307 Ga. 171 FINAL COPY
S19A0644. GREEN v. THE STATE.
BETHEL, Justice.
Following his conviction for the murder of Janice Pitts, Dewey
Calhoun Green appeals from the denial of his motion for a new trial.1
Green argues numerous alleged errors, including that the trial court
erroneously excluded two expert witnesses. Because we agree that
the trial court abused its discretion in excluding the entire testimony
of one of the expert witnesses, Sean Alexander, for Green’s alleged
1 The crimes occurred on June 25, 2014. A Douglas County grand jury indicted Green on one count of malice murder, three counts of felony murder (for causing the death of Pitts by running her over, and while in the commission of an aggravated assault against Pitts’ daughter and grandson), and three counts of aggravated assault (for assaulting Pitts, her daughter, and grandson with an automobile). After an August 2015 trial, a jury found Green guilty of all charges. The court merged the felony murder counts and one aggravated assault count into the malice murder count, but then amended the sentence to vacate the felony murder counts. Green was sentenced to life in prison without parole for malice murder, and two consecutive twenty-year sentences for the two aggravated assault counts. Green filed a motion for new trial on August 26, 2015, and he amended that motion on August 29, 2017, and on July 6, 2018. The trial court denied the motion (as amended) on October 22, 2018. Green filed a notice of appeal to this Court on October 30, 2018, and this case was docketed in this Court to the April 2019 term. The case was orally argued before this Court on August 20, 2019. failure to comply with the requirement set forth in OCGA § 17-16-4
(b), we reverse.
1. This case calls for this Court to construe a provision of
OCGA § 17-16-4. This particular provision has been the subject of
few decisions by the appellate courts of Georgia. In pertinent part,
the section provides:
The defendant shall within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the defendant intends to introduce in evidence in the defense’s case-in- chief or rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than five days prior to trial . . . .
OCGA § 17-16-4 (b) (2). In order to exclude expert witness testimony
under this statutory provision, the State must clear two hurdles.
First, as a threshold matter, the State must show that the statute
2 applies to the expert’s testimony. If the statute does apply and the
defendant fails to comply with OCGA § 17-16-4 (b) (2), then
pursuant to objection and “upon a showing of prejudice and bad
faith,” the trial court may “prohibit the defendant from introducing
the evidence not disclosed or presenting the witness not disclosed,
or may enter such other order as it deems just under the
circumstances.” OCGA § 17-16-6. See also Murphy v. State, 299 Ga.
238, 244 (3) (787 SE2d 721) (2016) (party seeking to exclude
evidence under OCGA § 17-16-6 has the burden to show prejudice to
the movant and bad faith by the party that failed to comply with
OCGA § 17-16-4). We review the trial court’s decision for an abuse
of discretion. See Murphy, 299 Ga. at 244 (3).
2. Viewed in the light most favorable to the verdicts, the
evidence presented at trial shows the following. On June 25, 2014,
Pitts was driving her SUV with her daughter and four-year-old
grandson as passengers southbound on Highway 5 in Douglasville.
As Pitts was switching from the left lane to the turn lane on a slight
downhill, Green rear-ended her SUV. Pitts’ daughter described the
3 collision as not just a single hit by Green’s truck, but rather a series
of hits. Pitts and her daughter exited Pitts’ SUV to survey the
damage. Pitts’ grandson, who was crying after the initial contact,
remained in the SUV. When Pitts reached the back of her SUV and
began examining it, Green’s truck moved forward and hit Pitts,
pinning her between the left rear corner of her SUV and the right
front-end of his truck. Pitts’ daughter was alongside Pitts’ SUV
when Green’s truck hit her mother. Pitts’ daughter then banged on
Green’s window in an effort get him to stop his truck. However,
Green did not respond, and Pitts’ daughter returned to the SUV in
an effort to move it out of the way so that Green would stop crushing
her mother. When her efforts failed, Green’s daughter got back out
of the SUV and started approaching the truck and her mother.
