Reese, Judge.
A jury found Robert Diaz guilty of homicide by vehicle in the first degree, driving under the combined influence ("DUI") of drugs to the extent that it was less safe for him to drive, and failure to maintain a lane.
Viewed in the light most favorable to the trial court's rulings on the motions to exclude the evidence at issue,
At approximately 9:55 p.m. the same evening, a Georgia State Patrol trooper, Glen Hand, was driving to work when he came upon an accident scene involving a white Toyota Tundra pickup truck and a Hyundai automobile. He reported the accident to the dispatcher and asked for assistance by police and emergency personnel. Trooper Hand then went to the pickup truck, which was lying on its driver's side in the middle of the road. The driver of the pickup truck, later identified as the Appellant, was moaning and unable to get out of the truck. Emergency responders arrived, extracted the Appellant from the truck, and placed him on a stretcher. At that point, Trooper Hand asked the Appellant for identifying information so he could inform the Appellant's family about the collision. The Appellant said that he did not want Trooper Hand to contact his (the Appellant's) family. According to the officer, the Appellant had "thick tongue type speech" that was slow and "slurred," but the Appellant appeared to understand the officer's questions and was able to tell the officer his address and where he had been coming from at the time of the collision. The emergency responders then transported the Appellant to the Atlanta Medical Center for treatment of his injuries.
While Trooper Hand assisted at the accident scene, he learned that the driver of the Hyundai had died of injuries from the collision. Further, an eyewitness told Trooper Hand that he had seen the Appellant's truck "all over the road" before the vehicles collided head-on in the other driver's lane. Another officer also notified Trooper Hand that, shortly before the collision, someone had called 911 to report that the driver of a Toyota Tundra pickup truck had driven through the caller's yard, run over a mailbox, and appeared to be impaired.
After leaving the accident site, Trooper Hand drove to the Atlanta Medical Center to conduct a further investigation of the collision. The Appellant was in the emergency department and had already received a CT scan and medications for pain and nausea when Trooper Hand arrived. A registered nurse was also in the Appellant's room. Trooper Hand re-introduced himself and told the Appellant that he was there to investigate the collision and was going to read him the implied consent notice. According to the officer, the Appellant was alert and appeared to understand what was being said, and, when the Appellant asked about the other driver and learned that he had died in the collision, the Appellant "teared up." Then, before the officer read the implied consent notice or questioned the Appellant, the Appellant stated that he had self-administered methadone earlier in the day and that there was possibly some other "stuff" in his system.
Trooper Hand read the Appellant the implied consent notice while the registered nurse was still present in the room.
According to a forensic toxicologist employed by the state crime lab, the Appellant's blood test results showed that he had methadone and Clonazepam (benzodiazepine) in his system. The toxicologist testified that Clonazepam
An investigation and accident reconstruction conducted by law enforcement officers revealed that, at 9:52 p.m., the Appellant's pickup truck crossed into the opposite lane of traffic and collided head-on with the Hyundai. Based upon the results of the investigation and the blood test results, the Appellant was arrested and charged with homicide by vehicle, DUI, and failure to maintain a lane.
In addition to the above evidence, the State presented evidence during the Appellant's jury trial that the Appellant had been receiving daily methadone treatment for opiate addiction for several months prior to the collision at issue. The health care provider who treated the Appellant on the day of the collision testified that, at 10:09 a.m., the Appellant ingested 40 milligrams of methadone. She also gave him two 40-milligram doses for him to self-administer during the next two days. According to a physician employed by the methadone clinic, the Appellant never informed the clinic that he was also taking Clonazepam (benzodiazepine) that had been prescribed by another physician.
Further, the physician who had prescribed Clonazepam for the Appellant in April and May 2014 testified that he always asks his patients if they are taking any other medications, and the Appellant never told him that he was undergoing daily methadone treatment. The physician testified that, if he had known the Appellant was taking methadone daily, he would not have given him a benzodiazepine prescription. The physician explained that clinics that provided methadone treatment explicitly prohibited their patients from taking any other controlled substances with a potential for abuse, such as benzodiazepine. Another reason he did not prescribe benzodiazepine in such situations was because combining a narcotic pain medication, such as methadone, with benzodiazepine could result in "additive or synergistic effects," such as sedation, confusion, and addiction. In addition, the physician testified that he always warns his patients who are taking benzodiazepine that they should not drive after taking the medication because they could be impaired and, as a result, charged with DUI. In fact, for this reason, he specifically changed the Appellant's prescription for Clonazepam so that he was only supposed to take it at night.
