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March 14, 2017
In the Court of Appeals of Georgia
A16A2229. GIBBS v. THE STATE.
MCFADDEN, Presiding Judge.
Kevin S. Gibbs stands convicted of one count of aggravated assault on a peace
officer, two counts of fleeing or attempting to elude a police officer, and one count
of reckless driving. This is his second appeal. On the first, we remanded and directed
that the trial court discharge his duty — imposed by the invocation of the general
grounds in Gibbs’s motion for new trial — to declare not merely whether the
evidence was sufficient to sustain the jury’s verdict, but whether his mind and
conscience approved the verdict as rendered. Gibbs v. State, 334 Ga. App. XXVI
(Oct. 6, 2015) (unpublished). Now that the trial court has discharged that duty and
reaffirmed denial of the motion for new trial, we address the merits of Gibbs’s other
arguments.
Gibbs contends that his trial counsel was ineffective, but he has failed to show
deficient performance. He contends that the trial court erred in admitting certain
expert testimony, but that evidence did not invade the province of the jury. Finally he
contends that certain of his offenses should have merged, and we agree. Our analysis
of the merger issue requires us to disapprove one of our published opinions because
it is irreconcilable with a subsequent opinion of our Supreme Court.
1. Facts.
In our earlier opinion, we found that the evidence showed that
at around 5:00 p.m. on February 12, 2013, Smyrna police officer Daniel
Stuckey, while on uniformed patrol, drove to Jonquil Park after
receiving information that two suspects, whom he had previously
arrested on drug charges, were possibly, again, engaging in drug
transactions there. As his patrol vehicle entered the park, Officer
Stuckey saw that the only vehicle in the parking lot was a small gray
Hyundai, which had backed into a parking space and was occupied by
several individuals. Deciding that he would try to speak with the
vehicle’s occupants, Officer Stuckey parked a few feet away, but at an
angle that did not impede the Hyundai, and exited his patrol car.
As Officer Stuckey approached, Gibbs, the vehicle’s driver,
stepped on the accelerator, and the Hyundai briefly lurched forward,
striking Officer Stuckey’s legs. Despite being struck, Officer Stuckey
maintained his balance. He then immediately drew his weapon and
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yelled at Gibbs to stop and to exit the vehicle. However, instead of
complying, Gibbs began inching his vehicle toward the officer a second
time. Officer Stuckey repeated his orders, but Gibbs, again, stepped on
the accelerator. As Gibbs’s vehicle barreled toward him, Officer Stuckey
dove out of the way while firing his weapon toward the driver-side
window. The gunshot shattered the window’s glass and ultimately struck
Gibbs in the upper part of his chest. Nevertheless, despite being shot,
Gibbs did not stop, or even slow down, but rather sped away from the
park.
After determining that he was not seriously injured, Officer
Stuckey radioed dispatch about the incident, activated his patrol car’s
emergency lights, and began pursuit. Upon exiting the park, Officer
Stuckey spotted Gibbs’s vehicle and saw him pull over to allow his three
passengers to get out before turning onto a divided four-lane road that
was heavy with rush-hour traffic and wet from the rain that had started
that afternoon. Once he reached the congested road, Gibbs began
weaving through traffic, refusing to stop even after he rear-ended an
SUV with enough force to sheer off that vehicle’s driver-side rear wheel.
Seconds later, Officer Stuckey caught up and performed a PIT
maneuver, bumping Gibbs’s vehicle and causing it to hit the raised
median dividing the road and come to a halt. Other officers quickly
arrived on the scene, and one of those officers called an ambulance,
which transported Gibbs to a local hospital where doctors treated his
gunshot wound. Additionally, while still at the hospital, another Smyrna
police officer informed Gibbs that he was under arrest.
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Thereafter, the [s]tate charged Gibbs, via indictment, with one
count of aggravated assault, one count of obstruction of a police officer,
two counts of fleeing or attempting to elude a police officer, and one
count of reckless driving. Gibbs was tried, and at the conclusion of his
trial, the jury convicted him on all counts in the indictment.
Gibbs v. State, 334 Ga. App. XXVI (citations and footnote omitted).
