Jacqueline G. Lavertu v. State

• Court: Court of Appeals of Georgia
• Decided: February 7, 2014
• Docket: A13A2158
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER, and RAY, 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/

February 7, 2014

In the Court of Appeals of Georgia A13A2158. LAVERTU v. THE STATE

BARNES, Presiding Judge.

A jury convicted Jacqueline Lavertu of driving with a blood alcohol count over

0.08 (“DUI per se”), of driving under the influence of alcohol to the extent that it was

less safe for her to drive (“DUI less safe”), and driving with an open alcoholic

container. She argues on appeal that the trial court abused its discretion in denying

her motion for a new trial on her conviction of DUI less safe because the verdict was

strongly against the weight of the evidence, and that she was entitled to a new trial

because her trial counsel’s performance was deficient in failing to question witnesses

about the handling of her blood sample and failing to object to the State’s closing

argument was prejudicial. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, and the defendant no longer enjoys a presumption of innocence.” Green v. State, 323 Ga. App. 832 (748 SE2d 479) (2013). So viewed, the

evidence shows that a trooper with the Georgia State Patrol observed Lavertu cross

the yellow center line several times and stopped her to investigate whether she was

impaired. Her pupils were slightly constricted and bloodshot, and her speech was

slightly slurred. She initially got out of the car with no shoes on but returned to the

car and put them on when the trooper asked if she wanted to do so. Her hand gestures

were “sporadic” and nervous. The trooper attempted to conduct field sobriety tests,

but Lavertu said an injury prevented her from performing the one-leg stand or walk

and turn tests. She performed several counting and dexterity tests, and when asked

to count backward from 75 by ones she “butchered it” several times, counting off

seemingly random numbers that were not sequential. When asked to perform a finger

dexterity test counting from one to four and four to one while touching her thumb to

her fingers, Lavertu was unable to count backwards. With her head back and eyes

closed, Lavertu was unable to touch her nose. While attempting to perform the

horizontal gaze nystagmus test, the trooper observed a nystagmus at maximum

deviation, but Lavertu would not follow his directions to continue focusing on his

finger, and so the nystagmus was not sustained sufficiently for him to document its

existence. She declined to take a portable breath test to confirm or deny the presence

2 of alcohol in her system. She was very nervous and “antsy,” moving in and out of the

camera frame as equipment in the trooper’s car recorded the stop.

A second trooper who was qualified as an expert in alcohol and drug

recognition testified that the first trooper asked him to come to the scene and give his

opinion about whether Lavertu was under the influence of drugs or alcohol. He also

testified that Lavertu would not follow his stimulus on the horizontal gaze nystagmus

test, which tested for involuntary jerking of the eyes, nor would she follow his

directions for a balance test. When she closed her eyes and leaned her head back with

her hands at her side, she estimated that 30 seconds had passed when actually 56

seconds had passed. The expert testified that an estimate of time off by five seconds

either way is an indication of impairment. Finally, Lavertu had body tremors and her

eyes showed a lack of convergence when tested. In the expert opinion of the second

trooper, Lavertu was under the influence of a central nervous system depressant or

cannabis, to the extent she was a less safe driver.

While the first trooper thought that Lavertu was not “falling over drunk,” he

also thought she was not sober and was a less safe driver than someone who was not

under the influence of drugs or alcohol because her reaction time was suppressed. He

arrested Lavertu for DUI and after placing her in the back of his patrol car, he and

3 other officers searched the area of her car within reach of the driver’s seat. Inside a

pocketbook on the floor on the passenger side, the trooper found a shoe containing

a small empty vodka bottle, of the size used on airplanes. A police cadet on scene

found one or two more similar empty vodka bottles.1 The trooper read the implied

consent notice to Lavertu, and she agreed to give a blood sample, which was drawn

at the police station.

