Kemar Henry v. State ( 2022 )

THIRD DIVISION
DOYLE, P. J.,
MCFADDEN, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
June 15, 2022
In the Court of Appeals of Georgia
A20A0501. HENRY v. STATE.
HODGES, Judge.
This case is back before this Court after having been remanded by the Supreme
Court of Georgia. State v. Henry, 312 Ga. 632 (864 SE2d 415) (2021) (“Henry II”).
After F. Bryant Henry was convicted for driving under the influence per se and failure
to dim lights, he appealed the denial of his motion for new trial. This Court
previously reversed that denial on the ground that Henry’s trial counsel was
ineffective for failing to seek to suppress the results of his State-administered blood
test on the basis that he was not provided the opportunity to independently test his
blood. Henry v. State, 355 Ga. App. 217, 222 (2) (843 SE2d 884) (2020) (Henry I).
Our holding was rooted in the law at the time of Henry’s trial, which provided that
“[a]n accused’s right to have an additional, independent chemical test or tests
administered is invoked by some statement that reasonably could be construed, in
light of the circumstances, to be an expression of a desire for such test.” (Emphasis
supplied.) Ladow v. State, 256 Ga. App. 726, 728 (569 SE2d 572) (2002). Our
opinion held that, regardless of the propriety of the standard espoused by Ladow and
its progeny, it was the law at the time of Henry’s trial and it was the standard by
which we would judge the reasonableness of Henry’s counsel’s actions. Henry I, 355
Ga. App. at 221 (2), n. 5.
The Supreme Court disagreed, finding that Henry could not be prejudiced by
his counsel’s deficiency if the law which counsel failed to invoke was unsound.
Henry II, 312 Ga. at 635 (2) (finding that trial counsel cannot be found deficient for
failing to anticipate changes in the law, but holding that the issue of prejudice
“focuses on the question whether counsel’s deficient performance renders the result
of the trial unreliable or the proceeding fundamentally unfair, and unreliability or
unfairness does not result if the ineffectiveness of counsel does not deprive the
defendant of any substantive or procedural right to which the law entitles him.”)
(citation and punctuation omitted). The Supreme Court then found Ladow and its
progeny to be unsound and, as discussed further below, reversed that body of case
law and the “reasonably could” standard they utilized. Id. at 639-640 (3) (c) - (d). The
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Supreme Court reversed our opinion, and remanded the case back to this Court for
reconsideration in light of this change in the law. Id. at 640 (3) (d). Upon
reconsideration on remand, we affirm the trial court’s denial of Henry’s motion for
new trial.
In Henry II the Supreme Court adopted this Court’s recitation of the facts of
this case, which are as follows:
On the night of June 17, 2017, Henry was pulled over by a Georgia State
Patrol trooper. The trooper observed Henry’s vehicle with its bright
lights on driving in the opposite direction from the trooper. When the
trooper made contact with Henry, his eyes were bloodshot and watery,
and his speech was slurred, though the trooper did not detect any smell
of alcohol. Henry agreed to the trooper’s request to perform field
sobriety testing. Henry demonstrated four clues of impairment on the
horizontal gaze nystagmus test, three clues of impairment on the walk
and turn test, and two clues of impairment on the one-leg stand test.
After several unsuccessful attempts to obtain a reading on the
alco-sensor, Henry finally provided an adequate sample which registered
positive for alcohol.
At that time, Henry was placed under arrest for driving under the
influence of alcohol. The officer read Henry the age-appropriate implied
consent notice, after which Henry asked the officer “[s]o you’re gonna
let me do the breathalyzer one more time?” The trooper responded that
“[w]e’re past that bridge. We’re past it.” The trooper read Henry the
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implied consent notice again, after which Henry said “so you are saying
I can take, my blood, my blood, my doctor can do my blood test and all
that?” The trooper responded to Henry’s question by stating, “I need a
yes or a no right now. I did not ask anything about your doctor. I said
the State. Yes or no.” Henry’s response on the dash camera video is
inaudible. The trooper then asked Henry “[i]s that a yes?” and Henry’s
response is again inaudible on the dash camera video. Although it is not
discernible on the video, the trooper testified that Henry consented to a
blood test in a soft voice.