Finally, the State presented evidence that the Appellant had previously driven his truck while he appeared to be under the influence of alcohol or drugs,
Following the jury's guilty verdicts on all three charges, the trial court sentenced the Appellant to serve 16 years in prison. On appeal from his convictions, the Appellant argues that the trial court improperly admitted several items of evidence that he claims were illegally obtained, irrelevant, and/or unduly prejudicial. He contends that, if such evidence had not been admitted, the remaining evidence would have been insufficient to support the jury's verdict and, as a result, his convictions must be reversed. We disagree.
The standard of Jackson v. Virginia,
Further, when the facts that are material to a decision on a motion to suppress are disputed,
Similarly, when reviewing a trial court's ruling on the admissibility of an incriminating statement by the defendant, we affirm the trial court's finding that the defendant made the statement freely and voluntarily unless such finding is clearly erroneous.
1. The Appellant contends that the trial court erred in failing to suppress the results of the state-administered blood test, arguing that the results were obtained through an unlawful search and seizure and that he did not knowingly and voluntarily consent to the test.
It is well settled that "one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."
As shown above, Trooper Hand testified that, not only did he read the applicable implied consent notice
(a) Implied consent. OCGA § 40-5-55 (a) provides, in relevant part, as follows:
The Appellant argues that the State failed to prove that Trooper Hand read him the implied consent notice because the officer did not record in his police report that he had given the notice. During the motion to suppress hearing, however, Trooper Hand testified that it was his standard practice and procedure to read the implied consent notice to individuals suspected of DUI prior to obtaining a blood sample. He testified that he read the required notice to the Appellant, but he acknowledged that he had accidentally failed to document in his internal report to the supervising investigator that he had read the notice. Trooper Hand further explained that he specifically remembered the details of this case because of its "magnitude" and because he had grown up near the collision site and passed it every day on his way to work.
Viewing the evidence in favor of the trial court's ruling,
(b) Actual written consent. As shown above, in addition to reading the implied consent notice, Trooper Hand also obtained the Appellant's actual written consent to the blood test. The Appellant argues that he did not give his actual consent knowingly or voluntarily because, at the time he signed the form, he was under the influence of pain medication administered to him in the emergency room, was in pain and in shock from his injuries,
As stated above, the determination of whether the Appellant knowingly and voluntarily gave actual consent to the blood test depends on consideration of the totality of the circumstances presented.
In this case, the undisputed evidence shows that the Appellant had methadone and Clonazepam in his system at the time of the collision. In addition, during the almost three hours between the collision and the Appellant's signing of the consent form, the Appellant was transferred to Atlanta Medical Center and received an "x-ray and/or CT scan"
Trooper Hand testified that, when he spoke with the Appellant in the emergency room, the Appellant was alert and appeared to understand what was going on; the Appellant responded appropriately to questions; the Appellant asked him questions about the collision and the condition of the other driver; he (Trooper Hand) told the Appellant that the blood test was voluntary and did not threaten the Appellant or promise him anything in exchange for his written consent; and there was nothing that suggested to Trooper Hand that the Appellant was not able to consent or was not freely and voluntarily giving his consent to the blood test.
Moreover, the nurse who obtained the Appellant's blood sample testified about the medications the Appellant received in the emergency room and their effects on a patient's system. The medical records showed that, at 11:17 p.m., he received Zofran for nausea and Fentanyl for pain, and that, at 11:35 p.m., he received a combination of succinylcholine ("SUX") and Propofol, which sedates and temporarily paralyzes the patient. According to the nurse, the SUX/Propofol combination was typically used to relax a patient's muscles in order to reposition a dislocated joint, and, based upon the amount given to the Appellant, the drugs' effects would last for only five to seven minutes. The nurse also testified that the hospital only gave enough Fentanyl to the Appellant to take "the edge off" the pain, and opined that most people would be "totally lucid" a few minutes after receiving the drugs in the amounts given to the Appellant. It is undisputed that Trooper Hand obtained the Appellant's written consent to the blood test at 12:38 a.m., over an hour after the hospital gave the Appellant the medications at issue.
