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Scott v. State

Court of Appeals of Georgia

June 18, 2015

SCOTT
v.
THE STATE

Page 138

DUI, etc. Putnam State Court. Before Judge Gailey.

Haddad Law Group, Juwayn N. Haddad, for appellant.

Russell S. Thomas, Solicitor-General, for appellee.

MCMILLIAN, Judge. Barnes, P. J., concurs. Ray, J., concurs in Divisions 1, 3, 4, 5 and 6, and in judgment only as to Division 2.

OPINION

Page 139

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

Page 140

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 [332 Ga.App. 560] as bloodshot, 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 ...


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