Janasik v. State
323 Ga. App. 545
| Ga. Ct. App. | 2013Background
- On Nov. 15, 2007 Trooper Collins stopped Andrew Janasik for failing to wear a seat belt and weaving between lanes; officer smelled alcohol, observed bloodshot eyes, slurred speech, unsteadiness, and Janasik refused breath test. Field sobriety HGN showed 6/6 clues; Janasik declined other tests claiming an ankle injury. He was arrested and refused chemical testing.
- The State introduced a February 25, 2007 similar-transaction incident where Officer LaCompt observed similar driving, odor of alcohol, unsteady gait, slurred speech, refusal of FSTs and refusal of breath test; that incident had produced a prior DUI conviction.
- Janasik was convicted by a jury of less-safe DUI, failure to maintain lane, and seat belt violation; he filed a motion for new trial which was denied and he appealed.
- Major issues on appeal: admissibility and use of similar-transaction evidence (and related prosecutorial argument), whether defense counsel was ineffective for not seeking a contemporaneous limiting instruction, whether the court should have struck Juror No. 2 for cause, and whether the court erred in refusing a continuance/mistrial or in not compelling the defense expert Dr. Citron to testify when he did not appear.
- The trial court admitted the similar-transaction evidence under Georgia precedent in effect at trial; limiting instructions were given before closing and in the general charge. The court refused to strike Juror No. 2. The court denied continuance/mistrial relating to Dr. Citron after defense released him from subpoena and failed to proffer his expected testimony.
Issues
| Issue | Janasik's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of similar-transaction evidence / failure to weigh unfair prejudice | Trial court admitted similar-acts without properly weighing unfair prejudice; prosecutor then argued propensity | Evidence admissible under Georgia precedent for bent-of-mind / course-of-conduct; no contemporaneous objection to propensity argument | Affirmed — court presumed proper hearing absent transcript; evidence admissible under controlling law; propensity argument objection waived for lack of contemporaneous objection |
| Ineffective assistance — counsel failed to request contemporaneous limiting instruction | Counsel ineffective for not seeking limiting instruction when similar-transaction testimony was introduced | Counsel gave opening that alerted jury and later requested limiting instructions; jury was instructed twice | Denied — no deficient prejudice shown; limiting instruction was given before closing and in general charge |
| Juror challenge for cause (Juror No. 2) | Juror had expressed views against drinking and driving and said he would rely on an arrest to conclude guilt; should have been struck | Juror equivocal, had personal experience, said he could rely on officer but would consider evidence; not fixed against defendant | Denied — trial court did not abuse discretion; juror’s answers not so fixed as to prevent impartiality |
| Failure of defense expert to appear; denial of continuance/mistrial/compel witness; ineffective assistance for not producing testimony | Trial court should have continued, compelled Dr. Citron, or declared mistrial; counsel ineffective for releasing subpoena and promising jury testimony | Defense released witness and failed to meet OCGA §17-8-25 continuance requisites; no proffer or affidavit of expected testimony to show materiality or prejudice | Denied — no abuse of discretion on continuance/mistrial; court could not compel a released witness; ineffective assistance fails because appellant did not prove what the expert would have testified to |
Key Cases Cited
- Reed v. State, 291 Ga. 10 (Georgia precedent on review of similar-transaction evidence)
- Newton v. State, 313 Ga. App. 889 (course-of-conduct and bent-of-mind were permissible purposes pre-2013 evidentiary code)
- Guild v. State, 234 Ga. App. 862 (presumption of correct similar-transaction proceedings where hearing transcript is absent)
- Bailey v. State, 309 Ga. App. 473 (requirements under OCGA § 17-8-25 for continuance due to absent witness)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of evidence)