State v. Johnson

354 Ga.App. 447

841 S.E.2d 91

The STATE

v.JOHNSON.

A19A2320

Court of Appeals of Georgia.

March 12, 2020

Donald R. Donovan, District Attorney, Anthony Brett Williams, Ashley Suzanne Cox, Assistant District Attorneys, for Appellant.

Keenan Joel Parsons, Hunter Joseph Rodgers, for Appellee

Hodges, Judge.

This appeal concerns two cases pending against Anthony Johnson in Paulding County in which he is accused, among other crimes, of driving under the influence of alcohol to the extent he was less safe ( OCGA § 40-6-391 (a) (1) ). The State sought to introduce a prior DUI arrest in both cases pursuant to OCGA §§ 24-4-417 and 24-4-404, which the trial court denied. The State appealed, contending that (1) the trial court erred in refusing to admit the prior arrest pursuant to OCGA § 24-4-417 on the ground that the Georgia and United States Constitutions prohibit its admission; and (2) the trial court abused its discretion in denying its motion to admit the prior act evidence pursuant to OCGA § 24-4-404 (‘‘Rule 404’’). This appeal was previously transferred by this Court to the Supreme Court of Georgia because the appeal concerns the constitutionality of evidentiary admission of refusals to consent to State-administered breath tests. The Supreme Court transferred the case back to this Court following its opinion in Elliott v. State , 305 Ga. 179, 824 S.E.2d 265 (2019), as the appeal no longer presents a novel constitutional question. Following this transfer, we find that the trial court correctly determined that the State cannot comment on Johnson's invocation of his right not to incriminate himself by refusing a breath test. However, we find that evidence of Johnson's refusal of the blood test is admissible and that the trial court failed to analyze whether the prior arrest was otherwise admissible. For these reasons, we vacate the opinion of the trial court and remand the case with instruction.

"A trial court's decision to admit [or exclude] other acts evidence will be overturned only where there is a clear abuse of discretion." State v. Jones , 297 Ga. 156, 159 (1), 773 S.E.2d 170 (2015). "[E]ven where a trial court's ultimate ruling is subject to only an abuse of discretion review, the deference owed the trial court's ruling is diminished when the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree." (Citation and punctuation omitted.) State v. Atkins , 304 Ga. 413, 417 (2), 819 S.E.2d 28 (2018). However, when the issue presented involves only the interpretation of a statute, such is a question of law which this Court reviews de novo. State v. Walker , 342 Ga. App. 733, 805 S.E.2d 262 (2017).

Here, the evidence shows that on February 7, 2015, an officer conducted a traffic stop of Johnson's vehicle, purportedly after witnessing Johnson remain stopped at a green light for several seconds, make a wide turn, and fail to maintain his lane. In the citation written by the officer, he contends Johnson was slow to react to him, slurred his speech, needed questions repeated to him, and smelled of alcohol. The parties agree that the officer arrested Johnson, who then refused to submit to the State-administered testing that was requested.¹ As a result of this, Johnson was cited with, among other crimes, driving under the influence to the extent he was less safe ( OCGA § 40-6-391 (a) (1) ).

The evidence also shows that while these charges were pending, Johnson was pulled over again on November 10, 2015. On that occasion, according to the citation issued, Johnson struck a police vehicle which was stopped on the side of the roadway. The officer claimed that he smelled alcohol on Johnson and that Johnson admitted to having had a beer about an hour before. The officer further claimed in the citation that Johnson offered to "blow" and had several unsuccessful attempts at providing a sufficient breath sample on the alco-sensor, before ultimately providing an adequate sample which registered as positive for alcohol.² The parties agree that Johnson was then arrested and refused to submit to the State-administered testing that was requested. As a result of this arrest, Johnson was charged with, among other crimes, driving under the influence to the extent it was less safe ( OCGA § 40-6-391 (a) (1) ).

In both of these cases, the State sought to introduce a prior DUI arrest by filing a notice of intent to produce other act evidence pursuant to OCGA §§ 24-4-404 and 24-4-403, as well as a separate notice of intent to introduce other act evidence pursuant to OCGA § 24-4-417. The evidence the State sought to introduce was a 2010 arrest for driving under the influence of alcohol to the extent it was less safe, which resulted in Johnson pleading guilty to reckless driving in 2012. The citation issued by police for that incident claims that an officer arrived on the scene after Johnson struck a utility pole, and that the officer smelled alcohol on Johnson. The citation indicates that Johnson admitted having had a beer earlier as well as previously taking Oxycontin, Oxycodone, Soma, and Xanax. The parties agree that Johnson was arrested and then refused to consent to the State-administered testing that was requested.