Henry’s blood was drawn at the jail, and testing performed by the GBI
concluded that Henry’s blood alcohol concentration was 0.085 grams
per 100 milliliters of blood, with a variance, or margin of error, of plus
or minus 0.004. Henry was charged by accusation of driving under the
influence of alcohol per se, driving under the influence of alcohol to the
extent he was less safe, failure to maintain a lane, and failure to dim
headlights. Prior to trial, Henry’s counsel secured an order to obtain
additional independent testing of Henry’s blood, but no additional
testing was performed. Henry was convicted of driving under the
influence per se and failure to dim lights, and he was acquitted of
driving under the influence to the extent he was less safe and failure to
maintain lane. Henry timely filed a motion for new trial, which the trial
court denied following an evidentiary hearing. He then appealed.
(Punctuation omitted.) 312 Ga. at 633-634 (1).
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Henry argues that his trial counsel was ineffective in several regards, which we
will address in turn.1 When this Court reviews a ruling on a claim of ineffective
assistance of counsel
we accept the trial court’s factual findings and credibility determinations
unless clearly erroneous, but we independently apply the legal principles
to the facts. To prevail on a claim of ineffective assistance of trial
counsel, a defendant bears the burden of showing both that trial counsel
was deficient and that he was prejudiced by the deficiency. To
demonstrate deficient representation, a convicted criminal defendant
must show that counsel’s representation fell below an objective standard
of reasonableness.
(Citations and punctuation omitted.) Thrasher v. State, 300 Ga. App. 154 (684 SE2d
318) (2009).
a. Request for Independent Chemical Testing
As Henry II acknowledged,
Georgia law allows the results of chemical tests performed on the blood,
urine, breath, or other bodily substances of persons accused of driving
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Henry also argued that OCGA § 40-6-392 is unconstitutional because it
violates his right to confront his accusers, so he originally filed his appeal in the
Supreme Court. The Supreme Court found this enumeration waived, and thus decided
it did not have original appellate jurisdiction over the appeal. Accordingly, the
Supreme Court transferred the case to this Court for issuance of an opinion in Henry
I.
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under the influence of alcohol, drugs, or other substances in violation of
OCGA § 40-6-391 to be admitted into evidence. See OCGA § 40-6-392
(a). When such tests are performed at the behest of the State, OCGA §
40-6-392 (a) (3) provides that a suspect “may have a physician or a
qualified technician, chemist, registered nurse, or other qualified person
of his own choosing administer a chemical test or tests in addition to any
administered at the direction of a law enforcement officer.” Where an
additional, independent chemical test is requested but not given, the law
allows for the State’s test to remain generally admissible as evidence
against the driver where the failure to secure the independent test is
“justifiable.” OCGA § 40-6-392 (a) (3).
312 Ga. at 632.
At the time of Henry’s trial, the law provided that “[a]n accused’s right to have
an additional, independent chemical test or tests administered is invoked by some
statement that reasonably could be construed, in light of the circumstances, to be an
expression of a desire for such test.” (Emphasis supplied.) Ladow, 256 Ga. App. at
728. As we recited in Henry I, “after Henry was read the implied consent notice and
asked to consent to a blood test for the second time, he asked the trooper, ‘so you are
saying I can take, my blood, my blood, my doctor can do my blood test and all that?’
The trooper responded to Henry’s question by stating, ‘I need a yes or a no right now.
I did not ask anything about your doctor. I said the State. Yes or no.’” 355 Ga. App.
6at 221 (2). Relying on Ladow and other cases following it, we found this statement
ambiguous and thus held that it “reasonably could” have been a request for
independent chemical testing. See id. at 220-221 (2). Accordingly, we found that
Henry’s trial counsel was ineffective for failing to move to suppress the blood result
because he made a strong showing that such a motion would have been granted. Id.
at 222 (2).
On certiorari, the Supreme Court found the reasoning of Ladow and its progeny
unsound. It held
[w]hile the term “justifiable” is not explicitly defined in OCGA §
40-6-392 (a) (3), the context of the statute’s language makes clear that
the “justifiable failure or inability to obtain an additional test” refers to
the officer’s failure or inability to obtain the additional test, not the
defendant’s. Thus, it is the officer’s conduct that must be justified in
order for the State’s test to be admissible. . . . While there may be
various excuses or reasons that could justify a law enforcement officer’s
failure or inability to obtain additional, independent chemical testing,
the only relevant excuse at issue here is a law enforcement officer’s
explanation that the officer did not understand that the defendant wanted
such testing. When a reasonable officer would understand that a suspect
has requested an additional, independent chemical test but ignores that
request, that failure is not justifiable. But when a reasonable officer
would not understand that a suspect has made a request for additional,
independent chemical testing, the failure to obtain such testing is
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justifiable. An officer does not unjustifiably fail to obtain an additional,
independent chemical test when a suspect makes only an unclear,
ambiguous, or equivocal statement that could have been, with the
benefit of hindsight, interpreted as a request for additional testing.
