THIRD DIVISION ANDREWS, P. J., DILLARD and MCMILLIAN, JJ.
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. http://www.gaappeals.us/rules/
July 9, 2013
In the Court of Appeals of Georgia A13A0253. JANASIK v. THE STATE.
MCMILLIAN, Judge.
Andrew Michael Janasik appeals the trial court’s denial of his motion for new
trial after a jury convicted him of driving under the influence (less safe) (OCGA § 40-
6-391 (a) (1)), failure to maintain lane (OCGA § 40-6-48), and a violation of
Georgia’s safety belt law (OCGA § 40-8-76.1 (b)).
Viewed in the light most favorable to the verdict,1 the evidence at trial showed
that on the night of November 15, 2007, Georgia State Trooper Stacey Collins was
working in his marked police vehicle when he encountered Janasik at the intersection
of Piedmont and Peachtree Roads in Fulton County. The first thing Collins noticed
1 Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). was that Janasik was not wearing his seat belt. When the traffic light changed to
green, Janasik pulled through the intersection, and Collins observed him weave across
the yellow line into another lane, move back into his original lane, and then shortly
after, change lanes into the other lane. Collins initiated a traffic stop based upon the
failure to maintain lane and the seat belt violation. As the officer approached
Janasik’s car, he immediately noticed “the strong odor of alcoholic beverage” coming
from inside the vehicle. Collins also observed that Janasik’s eyes were bloodshot and
watery, and his speech was slurred. When Collins asked if Janasik had anything to
drink that night, he first replied “nothing,” then he said “one” drink at dinner, and
then he said “half,” finally conceding that he had consumed “half a beer.” As Janasik
exited the car, he used the door to brace himself, and he was unsteady on his feet as
he walked.
Collins offered to perform field sobriety evaluations, and the first test he
administered was the horizontal gaze nystagmus (“HGN”) test. Janasik exhibited six
out of the six clues for impairment on that test. Collins then asked Janasik to perform
the walk-and-turn test. Janasik initially agreed, but after he was unable to maintain
the required stance, he told Collins that he could not perform the test because he had
a swollen ankle. Janasik explained that he had hurt his ankle playing tennis,
2 basketball and soccer. Janasik also cited his ankle as a reason for not performing the
one-leg stand test. Collins suggested that he perform the test by standing on his non-
injured leg, but Janasik told him that it hurt his ankle too much to lift it in the air.
Collins observed no outward indication of pain, however, when Janasik shifted on his
feet several times that night. Janasik also refused to submit to the preliminary breath
test. At that point, Collins placed Janasik under arrest based upon his opinion that
Janasik was a less safe driver due to his consumption of alcohol. Collins then read
Janasik the implied consent notice, and Janasik refused Collins’ request to submit to
a breath test.
The State also introduced evidence of a prior similar transaction. Officer
Douglas LaCompt of the Georgia State Patrol testified that approximately nine
months earlier, on the evening of February 25, 2007, he saw Janasik driving
northbound on Roswell Road in Fulton County when he observed him cross the
double-yellow line twice, change lanes without using his signal and then cross the
white fog line on the right side of the road. LaCompt initiated a traffic stop, and the
first thing he detected was a strong odor of alcoholic beverage coming from Janasik’s
car. When LaCompt asked Janasik for his driver’s license, he handed the officer a
credit card with dolphins on it. LaCompt observed that Janasik was unsteady on his
3 feet after he exited the vehicle, and he had slurred speech and bloodshot eyes.
LaCompt asked Janasik if he would submit to the field sobriety tests, but he refused.
He did not, however, indicate that he could not perform the tests due to any injury.
LaCompt then placed Janasik under arrest and read him the implied consent notice;
Janasik subsequently refused to submit to the officer’s request for a breath test. A jury
later convicted Janasik of DUI based upon the February incident.
1. Janasik first asserts that the trial court erred in admitting the similar
transaction evidence without first weighing the danger of unfair prejudice. He argues
that this error was compounded by the prosecution’s improper “propensity”
arguments stemming from this evidence. We review the trial court’s decision whether
to admit the similar transaction evidence for an abuse of discretion. See Reed v. State,
291 Ga. 10, 13-14 (3) (727 SE2d 112) (2012).
Prior to trial, the State filed a notice of its intent to present the February 2007
similar transaction evidence for purposes of “identity, motive, scheme, bent of mind,
course of conduct, and/or absence of accident,” and Janasik filed a motion in
opposition to the State’s notice. Following a hearing, which apparently was not
transcribed, the trial court denied the motion. In its order, filed December 10, 2010,
the trial court cited Janasik’s
4 very thorough Brief, outlining the peculiarity of Georgia law, which permits the utilization of prior incidents, commonly referred to as “similars” in DUI trials. Although the material was prepared in a scholarly fashion, this Court is constrained to follow the precedent of the Georgia Supreme Court which authorizes utilization of prior convictions, because of the “similarity” of the incidents. Perhaps enactment of the revised rules of evidence in the upcoming legislative session will no longer permit this bent of mind analysis, but short of that occurrence, this Court must DENY Defendant’s motions, and permit utilization of similar occurrences.
