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Green v. State

Supreme Court of Georgia

October 31, 2019


          BETHEL, JUSTICE.

         Following his conviction for the murder of Janice Pitts, Dewey Calhoun Green appeals from the denial of his motion for a new trial.[1]Green argues numerous alleged errors, including that the trial court erroneously excluded two expert witnesses. Because we agree that the trial court abused its discretion in excluding the entire testimony of one of the expert witnesses, Sean Alexander, for Green's alleged failure to comply with the requirement set forth in OCGA § 17-16-4 (b), we reverse.

         1. This case calls for this Court to construe a provision of OCGA § 17-16-4. This particular provision has been the subject of few decisions by the appellate courts of Georgia. In pertinent part, the section provides:

The defendant shall within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the defendant intends to introduce in evidence in the defense's case-in-chief or rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than five days prior to trial . . . .

OCGA § 17-16-4 (b) (2). In order to exclude expert witness testimony under this statutory provision, the State must clear two hurdles. First, as a threshold matter, the State must show that the statute applies to the expert's testimony. If the statute does apply and the defendant fails to comply with OCGA § 17-16-4 (b) (2), then pursuant to objection and "upon a showing of prejudice and bad faith," the trial court may "prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances." OCGA § 17-16-6. See also Murphy v. State, 299 Ga. 238, 244 (3) (787 S.E.2d 721) (2016) (party seeking to exclude evidence under OCGA § 17-16-6 has the burden to show prejudice to the movant and bad faith by the party that failed to comply with OCGA § 17-16-4). We review the trial court's decision for an abuse of discretion. See Murphy, 299 Ga. at 244 (3).

         2. Viewed in the light most favorable to the verdicts, the evidence presented at trial shows the following. On June 25, 2014, Pitts was driving her SUV with her daughter and four-year-old grandson as passengers southbound on Highway 5 in Douglasville. As Pitts was switching from the left lane to the turn lane on a slight downhill, Green rear-ended her SUV. Pitts' daughter described the collision as not just a single hit by Green's truck, but rather a series of hits. Pitts and her daughter exited Pitts' SUV to survey the damage. Pitts' grandson, who was crying after the initial contact, remained in the SUV. When Pitts reached the back of her SUV and began examining it, Green's truck moved forward and hit Pitts, pinning her between the left rear corner of her SUV and the right front-end of his truck. Pitts' daughter was alongside Pitts' SUV when Green's truck hit her mother. Pitts' daughter then banged on Green's window in an effort get him to stop his truck. However, Green did not respond, and Pitts' daughter returned to the SUV in an effort to move it out of the way so that Green would stop crushing her mother. When her efforts failed, Green's daughter got back out of the SUV and started approaching the truck and her mother. However, Green backed up, [2] drove partly over a curb, and ran over Pitts, who had fallen to the ground. Pitts' daughter had to move out of the way of the oncoming truck. Green's truck then turned in front of Pitts' SUV and finally stopped on a hill in the grass in front of a nearby business. A man who witnessed the accident approached Green's truck, which had come to a rest on the hill, and shifted Green's truck into park. Police arrived on the scene and, after some investigation, arrested Green.[3] Pitts ultimately died from her injuries.

         On June 11, 2015, the parties appeared before the trial court to address the prosecution's request for reports and other medical records. At that hearing, the prosecutor requested "that the Court put a deadline on [defense counsel] for the evidence that he intends to bring forward so that I have ample time to examine and respond to this evidence in advance to [sic] the August 4 trial date." The parties had been discussing the expert witness Green had at the time - Dr. Horatio Capote. Defense counsel responded to the prosecutor's request and stated that Dr. Capote had not yet issued a report because he had been waiting on medical records from some of Green's healthcare providers, but that defense counsel would ask him for an expedited report. The prosecutor then responded, "So June the 20th, Judge?" The trial court confirmed summarily a "deadline date" of "June the 20th."[4]

         On June 19, Green's defense counsel emailed the prosecutor to inform him that counsel was in the process of obtaining a neurologist to testify, and that all potential names of expert neurologists would be forwarded by the June 20 deadline via supplemental discovery. Sean Alexander, an accident reconstructionist, and Richard Franco, a neurologist, were listed as two of several "may call" witnesses in the supplemental discovery submitted by Green to the State on June 20, which the State acknowledged receiving. The disclosure included their contact information but did not include reports.

         The prosecutor made some initial contact with these experts prior to trial.[5] On June 30, Green also filed an amended notice of an affirmative defense asserting amnesia, which Green claims summarized Alexander's opinion, although Alexander is not specifically named anywhere therein.[6]

         On July 22, the prosecutor emailed Green's counsel and asked whether Alexander was going to testify, and if so, whether the prosecutor could get a copy of his report. Defense counsel responded that same day and confirmed that Alexander would be testifying as an expert at trial, that he was expected to explain the vehicle damage and unguided uphill path of Green's vehicle, and that defense counsel would be meeting with Alexander later in the week. Defense counsel did not otherwise submit any written summary of Alexander's or Franco's opinions to the State prior to trial or seek an extension of time to do so from the court.

         The State finished presenting its case-in-chief at trial, and then moved to exclude Alexander and Franco from testifying based on Green's alleged failure to comply with OCGA § 17-16-4 (b). Thereafter, the trial court reviewed the email correspondence between the parties to determine whether the correspondence complied with the statute and with the June 20 deadline the trial court had ostensibly given for Dr. Capote's report. The trial court noted that the emails broadly discussed the experts' opinions, but did not set forth the bases for the opinions and omitted other critical details specific to their opinions. The trial court further found the defense's failure to comply with the requirement for written reports pursuant to OCGA § 17-16-4 (b) to be intentional and prejudicial to the State, and excluded Alexander and Franco from testifying at trial.[7]

         At trial, the State presented evidence that Green had trace amounts of sedatives in his blood and had been up late the night before the accident. It argued that he had acted intentionally in driving his truck into Pitts, although his judgment was impaired. The jury found Green guilty of all charges.

         At the motion for new trial hearing, Alexander testified that he examined both Green's and Pitts' vehicles, reviewed pictures taken at the scene and surveillance video showing the vehicles driving along a portion of the road, as well as a video of the vehicles taken by a bystander immediately following the collision, and made measurements of the vehicles and the scene which he then used to create three-dimensional maps. From this information, Alexander calculated a predicted speed for Green's truck and its path. Alexander also took a truck similar to Green's and, with the engine idling, let the truck roll from a stop along a path similar to that taken by Green's truck at the accident scene, noting its speed, which was comparable to the speed he had predicted based on his calculations.

         Alexander intended to testify at trial that, following the initial collision between the vehicles, Green's truck was idling and on an uncontrolled path when Pitts was struck. More specifically, Alexander would have testified that the vehicle damage he observed indicated that after the initial impact, Green's truck had been idling but moving forward against Pitts' SUV in a constant vibrating, slipping motion, creating the sensation of multiple impacts. At some point, Green's truck got stuck against the curb, and a V-shaped space between Green's truck and Pitts' SUV was created. While Pitts was standing in this space, the friction between the vehicles broke, ...

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