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/
October 3, 2013
In the Court of Appeals of Georgia A13A1441. SMITH v. THE STATE.
BARNES, Presiding Judge.
After a bench trial, Karen Smith was convicted of driving under the influence
of alcohol to the extent she was less safe, in violation of OCGA § 40-6-391 (a) (1).1
She argues that the trial court erred by refusing to sequester the State’s witnesses
during a hearing on the State’s motion in limine and by excluding as irrelevant the
results of a blood test she took after she was released from jail. Because the trial court
erred in denying Smith’s motion to invoke the mandatory rule of sequestration during
a pre-trial evidentiary hearing, we reverse the DUI conviction and remand for a new
trial, but find no error in the exclusion of the test.
1 Smith was also convicted of failing to maintain her lane and failure to exercise due care, but does not challenge those convictions on appeal. “On appeal from a criminal conviction that follows a bench trial, the defendant
no longer enjoys a presumption of innocence, and we view the evidence in a light
favorable to the trial court’s finding of guilt.” (Citation and punctuation omitted.)
Hinton v. State, 319 Ga. App. 673 (738 SE2d 120) (2013). So viewed, the evidence
showed that in January 2011, two police officers saw Smith swing wide into the turn
lane as she turned from one road to another. The officers followed Smith for about
a mile and after observing her weave two or three feet over the center line at least four
times, they initiated a traffic stop.
Smith had a strong odor of alcohol on her breath, her eyes were bloodshot,
glazed, and watery, and her speech was slow and slurred. She told one of the officers
she had not drunk any alcohol but when he said he smelled it, she admitted she had
one drink earlier. When he questioned her about the timing and amount of the drink,
she said, “I was told not to tell the police anything and I should get a lawyer.” Two
of three field sobriety tests indicated Smith was impaired, but she would not follow
instructions for the third test. When a third officer arrived at the scene with a portable
device to test for the presence or absence of alcohol, Smith only pretended to blow
into the device and the test could not be completed.
2 All three officers on the scene testified that Smith smelled strongly of alcohol,
and one officer testified that Smith initially denied drinking, then when confronted
about the odor, admitted having one drink. Another officer testified that, when
questioned further about the type and amount of alcohol she had drunk, Smith became
evasive. Smith was placed under arrest and ticketed for driving under the influence
of alcohol to the extent she was a less safe driver in violation of OCGA § 40-6-391
(a) (1), failure to maintain her lane, and failure to use due care. An officer read the
Implied Consent Warning to her, but she refused his request for a blood test. After
she was released from jail, Smith obtained a blood test that established she had no
marijuana in her system, but did not exclude the presence of alcohol or any other
drugs.
Smith was initially charged by accusation with three counts: driving under the
influence of alcohol to the extent she was a less safe driver in violation of OCGA §
40-6-391 (a) (1), failure to exercise due care while operating a motor vehicle in
violation of OCGA § 40-6-241, and failure to maintain her lane in violation of OCGA
§ 40-6-48 (1). A month later, in November 2011, the State added a fourth count,
charging Smith with driving under the influence of alcohol and drugs, in violation of
OCGA § 4-6-391 (a) (4), but in June 2012 it successfully moved the court for an
3 order of nolle prosequi on that fourth count because it had insufficient evidence to
prove Smith’s guilt beyond a reasonable doubt.
In July 2012, the case was called for trial. The State made a motion in limine
to exclude evidence that Smith tested negative for drugs after she was released from
custody, because she was not charged with driving under the influence of drugs and
therefore the evidence was irrelevant. The trial court granted the State’s motion,
ruling that evidence showing Smith had no marijuana in her system after her release
from jail was not relevant to whether she was a less safe driver under the influence
of alcohol, and that the admission of this evidence would unnecessarily expand the
proceedings.
Smith then moved to exclude evidence that she initially refused to take a State-
administered blood test, arguing that she had rescinded her refusal. The trial court
denied Smith’s request to invoke the rule of sequestration before she called witnesses
to testify on her motion, then denied the motion after hearing testimony from Smith
and two of the officers present at her arrest. Smith waived her right to a jury trial, and
after hearing evidence from the three officers involved, the trial court found Smith
guilty of driving under the influence of alcohol to the extent she was a less safe
driver.
4 1. Smith argues that the trial court erred in refusing her request to invoke the
rule of sequestration before hearing witnesses on her motion in limine to exclude
evidence that she refused the officers’ request to take a State-administered blood test.