However, Green backed up,2 drove partly over a curb, and ran over
2 There were as many versions of the story as there were witnesses.
However, some commonalities exist. Namely, at least 15 witnesses testified to the events they witnessed immediately surrounding the collision. Nine witnesses testified that they saw Green back up in some form or fashion. At least one of these witnesses claimed to have seen Green’s reverse lights, and another said he saw Green turn his head to look behind his truck before
4 Pitts, who had fallen to the ground. Pitts’ daughter had to move out
of the way of the oncoming truck. Green’s truck then turned in front
of Pitts’ SUV and finally stopped on a hill in the grass in front of a
nearby business. A man who witnessed the accident approached
Green’s truck, which had come to a rest on the hill, and shifted
Green’s truck into park. Police arrived on the scene and, after some
investigation, arrested Green.3 Pitts ultimately died from her
backing up. But four other witnesses said that Green’s truck pushed against Pitts’ SUV in a continuous motion, trapping Pitts and rolling her along her SUV until finally getting past it. Another witness recalled that Green’s truck’s left tire got pushed against the curb and stopped before the tire turned and Green’s truck pinned Pitts against her SUV. When the tire turned again, the witness saw Pitts fall. An additional witness who observed the accident did not see Green back up. Thus, nine witnesses indicated that they saw Green’s truck back up and six did not testify to seeing Green’s truck back up. 3 Green was described as not being particularly emotional immediately
following the accident. Various witnesses, including police, described him as apparently uninjured and responsive following the accident, although one witness who observed Green in his vehicle as it went up the grassy hill stated that he was “slouching to the side” and “looked unconscious.” Another witness who checked on Green in his vehicle after the accident described him as “just sort of flailing,” and testified that he did not initially respond to her voice. When he finally did turn toward the witness, he reportedly made an odd face, gritted his teeth, and looked “like something had come over him,” though the witness did not believe he was having a seizure. However, a different witness who saw Green “shaking around” believed he was having a seizure. Another described Green as initially unresponsive to her voice, having a blank face, and “profusely sweating.” A different witness also observed Green sweating profusely, and stated that Green was mumbling incoherently. After an officer got Green out of his vehicle, Green reportedly stated, “Oh, God, what did I do?
5 injuries.
On June 11, 2015, the parties appeared before the trial court
to address the prosecution’s request for reports and other medical
records. At that hearing, the prosecutor requested “that the Court
put a deadline on [defense counsel] for the evidence that he intends
to bring forward so that I have ample time to examine and respond
to this evidence in advance to [sic] the August 4 trial date.” The
parties had been discussing the expert witness Green had at the
time — Dr. Horatio Capote. Defense counsel responded to the
prosecutor’s request and stated that Dr. Capote had not yet issued
a report because he had been waiting on medical records from some
of Green’s healthcare providers, but that defense counsel would ask
him for an expedited report. The prosecutor then responded, “So
June the 20th, Judge?” The trial court confirmed summarily a
What happened?” The officer noted that Green was confused and dazed. Another emergency responder testified that while Green did not have any obvious bruising or swelling, he complained of forehead and jaw pain. Bruising under Green’s left eye was later noted during his jail intake.
6 “deadline date” of “June the 20th.”4
On June 19, Green’s defense counsel e-mailed the prosecutor
to inform him that counsel was in the process of obtaining a
neurologist to testify, and that all potential names of expert
neurologists would be forwarded by the June 20 deadline via
supplemental discovery. Sean Alexander, an accident
reconstructionist, and Richard Franco, a neurologist, were listed as
two of several “may call” witnesses in the supplemental discovery
submitted by Green to the State on June 20, which the State
acknowledged receiving. The disclosure included their contact
information but did not include reports.