Finally, the forensic toxicologist from the state crime lab testified that only two drugs were found in the Appellant's blood sample: methadone and Clonazepam (benzodiazepine).
Given this evidence, we find no error in the trial court's conclusion that, under the totality of the circumstances, the Appellant freely and voluntarily consented to the blood test.
2. The Appellant claims that there was no probable cause to suspect that he was
regardless if the individual is under arrest at the time the implied consent notice is given under OCGA § 40-5-55 (a).
Pretermitting whether probable cause was necessary in this case, given the Appellant's actual written consent to the blood test,
During the hearing on the motion to suppress, Trooper Hand testified that the Appellant's speech was "thick" and "slurred" after the emergency personnel removed him from the truck and placed him on the stretcher. In addition, Trooper Hand testified about the eyewitness' statement that the Appellant's truck was "all over the road" before it collided head-on with the Hyundai, as well as the information he received about a 911 call earlier that evening reporting that a possibly impaired person driving a Toyota Tundra pickup truck drove onto someone else's property and over a mailbox. And, finally, Trooper Hand testified about the Appellant's unprompted admission that he had self-administered methadone earlier that day and that there might be other drugs in his system.
Under these circumstances, we conclude that the trial court was authorized to find that there was sufficient probable cause to support Trooper Hand's request for a blood test to check for alcohol, drugs, or both.
3. In a related claim of error, the Appellant argues that the court erred in admitting his blood test results because Trooper Hand did not read him his Miranda
4. The Appellant contends that the trial court abused its discretion in admitting his statement to Trooper Hand that he had self-administered methadone that day and that there could be other "stuff" in his system.
The record shows that the Appellant filed a pretrial motion to exclude the statement, and the trial court conducted a Jackson-Denno
Upon review of a trial court's decision to admit a defendant's incriminating statement following a Jackson-Denno hearing, this Court will not disturb the trial court's factual findings and credibility determinations unless they are clearly erroneous.
In this case, the trial court ruled that the Appellant's statement was admissible, finding that the Appellant was not in police custody or under arrest when he made the statement and a reasonable person under the same circumstances would not have believed that he or she was in custody. Further, the court found that the statement was not the result of a police interrogation and that, based upon the evidence presented about the medication given to the Appellant and his ability to understand what was happening at the time, the Appellant made the statement freely and voluntarily.
On appeal from that ruling, the Appellant argues that the State failed to prove (a) that he made the statement freely and voluntarily and (b) that he had been advised of his Miranda rights before he made the statement.
(a) The Appellant claims that he did not make the statement voluntarily because he was in pain and under the influence of medications when he made the statement. For the same reasons given in Division 1 (b), supra, we find no error.
"The Fifth Amendment requires the exclusion of any statement made by an accused during custodial interrogation, unless he has been advised of his [Miranda] rights and has voluntarily waived those rights. [However, a] defendant's spontaneous, voluntary, unprompted utterance to a police officer is admissible against him at trial."
Here, the evidence supports the trial court's findings that, at the time of the statement, the Appellant was not under arrest or in police custody and that the statement was not the result of police interrogation.
5. The Appellant contends that the trial court abused its discretion in admitting evidence of conduct that he committed prior to May 24, 2014, the date of the collision at issue, arguing that the evidence was irrelevant, unduly prejudicial, and inadmissible under OCGA § 24-4-404. OCGA § 24-4-404 (b) provides, in relevant part, as follows:
While the determination of whether evidence is unduly prejudicial "is a matter committed principally to the discretion of the trial courts," the Supreme Court of Georgia has emphasized that "the exclusion of evidence under [OCGA § 24-4-403] is an extraordinary remedy [that] should be used only sparingly."
In this case, the State offered evidence of the Appellant's prior acts to show his intent, his knowledge, and the absence of mistake or accident, i.e., to show that he had intentionally driven while knowing that he was impaired after taking methadone.