Janasik’s trial took place in October 2011, and thus was subject to Georgia’s
evidentiary rules as they existed prior to January 1, 2013, when Georgia’s new
evidentiary code went into effect. See Ga. L. 2011, p. 100, § 1. Accordingly, at the
time of the trial court’s finding in this case, “course of conduct and bent of mind
[were] appropriate purposes for which similar transaction evidence [could] be
introduced.” (Citations and punctuation omitted.) Newton v. State, 313 Ga. App. 889,
891-892 (1) (a) (723 SE2d 95) (2012). See also Henderson v. State, 303 Ga. App.
527, 529 (1) (693 SE2d 896) (2010); Wade v. State, 295 Ga. App. 45, 48 (670 SE2d
864) (2008) (“ [W]e are not authorized to depart from the precedent of the Supreme
Court of Georgia authorizing the bent of mind rationale for admitting similar
transaction evidence . . . .”) (citations omitted).
5 And in the absence of a transcript of the similar transaction hearing, we must
presume that the State made the requisite showings for the introduction of this
evidence and that, after hearing the evidence, the trial court correctly exercised its
discretion in denying Janasik’s motion. Guild v. State, 234 Ga. App. 862, 866 (4), n.
2 (508 SE2d 231) (1998) (appellate court will presume the correctness of similar
transaction proceedings and resultant findings in the absence of a transcript). Thus,
we must presume that the trial court properly weighed the issue of prejudice in
reaching its decision. Certainly, Janasik’s brief thoroughly addressed the issue , and
the trial court obviously read and considered his brief. And, contrary to Janasik’s
argument, the trial court’s proper and accurate acknowledgment that it was bound by
Georgia Supreme Court precedent regarding the rationale for the introduction of such
evidence does not undercut that presumption. Moreover, given the striking similarity
between the two offenses and the fact that they occurred a mere nine months apart,
we cannot say that the similar transaction evidence was inadmissible under the law
as it existed at the time of Janasik’s trial. See, e. g., Moody v. State, 273 Ga. App. 670,
671-672 (2) (615 SE2d 803) (2005).
Further, Janasik waived any argument of error in connection with the
prosecution’s “propensity” argument based on the similar transaction evidence by
6 failing to object to that argument at trial. Shaw v. State, 265 Ga. App. 451, 452 (2)
(594 SE2d 393) (2004).
2. Janasik also asserts that his trial counsel was ineffective in failing to seek a
limiting instruction from the Court at the time it admitted the similar transaction
evidence.
Janasik’s trial counsel gave his opening argument immediately prior to the
introduction of the similar transaction evidence, during which he told the jury that the
judge was going to give them “some instructions about how you are allowed to
consider LaCompt’s evidence, because that’s what’s called ‘similar transaction
evidence’ that Georgia allows in.” He then asked the jury to “listen to the evidence
in this case. Not the one in February, which is what the State is putting [LaCompt] up
first for, so you could hear that first.” But he apparently did not request that the trial
court give limiting instructions at that time. Nevertheless, at defense counsel’s
request, the trial court gave the jury a limiting instruction prior to closing argument,
in which the court directed the jury that such evidence could only “be considered for
the limited purpose of showing, if it does, the state of mind. For example, the
knowledge or intent of the Defendant in the crimes that’s charged in the case that’s
7 now in trial.” And the trial court included a similar instruction in its general charge
to the jury.
In considering Janasik’s argument,
we apply the two-prong test for determining the validity of a claim of ineffectiveness of counsel established in Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), which asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.
Williams v. State, 319 Ga. App. 888, 889 (739 SE2d 4) (2013).
Although Janasik’s trial counsel testified at the hearing on his motion for new
trial, Janasik’s motion attorney did not ask him about his failure to request
contemporaneous limiting instructions. By failing to question him on the issue,
“[Janasik] has not overcome the presumption that his trial counsel acted within the
range of reasonable, professional conduct.” (Citation omitted.) Allen v. State, 299 Ga.
