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Hines v. State

Court of Appeals of Georgia, Third Division

June 24, 2019


          DILLARD, C. J., GOBEIL and HODGES, JJ.

          Dillard, Chief Judge.

         Leon Hines appeals his convictions for possession of cocaine, fleeing or attempting to elude a police officer, and driving with a suspended license. Specifically, he argues that the trial court erred by admitting his driving record into evidence and giving an improper jury charge. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the record shows that on December 20, 2015, at around 2:30 a.m., a sergeant with the Covington Police Department was on patrol when he noticed a car traveling south without working headlights. The sergeant, who was also traveling south, pulled alongside the car at a red light to give the driver-later identified as Hines-a verbal warning to turn on his headlights. When the sergeant looked at Hines, who already had his window down, he noticed that his "eyes were real tired looking and saggy." Additionally, when Hines responded to the sergeant, his "speech was very, very slurred, so impaired." And believing that Hines might be under the influence of alcohol or drugs, the sergeant followed him when the light turned green and attempted to initiate a traffic stop. But when the sergeant activated his blue lights and sirens, Hines did not stop even though he had opportunities to do so.

         Eventually, after the sergeant followed Hines for roughly two and a half miles past several businesses where he could have pulled over and through a residential neighborhood, Hines stopped his vehicle at the backside of a subdivision in a cul-de-sac. Hines then remained inside his car for "a period of time," which was "very alarming." The sergeant and other officers on the scene drew their service weapons, and Hines eventually exited his vehicle. At this point, the officers could clearly smell that Hines was "under the influence of an intoxicant." As a result, the sergeant searched Hines's vehicle for any open containers of alcohol or intoxicants "as large as a liquor bottle or as small as a pill." And during the search, the sergeant discovered a cigarette box with a baggy of powdered cocaine inside of it. Additionally, a check on Hines's vehicle revealed that his driver's license had been suspended.

         Subsequently, Hines was charged, via accusation, with possession of cocaine, fleeing or attempting to elude an officer, driving under the influence less safe, and driving with a suspended license. Following a jury trial, Hines was acquitted of the DUI charge, but convicted of all other charged offenses. Hines then obtained new counsel and filed a motion for a new trial, which was ultimately denied. This appeal follows.

         1. Hines first argues that the trial court erred in admitting evidence of his Mississippi driving record, which revealed his prior DUI conviction, because it was unduly prejudicial. We disagree.

         A trial judge has broad discretion to determine what evidence will be admitted for review by a jury, and such evidentiary decisions will not be disturbed on appeal absent an abuse of discretion.[2] But here, while Hines challenged the admissibility of other aspects of his driving record, he never argued to the trial court that his prior DUI conviction should be excluded as unduly prejudicial. Nevertheless, under Georgia's "new" Evidence Code, the rulings related to this evidence are "subject to review on appeal for plain error affecting substantial rights."[3] And as explained by the Supreme Court of Georgia, "many provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when our courts consider the meaning of these provisions, they look to decisions of the federal appeals courts construing and applying the Federal Rules, especially the decisions of the Eleventh Circuit."[4]

         In reviewing trial court rulings for plain error, the Eleventh Circuit applies a four-pronged standard, which our Supreme Court has adopted.[5] First, there must be an "error or defect-some sort of deviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant."[6]Next, the legal error must be "clear or obvious, rather than subject to reasonable dispute."[7] Additionally, the error must have "affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings."[8] And finally, if the above three prongs are satisfied, the appellate court has "the discretion to remedy the error-discretion which ought to be exercised only if the error seriously affects the fairness, integrity[, ] or public reputation of judicial proceedings."[9] Importantly, under plain-error review, the defendant "bears the burden of persuasion with respect to prejudice, and must affirmatively show that the error probably [affected] the outcome below[.]"[10] This showing demands "some level of certainty and particularity."[11]

         Turning to the case at hand, when the State initially attempted to tender a copy of Hines's Mississippi driving record into evidence, it revealed one prior conviction for driving with a suspended license but his prior DUI conviction was redacted. The State explained that Hines's redacted driving record was necessary to show that his license was suspended on the night in question and he had been notified of the suspension.[12] Hines objected, and when the court asked him to state the reason for his objection, he contended that it was "extremely prejudicial to introduce a previous license[-]suspension charge[, ]" and "there are other ways that the State could have shown that he was provided notice that his license was suspended."