A toxicologist with the Georgia Bureau of Investigation (“GBI”) Division of

Forensic Sciences testified that upon receipt of evidence, the “evidence receiving

technician” creates a file in the GBI database with information such as the subject’s

name, the date of receipt, and the incident information. The evidence is assigned a

unique identification number, and bar code stickers with that number are printed and

applied to all the evidence and paperwork associated with the case. The technician

then photographs the evidence and forwards it to the toxicologist. After testifying

about the specific testing procedures used, the toxicologist testified that the sample

labeled with Lavertu’s name contained 0.159 grams of alcohol, plus or minus 0.006

grams, per 100 millileters of blood, which exceeded the per se blood alcohol content

of 0.08. The effect of that level of alcohol on a person would be decreased

1 Lavertu does not challenge the search on appeal.

4 inhibitions, increased self-confidence and sociability, slower information processing,

possible mental confusion, memory lapses, difficulty perceiving sights and sounds,

uncoordinated motor skills, poor balance, and slowed reaction to glare. Driving

would be affected because it would take longer to process information, and in the

toxicologist’s opinion, someone with a 0.159 blood alcohol content would be a less

safe driver.

The jury convicted Lavertu of DUI per se (alcohol), DUI less safe (alcohol),

and the open container violation, but acquitted her of DUI less safe (alcohol and

drugs) and failure to maintain her lane.

1. Lavertu argues that the trial court abused its discretion by denying her

motion for new trial on her DUI less safe conviction because the verdict “was

decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21

authorizes the trial court to “exercise a sound discretion in granting or refusing new

trials in cases where the verdict may be decidedly and strongly against the weight of

the evidence even though there may appear to be some slight evidence in favor of the

finding.” This statute gives the trial court broad discretion to sit as a “thirteenth juror”

and weigh the evidence on a motion for new trial alleging this general ground. See

Ricketts v. Williams, 242 Ga. 303, 304 (248 SE2d 673) (1978). When asked to do so,

5 “the law imposes upon the trial court an affirmative duty to exercise its discretion and

weigh the evidence to determine whether a new trial is warranted.” Hartley v. State,

299 Ga. App. 534, 540 (3) (683 SE2d 109) (2009).

A trial court’s review of the evidence under OCGA § 5-5-21 differs from its

review of the evidence in response to a motion for a directed verdict under OCGA §

17-9-1. In the latter case, the trial court has a duty to grant a directed verdict of

acquittal “when there is no conflict in the evidence and it clearly demands a verdict

of acquittal as a matter of law.” Merino v. State, 230 Ga. 604, 605 (1) (198 SE2d 311)

(1973). A review under OCGA § 5-5-21 also differs from a determination that the

evidence was not sufficient to allow a rational trier of fact to find a defendant guilty

beyond a reasonable doubt of the offense charged. See Ricketts v. Williams, 242 Ga.

303, 304 (248 SE2d 673) (1978). In that case, “the court is required to approach the

evidence from a standpoint most favorable to the government, and to assume the truth

of the evidence offered by the prosecution.” (Citation and punctuation omitted.) Id.

(grant of new trial under predecessor to OCGA § 5-5-21 is not a finding that evidence

was legally insufficient and retrial thus is not barred under Double Jeopardy Clause

of the United States Constitution).

6 Lavertu argues both that the trial court failed to exercise its discretion and

weigh the evidence and that it abused its discretion by failing to find the verdict was

strongly against the weight of the evidence, contending that “[n]o rational trier of fact

could find under the facts in this case, that [she] was guilty beyond [a] reasonable

doubt of driving to the extent that she was less safe to drive.” She argues that the

following evidence establishes that the trial court erred in denying her motion for new

trial based on OCGA § 5-5-21: the officers on scene were unable to discern any

definitive evidence of intoxication from field sobriety tests; four officers spent nearly

an hour before deciding there was probable cause to arrest her; she consented to a

blood test; and her acquittal of the offence of failure to maintain her lane of traffic

indicates that the jury believed she was not driving unsafely.

