg-stand test. Trooper Bailey testified that based on his training and experience, Scott's performance on all three tests plus the other signs he had observed indicated to him that she was impaired and “didn't need to be driving.” He also testified that a recording of Scott performing the field sobriety tests was made by a video camera mounted inside his car, and that video was introduced by the State and played for the jury at trial.

Trooper Bailey placed Scott under arrest and read her the appropriate implied consent warning. Scott initially equivocated about whether she wanted to take the State's breath test, but she agreed to take the test before they arrived at the police station. Although Scott appeared to blow into the machine, she failed to give a sufficient sample for testing, and Trooper Bailey asked Scott if she would consent to a blood test instead. Scott consented and was transported to a local hospital. Subsequent testing at the Georgia Bureau of Investigation Crime Lab revealed that Scott's blood alcohol concentration level was 0.115 grams.

Other evidence will be set forth as necessary to address Scott's specific claims of error on appeal.

1. Scott first contends that the trial court erred by refusing to dismiss a juror for alleged improper contact with Trooper Bailey, who was the State's main witness at trial.

As to this issue, the transcript shows that immediately after the jury was selected, the trial court released the jurors for lunch with instructions that they not “discuss this case with anyone. You cannot discuss this case with any parties. You—and if anyone tries to talk to you about the case, you need to let the Bailiff know immediately upon reporting back for jury duty. But no one can talk to you.” However, when court reconvened, Scott's trial counsel informed the trial judge that it had been brought to his attention that as they broke for lunch, one of the jurors had made a hand gesture to Trooper Bailey, whom the State had identified as the arresting officer in the case prior to voir dire. Trial counsel requested and was granted permission to question Trooper Bailey, who stated that a juror had approached him, but that he did not know the juror and immediately made a gesture back to the juror to indicate that he could not talk to him. The prosecuting attorney also stated on the record that he saw the juror approach Trooper Bailey and that he also indicated to the juror that “this doesn't need to be occurring.” Both Trooper Bailey and the prosecuting attorney said there was no further communication between the juror and Trooper Bailey after this point.

Defense counsel then questioned the juror, who stated that he had approached Trooper Bailey and the State's attorney during the lunch break to say “hello,” but that was the extent of the communication. The juror also testified that he had met Trooper Bailey once before at a gas station and that they talked about fishing for approximately ten minutes. The trial court asked the juror if this previous contact with Trooper Bailey would prevent him from being fair and impartial, and the juror replied “[n]ot one bit.” Without elaborating, defense counsel then made a motion to replace the juror with the alternate, and the trial court denied the motion.

Scott now argues that the trial court erred by not dismissing the juror for the improper contact with the State's key witness. Additionally, Scott contends the improper contact issue is compounded by the juror's “critical revelation” that he had failed to disclose during voir dire that he had met and conversed with Trooper Bailey in the past.

Although Scott now argues that the disclosure of the brief conversation between the juror and Trooper Bailey was in “complete contradiction” to the juror's answers during voir dire, we do not have a transcript of the voir dire and thus can only rely on Scott's representation that the juror failed to raise his hand when trial counsel asked if anyone knew Trooper Bailey. Moreover, trial counsel did not avail himself of the opportunity to question the juror about his apparently contradictory answer and did not make any specific argument or mention this failure to disclose in support of his motion to replace the juror. Accordingly, we do not believe the juror's failure to disclose his prior, brief conversation with Trooper Bailey in response to an inquiry about whether he “knew” Trooper Bailey significantly impacts our analysis in this case.

In any event, we do not believe that the contact between the juror and Trooper Bailey entitles Scott to a new trial.

There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. However, a jury verdict will not be upset solely because of such conduct, unless the (conduct is) so prejudicial that the verdict must be deemed “inherently lacking in due process.” Our inquiry then must be directed to whether this error is so inherently prejudicial as to require a new trial, or whether it is an immaterial irregularity without opportunity for injury. Sims v. State, 266 Ga. 417, 419(3), 467 S.E.2d 574 (1996) (citations and punctuation omitted).

Simmons v. State, 291 Ga. 705, 707(4), 733 S.E.2d 280 (2012). In this case, we have little hesitancy in concluding that to the extent there was an improper communication between the juror and the State's witness, such communication was inconsequential. See Collins v. State, 290 Ga. 505, 506–507(3), 722 S.E.2d 719 (2012). The juror testified that he was merely attempting to say hello to the Trooper and that he had briefly talked to him on a prior occasion about fishing. Trooper Bailey did not remember meeting the juror, and it was undisputed that there was no prior relationship between the two beyond the brief conversation. The brief contact during the court recess did not involve an exchange of information about the case, and it does not appear that the juror attempted to communicate about the case, which was in line with the trial court's instructions. The juror unequivocally told the court that his prior contact with Trooper Bailey would not affect his ability to be a fair and impartial juror, and indeed the jury of which he was a member ultimately acquitted Scott of two of the three charges against her. The record before us thus leaves no reasonable doubt that the juror's contact with the State's witness caused no prejudice to Scott. Simmons, 291 Ga. at 707–708(4), 733 S.E.2d 280 ; Collins, 290 Ga. at 507(3), 722 S.E.2d 719.

2. Scott next contends that the trial court erred by denying her motion in limine seeking to prohibit the State from introducing evidence concerning an independent blood test. As to this issue, the record shows that on the eve of trial, Scott's trial attorney made a motion to exclude any reference to the independent test, which had been requested by Scott's previous attorney,² arguing that the State had not provided him with any proof that an independent test was actually performed. Thus, he argued, any reference by the State to an independent test that “may or may not have taken place” would be impermissibly burden shifting. Noting that this argument seemed to ignore that Scott, rather than the State, would have the results of any independent test, the trial court denied Scott's motion.

On appeal, Scott argues the trial court erred by denying her motion and points to “several instances throughout the trial where the independent blood test was referenced,” which she contends were highly prejudicial and...