Smith testified during the hearing that she initially refused to take a state-
administered blood test because she was “in panic mode,” but that after she was
handcuffed and placed into the back of the patrol car she changed her mind and told
the officer that she would take the test. According to Smith, after the officer told her
that it was too late, she asked at the jail and was again told no, she no longer had the
option to take a state-administered test. She argues that, because the trial court
refused to sequester the witnesses before the motion hearing and the arresting officers
remained in the courtroom during her testimony, they knew that the sole factual
dispute was whether she had rescinded her refusal to take the test and knew what kind
of testimony would affect the outcome of the proceedings.
Former OCGA § 24-9-61, which is applicable to this case, provided that “in all
cases either party shall have the right to have the witnesses of the other party
examined out of the hearing of each other. The court shall take proper care to effect
this object as far as practicable and convenient, but no mere irregularity shall exclude
5 a witness.” 2 Smith points out that the statute applies to “all cases,” which would
include evidentiary hearings as well as trials, and argues that the court’s failure to
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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/
October 3, 2013
In the Court of Appeals of Georgia A13A1441. SMITH v. THE STATE.
BARNES, Presiding Judge.
After a bench trial, Karen Smith was convicted of driving under the influence
of alcohol to the extent she was less safe, in violation of OCGA § 40-6-391 (a) (1).1
She argues that the trial court erred by refusing to sequester the State’s witnesses
during a hearing on the State’s motion in limine and by excluding as irrelevant the
results of a blood test she took after she was released from jail. Because the trial court
erred in denying Smith’s motion to invoke the mandatory rule of sequestration during
a pre-trial evidentiary hearing, we reverse the DUI conviction and remand for a new
trial, but find no error in the exclusion of the test.
1 Smith was also convicted of failing to maintain her lane and failure to exercise due care, but does not challenge those convictions on appeal. “On appeal from a criminal conviction that follows a bench trial, the defendant
no longer enjoys a presumption of innocence, and we view the evidence in a light
favorable to the trial court’s finding of guilt.” (Citation and punctuation omitted.)
Hinton v. State, 319 Ga. App. 673 (738 SE2d 120) (2013). So viewed, the evidence
showed that in January 2011, two police officers saw Smith swing wide into the turn
lane as she turned from one road to another. The officers followed Smith for about
a mile and after observing her weave two or three feet over the center line at least four
times, they initiated a traffic stop.
Smith had a strong odor of alcohol on her breath, her eyes were bloodshot,
glazed, and watery, and her speech was slow and slurred. She told one of the officers
she had not drunk any alcohol but when he said he smelled it, she admitted she had
one drink earlier. When he questioned her about the timing and amount of the drink,
she said, “I was told not to tell the police anything and I should get a lawyer.” Two
of three field sobriety tests indicated Smith was impaired, but she would not follow
instructions for the third test. When a third officer arrived at the scene with a portable
device to test for the presence or absence of alcohol, Smith only pretended to blow
into the device and the test could not be completed.
2 All three officers on the scene testified that Smith smelled strongly of alcohol,
and one officer testified that Smith initially denied drinking, then when confronted
about the odor, admitted having one drink. Another officer testified that, when
questioned further about the type and amount of alcohol she had drunk, Smith became
evasive. Smith was placed under arrest and ticketed for driving under the influence
of alcohol to the extent she was a less safe driver in violation of OCGA § 40-6-391
(a) (1), failure to maintain her lane, and failure to use due care. An officer read the
Implied Consent Warning to her, but she refused his request for a blood test. After
she was released from jail, Smith obtained a blood test that established she had no
marijuana in her system, but did not exclude the presence of alcohol or any other
drugs.
Smith was initially charged by accusation with three counts: driving under the
influence of alcohol to the extent she was a less safe driver in violation of OCGA §
40-6-391 (a) (1), failure to exercise due care while operating a motor vehicle in
violation of OCGA § 40-6-241, and failure to maintain her lane in violation of OCGA
§ 40-6-48 (1). A month later, in November 2011, the State added a fourth count,
charging Smith with driving under the influence of alcohol and drugs, in violation of
OCGA § 4-6-391 (a) (4), but in June 2012 it successfully moved the court for an
3 order of nolle prosequi on that fourth count because it had insufficient evidence to
prove Smith’s guilt beyond a reasonable doubt.
In July 2012, the case was called for trial. The State made a motion in limine
to exclude evidence that Smith tested negative for drugs after she was released from
custody, because she was not charged with driving under the influence of drugs and
therefore the evidence was irrelevant. The trial court granted the State’s motion,
ruling that evidence showing Smith had no marijuana in her system after her release
from jail was not relevant to whether she was a less safe driver under the influence
of alcohol, and that the admission of this evidence would unnecessarily expand the
proceedings.