App. 201, 204 (1) (b) (683 SE2d 343) (2009). See also Ellis v. State, 292 Ga. 276,
287 (4) (e) (736 SE2d 412) (2013).
8 Moreover, Janasik has failed to demonstrate that his defense was prejudiced by
counsel’s omission where the jury was twice instructed on the limited purposes for
which they could consider the similar transaction evidence. See Smith v. State, 270
Ga. 68, 70 (3) (508 SE2d 145) (1998) (counsel not ineffective in failing to request
limiting instruction contemporaneously with similar transaction testimony where he
requested such instruction as part of court’s general charge); Sims v. State, 317 Ga.
App. at 422-423 (1); Copeland v. State, 276 Ga. App. 834, 838 (2) (b) (625 SE2d
100) (2005) (no prejudice shown where counsel failed to request contemporaneous
limiting instruction).
Accordingly, Janasik failed to demonstrate that the trial court committed error
in denying his motion for new trial on this ground.
3. Janasik next contends that the trial court erred in failing to dismiss Juror No.
2 for cause.
“We review a trial court’s decision to strike a juror for cause under an abuse
of discretion standard.” (Citation omitted.) McCoy v. State, 285 Ga. App. 246, 248
(2) (645 SE2d 728) (2007). “A prospective juror should be dismissed when he or she
“has formed an opinion on the guilt or innocence of the accused which is so fixed and
definite that the juror will be unable to set the opinion aside and decide the case based
9 upon the evidence or the court’s charge upon the evidence.” (Citation and punctuation
omitted.) Id.
In response to the State’s question, Juror No. 2 indicated that he did not think
a person should drink and drive. Janasik’s trial counsel then examined the juror, as
follows:
Q: So, in this case if a person says, I did have a drink, that would be too much for you to say anything other than . . . guilty; is that correct?
A: Can you ask that again?
Q: If the person tells the officer, I did have a drink earlier, that would be enough for you that you’d just say “guilty”?
A: No.
Q: When I asked the question earlier you said you had something to drink before and later drove home; is that correct?
A. Yes.
Q: Were you sober or too impaired to drive?
A: I would call myself, “Sober.”
10 Q: If you had been pulled over and still smelled of alcohol, is that enough to arrest you for DUI? Handcuff you? Take you in?
A: I would have to rely on what the officer thinks of it.
Q: So just based on the fact that you smelled of alcohol and the officer said, I’m taking you in, you feel that you are guilty just from being arrested.
A: Sure, yeah.
In its order denying Janasik’s motion for new trial, the trial court stated that it
considered the entirety of the juror’s responses, “and frankly he sounded somewhat
confused by some of the questions posed to him. At one point he responded he didn’t
think someone should drink and drive, but he then said he had done this in the past.
He also said he would rely on the officer’s testimony, but he never said that would be
all he would rely on.” The court concluded that despite the inconsistencies in the
juror’s responses, his testimony did not rise to the level of establishing that his
opinions were so fixed and/or so definite that he would not consider the evidence. We
agree.
11 As the trial court correctly noted, defense counsel’s questions were somewhat
confusing. Although the juror indicated that he did not think drinking and driving was
a good idea, he conceded that he had done so himself and he believed himself to be
sober at the time. And although he stated that he personally would feel he was guilty
if he were arrested for drinking and driving, he never indicated that the same would
apply to the defendant in this case or that he would not judge the defendant on all the
evidence presented. For example, Juror No. 2 agreed with prosecutor’s statement that
alcohol affects different people differently and some people have a better tolerance
for alcohol, making it difficult to determine whether they are under the influence. And
he did not raise his hand when the trial court explained that they were looking for
jurors who were impartial between the State and the defendant and asked whether he
had any bias or prejudice in favor of one side or the other. Juror No. 2 did not respond
positively when defense counsel asked whether anyone believed that the State should
pass a blanket law prohibiting any drinking and driving. Nor did he respond
positively to the question of whether anyone felt that evidence of a prior DUI meant
that the person was guilty of DUI seven months later or to the question of whether
anyone would be unable to decide the present case on its own merits in light of an
earlier incident.
12 Under these circumstances, we cannot say that the juror’s testimony
demonstrated that his opinions were so fixed or definite that he would not be able to
decide the case on the evidence presented or that the trial court abused its discretion
in refusing to strike the juror for cause. See Hornsby v. State, 296 Ga. App. 483, 484-
485 (2) (675 SE2d 502) (2009) (trial court did not abuse discretion in failing to strike
jurors who knew officers involved, but otherwise gave no indication that they could
not be impartial); Kelly v. State, 242 Ga. App. 30, 32 (2) (528 SE2d 812) (2000) (in
DUI case, trial court not required to strike juror who showed great antipathy toward
people who drink and drive, but otherwise indicated that she could be fair and
impartial).