The prosecutor made some initial contact with these experts
prior to trial.5 On June 30, Green also filed an amended notice of an
4 Green did submit a report for Dr. Capote to the prosecution prior to
trial. 5 The prosecutor later represented to the trial court that when contacted,
Franco indicated that he did not plan on providing a written report to the State on behalf of Green. Alexander testified at the motion for new trial hearing that when he was contacted by the prosecutor prior to trial, Alexander told the prosecutor that he was unsure whether he was being retained by the defense as an expert or a consultant, but that he would “get something over” to the prosecutor for Green once he confirmed that he was testifying as an expert
7 affirmative defense asserting amnesia, which Green claims
summarized Alexander’s opinion, although Alexander is not
specifically named anywhere therein.6
On July 22, the prosecutor e-mailed Green’s counsel and asked
whether Alexander was going to testify, and if so, whether the
prosecutor could get a copy of his report. Defense counsel responded
that same day and confirmed that Alexander would be testifying as
an expert at trial, that he was expected to explain the vehicle
damage and unguided uphill path of Green’s vehicle, and that
defense counsel would be meeting with Alexander later in the week.
Defense counsel did not otherwise submit any written summary of
Alexander’s or Franco’s opinions to the State prior to trial or seek an
extension of time to do so from the court.
The State finished presenting its case-in-chief at trial, and
then moved to exclude Alexander and Franco from testifying based
on Green’s alleged failure to comply with OCGA § 17-16-4 (b).
(although he claims the State knew what his opinions were). 6 The notice mentioned a mild traumatic brain injury that Green suffered
during the accident and his subsequent loss of conscious control of the truck. 8 Thereafter, the trial court reviewed the e-mail correspondence
between the parties to determine whether the correspondence
complied with the statute and with the June 20 deadline the trial
court had ostensibly given for Dr. Capote’s report. The trial court
noted that the e-mails broadly discussed the experts’ opinions, but
did not set forth the bases for the opinions and omitted other critical
details specific to their opinions. The trial court further found the
defense’s failure to comply with the requirement for written reports
pursuant to OCGA § 17-16-4 (b) to be intentional and prejudicial to
the State, and excluded Alexander and Franco from testifying at
trial.7
At trial, the State presented evidence that Green had trace
amounts of sedatives in his blood and had been up late the night
before the accident. It argued that he had acted intentionally in
driving his truck into Pitts, although his judgment was impaired.
The jury found Green guilty of all charges.
7 Regardless of whether the June 20 date controlled the deadline for
submitting Alexander’s and Franco’s reports, Green did not meet the statutory default deadline set forth in OCGA § 17-16-4 (b) (2). 9 At the motion for new trial hearing, Alexander testified that he
examined both Green’s and Pitts’ vehicles, reviewed pictures taken
at the scene and surveillance video showing the vehicles driving
along a portion of the road, as well as a video of the vehicles taken
by a bystander immediately following the collision, and made
measurements of the vehicles and the scene which he then used to
create three-dimensional maps. From this information, Alexander
calculated a predicted speed for Green’s truck and its path.
Alexander also took a truck similar to Green’s and, with the engine
idling, let the truck roll from a stop along a path similar to that
taken by Green’s truck at the accident scene, noting its speed, which
was comparable to the speed he had predicted based on his
calculations.
Alexander intended to testify at trial that, following the initial
collision between the vehicles, Green’s truck was idling and on an
uncontrolled path when Pitts was struck. More specifically,
Alexander would have testified that the vehicle damage he observed
indicated that after the initial impact, Green’s truck had been idling
10 but moving forward against Pitts’ SUV in a constant vibrating,
slipping motion, creating the sensation of multiple impacts. At some
point, Green’s truck got stuck against the curb, and a V-shaped
space between Green’s truck and Pitts’ SUV was created. While
Pitts was standing in this space, the friction between the vehicles
broke, “pivoting” Green’s truck and crushing Pitts. After pushing
past Pitts’ SUV, Green’s truck continued up a nearby hill until it lost
its kinetic energy and stopped.
At that same hearing, Franco indicated that he intended to
testify that Green lost consciousness after the initial collision
between the vehicles and suffered a concussion and possibly a
seizure.
