Scott v. the State
332 Ga. App. 559
Ga. Ct. App.2015Background
- Carol Scott was tried for DUI (less safe and per se) and failure to maintain lane; jury convicted only on DUI less safe.
- Trooper Thomas Bailey stopped Scott after observing lane departures, detected a strong odor of alcohol, and administered HGN and other field sobriety tests; video of the tests was played to the jury.
- Scott refused a valid roadside breath test, attempted the State breath test but gave an insufficient sample, consented to a blood draw, and the GBI lab reported BAC 0.115 g.
- During trial a juror briefly approached Trooper Bailey during lunch and had previously met him once; the trial court questioned the juror and denied defense counsel’s request to replace him.
- Defense sought to exclude references to an independent blood test (obtained by prior counsel); the trial court allowed limited reference.
- Scott argued trial-court error for admitting Trooper Bailey’s opinion testimony, asserted judicial bias under OCGA § 17-8-57, sought a special jury charge on HGN/BAC inference, and claimed ineffective assistance for failing to object to certain testimony; the court rejected these claims and affirmed.
Issues
| Issue | Scott's Argument | State's Argument | Held |
|---|---|---|---|
| Juror contact with State witness | Juror’s approach and undisclosed prior meeting with Trooper Bailey prejudiced Scott and warranted replacement/new trial | Contact was brief, non-substantive, juror said prior meeting wouldn’t affect impartiality, and no communication about the case occurred | No reversible prejudice; trial court did not err in refusing to replace juror |
| References to independent blood test / motion in limine | References were impermissible burden-shifting because defense did not produce results; should be excluded | Scott had obtained an independent test and contested State’s blood-collection process; limited references were responsive and not prejudicial | Denial of motion proper; passing references did not require new trial |
| Trooper opinion testimony on ultimate issue | Trooper’s statements that Scott was “obviously impaired” invaded jury’s province | Police officer may give opinion testimony on sobriety and safety to drive based on training and testing | Admissible; trial court properly allowed opinion and gave curative instruction |
| Alleged trial-court bias (OCGA § 17-8-57) | Multiple comments and interventions showed court favored the State and expressed opinions on factual disputes | Remarks were routine, often outside jury presence, or not expressing opinion on disputed fact; no intimation of guilt | No violation of OCGA § 17-8-57; cumulative remarks did not require reversal |
| Requested jury charge re: HGN cannot quantify BAC | Requested instruction that HGN/field tests cannot be used to quantify BAC over .10 should have been given (relying on Bravo) | Testimony describing correlation or error rates is admissible; Bravo addressed narrower, more specific numeric identification from HGN alone | Trial court did not err in refusing the requested charge |
| Ineffective assistance for not objecting to additional testimony | Counsel’s failure to object to certain opinion testimony was deficient | Objecting would have been meritless because testimony was admissible | No ineffective-assistance: no prejudice because objections lacked merit |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence)
- Simmons v. State, 291 Ga. 705 (Ga. 2012) (presumption of prejudice for juror irregularity and burden on State to show no harm)
- Collins v. State, 290 Ga. 505 (Ga. 2012) (brief juror contact may be inconsequential)
- Jaffray v. State, 306 Ga. App. 469 (Ga. Ct. App. 2010) (officer may give opinion on sobriety/less safe to drive)
- Bravo v. State, 304 Ga. App. 243 (Ga. Ct. App. 2010) (limitations on numeric BAC identification from HGN evidence)
- Kirkland v. State, 253 Ga. App. 414 (Ga. Ct. App. 2002) (field sobriety tests admissible to show BAC exceeds impairing level)
- Paslay v. State, 285 Ga. 616 (Ga. 2009) (judge–counsel colloquies on admissibility do not ordinarily implicate OCGA § 17-8-57)
- Bonner v. State, 295 Ga. 10 (Ga. 2014) (no ineffective assistance where objections would be meritless)