4. Janasik also contends that when his expert witness, Dr. Citron, failed to
appear and testify at trial, the trial court erred by refusing to grant a continuance, by
failing to exercise its power to compel the witness’s appearance and testimony, and
by denying Janasik’s request for a mistrial. He argues, alternatively, that his trial
counsel was ineffective in failing to present the expert’s testimony after promising the
jury that he would do so. We find no merit to these arguments.
13 The record indicates that Janasik’s counsel informed the trial court at around
5 p.m.2 on the first day of trial that his expert witness would not be available to testify
the following day because he was scheduled to speak at an out-of-town seminar. The
trial court agreed to try to accommodate the defense by allowing the witness to testify
electronically if the defense attorney could meet the trial court’s requirements for
connectivity and a picture that the court felt “was adequate for the jury to assess his
testimony.” Janasik’s trial counsel later testified that, at that point, he released Citron
from his subpoena with the understanding that he would be available to give his
testimony electronically.
The next morning defense counsel reported that the electronic set-up had been
tested and it “worked great.” Nevertheless, he indicated that they were still testing it
because some problems existed with the wireless connection. At the hearing on the
motion for new trial, however, the evidence indicated that the equipment was working
properly, but the defense could not locate Dr. Citron. The trial court agreed to wait
until after hearing several defense motions and holding the charge conference before
ruling on the admissibility of the expert’s electronic testimony. After these
proceedings, which the trial court’s order indicates took approximately another hour,
2 We note that the trial court’s order indicates that it was around 4:15 p.m.
14 the defense was still indicating that it was continuing to have technical problems, and
the trial court announced that the defense had five minutes to resolve the issues or
they would proceed to closing argument. At 10:15 a.m., the trial judge announced that
because Dr. Citron was not available, she was asking the defense to rest, assuming
defense counsel had no other witnesses. Janasik’s counsel objected, indicating that
they could not win without Dr. Citron’s testimony. The trial judge replied that she
could have accommodated Dr. Citron the previous day had she received timely notice
of his schedule.
The trial court then directed the parties to present their closing arguments , but
after the jury began deliberations, the court allowed the defense attorney to put his
objections on the record. Janasik’s attorney indicated that his technician arrived at
7:45 a.m. to attempt to set up the equipment, but they had some difficulty getting into
the building and they continued to have technical issues. He also indicated, however,
that they were never actually able to contact Dr. Citron that morning. Janasik’s
counsel suggested that the trial court could have continued the proceedings,
compelled Dr. Citron’s presence, or that it could grant a mistrial. The trial court never
specifically addressed the defense’s first two alternatives, but the court stated that no
15 justification existed for a mistrial in light of counsel’s failure to raise the issue earlier,
depriving the court of the opportunity to make accommodations.
(a) We review a trial court’s decision whether to grant or deny a motion for
continuance for an abuse of discretion. OCGA § 17–8–22; Hartley v. State, 283 Ga.
App. 388, 389 (1) (641 SE2d 607) (2007). And in order to obtain a continuance based
upon a witness’s absence, a defendant is required under OCGA § 17-8-25 to
demonstrate that
(1) that the witness is absent; (2) that he has been subpoenaed; (3) that he does not reside more than 100 miles from the place of trial ; (4) that his testimony is material; (5) that the witness is not absent by permission of the movant; (6) that the movant expects to be able to procure the testimony of the witness at the next term of court; (7) that the continuance is not requested for purposes of delay and, (8) the facts expected to be proved by the absent witness must be stated.
(Citation and punctuation omitted.) Bailey v. State, 309 Ga. App. 473, 474 (710 SE2d
656) (2011). Each of these requirements “must be met before an appellate court may
review the exercise of the trial court’s discretion in denying a motion for continuance
based upon the absence of a witness.” (Citation omitted.) Krirat v. State, 286 Ga.
App. 650, 657 (3) (649 SE2d 786) (2007). Furthermore, the trial court’s “discretion
is not abused unless all of the requisites of OCGA § 17–8–25 are shown and the trial
16 court still denied a continuance.” (Citation and punctuation omitted.) Anthony v.
State, 276 Ga. App. 107, 109 (2) (622 SE2d 450) (2005).