Smith then moved to exclude evidence that she initially refused to take a State-
administered blood test, arguing that she had rescinded her refusal. The trial court
denied Smith’s request to invoke the rule of sequestration before she called witnesses
to testify on her motion, then denied the motion after hearing testimony from Smith
and two of the officers present at her arrest. Smith waived her right to a jury trial, and
after hearing evidence from the three officers involved, the trial court found Smith
guilty of driving under the influence of alcohol to the extent she was a less safe
driver.
4 1. Smith argues that the trial court erred in refusing her request to invoke the
rule of sequestration before hearing witnesses on her motion in limine to exclude
evidence that she refused the officers’ request to take a State-administered blood test.
Smith testified during the hearing that she initially refused to take a state-
administered blood test because she was “in panic mode,” but that after she was
handcuffed and placed into the back of the patrol car she changed her mind and told
the officer that she would take the test. According to Smith, after the officer told her
that it was too late, she asked at the jail and was again told no, she no longer had the
option to take a state-administered test. She argues that, because the trial court
refused to sequester the witnesses before the motion hearing and the arresting officers
remained in the courtroom during her testimony, they knew that the sole factual
dispute was whether she had rescinded her refusal to take the test and knew what kind
of testimony would affect the outcome of the proceedings.
Former OCGA § 24-9-61, which is applicable to this case, provided that “in all
cases either party shall have the right to have the witnesses of the other party
examined out of the hearing of each other. The court shall take proper care to effect
this object as far as practicable and convenient, but no mere irregularity shall exclude
5 a witness.” 2 Smith points out that the statute applies to “all cases,” which would
include evidentiary hearings as well as trials, and argues that the court’s failure to
sequester the State’s witnesses was reversible error.
“The purpose of the rule of sequestration . . . is to ensure that the testimony of
a witness who has not yet testified is not influenced by that of another witness.”
Childress v. State, 266 Ga. 425, 431 (2) (467 SE2d 865) (1996).
The practice of separating witnesses or, as generally called, “putting under the rule,” is of ancient origin and salutary in the proper administration of justice, the object being, of course, to prevent one witness from being taught by another as to the testimony he should give. . . . The mandate of the law is that in all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other, and, hence, the rule is applicable and mandatory in an interlocutory hearing . . . .
Poultryland, Inc. v. Anderson, 200 Ga. 549, 561-562 (2) (37 SE2d 785) (1946); see
also Hall v. Hobbs, 107 Ga. App. 46, 47 (129 SE2d 209) (1962).
2 The new evidence code, which became effective January 1, 2013, similarly provides that, with certain exclusions not applicable here, “at the request of a party the court shall order witnesses excluded so that each witness cannot hear the testimony of other witnesses, and it may make the order on its own motion.” OCGA § 24-6-615.
6 Exceptions to the rule exist. The trial court may allow an investigative officer
to remain in the courtroom to assist the prosecutor in “[t]he orderly presentation of
evidence.” Hardy v. State, 245 Ga. 673, 674 (266 SE2d 489) (1980).3 Thus, while
application of the rule is mandatory, the trial court has the discretion to grant an
exception if “it appears that in making the exception to the rule[,] the fair rights of the
opposite party are secured or the impairment of the efficiency of the court avoided by
allowing a deputy or other officials, who are witnesses, to remain in the courtroom.”
Montos, 212 Ga. at 765 (3). The trial court’s exercise of its discretion to allow an
exception to the rule will not be reversed on appeal unless it was abused. Warner v.
State, 281 Ga. 763, 765 (2) (642 SE2d 821) (2007); Dampier v. State, 245 Ga. 427,
432 (6) (265 SE2d 565) (1980).
Further, our appellate courts have held that “[w]hen the rule of sequestration
is violated, the violation goes to the credibility rather than the admissibility of the
witness’ testimony.” Johnson v. State, 258 Ga. 856, 857 (4) (376 SE2d 356) (1989).
If a witness is present despite the invocation of the rule, “[a]ny mere irregularity shall
not exclude the witness. The particular circumstances of each case shall control,
3 This exception is codified in OCGA § 24-6-615 (2013), which specifically does not authorize the exclusion of “a person whose presence is shown by a party to be essential to the presentation of the party’s cause.”
