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October 7, 2014
In the Court of Appeals of Georgia
A14A0858. DENSTAEDT v. THE STATE.
ANDREWS, Presiding Judge.
Following a jury trial, Matthew Denstaedt was convicted of driving under the
influence of alcohol with an alcohol concentration of 0.08 grams or more (OCGA §
40-6-391 (a) (5)) and acquitted of speeding (OCGA § 40-6-181) and driving under
the influence of alcohol to the extent that it was less safe to drive (OCGA § 40-6-391
(a) (1)). Denstaedt appeals from the denial of his motion for a new trial, arguing that
he received ineffective assistance from his trial counsel because she failed to admit
into evidence at trial print cards generated during a quarterly inspection of the
Intoxilyzer 5000 used to test his alcohol concentration. Denstaedt cannot establish
prejudice resulting from his trial counsel’s alleged deficient performance, and we
therefore affirm.
Viewed in the light most favorable to the jury’s verdict, Maloney v. State, 317
Ga. App. 460 (
731 SE2d 133) (2012), the evidence at trial showed that at
approximately 2:24 a.m. on February 6, 2011, a Duluth police officer conducted a
traffic stop after the officer saw Denstaedt driving a car at a high rate of speed as
Denstaedt turned onto Georgia Highway 120 from Peachtree Industrial Boulevard.
The officer approached the vehicle, and as he advised Denstaedt of the reason for the
stop, the officer noticed that Denstaedt was fumbling with his wallet. The officer
immediately noticed an overwhelming odor of alcoholic beverage coming from the
vehicle. When the officer asked Denstaedt about his consumption of alcohol,
Denstaedt admitted to consuming three beers. The officer also observed that
Denstaedt’s speech was slurred and that his eyes were red and watery.
Denstaedt agreed to submit to standardized field sobriety evaluations, exited
his car, and walked to the rear of the vehicle. The officer performed the Horizontal
Gaze Nystagmus (HGN), the walk and turn, and one-leg stand evaluations. The
officer observed six out of six clues on the HGN evaluation, one of eight clues on the
walk and turn, and no clues on the one-leg stand. The officer testified that, based on
his experience, six out of six clues on the HGN evaluation means that an individual
is a less safe driver due to alcohol and over the per se legal limit.
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The officer asked Denstaedt to submit to an alcosensor evaluation, and
Denstaedt’s breath sample tested positive for the presence of alcohol. The officer then
placed Denstaedt under arrest for driving under the influence and read Denstaedt
Georgia’s implied consent warning for suspects over the age of 21. Denstaedt agreed
to submit to a breath test, and the officer transported Denstaedt to the City of Duluth
Police Department for a breath test on the Intoxilyzer 5000. The officer testified that
he was certified by the Georgia Bureau of Investigation, Division of Forensic
Sciences to administer tests on an Intoxilyzer 5000, and a copy of his permit was
entered into evidence. The State also entered into evidence certificates of inspection
for the quarterly inspections of the Intoxilyzer performed on November 26, 2010 and
February 14, 2011. In compliance with OCGA § 40-6-392 (f), each certificate
represented that the Intoxilyzer had been thoroughly inspected, tested, and
standardized and that “all of its electronic and operating components prescribed by
its manufacturer are properly attached and are in good working order.” The officer
stated that the Intoxilyzer 5000 appeared to be functioning properly on the morning
of Denstaedt’s test. Prior to accepting Denstaedt’s breath sample, the machine
conducted a diagnostic check, which revealed no problems. Denstaedt provided
breath samples at 2:57 a.m. and 3:00 a.m. Both samples indicated an alcohol
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concentration of 0.132 grams. The officer testified that he had conducted other breath
tests on the Intoxilyzer prior to and after the date of Denstaedt’s breath test, and the
machine appeared to be functioning properly at all times.
In his single enumeration of error, Denstaedt argues that his trial counsel was
ineffective because she was unable to admit into evidence print cards from the
November 26, 2010 quarterly inspection of the Intoxilyzer 5000. Denstaedt’s claim
of error fails.
In order to prevail on his claim of ineffective assistance,
[Denstaedt] must show both that counsel’s performance was deficient
and that the deficiency prejudiced him such that there is a reasonable
probability that, but for the deficiency, the outcome of his trial would
have been different. This burden, although not impossible to carry, is a
heavy one. Moreover, a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies.
(Citations and punctuation omitted.) Grant v. State, 295 Ga. 126, 130 (5) (
757 SE2d
831) (2014). In reviewing a trial court’s ruling on an ineffective assistance claim, we
accept the trial court’s factual findings and credibility determinations unless clearly
erroneous, but independently apply the legal principles to the facts. Holloman v.