In this case the trial court clearly exercised its discretion under OCGA § 5-5-21

to determine whether the verdict was against the great weight of the evidence. In its

order denying Lavertu’s motion for new trial, the court found specifically that her

conviction for DUI less safe was “not against the greater weight of evidence.” After

thoroughly reviewing the evidence and Lavertu’s arguments, the trial court found that

[m]aking a conclusory allegation that the officer’s testimony is just “some slight evidence” and the remaining evidence weighs “heavily”

7 against the verdict is not enough to overturn the Jury verdict in the instant case. The Defendant has made no showing that the Jury verdicts are against the weight of available evidence. Thus this Court finds no basis to overturn the Jury verdict on the DUI Less Safe [charge][.]

Likewise, we find no basis for reversing the trial court’s exercise of discretion in

denying Lavertu’s motion for a new trial under OCGA § 5-5-21.

2. Lavertu argues that her trial counsel was ineffective for failing “to question

the witnesses regarding the handling of the blood sample taken from [her] on the date

of her arrest” and for failing to object during the State’s closing argument. Ineffective

assistance is a deficient performance by counsel resulting in actual prejudice.

Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984);

Dillard v. State, 323 Ga. App. 333, 336 (2) (744 SE2d 863) (2013). “If an appellant

fails to meet his or her burden of proving either prong of the Strickland test, the

reviewing court does not have to examine the other prong.” Wright v. State, 291 Ga.

869, 870 (2) (734 SE2d 876) (2012). “In reviewing the trial court’s decision, [the

appellate courts] accept the trial court’s factual findings and credibility

determinations unless clearly erroneous, but . . independently apply the legal

principles to the facts.” (Citation and punctuation omitted.) Id.

8 a. Lavertu argues that, although five days passed between the night the blood

sample was taken and the day it was received by the lab, defense counsel “made no

attempt to discern what happened to the blood” during this five-day window, such as

what temperature it was kept at, whether it was handled properly or who possessed

it. Because the only theory of defense was that the blood sample must have belonged

to someone else, Lavertu argues, failing to raise questions about the test’s reliability

constitutes deficient performance.

Lavertu concedes that the State met its burden of proving sufficient chain of

custody evidence. She argues instead that her trial counsel should have challenged

the authenticity or reliability of the sample itself, because while the trial court decides

the legal issue of admissibility, the jury decides whether the evidence is believable.

In rejecting this argument,, the trial court noted in its order denying Lavertu’s motion

for new trial that Lavertu’s trial counsel questioned the State’s witnesses about the

temperature of the blood and whether it was handled properly. Citing Lawrence v.

State, 274 Ga. 794, 795 (3) (560 SE2d 17) (2002), the court concluded that trial

counsel’s decision “to delve into one particular aspect of the evidence more than

another is a matter of exercising professional judgment by counsel” and does not

show deficient performance. As we have emphasized, “the degree to which an

9 attorney chooses to cross-examine witnesses and the manner in which to attack their

credibility fall within the ambit of trial tactics.” (Citation and punctuation omitted.)

Id.

Further, Lavertu has not even speculated about what her trial counsel could

have asked the witnesses that would have caused the jury to question the test’s

reliability, much less proffered evidence about their responses. “Absent a proffer,

defendant cannot meet his burden of making an affirmative showing that specifically

demonstrates how counsel’s failure would have affected the outcome of his case.”