7 under the discretion of the court.” (Citation and punctuation omitted.) Gibby v. State,
166 Ga. App. 413, 414-415 (304 SE2d 518) (1983).
But the trial court in this case did not use its discretion to decide that a witness
could remain to assist the State or to allow testimony despite an infraction of the rule.
It simply held, incorrectly, that the rule of sequestration did not apply until the first
witness was called for trial. Under the law’s mandate that a party has the right to
examine the opposing party’s witnesses out of the hearing of each other,
the parties are entitled to the benefit of this rule at all stages of the proceedings in the trial of a case, regardless of the purpose of the testimony, and the error in depriving the plaintiff in this case of this substantial right rendered all subsequent proceedings nugatory, requiring the grant of a new trial.
(Citations and punctuation omitted.) Hall v. Hobbs, 107 Ga. App. at 47-48 (rule
applicable and mandatory during pre-trial proffer of witness testimony). Further, our
Supreme Court’s holding in Blankenship v. State, 258 Ga. 43, 49 (9) (365 SE2d 265)
(1988), that “[t]he trial court is not required to enforce the rule of sequestration until
the presentation of evidence has begun,” does not support the proposition that the rule
only applies during trials and not motions hearings. Rather, the court in Blankenship
held that the rule applies when witnesses are testifying and not during opening
8 statements and thus did not address the issue of sequestration in the context of pretrial
hearings in which witnesses testify.
The trial court erred in denying Smith’s request to invoke the rule of
sequestration. Accordingly, we reverse Smith’s conviction and remand for a new trial.
Poultryland, Inc., 200 Ga. at 562 (2); Hall v. Hobbs, 107 Ga. App. at 48.
2. Because the issue may arise again in a new trial, we will address Smith’s
contention that the trial court erred in granting the State’s motion in limine to exclude
evidence of the blood test Smith obtained after she was released from custody, which
was negative for marijuana. Smith argues that the arresting officers believed she was
under the influence of drugs, and that their report and investigation led the State to
believe initially that it had sufficient evidence to prove beyond a reasonable doubt
that she had been operating a vehicle under the influence of drugs to the extent she
was less safe to drive. She did not have her alcohol level tested, she asserts, because
she did not believe she was being charged with driving under the influence of alcohol.
She contends that evidence showing that she had no marijuana in her system was
admissible to cast doubt upon the reliability of the officers’ field sobriety evaluations
and ability to detect whether a driver was impaired.
9 “The admission or exclusion of evidence which is objected to on the ground
of relevancy lies within the sound discretion of the trial court, whose decision will not
be disturbed on appeal absent a clear abuse of discretion.” Davis v. State, 301 Ga.
App. 484, 488 (3) (687 SE2d 854) (2009). Evidence is relevant if it tends to prove or
to disprove a material fact at issue, and every act or circumstance which serves to
explain or throw light upon a material issue is relevant. See Sailor v. State, 265 Ga.
App. 645, 648 (2) (595 SE2d 335) (2004).
The elements of the crime of driving while under the influence of alcohol to the
extent that it is less safe to drive are: (1) driving, (2) under the influence of alcohol,
(3) to the extent that it was less safe for the person to drive. OCGA § 40-6-391 (a)
(1); Shaheed v. State, 270 Ga. App. 709, 710 (1) (607 SE2d 897) (2004). In this case,
the arresting officer gave Smith a ticket for “DUI Less Safe” in violation of OCGA
§ 40-6-391 (a) (1). While the State subsequently added a count of driving under the
influence of alcohol and drugs in violation of OCGA § 40-6-391 (a) (4), the trial
court granted an order of nolle prosequi two weeks before trial, and the State tried
Smith only for violating OCGA § 40-6-391 (a) (1) by driving under the influence of
alcohol to the extent she was a less safe driver.
10 While Smith elicited testimony from the officers establishing that some of her
manifestations of impairment indicated drugs instead of alcohol and some indicated
impairment from either substance, the issue before the fact-finder was only whether
she was under the influence of alcohol to the extent she was a less safe driver, not
whether she might have also ingested drugs. The blood test she obtained after she was
released from jail shed no light on her alcohol impairment, and the trial court did not
abuse its discretion in excluding it. See Allen v. State, 229 Ga. App. 435, 439 (2) (c)
(494 SE2d 229) (1997) (physical precedence only) (evidence of independent test for
alcohol taken eight hours after arrest was irrelevant and properly excluded).
Accordingly, we find no error in the trial court’s grant of the State’s motion in
limine to exclude this evidence.
Judgment reversed and case remanded for new trial. Miller and Ray, JJ.,
concur.