State,
293 Ga. 151, 154 (4) (
744 SE2d 59) (2013).
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The record shows that Denstaedt’s trial counsel called Matthew Malhiot as an
expert witness at trial, and Malhiot was admitted as an expert in the areas of field
sobriety evaluations and the Intoxilyzer 5000. Malhiot testified that he reviewed the
inspection certificates the State admitted into evidence as well as the print cards
generated during the inspection process. When Denstaedt’s trial counsel asked
Malhiot what he found when he reviewed the supporting data for the inspections, the
solicitor objected, asserting that Malhiot lacked personal knowledge, the documents
were not in evidence, Malhiot’s testimony would be hearsay, and no foundation had
been established for the documents’ authenticity. Denstaedt’s trial counsel then
suggested that “perhaps [Malhiot] can lay a foundation as to the business records”
and how he came into possession of them. The trial court, however, sustained the
solicitor’s objection, concluding that Malhiot “would have to be either the custodian
or [have] created [the print cards] to be able to testify to business records exception.”
At the hearing on the motion for new trial, Denstaedt called the records
supervisor for the Duluth Police Department as a witness in order to lay a foundation
for admission of copies of the two certificates of inspection introduced into evidence
at trial together with the supporting print cards under the business records exception
to the hearsay rule. Malhiot testified at the motion for new trial hearing and explained
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that one of the tests performed during the quarterly inspection is a difference check
to ensure the Intoxilyzer’s software is able to determine if the difference in the
alcohol concentration of two samples is greater than 0.02 grams. Malhiot testified
that, to perform the difference check, the inspector prepares a 0.08 gram reference
solution, heats it, and delivers a sample of the solution to the instrument through the
breath tube. The next sample delivered to the instrument is alcohol free. To pass the
difference check, the Intoxilyzer must respond with an error message advising the
operator to retest after 20 minutes. Malhiot testified that when the difference check
was performed on November 26, 2010, the result for the first sample was 0.075 grams
while the second was 0.00 grams. He testified that although the objective of the
difference check was satisfied and the proper error message was displayed, the 0.075
reading was outside the range of the Intoxilyzer’s calibration standard, which requires
a reading between 0.076 and 0.084 for a 0.08 solution.
Malhiot testified that a result outside of the required standard can result from
“[m]any different things: the simulator not heated properly, . . . air leaks[,] . . .
instrument calibration[,] breath tube leaks[,] internal leaks[, and] three-way valve
leaks.” Malhiot stated that there was no documented reason the first sample on the
difference check was outside of the calibration standards and that “you can’t
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determine the reliability of the results the instrument is producing without an
explanation as to the reason for the . . . result.” He admitted on cross-examination,
however, that the Intoxilyzer passed every test conducted on November 26, 2010 and
February 14, 2011. Malhiot also testified that during the difference check conducted
on February 14, 2011, the results for the two samples were 0.081 and 0.00.
Denstaedt’s trial counsel testified at the motion for new trial hearing that she
was familiar with the print cards from the November 26, 2010 inspection and that her
strategy with respect to the cards was to use them to show that the results of her
client’s breath test were unreliable. She testified that she and Malhiot agreed that the
card regarding the November 26, 2010 difference check was the strongest basis for
the defense in Denstaedt’s case. She stated that she did not anticipate that there would
be a hearsay objection to Malhiot’s testimony about the difference check or that it
would be sustained. She testified that in hindsight, she should have subpoenaed the
records supervisor. Trial counsel also stated that prior to trial she had a note to herself
to have the records custodian under subpoena but did not follow up on that.
The Georgia Supreme Court has held:
In the situation in which an expert personally observes data collected by
another, the expert’s opinion is not objectionable merely because it is
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based, in part, on the other’s findings. Even when an expert’s testimony
is based on hearsay, the expert’s lack of personal knowledge does not
mandate the exclusion of the opinion but merely presents a jury question
as to the weight which should be accorded the opinion.
Velazquez v. State, 282 Ga. 871, 875 (3) (
655 SE2d 806) (2008). See also Watkins v.
State,
285 Ga. 355, 358 (2) (
676 SE2d 196) (2009) (GBI toxicologist was properly
permitted to testify concerning victim’s blood alcohol level based on her peer review
of testing performed by another GBI employee).1 In view of these cases, trial counsel
reasonably may have failed to anticipate the State’s hearsay objection to Malhiot’s
testimony concerning the print cards from the November 26, 2010 inspection. But
even assuming arguendo that trial counsel performed deficiently by failing to
anticipate the objection or to find a way to overcome it, Denstaedt cannot establish
a reasonable probability that, but for such deficiency, the outcome of his trial would
have been different.
The print card for the November 26, 2010 difference check showed that the
Intoxilyzer’s reading of the first sample was only 0.001 outside of the calibration
1
The admissibility of expert testimony in cases tried on or after January 1,
2013 is governed by OCGA § 24-7-703 in Georgia’s new Evidence Code. The trial
in this case took place on November 5 and 6, 2012.
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standards for the instrument. Nonetheless, the objective of the difference check, to
identify samples that differ by more than 0.02 grams, was satisfied. See State v.