3. Though not raised by Green as error, in accordance with this
Court’s general practice in appeals of murder cases, we have
reviewed the record and find that the evidence, as summarized
above, was sufficient to enable a rational trier of fact to find Green
guilty beyond a reasonable doubt of the crimes of which he was
convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61
11 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (1) (673
SE2d 223) (2009) (“It was for the jury to determine the credibility of
the witnesses and to resolve any conflicts or inconsistencies in the
evidence.” (citations and punctuation omitted)).8
4. Green contends that the trial court erroneously excluded
Alexander and Franco from testifying at trial. With respect to
Alexander, we agree.9
Here, the parties and the trial court seem to have been
operating under the assumption that a defendant’s intention to
present any expert testimony required the defendant, in this case
Green, to make available or to serve a report summarizing the
entirety of the expert’s opinion under OCGA § 17-16-4 (b) (2). Thus,
because Green did not do so with respect to Alexander, the trial
court excluded the entirety of Alexander’s opinion. However, that is
8 Accordingly, the State may elect to retry Green. See Johnson v. State, 302 Ga. 188, 199 (3) (d) n.14 (805 SE2d 890) (2017). 9 Because we find that the trial court committed reversible error in
excluding Alexander, we need not address Green’s contentions regarding the exclusion of Franco.
12 not what Georgia law requires. 10 As provided by the plain language
of OCGA § 17-16-4 (b) (2), the statute does not require a report to be
prepared and made available or served unless a defendant intends
to introduce in evidence in the defense’s case-in-chief or rebuttal the
results of “scientific tests or experiments.” Therefore, to the extent
Alexander would offer testimony independent of any scientific tests
or experiments, such testimony was not subject to the requirements
of OCGA § 17-16-4 (b) (2).11
Alexander’s opinion about the movement of Green’s vehicle was
based on various sources of information, only one of which could be
10 By contrast, Federal Rule of Criminal Procedure 16, which includes
language materially similar to OCGA § 17-16-4 (b) (2) in its subsection (b) (1) (B), was amended in 1993 to also require a defendant, “at the government’s request, [to] give to the government a written summary of any [expert witness testimony] that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial” under certain circumstances. Georgia’s statute does not contain language encompassing the totality of an expert’s testimony. Rather, OCGA § 17-16-4 (b) (2) continues to apply only to expert testimony regarding the results of physical or mental examinations or scientific tests or experiments and opinions derived therefrom. Civil discovery, by contrast, provides parties with a broad reach into the opinions and facts relied upon by any expert. See OCGA § 9-11-26 (b) (4). 11 The language in OCGA § 17-16-4 (b) (2) pertaining to a “physical or
mental examination” is not applicable here because Alexander did not conduct a physical or mental examination of Green.
13 considered a scientific test or experiment for purposes of OCGA § 17-
16-4 (b) (2). Alexander took a truck similar to Green’s and, with the
engine idling, let the truck roll from a stop along a path similar to
that taken by Green’s truck at the accident scene, noting its speed,
which was comparable to the speed which he had already calculated
based on other information. Assuming, without deciding, that this
qualified as a scientific test or experiment,12 then the trial court
could prohibit Green from introducing into evidence only the results
of that scientific test or experiment, as he failed to serve or make
available the requisite report as required under OCGA § 17-16-4 (b)
(2).