Janasik failed to make all of the required showings. Although Janasik’s trial
counsel represented at trial and testified at the motion hearing that Dr. Citron was
under subpoena, we note that no evidence of this subpoena exists in the record on
appeal.3 The trial court also found no evidence of such a subpoena. In any event,
Janasik’s counsel conceded at the motion hearing that he released Dr. Citron from his
subpoena after the first day of trial. Moreover, Jansik failed to establish Dr. Citron’s
place of residency or his availability by the next term of court. And although
Janasik’s counsel indicated that they could not win the case without his testimony and
they had built their entire defense around him, he failed to provide the trial court with
the facts he expected Dr. Citron’s testimony to prove. He stated only that Dr. Citron’s
3 Janasik’s brief indicates that the notice of appeal asked the trial court clerk “‘not to omit anything from the record on appeal,’” but the clerk nevertheless omitted the return of service on Dr. Citron’s subpoena. However, the notice of appeal actually informed the clerk that court notices and correspondence between the Court and the parties could be omitted. Janasik’s appellate counsel further represents in the brief that she asked the clerk to supplement the record with the return of subpoena, but the appellate record has never been so supplemented. And Janasik’s appellate counsel never filed a motion in this Court seeking to supplement the record. As appellant, Janasik bore the burden of ensuring that the appellate record was complete. Rowell v. State, 312 Ga. App. 559, 561 (1) (718 SE2d 890) (2011).
17 testimony “wrapped up the testimony of [the defense’s other expert] and the video as
well as Trooper Collins as well as the medical records that we procured for purposes
of him to review [that] predated – this incident,” without providing the court any
indication of the content of his testimony.4 Accordingly, Janasik failed to establish
for the trial court that Dr. Citron’s testimony was material. Under these
circumstances, we cannot say that the trial court abused its discretion in denying the
motion for continuance. Bailey v. State, 309 Ga. App. at 474-475.
And, pretermitting whether a defendant’s failure to secure the attendance of his
own witness after releasing him from a subpoena could ever provide a basis for a
mistrial, for the same reasons we cannot say that the trial court abused its discretion
in denying the motion for mistrial in this case. See Eskew v. State, 309 Ga. App. 44,
47 (3) (709 SE2d 893) (2011) (trial court’s denial of a motion for mistrial reviewed
for abuse of discretion). Additionally, we find that the trial court lacked authority to
compel Dr. Citron’s attendance once Janasik’s counsel had released him from his
subpoena. See generally Schramm v. State, 286 Ga. App. 156, 158 (2) (648 SE2d
392) (2007) (trial court cannot compel witness in absence of subpoena).
4 We note that Dr. Citron apparently testified at the hearing on the motion to suppress , but that motion was considered at the same hearing addressing the similar transaction evidence, which, as noted above, was not transcribed.
18 (b) Janasik’s claim of ineffective assistance of counsel on this ground similarly
fails.5 Pretermitting whether the failure by Janasik’s trial counsel to secure Dr.
Citron’s testimony constitutes deficient performance, we find that Janasik cannot
meet his burden to show that he was prejudiced by such failure in the absence of the
requisite proof of what Dr. Citron’s testimony would have been. “To prove the
prejudice prong of Strickland on a claim that trial counsel failed to call a witness, a
defendant must show the witness’s expected testimony by presenting either live
testimony of the witness, an affidavit from the witness, or a legally recognized
substitute for the uncalled witness’s testimony; a proffer by counsel is insufficient.”
(Citations and punctuation omitted.) Benjamin v. State, __ Ga. App. __ (1) (b) (Case
No. A13A0770, decided May 23, 2013). Although at the hearing on the motion for
new trial, Janasik’s trial counsel described what he expected Dr. Citron’s testimony
to be, Dr. Citron did not testify at the motion hearing, and Janasik failed to produce
an affidavit or any other legally recognized substitute for his testimony. Accordingly,
Janasik failed to establish his claim of ineffective assistance of counsel on this
5 Janasik asserts that the trial court never ruled on this claim, but “[a]lthough the trial court did not make explicit findings on this issue, implicit in the trial court’s denial of the amended motion for new trial is a finding that [Janasik] was not denied the effective assistance of counsel.” Maddox v. State, 218 Ga. App. 320, 322 (2) (461 SE2d 286) (1995).
19 ground. See Kendrick v. State, 290 Ga. 873, 877 (4) (725 SE2d 296) (2012) (“If an
appellant fails to meet his burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.”) (citations omitted).
Judgment affirmed. Andrews, P. J., and Dillard, J., concur.