2. Effective assistance of counsel.
Gibbs argues that he received ineffective assistance of trial counsel in two
respects: failure to impeach Officer Stuckey with a prior inconsistent statement and
failure to properly object to admission of a medical record that placed his character
in issue. Absent the combined effect of those trial-counsel errors, he argues, the
outcome of the trial would have been different.
To establish ineffective assistance of counsel, Gibbs must satisfy a two-prong
test. He
must show [both] that trial counsel’s performance [was deficient in that
it] fell below a reasonable standard of conduct and that [it was
prejudicial because] there existed a reasonable probability that the
outcome of the case would have been different had it not been for
counsel’s deficient performance. If [Gibbs] fails to [prove] either prong
of the [two-part] test, this relieves the reviewing court of the need to
address the other prong.
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Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citations and punctuation
omitted). Gibbs’s arguments fail the deficient-performance prong. So we do not
address prejudice.
(a) Impeachment.
Gibbs argues that trial counsel was ineffective for failing to impeach Officer
Stuckey with statements he made in a police-department interview shortly after the
incident that were inconsistent with his trial testimony. At trial, Officer Stuckey
testified that he drew his weapon after Gibbs hit him with his vehicle the first time.
But in the police-department interview, he never mentioned that Gibbs hit him twice.
This inconsistency, Gibbs argues, could have persuaded the jury that Officer Stuckey
wrongfully drew his gun immediately upon exiting his car — when his encounter
with Gibbs was still only a first-tier encounter — and so that Gibbs had the right to
resist or flee and to disregard Officer Stuckey’s orders to stop. He also argues that this
alleged impeachment evidence would have aided the jury in judging Officer
Stuckey’s credibility.
We see no material contradiction. In his police-department interview, Officer
Stuckey testified that, as soon as he got out of his car, Gibbs drove toward him.
Officer Stuckey explained that he “immediately drew on him because he was coming
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at [Officer Stuckey] . . . .” At trial, Officer Stuckey testified that once he got out of
his car, Gibbs’s car “rapidly accelerated toward [him].” He testified that Gibbs’s car
hit him, and at that moment he “realized [his] weapon was drawn in [his] hand.” In
describing this first contact, Officer Stuckey testified that he “kind of consider[ed it]
lucky, [that Gibbs] stopped at about the same time [he] was moving backwards, where
[Gibbs] came into contact with [Officer Stuckey].” In other words, the vehicle braked
as it made contact with Officer Stuckey’s body and the contact was minimal. In both
his trial testimony and in his police-department interview, Officer Stuckey said that
he drew his gun when Gibbs immediately began driving toward him as soon as he
exited the police car.
It is true that in his police-department interview Officer Stuckey did not
mention contact. But “[p]roof of a different but not inconsistent statement” does not
raise an impeachment issue. Hopkins v. State, 167 Ga. App. 811, 814 (1) (307 SE2d
707) (1983). That Officer Stuckey’s trial testimony “merely included additional facts
demonstrates no impeaching inconsistency with [his police-department interview].
As the absence of the additional facts in a prior statement given by [Officer Stuckey]
fails to amount to a contradiction of [his] trial testimony, there could be no
impeachment. . . .” Weathers v. State, 198 Ga. App. 871 (2) (403 SE2d 449) (1991)
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(citation and punctuation omitted). Since Officer Stuckey’s police-department
interview was not impeaching simply because it omitted the fact of the initial contact,
trial counsel’s performance was not deficient for failing to use it to impeach Officer
Stuckey.
Further, trial counsel did pursue alleged inconsistencies in Officer Stuckey’s
testimony on cross-examination, even getting him to concede that he had a “loss of
memory” as to certain things that occurred that day. So although Gibbs argues that
his trial counsel was deficient in failing to pursue specific avenues of
impeachment using [Officer Stuckey’s police-department interview], the
degree to which an attorney chooses to cross-examine witnesses and the
manner in which to attack their credibility fall within the ambit of trial
tactics. . . . [W]e are unpersuaded that trial counsel’s failure to use the
avenues of impeachment suggested by [Gibbs] fell outside the broad
range of professional assistance.
Garrett v. State, 285 Ga. App. 282, 286 (5) (b) (645 SE2d 718) (2007) (citation and
punctuation omitted).