However, the State did not carry its burden in showing that
OCGA § 17-16-4 (b) applied in the first instance, that Alexander’s
remaining testimony was dependent upon the results of this
12 See, e.g., Reed v. Heffernan, 171 Ga. App. 83, 85 (1) (a) (318 SE2d 700)
(1984), overruled on other grounds by Brown v. State, 274 Ga. 31 (549 SE2d 107) (2001) (in a car crash case, evidence of a separate accident at the same curve of road in similar weather conditions was the “substantial equivalent of a scientific test designed to show the probability of an incident occurring in the way asserted by an expert”). 14 arguable “scientific test or experiment,” and that he would not have
been able to or would not have in fact given the same opinion without
relying on these results. Although the State seems to argue that all
of Alexander’s testimony required a report, his opinion was based
almost entirely upon information that was available to both parties
and which did not convey the results of any scientific tests or
experiments. More specifically, in formulating his opinion,
Alexander reviewed pictures taken at the scene and video of the
vehicles driving along the road, physically examined both Green’s
and Pitts’ vehicles, and made measurements so as to create three-
dimensional maps of those vehicles and the scene. Alexander used
this information to mathematically calculate vehicle speed and to
reconstruct the accident. Alexander’s opinion was therefore based
almost entirely upon his own observations and measurements of the
available evidence, as well as application of established principles of
mathematics and physics to those measurements, which did not
constitute a “scientific test or experiment” requiring disclosure. See
Fortner v. State, 932 P2d 1283, 1287 (Wyo. 1997). Alexander’s
15 testimony at the motion for new trial hearing indicated that it was
possible for Alexander to reach his opinion as to the speed and path
of Green’s truck without referencing the results from the roll-test he
did of a similar truck, which yielded a speed close to that he had
calculated based on the other information. Therefore, the trial court
abused its discretion in excluding Alexander’s entire testimony from
trial.13
Moreover, under the circumstances of this case, the trial court’s
exclusion of Alexander was not harmless. See Jackson v. State, 306
Ga. 69, 80 (2) (c) (829 SE2d 142) (2019) (“[T]he test for determining
nonconstitutional harmless error is whether it is highly probable
that the error did not contribute to the verdict.” (citation and
punctuation omitted)). Alexander was an expert witness from whom
13 In Murphy, 299 Ga. at 243 (3), we suggested that the State was required to provide timely notice of its expert’s opinion to defense counsel before the State could elicit the expert witness’ response to a hypothetical. Given the provisions of OCGA § 17-16-4 (a) (4), of course, this is true only when the expert’s response was based upon “the results of [a] physical or mental examination or scientific test or experiment.” OCGA § 17-6-4 (a) (4). We do not hold that an accident reconstruction expert never or always needs to provide a report under OCGA § 17-16-4. Our holding is instead based on the facts and circumstances of this case. 16 the defense intended to elicit crucial testimony at trial supporting
the defense’s version of events — specifically, how Green’s truck
could have taken the path that it did during the accident while
uncontrolled by Green. Whether Green’s actions were conscious and
voluntary was the critical issue at trial. The State’s evidence on that
point rested almost entirely on the credibility of its expert witnesses
and the observations of some of the witnesses at the scene.
Alexander’s testimony, which provided an alternative explanation
for certain physical evidence (such as the marks on the vehicles and
the path that Green’s truck took) would have given weight and
credence to the testimony of the witnesses who testified that Green
appeared dazed and unresponsive or that he appeared to be
experiencing some sort of medical event, as well as the defense’s
argument that Green was not consciously controlling his truck. It
would also strengthen and explain the testimony of the witnesses
who did not see Green back up, but rather observed Green’s truck
push against Pitts and her SUV in more of a rolling motion until
finally getting past the SUV. Alexander’s theory that Green’s truck
17 was moving at an idling speed and was on an uncontrolled path
would also be consistent with the uncontroverted evidence that a
bystander placed Green’s truck in park when it came to a stop on a
slight incline. Moreover, Alexander’s testimony regarding the
sudden movement and change in direction of Green’s truck after it
became dislodged from the curb and crushed Pitts would provide the
jury with an alternate explanation for many of the witnesses who
claimed to have seen Green back up. Accordingly, we cannot say
that it is highly probable that the erroneous exclusion of Alexander’s
testimony did not contribute to the jury’s guilty verdicts.
5. In view of our disposition in Division 4, we need not address
Green’s remaining enumerations of error.
Judgment reversed. All the Justices concur.
18 DECIDED OCTOBER 31, 2019. Murder. Douglas Superior Court. Before Judge Emerson. The Merchant Law Firm, John B. Merchant III, Ashleigh B. Merchant, for appellant. Ryan R. Leonard, District Attorney, Sean A. Garrett, David H. Emadi, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vanessa T. Sassano, Assistant Attorney General, for appellee.