Whether a clear request was made is determined by examining the words
used by the suspect, the context of the conversation between the officer
and the suspect regarding chemical testing, and other circumstances
relevant to whether or not the suspect expressed a desire for such
testing.
(Citation omitted; emphasis supplied) Henry II, 312 Ga. at 637 (3) (a). As a result, the
Supreme Court
reject[ed] the “reasonably could” standard set forth by the Court of
Appeals in Ladow, and [it] overrule[d] Ladow and all other decisions of
the Court of Appeals holding that a suspect’s right to an additional,
independent test is invoked by a statement to a law enforcement officer
that “reasonably could” – rather than “reasonably would” – be construed
as an expression of a request for such a test . . . .
Id. at 640 (3) (d).
The Supreme Court instructed us to reconsider our holding in light of Henry
II, and, in so doing we find that Henry’s statement, though able to satisfy the previous
“reasonably could” standard for the reasons outlined in Henry I, was too ambiguous
to meet the more exacting “reasonably would” standard announced in Henry II. It is
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unclear whether Henry was requesting that his doctor perform the State’s test (which
the law does not permit) or requesting that his doctor perform independent testing
after the State-administered test (which the law does permit), or was simply confused
about the testing protocol and seeking clarification. In other words, we find that a
reasonable officer would not reasonably construe Henry’s ambiguous statement to be
a request for independent testing of his blood, so the trooper’s failure to secure
additional testing was justified. Accordingly, Henry’s trial counsel was not ineffective
for failing to file a motion to suppress which, judged under the correct “reasonably
would” standard, would have been meritless. See, e.g., State v. Walker, 350 Ga. App.
168, 174 (2) (828 SE2d 402) (2019) (“it is not ineffective assistance of counsel to
refrain from making a futile motion or filing a meritless motion to suppress.”)
(citation and punctuation omitted).
b. Voluntary Consent
Henry also argues that his trial counsel was ineffective for failing to move to
suppress the blood test result on the ground that it was obtained without a warrant or
his voluntary consent. While it is undisputed that no warrant was obtained, we find
Henry’s argument about consent to be abandoned.
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Henry correctly recites law providing that courts must examine the
voluntariness of consent to a blood test under the totality of the circumstances. See
e. g. Williams v. State, 296 Ga. 817, 823 (771 SE2d 373) (2015). Henry fails to
articulate, however, anything involuntary about the consent he provided to the blood
test. He identifies nothing about his condition or the officer’s conduct to support this
enumeration. “[I]t is not this Court’s role to speculate about the legal basis for an
appellant’s argument. Nor is it the function of this Court to cull the record on behalf
of a party in search of instances of error. Therefore, inasmuch as [Henry] fails to
present any meaningful argument in support of this enumeration, it is deemed
abandoned.” (Citations and punctuation omitted.) Santoro v. State, 361 Ga. App. 546,
548 (1) (864 SE2d 719) (2021); Court of Appeals Rule 25 (c) (2).
c. Securing Additional Test of Blood
In the trial court, Henry’s initial trial counsel secured an order to permit
independent testing of Henry’s blood held by the GBI, given that the GBI’s testing
placed Henry’s blood alcohol concentration (“BAC”) at only slightly above the legal
limit when considering the testing’s margin of error. According to initial counsel’s
testimony, despite this court order, the GBI created some procedural barriers to
having the blood transmitted to an independent lab for further testing. Initial counsel
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testified that he made a strategic decision not to push back against the GBI to obtain
the blood sample because he believed there was a good chance additional testing
would come back with the same or higher BAC. He believed Henry’s defense was
stronger if he could argue that the GBI failed to assist further testing because it had
something to hide rather than actually obtaining the test results.
Henry subsequently fired initial counsel and hired new trial counsel. This
attorney testified that he did not pursue additional testing because he was informed
that initial counsel received a letter from the GBI stating that the blood was too old
to re-test. Initial counsel denied receiving such a letter.
With regard to Henry’s initial counsel, the decision not to pursue additional
testing of the blood was clearly a strategic one.
[T]here is a strong presumption that the performance of counsel was
within the wide range of reasonable professional lawyering, and we
cannot reach a contrary conclusion unless defendant successfully rebuts
the presumption by clear and convincing evidence. Judicial scrutiny of
counsel’s performance must be highly deferential. The test has nothing
to do with what the best lawyers would have done. Nor is the test even
what most good lawyers would have done. We ask only whether some
reasonable lawyer at the trial could have acted, in the circumstances, as
defense counsel acted. In determining what constitutes ineffective
assistance, a critical distinction is made between inadequate preparation
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and unwise choices of trial tactics and strategy. Particularly in regard to
matters of trial strategy and tactic, effectiveness is not judged by
hindsight or result. Indeed, decisions regarding trial tactics and strategy
may form the basis for an ineffectiveness claim only if they were so
patently unreasonable that no competent attorney would have followed
such a course.