(Citation and punctuation omitted.) Hortman v. State, 293 Ga. App. 803, 807 (e) (670

SE2d 99) (2008) (defendant cannot establish that trial would have ended differently

without proffering evidence at the motion for new trial hearing that would have been

revealed if counsel had subpoenaed telephone records). As Lavertu established

neither her trial counsel’s deficiency nor any resulting prejudice, reversal on this

ground is not warranted.

b. Lavertu contends that her trial counsel was ineffective for failing to object

when the State personally vouched for a witness’s credibility during closing

argument. During her cross-examination of the witness who drew her blood sample

at the police station, Lavertu’s trial counsel brought out that the witness also served

10 as the chaplain for Douglas County law enforcement officers. During her closing

argument, defense counsel said about this witness,

[S]he is the lady as you’ll recall who owns the private blood taking company that works for Douglas County and 18 other counties. So not only does she do that, but she’s also the chaplain for police officers and inmates here in Douglas County. So she helps put away the people she then later goes and counsels. I’ll let you think about that one.

In response, the prosecutor argued that the jury had to look at the evidence and

put it all together, and that he found it “offensive” that defense counsel said it was the

“troopers[‘] fault” and “the crime lab’s fault” for not doing what they should have

done. He continued, “It’s the blood drawer’s fault because she’s a chaplain and she

works with inmates and law enforcement.” After discussing the specific charges, the

prosecutor said that the per se charge that it was illegal to drive with more than 0.08

grams of alcohol was “pretty straightforward. All right. Unless you get into some

conspiracy theories as to where her blood came from and how it got there.” Later,

discussing the testimony of the witness about the process of drawing Lavertu’s blood,

the prosecutor said,

She said there was nothing to note about it. I’m sure there wasn’t. . . . I’m not sure what’s to be made of the fact that she’s a chaplain and works with inmates. And she works with the sheriff’s office. I’m not

11 really sure what the big deal about that is other than the fact that she’s a good person. I don’t think too many chaplains would be making up evidence. You know, putting someone else’s blood in there. I don’t think she was doing that.

The prosecutor went on to discuss the chain of custody evidence and the

toxicologist’s testimony, then noted that Lavertu’s defense seemed to be that the

blood tested belonged to someone else. After reviewing more of the evidence, the

prosecutor argued that the blood test results were consistent with the field sobriety

tests and that “[n]o one’s trying to trick anybody here.”

At the hearing on Lavertu’s motion for new trial, her trial counsel testified that

unless a prosecutor says something “really egregious,” she tended not to object

because prosecutors “have a lot of latitude.” She also considered whether getting up

and interrupting someone during closing argument to make an objection that might

not be important would make her lose credibility with the jury. In hindsight, the

prosecutor’s remarks might have been objectionable, but at the time she thought these

remarks were not significant in light of the evidence regarding Lavertu’s blood

alcohol level.

“It is improper for counsel to state to the jury counsel’s personal belief as to the

veracity of a witness; however, it is not improper for counsel to urge the jury to draw

12 such a conclusion from the evidence.” Metts v. State, 270 Ga. 481, 484 (4) (511 SE2d

508) (1999). The trial court found that, looking at these comments in context, the

prosecutor’s closing argument in this case was a permissible response to Lavertu’s

attempt to create a question of bias because the witness worked as a chaplain for the

county sheriff’s department. The court concluded that the failure of Lavertu’s trial

counsel to object to these comments was not ineffective assistance.

Pretermitting whether the prosecutor’s argument was an impermissible

statement of his personal belief, “deficient performance, alone, does not amount to

ineffective counsel. [Lavertu] must establish that counsel’s inaction was so

prejudicial to [her] defense that, but for the deficiency, there was a reasonable

probability that the outcome of the trial would have been different.” (Citation

omitted.) Lloyd v. State, 280 Ga. 187, 192 (2) (d) (ii) (625 SE2d 771) (2006). “In light

of the overwhelming evidence of [Lavertu’s] guilt, [s]he has failed to demonstrate

that but for the handful of comments in the prosecution’s closing argument discussed

above, there is a reasonable probability that the outcome of the trial would have been

more favorable to [her].” (Citation and punctuation omitted.) Reed v. State, 291 Ga.

10, 17 (4) (b) (727 SE2d 112) (2012).

Judgment affirmed. Miller and Ray, JJ., concur.