(b) Medical record.
Gibbs argues that trial counsel failed to properly object to the admission of a
medical record that placed Gibbs’s character in issue. Even if Gibbs preserved this
issue for our review, he has not shown deficient performance because the objection
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still would have been without merit had counsel supported it with the arguments he
now makes on appeal.
At trial, a nurse testified that when Gibbs was admitted to the hospital, he told
her that he had smoked marijuana that day. Counsel objected — not because the
testimony improperly placed Gibbs’s character in issue but because the nurse had not
given Gibbs Miranda warnings. Miranda, of course, is not applicable to
conversations between private citizens. Mitchell v. State, 282 Ga. 416, 421 (6) (f)
(651 SE2d 49) (2007). So the trial court overruled the objection. Now Gibbs argues
that trial counsel was ineffective for failing to base his objection on OCGA § 24-4-
402 (relevance) and OCGA § 24-4-404 (b) (other acts). He also argues that trial
counsel should have objected on the ground that the testimony implicated Gibbs’s
protected medical records.
The nurse’s testimony was not subject to an objection under OCGA § 24-4-404
(b) because it is intrinsic evidence. “[E]vidence is intrinsic to the charged offense, and
thus does not fall within [OCGA § 24-4-]404 (b)’s ambit, if it (1) arose out of the
same transaction or series of transactions as the charged offense; (2) is necessary to
complete the story of the crime; or (3) is inextricably intertwined with the evidence
regarding the charged offense.” Baughns v. State, 335 Ga. App. 600, 602-603 (1)
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(782 SE2d 494) (2016). Since the testimony was intrinsic evidence, OCGA § 24-4-
404 (b) does not apply and trial counsel was not deficient for failing to object under
that statute. New counsel did not question trial counsel about medical-records
privacy rights or any other grounds for objecting to the nurse’s testimony. Therefore
they are not preserved for review. Patel v. State, 279 Ga. 750, 754 (c) (620 SE2d 343)
(2005).
3. Expert testimony.
Gibbs argues that the trial court erred by allowing a police expert witness to
testify that Officer Stuckey’s use of force was proper and within policy. We find no
error.
The trial court qualified Detective Ron Waddell of the city of Smyrna Police
Department as an expert witness in the field of law enforcement procedures and the
use of force in officer defense. Detective Waddell testified about the use-of-force
continuum that guides police officers’ interactions with citizens. He testified that an
officer is able to use deadly force when he believes he or someone else is in direct
jeapordy of being seriously injured or killed. The testimony about which Gibbs
complains occurred when the prosecutor posed a hypothetical to Detective Waddell
as follows:
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Q: Hypothetical situation, you are back to being on patrol,
you’re not a detective anymore, let’s say. . . . You approach
a vehicle.
A. Right.
Q: Okay. the vehicle comes at you, what’s the first thing
you’re going to do?
A: Hopefully I can get out of the way, but –
Q: If you can’t get out of the way.
A: I’ve got to open fire. I have absolutely no choice but to
do what I can to get that car – the driver to stop, and if
that’s the only option I’ve got, that’s what I have to do.
Q: Would that fall within what you teach as a use-of-force
continuum in officer defense?
A: Yes, absolutely.
This testimony is admissible because the application of the use-of-force continuum
is not something with which the jurors ordinarily would be familiar. “Expert opinion
testimony on issues to be decided by the jury, even the ultimate issue,1 is admissible
where the conclusion of the expert is one which jurors would not ordinarily be able
to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.”
Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981) (citation omitted). Whether
1
We cite Smith v. State even though it was decided under the former Evidence
Code because “the evidentiary requirements relating to the admissibility of expert
opinion testimony in a criminal case under the new Evidence Code (OCGA §
24-7-707) are nearly identical to those that applied under the former Evidence Code
(OCGA § 24-9-67).” Mosby v. State, __ Ga. __, __ (2) n. 2 (__ SE2d __) (Case No.
S16A1580, decided Jan. 23, 2017) (citation omitted). But the rule about opinions on
ultimate issues has changed: it has become even less favorable to Gibbs’s argument.
See OCGA § 24-7-704.