(Citations and punctuation omitted.) Walker v. State, 349 Ga. App. 188, 192-193 (4)
(825 SE2d 578) (2019). We do not find that it was patently unreasonable for initial
counsel not to pursue testing which could have further inculpated Henry; thus, we do
not find his representation ineffective.
With regard to Henry’s subsequent trial counsel, even assuming he based his
decision not to pursue additional blood testing on a mistaken belief that the blood was
too old to re-test as opposed to reasoned strategy, Henry cannot demonstrate
prejudice. “[P]rejudice is demonstrated only where there is a reasonable probability
that, absent counsel’s errors, the result of the trial would have been different. A
‘reasonable probability’ is defined as a probability sufficient to undermine confidence
in the outcome.” (Citation omitted.) Green v. State, 358 Ga. App. 843, 852-853 (7)
(856 SE2d 427) (2021). Here, not only is it pure speculation that the results of
additional blood testing would have been exculpatory, as explained above, it is also
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possible that they would have been inculpatory. Accordingly, Henry cannot
demonstrate a reasonable probability that the result of the trial would have been
different if his blood were re-tested.
d. Obtaining the Crime Lab Testing Data
“A person shall not drive or be in actual physical control of any moving vehicle
while . . . [t]he person’s alcohol concentration is 0.08 grams or more at any time
within three hours after such driving or being in actual physical control from alcohol
consumed before such driving or being in actual physical control ended[.]” OCGA
§ 40-6-391 (a) (5). The summary toxicology report indicated that Henry’s BAC was
.085 grams per 100 ml with a variance of +/– .004. According to the forensic
toxicologist, the variance is a summation of the variability of every step of the process
of testing the blood. She further testified that, statistically, if the test were run 100
times, 99 of those times the test results would be within the .004 variance. Here, that
would mean that she expected that 99 out of 100 tests of Henry’s blood would put his
BAC between .081 and .089. The blood is actually tested by the GBI two times.
At trial, the forensic toxicologist testified that every week the instruments
which perform the BAC analysis are tuned. Each day they also run a sample with a
known concentration of alcohol at the beginning and end of the testing to ensure that
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the instrument is working accurately throughout the day’s testing. She testified that
the instrument used to test Henry’s blood was working on the day of his test.
Henry’s trial counsel did not subpoena the more detailed testing data from the
GBI. After reviewing those records, post-conviction counsel examined the forensic
toxicologist at the motion for new trial hearing. There she testified that she performed
two tests on Henry’s blood sample, with the first registering a BAC of .0842 and the
second a .0849. The GBI’s policy is to round the results to three decimal places for
the report. On the day of testing Henry’s sample, control samples with known
quantities of alcohol were tested to ensure the instrument was working accurately.
The first control sample measured .0005 higher than the known level of alcohol and
the second control sample measured .0002 higher than the known level. Henry’s post-
conviction counsel tried to get the toxicologist to agree that, as a result, Henry’s result
could have registered as much as .0005 higher than it really was. The toxicologist
testified, however, that the difference between the known sample and its recorded
reading was within the expected results and that testing the actual blood samples
twice ensures that the results are accurate.
Henry argues that his trial counsel was ineffective for failing to obtain this
more detailed report because if the lower test number of .00842 was used, and a
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downward deviation of .004 was applied for the margin of error, and then .0005 was
subtracted from that due to the result of one of the control samples, Henry’s BAC
would have been below the legal limit. Henry, however, did not provide any
testimony that this would be an appropriate way to analyze the data. Indeed, the only
expert testimony provided was from the forensic toxicologist, who refused to adopt
this approach and never agreed that it was possible that Henry’s BAC was below .08.
At trial and at the motion for new trial hearing, she never wavered in her confidence
about the results presented in the report, and this testimony was unrebutted.
Accordingly, Henry has not demonstrated that he was prejudiced by the failure to
obtain this more detailed testing data. See Green, 358 Ga. App. at 852-853 (7).
In summary, upon reconsideration on remand in light of Henry II, we hold that
Henry has not demonstrated that his trial counsel was ineffective and, thus, the trial
court did not err in denying his motion for new trial.
Judgment affirmed. Doyle, P. J., and McFadden, P. J., concur.
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