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Gibbs v. State

Court of Appeals of Georgia, First Division

May 4, 2017

MILTON GIBBS
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Milton Gibbs appeals his convictions of DUI - less safe and failure to maintain lane. He argues that the trial court erred by admitting evidence of his prior DUI conviction and that his lawyer rendered ineffective assistance by failing to object to the admission of that evidence. We find no error and affirm.

         Viewed in a light favorable to the jury verdict, [1] the record shows that at approximately 3:00 a.m. on April 20, 2014, Gibbs drove his SUV off the roadway around a curve on a two-lane road in Douglas County. The SUV struck a telephone pole located approximately 30 feet off the road, breaking it in half, and came to rest in a ditch. Gibbs, who was not injured, called his brother-in-law for help removing the SUV from the ditch. After his brother-in-law arrived at the scene, Gibbs called his insurance company, which summoned a tow truck. The tow truck driver arrived and dialed 911 after seeing the damage to the telephone pole. A county sheriff's deputy was dispatched to the scene, and she requested that a Georgia State Patrol trooper investigate the accident.

         The trooper arrived at 5:42 a.m. and spoke with Gibbs, who told him that he had swerved to avoid hitting a deer that had run into the road. The trooper, however, saw no yaw or skid marks or any other evidence that Gibbs had swerved or braked. The trooper concluded that Gibbs's vehicle had simply "proceeded off the roadway . . . going straight towards the pole." The trooper noticed a "slight odor of alcoholic beverage coming from [Gibbs's] person and saw that his eyes were watery and bloodshot. The trooper asked Gibbs multiple times if he had been drinking, but Gibbs said no. Gibbs also denied spilling alcohol on his clothing or being around anyone that night who had been drinking. When the trooper got closer to Gibbs, he determined that the alcoholic smell was on Gibbs's breath. The trooper performed a horizontal gaze nystagmus ("HGN") test on Gibbs, which showed six out of six possible clues of impairment. Gibbs told the trooper that he had an astigmatism and weak muscle in one eye. The trooper responded that those conditions would neither cause nystagmus nor affect the HGN test, and the trooper later checked with a supervisor to confirm that assessment. The trooper was unable to administer other field sobriety tests because the terrain was unsuitable.

         The trooper asked Gibbs to take a portable breath test that would indicate the presence or absence of alcohol, but Gibbs refused. Gibbs told the trooper that he was afraid the test would detect medication, but the trooper assured him that it would not. The trooper asked whether Gibbs was on medication, and he said no. The trooper then arrested Gibbs, read him his implied consent rights, and asked him to submit to a state-administered test of his blood. Again, Gibbs refused. A video of the encounter taken from a camera in the trooper's patrol car was played for the jury.

         Gibbs was charged with failure to maintain lane and DUI - less safe. Before trial, the State notified Gibbs that it intended to introduce evidence of his prior DUI conviction. Defense counsel did not object to the admission of this evidence.[2] At trial, a Cobb County police officer testified that he stopped Gibbs after seeing him weaving on I-75 late one night in 2009; that he smelled alcohol on Gibbs's person but Gibbs denied drinking; that he administered the HGN test, which showed six out of six clues of impairment; that Gibbs agreed to take a portable breath test, which showed he had been drinking; and that Gibbs later consented to a state-administered Intoxilyzer test of his breath, which gave a reading of .110. Gibbs was arrested and later pled guilty to DUI. A certified copy of the conviction was entered into evidence.

         Gibbs took the stand in his own defense. He again claimed that he had not been drinking on the night of April 20, 2014 and that the accident had occurred because he swerved to avoid a deer. He also stated that he had a "lazy eye" that "wander[ed], " but he offered no proof that these conditions would have affected his performance on the HGN test. He testified that he refused to take the portable breath test because he "didn't feel that [he] needed to. [He] wasn't drinking."

         The jury found Gibbs guilty of both charges. He later filed a motion for new trial, making the same arguments he makes here - that the trial court erred by admitting the evidence of his prior DUI and that his trial counsel was ineffective for failing to object to that evidence under OCGA § 24-4-403 ("Rule 403"). The trial court denied the motion, ruling that the prior DUI was admissible under OCGA §§ 24-4-404 (b) ("Rule 404 (b)") and 24-4-417 ("Rule 417") and that it was not unduly prejudicial under Rule 403. Gibbs appeals.

         1. It is undisputed that Gibbs's trial counsel did not object to the admission of evidence concerning the prior DUI. Therefore, Gibbs waived any objection to the admissibility of that evidence. See Johnson v. State, 276 Ga.App. 505, 509 (3) (a) (623 S.E.2d 706) (2005) ("a defendant waives an objection to similar transaction evidence by not protesting its introduction at trial").

         2. Gibbs also argues that his trial counsel rendered ineffective assistance by failing to object to evidence of the prior DUI. To prevail on a claim of ineffective assistance of trial counsel, the defendant must show that his lawyer's performance was deficient and that he was prejudiced by the deficient performance. Aikens v. State, 297 Ga. 229, 231 (3) (773 S.E.2d 229) (2015). Because "[t]here is no deficient performance when an attorney fails to object to admissible evidence, " id., quoting Perera v. State, 295 Ga. 880, 884-885 (3) (b) (763 S.E.2d 687) (2014) (citation and punctuation omitted), we begin by addressing whether the evidence in question was admissible.

         Rule 417, enacted in 2011 as part of Georgia's new Evidence Code, [3] provides in relevant part that in DUI prosecutions, evidence that the accused committed another DUI on a different occasion "shall" be admissible when "[t]he accused refused in the current case to take the state administered test required . . . and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident." OCGA § 24-4-417 (a) (1). Based on the presence of the word shall, the Supreme Court concluded that Rule 417 "contains a presumption in favor of the admission of such evidence." (Citation omitted.) State v. Frost, 297 Ga. at 704. The Court further ruled that evidence of a prior DUI "could strengthen the inference that the factfinder could draw from [the accused's] refusal to take the state-administered test this time, that had he done so, it would have shown the presence of alcohol." Monroe v. State, 340 Ga.App. 373 (2) (__ S.E.2d __) (Case No. A16A1932, decided February 23, 2017), citing Frost, 297 Ga. at 304.

         Specifically, proof of Gibbs's prior DUI could allow the factfinder to infer that

[Gibbs] had an awareness that his ingestion of an intoxicant impaired his ability to drive safely. Such awareness, in turn, would offer an explanation for why [Gibbs] refused the test on this occasion, namely, that he was conscious of his guilt and knew that the test results likely would ...

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