Carter, 292 Ga. App. 322, 328-329 (
665 SE2d 14) (2008). The Intoxilyzer passed
every other test conducted on November 26, 2010, including a calibration check, and
every test conducted on February 14, 2011. During the February 14, 2011 difference
check, the first sample tested within the calibration standards for the instrument. The
record also establishes that on the date of Denstaedt’s test, the Intoxilyzer passed a
self-diagnostic check and that the arresting officer did not observe any problems with
the machine that day or when he used it before and after the date of Denstaedt’s test.
Although Malhiot testified that there are many potential reasons for the slight
discrepancy in the difference check on November 26, 2010, he could not identify the
actual cause and never stated that he believed the machine’s margin of error on the
date of testing could have been so great that Malhiot’s alcohol concentration, which
the Intoxilyzer measured as 0.132 grams, was actually below 0.08. Viewing the
record as a whole, we find no reasonable probability that, had the print cards been
introduced into evidence, the jury would have concluded that the State presented
insufficient proof that Denstaedt’s alcohol concentration was 0.08 grams or more.
Accordingly, Denstaedt failed to establish prejudice, and the trial court did not err in
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denying Denstaedt’s motion for a new trial. See Crowe v. State, 314 Ga. App. 527,
531 (3) (
724 SE2d 831) (2012); Thomas v. State,
288 Ga. App. 827, 827-828 (
655
SE2d 701) (2007).
Judgment affirmed. Barnes, P. J., Doyle, P. J., Boggs, Ray and Branch, JJ.,
concur. McFadden, J., dissents.
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A14A0858. DENSTAEDT v. THE STATE.
MCFADDEN, Judge, dissenting.
I respectfully dissent. Trial counsel performed deficiently in failing to present
the expert defense witness’s opinion that the Intoxilyzer results were unreliable, and
there is a reasonable probability that, but for this deficiency, the result of the trial
would have been different. See Grant v. State, 295 Ga. 126, 130 (5) (
757 SE2d 831)
(2014).
The results of Denstaedt’s two Intoxilyzer tests provided the only evidence of
his blood alcohol concentration, which the state was required to prove to convict him
of DUI per se. See OCGA § 40-6-391 (a) (5). At the hearing on Denstaedt’s motion
for new trial, the expert defense witness testified that, had he been allowed to do so
at trial, he would have opined that he had concerns about the reliability and accuracy
of Denstaedt’s Intoxilyzer results based on the particular machine’s performance on
a difference check (a quarterly procedure used to gauge certain software performance
in the machine). But Densteadt’s trial counsel failed to elicit that opinion from the
expert at trial, after the trial court sustained the state’s objection that the opinion
testimony was based on hearsay, namely documents for which no foundation had
been laid. Although trial counsel initially had planned to subpoena a records
custodian, she did not do so. In response to the objection, trial counsel tried –
unsuccessfully – to lay a foundation for the underlying documents without a records
custodian, rather than arguing that the opinion testimony was nevertheless admissible.
See Velazquez v. State, 282 Ga. 871, 875 (3) (
655 SE2d 806) (2008) (“[e]ven when
an expert’s testimony is based on hearsay, the expert’s lack of personal knowledge
does not mandate the exclusion of the opinion”).
Nothing in the record suggests that trial counsel’s inadequate response to the
state’s objection was strategic. Trial counsel admitted at the hearing on the motion for
new trial that she “didn’t anticipate that there would be an objection or that the
objection would be sustained” and had not considered how she would handle an
objection to the expert’s opinion. She also testified that her failure to subpoena a
records custodian was a mistake. Consequently, she was unprepared either to
establish a foundation for the documents upon which the expert’s opinion was based
or to argue that the opinion testimony was admissible despite being based on hearsay.
Because trial counsel was unprepared to contend with an objection to the testimony
that she described as “crucial” to the defense, she performed deficiently. See Ottley
v. State, 325 Ga. App. 15, 19-20 (
752 SE2d 92) (2013) (defendant demonstrated that
trial counsel performed deficiently where, among other things, trial counsel was
2
“caught off-guard” at trial by degree to which state’s case rested on particular witness
and thus was unprepared to cross-examine her).
The deficient performance prejudiced Denstaedt. There is a reasonable
probability that the trial court would have allowed the expert witness to testify to his
concerns about the reliability of the Intoxilyzer results had trial counsel responded to
the state’s objection with authority supporting the position that, under the rules of
evidence then in effect, an expert witness could base an opinion on hearsay. See
Watkins v. State, 285 Ga. 355, 258 (2) (
676 SE2d 196) (2009);
Velazquez, supra,282
Ga. at 875. Because no other evidence pertained to Denstaedt’s blood alcohol
concentration, there is a reasonable probability that, but for trial counsel’s failure to
overcome the objection to the expert witness’s testimony, the outcome of his trial
would have been different.
For this reason, the judgment should be reversed.
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