Shannon Puckett v. State

• Court: Court of Appeals of Georgia
• Decided: May 17, 2013
• Docket: A13A0264
• 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

May 17, 2013

In the Court of Appeals of Georgia A13A0264. PUCKETT v. THE STATE.

RAY, Judge.

Following a jury trial, Shannon Puckett was convicted on two counts of driving

under the influence (OCGA § 40-6-391 (a) (1) (less safe) and (5) (alcohol

concentration .08 or more) and one count of speeding (OCGA § 40-6-181). Puckett

appeals from her convictions, challenging the trial court’s decision to sequester her

expert witness during the presentation of the State’s case. For the reasons which

follow, we affirm.

Under OCGA § 24-9-61,1 either party has the right to have the witnesses of the

other party examined out of the hearing of each other. This statute, known as the rule

1 This Code section, which was in effect at the time of trial, has been repealed by Laws 2011, Act 52, § 2, effective January 1, 2013. of sequestration, has been broadly applied by trial courts to exclude all witnesses

from hearing the testimony of any other witnesses, and this practice has been

expressly approved by this Court. See Axelburg v. State, 294 Ga. App. 612, 619 (3)

(669 SE2d 439 ) (2008); Gray v. State, 222 Ga. App. 626, 631 (2) (476 SE2d 12)

(1996). And “[t]he trial court is vested with broad discretionary powers in

enforcement of the sequestration rule, which will not be controlled absent abuse of

discretion.” (Citation omitted.) Lassiter v. State, 175 Ga. App. 338, 340 (5) (333

SE2d 412) (1985). We therefore review the record to determine if that abuse was

committed.

This case stems from a traffic stop of a vehicle driven by Puckett on January

28, 2010. Based on the officer’s observations at the time of the stop, the officer

suspected that Puckett was driving under the influence of alcohol, and a DUI Task

Force officer was summoned to complete the investigation.

Officer Joshua Ferguson, a DUI Task Force officer trained in the

administration of standardized field sobriety testing, arrived at the scene and

performed a series of field sobriety tests on Puckett, which included the horizontal

gaze nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg-stand test. The

results of each of these tests indicated impairment. Although a video camera mounted

2 inside the officer’s patrol car recorded most of the field sobriety evaluations, Officer

Ferguson’s administration of the HGN test was performed outside the view of the

camera. Based on the results of the field sobriety testing and both officers’

observations of Puckett at the scene, Puckett was placed under arrest and charged

with driving under the influence of alcohol.

Prior to trial, Puckett filed a motion to suppress which challenged, inter alia,

Officer Ferguson’s failure to administer properly the HGN test. After an evidentiary

hearing in which Officer Ferguson testified, the trial court denied the motion.

On the first day of trial, the State called Officer Ferguson as a witness and had

him testify as to his training and experience in conducting standardized field sobriety

tests, including the HGN test. Officer Ferguson testified as to how to conduct the

HGN test and what clues to look for to indicate impairment. Officer Ferguson further

testified that Puckett exhibited all of the clues to indicate impairment under the HGN

test.

On the second day of trial, Puckett’s counsel brought a defense witness, Tony

Corroto, into the courtroom to observe the continuation of Officer Ferguson’s

testimony, and the State requested that the rule of sequestration be invoked. In

response, Puckett’s counsel stated that she planned to call Corroto later as an expert

3 on the subject of field sobriety evaluations, and she requested that Corroto be

permitted to stay in the courtroom to assist in the defense and to observe Officer

Ferguson’s testimony regarding the administration of the HGN test because such

information was not recorded on the video of the traffic stop. The trial court denied

Puckett’s request and applied the rule of sequestration equally to both parties. During

the cross-examination of Officer Ferguson, Puckett twice renewed her request that

Corroto be permitted in the courtroom so that he could observe Officer Ferguson

demonstrate his method of administering the HGN test. The State objected, arguing

that Puckett’s expert could offer his opinion as to Officer Ferguson’s administration

of the HGN test in the context of hypothetical questioning from counsel. After

acknowledging that Puckett’s counsel had the benefit of Officer Ferguson’s prior

testimony regarding the administration of the HGN test from the hearing on the

motion to suppress, the trial court denied counsel’s renewed requests and maintained

its earlier decision to apply the rule of sequestration equally to both parties.

Ultimately, Puckett’s counsel had Officer Ferguson demonstrate to the jury how he

administered the HGN test without Corroto present in the courtroom, and counsel

later elicited testimony from Corroto on the proper method of administering the HGN

test and the factors that could affect its reliability.

4 On appeal, Puckett claims that the trial court abused its discretion when it

excluded Corroto from the courtroom during Officer Ferguson’s testimony, thereby

violating Puckett’s right to a fair trial. Puckett argues that she was unable to mount

a full and complete defense because Corroto was unable to provide testimony to

appraise, critique, or refute Officer Ferguson’s method of administering the HGN test.

We disagree.

It is undisputed that Corroto did not observe the actual HGN test that was

administered to Puckett at the scene of the traffic stop. Thus, any opinion he could

have properly formed with regard to Officer Ferguson’s method of administering the

HGN test would have to have been based on Officer’s Ferguson’s testimony or on

hypothetical questions posed by counsel. See Chambers v. State, 216 Ga. App. 361,

364 (4) (454 SE2d 567) (1995). (When facts at issue were not personally observed

by expert witness, the expert’s opinion must be based on hypothetical questions.)

Even when an expert witness would be assisted by hearing the testimony of preceding witnesses instead of answering a hypothetical question and could assist counsel in conducting the cross-examination, the grant or denial of such exemption [from the rule of sequestration] lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion.

5 (Citations omitted.) Gray, supra.

Here, the trial court noted that Puckett had previously challenged Officer

Ferguson’s method of administering the HGN test in a motion to suppress and had the

benefit of his testimony prior to trial. Furthermore, nothing prevented Puckett’s

counsel from using the facts obtained from Officer Ferguson’s in-court demonstration

of the HGN test at trial to pose hypothetical questions to Corroto for the purpose of

challenging Officer Ferguson’s method of administering the HGN test. Moreover,

Puckett elicited testimony from Corroto on the proper method of administering the

HGN test and how the reliability of the results can be compromised if the test is not

conducted properly, which the jury could consider in comparison to Officer

Ferguson’s in-court demonstration.

For the above reasons, we find that the witness sequestration did not prevent

Puckett from challenging Officer Ferguson’s method of administering the HGN test.

While we note that the trial court could have allowed Puckett’s expert witness to

remain unsequestered under the circumstances of this case, we cannot say that the

trial court abused its discretion in requiring the expert to be sequestered. McNeil v.

State, 229 Ga. App. 149 (493 SE2d 570) (1997); Heath v. State, 223 Ga. App. 680,

6 681-682 (2) (478 SE2d 462) (1996). Accordingly, we affirm the trial court’s

judgment.

Judgment affirmed. Barnes, P. J., and Miller, J., concur.