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the use-of-force continuum permits a police officer to shoot at a car coming toward
him is beyond the ken of the average juror. See Samples v. City of Atlanta, 916 F2d
1548, 1551 (11th Cir.1990).
The case upon which Gibbs primarily relies, Bly v. State, 283 Ga. 453 (660
SE2d 713) (2008), supports the admission of Detective Waddell’s testimony in this
case. In Bly, the trial court improperly allowed a witness to baldly testify that the
officer had acted appropriately in conducting the traffic stop. So our Supreme Court
reversed Bly’s convictions for aggravated assault on a police officer and felony
obstruction arising out of a traffic stop. The Bly court ruled that the witness was
testifying about “a matter regarding which the jurors could have made an equally
intelligent judgment of their own,” not the standard of conduct for a police officer.
Id. at 458 (2) (citation and punctuation omitted). The court explained that
the question to [the witness] did not ask him to state the standard of
conduct of a police officer during a traffic stop. Nor was it presented to
[the witness] in a form asking him to assume that [the officer’s] version
of the events was correct and, if so, whether those actions comported
with the standard of conduct of a police officer during a traffic stop.
Id. at 456 n. 7. In Bly, unlike in the case before us today, “no evidence was introduced
. . . regarding the elements and constituent factors that guided [the witness] to his
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conclusions.” Id. at 458 (2) (citation, footnote, and punctuation omitted). The witness
simply testified that, based on the officer’s version of events, the officer “acted
appropriately as a police officer in the line of duty.” Id. (punctuation omitted).
Therefore, the witness’s opinion in Bly was not admissible as an expert opinion. Id.
Here, on the other hand, Detective Waddell testified about the use-of-force continuum
and answered a hypothetical, based on facts in evidence, that the use-of-force
continuum would allow an officer to shoot at someone driving a vehicle toward him.
He did not testify that Officer Stuckey “acted appropriately.”
4. Merger.
Gibbs argues that the trial court should have merged his convictions for two
counts of fleeing or attempting to elude a police officer because they are based on the
same act of fleeing from a single police officer. We agree.
Much of the language of counts three and four is identical: both charged Gibbs
with
the offense of FLEEING OR ATTEMPTING TO ELUDE A POLICE
OFFICER, OCGA § 40-6-395 (b) (5) (A), for that the said accused
person, in the County of Cobb and State of Georgia, on or about the 12th
day of February, 2013, being the driver of a vehicle, did willfully fail
and refuse to bring his vehicle to a stop while fleeing and attempting to
elude a pursuing police vehicle . . . after having been given an audible
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and a visual signal to bring his vehicle to a stop by Officer Daniel
Stuckey, an officer who at the time of giving such signal was in a
uniform prominently displaying the officer’s badge of office and the
officer’s vehicle was appropriately marked showing it to be an official
police vehicle, contrary to the laws of said State, the good order, peace
and dignity thereof.
Those counts differ in that count three specified that, while committing this act, Gibbs
“did, at Spring Street at Glenroy Drive, collide with a Buick Enclave, a vehicle;”
while count four specified that while committing this act, Gibbs “while fleeing in
traffic conditions, to wit: wet road and heavy traffic, . . . placed the general public at
risk of receiving serious injuries.”
“[W]hether a course of conduct can result in multiple violations of the same
statute . . . requires a determination of the ‘unit of prosecution,’ or the precise act or
conduct that is being criminalized under the statute. Accordingly, the starting point
must be the statute itself.” Smith v. State, 290 Ga. 768, 773 (3) (723 SE2d 915) (2012)
(citations and punctuation omitted; emphasis in original). OCGA § 40-6-395 (a)
provides,
It shall be unlawful for any driver of a vehicle willfully to fail or refuse
to bring his or her vehicle to a stop or otherwise to flee or attempt to
elude a pursuing police vehicle or police officer when given a visual or
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an audible signal to bring the vehicle to a stop. The signal given by the
police officer may be by hand, voice, emergency light, or siren. The
officer giving such signal shall be in uniform prominently displaying his
or her badge of office, and his or her vehicle shall be appropriately
marked showing it to be an official police vehicle.