(a) The Appellant argues that the trial court abused its discretion in admitting evidence that his wife called 911 over three months before the collision at issue to report that he might be driving under the influence.
The record shows that, at 8:06 a.m. on February 9, 2014, the Appellant ingested a 55-milligram dose of methadone at a methadone clinic; he also received a take-home dose of 55 milligrams to self-administer the next day. Later that morning, the Appellant left his home in his truck, and his wife was concerned that he was too impaired to drive safely. At 12:34 p.m., the Appellant's wife called 911 and asked the operator to issue a "be on the lookout" ("BOLO") alert so police officers would pull him over if they saw his truck "and see what they thought" about whether it was safe for him to drive. The Appellant's wife initially told the operator that the Appellant is "seriously seriously mentally impaired right now. I don't know if he's on something." However, she later told the operator that "he's on something. He didn't smell like alcohol."
Under these circumstances, we find no error in the trial court's determination that this evidence was relevant to the Appellant's knowledge and intent to drive while under the influence of methadone, that there was a sufficient connection between the acts, and that the probative value of the evidence out-weighed its prejudicial impact.
(b) The Appellant argues that the trial court abused its discretion in admitting evidence that, approximately three months before the collision at issue, he hit a parked car with his truck after he had taken a dose of methadone earlier in the day.
The record shows that, at 10:57 a.m. on February 19, 2014, the Appellant was administered a 50-milligram dose of methadone at a methadone clinic. Later that day, a woman walking in a shopping center saw a white pickup truck moving slowly and swerving through the parking lot, with the driver "kind of slumped over."
A Coweta County Sheriff's deputy responded to the 911 call and, based upon information obtained from the eyewitnesses, was able to locate the pickup truck at the Appellant's home. At the time the deputy arrived, the Appellant was applying "bondo" putty on the truck to repair what appeared to be "fresh damage" to the front of the vehicle. The deputy asked the Appellant what had caused the damage to the truck, and the Appellant started to respond. The deputy stopped him, however, and told the Appellant that he already knew what had happened to the truck. Observing that the Appellant appeared to be under the influence of something, the deputy asked the Appellant what he had taken, but the Appellant denied that he had used any drugs or alcohol. The deputy arrested the Appellant, and the Appellant pled guilty to striking an unattended vehicle.
6. The Appellant contends that the trial court abused its discretion in admitting four video-recordings taken at his home by his mother-in-law on the evening of the collision at issue. He argues that the recordings were inadmissible under the "best evidence" rule
The evidence showed that, at 10:09 a.m. on the day of the collision, the Appellant received a 40-milligram dose of methadone; he was also given two 40-milligram doses to self-administer during the next two days. According to the Appellant's mother-in-law, who lived with the Appellant and his family, she saw the Appellant trying to back his truck down the driveway at approximately 6:00 that evening. The Appellant was having difficulty maneuvering the truck and, when he exited the truck and sat down, he appeared to be sick. The mother-in-law made a short video-recording of him with her phone,
The trial court denied the motion to exclude the recordings, ruling that, as long as the State presented evidence to provide a foundation for the recordings, the Appellant's objections went to the weight, not the admissibility, of the video-recordings. At trial, the Appellant's wife and his mother-in-law provided the foundation for admitting the recordings when they both testified that the mother-in-law recorded the videos with her phone on the night of the collision, May 24, 2014.
Pretermitting whether the Appellant raised a "best evidence" objection in the trial court
Judgment affirmed.
Miller, P. J., and Doyle, P. J., concur.
We note that the Appellant errs in relying on State v. Morgan, 289 Ga.App. 706, 707, 658 S.E.2d 237 (2008), for his argument that "an officer must read a suspect his implied consent rights before the suspect may be subjected to a state-administered blood test, `even though a suspect may otherwise consent to testing.'" (Emphasis in original.) This Court has specifically noted that Morgan was decided under the prior version of OCGA § 40-5-67.1 that did not include subsection (d.1), and it has implicitly ruled that Morgan no longer constitutes precedent on this issue. See McMullen, 316 Ga. App. at 693-694 (3) (a), n. 42, 730 S.E.2d 151.
We note that the Appellant's counsel affirmatively waived any objection to evidence that the Appellant had used methadone on the dates he committed the prior acts.