         After further discussion regarding other potential ways the State could make this showing, the trial court stated, "it looks like under Mississippi law the suspension results from the DUI conviction, according to this driver's history, not from the suspended[-]license conviction. So [the State] may have redacted the wrong offense . . . if [it's] looking to show notice." The State agreed and indicated that it would "create a new copy of [the driving record] with the correct redactions." As to altering the driving record so that only the DUI conviction was revealed, the trial court remarked, "I suspect that's not going to make [Hines] any happier[, ]" and Hines responded, "No, Your Honor." Ultimately, the court concluded,

I don't think the State has any other way to prove [notice] other than tendering a certified copy of the State of Mississippi Department of Public Safety showing [Hines's] DUI conviction[, ] which resulted in his suspension, showing that his license was suspended at the time and that the reinstatement date was September 25, 2016.

         Then, after a brief consultation with his attorney, Hines stated that he had "[n]othing further." Subsequently, before submitting the case to the jury at the conclusion of the trial, the trial court clarified that the version of Hines's driving record given to the jury would be the one showing his prior DUI conviction, but redacting his prior suspended-license offense. And Hines reiterated his objection to the admission of this evidence.

         Before we address Hines's arguments, we begin with first principles. As recently recognized by the Supreme Court of Georgia, the current Evidence Code "created a 'new evidence world' in this State."[13] Indeed, this relatively new code-which was modeled in large part on the Federal Rules of Evidence-is "far more extensive and comprehensive than the statutes it replaced . . . ."[14] And in adopting the new Evidence Code, the General Assembly directed courts to "look to the 'substantive law of evidence in Georgia as it existed on December 31, 2012,' only when not displaced by the new code" that took effect on January 1, 2013."[15] Suffice it to say, the current Evidence Code radically changed the jurisprudential landscape in Georgia.

         Relevant to this case, under the new Evidence Code, the rules on "Relevant Evidence and Its Limits" are found in Chapter 4.[16] And OCGA § 24-4-401 ("Rule 401") provides that "relevant evidence" means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."[17]Furthermore, under OCGA § 24-4-402 ("Rule 402"), all relevant evidence shall be admissible, "except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending."[18] And, of course, Rule 402 also provides that "[e]vidence which is not relevant shall not be admissible."[19]

         Morever, as explained by our Supreme Court, many "other rules" in the new Evidence Code "embody legislative policy decisions about the risks of prejudice associated with certain categories of evidence, including the 15 rules in Chapter 4 that authorize the exclusion of certain specific types of evidence."[20] But only one rule, authorizes the "exclusion of relevant evidence based on the court's evaluation of the 'prejudice' such evidence could cause: OCGA § 24-4-403 (Rule 403)."[21] Specifically, Rule 403 grants the trial court discretion to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."[22] This balancing test is codified at OCGA § 24-4-403, and while "the application of the Rule 403 test is a matter committed principally to the discretion of the trial courts, . . . the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly."[23]

         Here, citing only to the general standard for when to exclude relevant evidence, as delineated in Rule 403 supra, Hines argues that his driving record was inadmissible because "[t]he knowledge that a defendant had a prior conviction for [DUI] could prejudice a juror's decision on any future offense."[24] But Hines provides no legal authority for this conclusory contention, and significantly, although the jury was aware that he had a prior DUI conviction, he was acquitted of the DUI charge in this case. Further, the trial court found that this evidence was the only means by which the State could prove that Hines's license was suspended at the time of his arrest and he was on notice of the suspension, both of which are essential elements of driving with a suspended license.[25] Further, Hines-who refused to stipulate that he was aware of the license suspension-acknowledges that his redacted driving record was "clearly relevant" evidence to prove the elements of his offense. As explained supra, Rule 402 provides that all relevant evidence is admissible absent some specific statutory, rule-based, or constitutional exception excluding such elements.[26]

         In sum, we reiterate that, under plain-error review, Hines bears the burden of persuasion with respect to prejudice, and he is required to affirmatively show that the error probably did affect the outcome below.[27] And while Hines makes vague references to other possible ways the State could have proven the notice element of driving with a suspended license other than through his driving record, he does not identify any specific evidence available in this case that the State could have presented to prove that element of his offense.[28] Thus, under these particular circumstances, Hines has not shown that the admission of his prior DUI offense was an error, much less a clear and obvious ...

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