Subsection (b) (5) (A) of the statute provides that:
Any person violating the provisions of subsection (a) of this Code
section who, while fleeing or attempting to elude a pursuing police
vehicle or police officer: (i) Operates his or her vehicle in excess of 20
miles an hour above the posted speed limit; (ii) Strikes or collides with
another vehicle or a pedestrian; (iii) Flees in traffic conditions which
place the general public at risk of receiving serious injuries; (iv)
Commits a violation of paragraph (5) of subsection (a) of Code Section
40-6-391; or (v) Leaves the state shall be guilty of a felony punishable
by a fine of $5,000.00 or imprisonment for not less than one year nor
more than five years or both.
In Smith, supra, the Supreme Court defined the unit of prosecution in OCGA §
40-6-395:
Based on the plain language of the statute, the act or conduct that is
prohibited by OCGA § 40-6-395 is the “willful[ ] fail[ure] or refus[al]
to bring [one’s] vehicle to a stop or otherwise to flee or attempt to elude
a pursuing police vehicle or police officer when given a visual or an
audible signal to bring the vehicle to a stop.” (Emphasis supplied.) Thus,
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it is the act of fleeing from an individual police vehicle or police officer
after being given a proper visual or audible signal to stop from that
individual police vehicle or officer, and not just the act of fleeing itself,
that forms the proper “unit of prosecution” under OCGA § 40-6-395.
Smith, 290 Ga. at 774 (3) (citations omitted; emphasis in original). So the provisions
of subsection (b) (5) (A) – the basis of the language that distinguishes counts three
and four – do “not create [] separate and independent offense[s] but instead fall[]
within the category of other legislative directions as to punishment. . . .” State v.
Phillips, 206 Ga. App. 421, 422 (425 SE2d 412) (1992) (citation and punctuation
omitted). See also Hinton v. State, 297 Ga. App. 565, 566 (1) (b) (677 SE2d 752)
(2009) (“OCGA § 40-6-395 (b) (5) (A) provides for enhanced felony punishment”).
Because both counts three and four charged Gibbs with fleeing from Officer Stuckey
after having been given a proper signal to stop from Officer Stuckey, the unit of
prosecution under both counts is the same and the counts merged. See Nolley v. State,
335 Ga. App. 539, 547 (2) (782 SE2d 446) (2016) (“The [s]tate’s indictment charging
violation of one offense in two counts . . . was multiplicitous, and resulted in
[defendant] being punished twice for a single offense.”). Compare Smith, 290 Ga. at
774 (3) (finding no merger required for five counts of attempting to elude a police
officer where defendant led police on a chase “after being given clear signals by five
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separate police vehicles to stop” because unit of prosecution under OCGA § 40-6-395
was act of fleeing from an individual police vehicle or officer after being given the
signal to stop by that vehicle or officer).
The state relies on Michael v. State, 281 Ga. App. 289 (635 SE2d 790) (2006),
to support its argument that the convictions do not merge. We did hold in that case
that two convictions for fleeing or attempting to elude factually did not merge
because
the first count of eluding an officer by exceeding the posted speed limit
by at least 30 mph occurred as the officer was chasing the truck down
the local road and clocked the vehicle as exceeding 100 mph in a
55-mph zone. This crime was therefore separate and complete prior to
the truck’s driver running the red light and endangering the crossing
vehicle in his efforts to elude police, which was the basis for the second
count of eluding an officer.
Id. at 293-294 (5). But when we decided Michael, we did not have the benefit of
Smith, 290 Ga. at 768, which made clear that when determining whether a course of
conduct can result in multiple violations of a single statute, the proper focus is the
unit of prosecution and that the unit of prosecution under OCGA § 40-6-395 is the
act of fleeing from an individual police vehicle or police officer after being given a
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proper visual or audible signal to stop from that individual police vehicle or officer.
To the extent that Michael, 281 Ga. App. 289, holds otherwise, it is disapproved.
Judgment affirmed in part and vacated in part, and case remanded for
resentencing. Doyle, C. J, Barnes, P. J., Ellington, P. J., Dillard, P. J., Andrews,
Ray, Branch, McMillian, Rickman, Mercier, Reese, Self, and Bethel, JJ. concur.
Miller, P. J., concurs in Divisions 1, 2 (a), 3, and 4, and in the judgment only as to
Division 2(b).
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