Following a single hearing covering all notices filed in both cases, the trial court refused to permit introduction of the prior 2010 DUI arrest under either OCGA § 24-4-417 or § 24-4-404. Relying on the Supreme Court's decision in Olevik v. State , 302 Ga. 228, 806 S.E.2d 505 (2017), the trial court found that

Paragraph XVI of the Georgia Constitution or the Fourth Amendment of [the] United States Constitution precludes the State from using Mr. Johnson's refusals, in the 2010 arrest or the current cases, against him at trial. Mr. Johnson had a right not to incriminate himself under the Georgia Constitution when requested to submit to a [S]tate-administered breath test and he had a right under the United States Constitution when requested to submit to a [S]tate[-]administered blood test.

The State timely appeals this order.

1. The State first contends that the trial court erred in refusing to admit the prior 2010 arrest pursuant to OCGA § 24-4-417 on the ground that the Georgia and United States Constitutions prohibit its admission. We find that the trial court correctly found evidence of Johnson's refusal to consent to breath testing to be inadmissible, but erred in finding Johnson's refusal to submit to blood testing inadmissible. We also find that the analysis conducted by the trial court is incomplete as to whether evidence of the arrest was otherwise admissible. Accordingly, we vacate the trial court's refusal to admit the evidence pursuant to OCGA § 24-4-417 and remand with instruction.

The parties do not dispute the facts at this stage, and the trial court made no factual findings in its order. As a result, we review de novo the trial court's interpretation of the admissibility of the prior DUI under OCGA § 24-4-417 and apply a plain legal error standard of review. See Patel v. State of Ga. , 341 Ga. App. 419, 801 S.E.2d 551 (2017) ("We begin by noting that the interpretation of a statute is a question of law, which we review de novo on appeal. Moreover, because the trial court's ruling on a legal question is not due any deference, we apply the ‘plain legal error’ standard of review.") (citation and punctuation omitted).

So viewed, OCGA § 24-4-417 provides, in part:

(a) In a criminal proceeding involving a prosecution for a violation of Code Section 40-6-391,^{[3 ]} evidence of the commission of another violation of Code Section 40-6-391 on a different occasion by the same accused shall be admissible when:

(1) The accused refused in the current case to take the state administered test required by Code Section 40-5-55⁴ and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident[.]

Here, it is undisputed that this case "involv[es] a prosecution for a violation of Code Section 40-6-391 [,]" and the parties stipulated that Johnson refused either blood or breath State-administered tests after being arrested in all three incidents. Accordingly, before the trial court, the State contended that it could introduce the prior 2010 DUI arrest, including the fact that Johnson refused State-administered testing on that prior occasion as well, to show knowledge, plan, and absence of mistake or accident. Specifically, the State contended below that

the other acts evidence that the State seeks to admit in this case is relevant to prove [Johnson's] knowledge, plan, and absence of mistake or accident because based on prior occasions on which [Johnson] had driven under the influence, [Johnson] had an awareness that his ingestion of an intoxicant impaired his ability to drive safely. Furthermore, it shows he was conscious of his guilt and knew that the test results likely would tend to show that he was under the influence. In addition, [Johnson] acquired the knowledge about the means that law enforcement officers use to determine whether and to what extent a driver is under the influence.

During the hearing before the trial court, the State further claimed that it intended to use the evidence of the prior DUI arrest to demonstrate that Johnson "learned what he should do when it comes to field sobriety evaluations and the State administered test" as a result of his prior refusal.

Following the trial court's order excluding the prior DUI arrest evidence, the State appealed this case to this Court in Case No. A18A1093; however, given that the case then presented a novel constitutional question, the case was transferred to the Supreme Court where it was docketed as Case No. S19A0272. While the State's appeal was pending before the Supreme Court, the Elliott case was decided. 305 Ga. 179, 824 S.E.2d 265. In Elliott , the Supreme Court acknowledged its prior holding in the Olevik case, which relied on Paragraph XVI of the Bill of Rights of the Georgia Constitution ("Paragraph XVI")...