DON’T OPEN THE DOOR – Keeping Suppressed Evidence Out!

Perhaps the most valuable tool in the DUI lawyer’s arsenal is the pre-trial motion to suppress evidence incriminatory to a client’s case. Such evidence most frequently takes the form of blood or breath test results or the record of the client’s past driving record or convictions.[1] Solid grounds for suppression can be found where that evidence was illegally obtained or where its probative value is outweighed by its prejudicial effect. Evidence so suppressed is no longer admissible as part of the State’s case in chief (DUI in Georgia). Yet, even when the motion to suppress is granted, the danger that evidence presents has not yet passed. The State has a powerful weapon of its own, that of impeachment. The ability to impeach allows the prosecutor to admit the exhibits (or raise the issues) not as substantive evidence, but solely for the purpose of contradicting some element of the defendant’s testimony. When so admitted, impeaching evidence may be used only to assail the defendant’s credibility, not to prove guilt.

Where evidence such as the result of a State administered blood test is admitted for purposes of impeachment, it matters not that such evidence was suppressed because it was illegally obtained. The United States Supreme Court, in a series of decisions collectively known as the Walder-Harris doctrine, has ruled that illegally obtained evidence, not admissible in the State’s case in chief, may be admitted for the limited purpose of impeaching a witness’s testimony. Walder v. United States, 347 U.S. 62 (1954); Harris v. New York, 420 U.S. 714 (1975). Skeptical about invoking the exclusionary doctrine too liberally, the Court reasoned that the purpose of the exclusionary doctrine is to act as a deterrent to illegal/unconstitutional searches and seizures conducted by law enforcement, not as a shield behind which the defendant can freely commit perjury. In Walder, the Court noted; that the evidence was illegally obtained “is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance upon the Government’s disability to challenge his credibility.” 347 U.S. 62. While this doctrine is rather broad with regard to the evidence admissible for purposes of impeachment, it is quite limited in another sense. In James v. Illinois, 493 U.S. 307 (1990), the Court held that in a criminal proceeding, only the testimony of the defendant may be impeached by illegally obtained evidence. Other defense witnesses may not be so impeached. Id.

Under the Walder-Harris doctrine, the State had initially been limited to impeaching only the defendant’s testimony given on direct examination. But in United States v. Havens, 446 U.S. 620 (1980), the Court eliminated the direct examination requirement, allowing the State to introduce illegally obtained evidence in order to impeach a defendant’s “answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination.” 446 U.S. 620 at 627. The scope of Havens is even broader in Georgia where the scope of cross-examination need not be limited to that of direct examination. State v. Jeridine, 137 Ga. App. 811, 224 S.E.2d 803 (1976). In effect, extrinsic rebuttal evidence may be admitted to impeach the defendant’s testimony on cross-examination even if that line of questioning is not squarely within the scope of direct. This gives the State almost free reign to inquire into matters not addressed on direct. In effect, the State seemingly has the ability to open the door for itself, or at the very least, the right to knock on it.

Impeachment In Georgia

The Walder-Harris doctrine was incorporated into the Georgia case law in Jordan v. Ensley, 149 Ga. App. 67, 253 S.E.2d 414 (1979); and Knisely v. State, 155 Ga. App. 673, 272 S.E.2d 538 (1980), both of which were DUI cases in Georgia (DUI in Georgia). In Jordan, the court noted that “even though the test results were not admissible to prove that the appellee was driving under the influence of intoxicants, they were admissible, subject to proper foundation, as the basis for expert testimony that the appellee was not telling the truth . . .” . This is further codified by O.C.G.A. § 24-9-82, which states that, “A witness may be impeached by disproving the facts testified to by him.”

Contradictory evidence admitted under O.C.G.A. § 24-9-82 is only to be considered the limited purpose of impeachment. As such, it is subject to a limiting instruction upon the request of counsel (DUI Lawyer). Askea v. State, 153 Ga. App. 849, 267 S.E.2d 279 (1980). Note however, that the jury not likely to understand the distinction between substantive evidence and impeaching evidence, or if they do, they are apt to ignore it. Therefore, it is essential that defense counsel take appropriate measures to prevent the jury from hearing that evidence, regardless of the purpose for which it is admitted.

What is important to remember about impeachment is that this prosecutorial device is only available after the DUI defense lawyer opens the door. O.C.G.A. § 24-9-20(b) states that “no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” In interpreting this provision, it has been held that inadvertent statements as to character not enough to place character in issue. Johnson v. State, 261 Ga. 419, 405 S.E.2d 686, 688 (1991). See also Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988)(“A defendant did not place his general good character in issue by inadvertence, but by design . . ..“). Nor may a witness be impeached upon a subject immaterial to the issues involved in the trial of the case. J.F. McKinney & Co. v. Darby, 56 Ga. App. 621, 193 S.E. 594 (1937). Further, if defendant testifies that he does not remember well enough to answer, provided he answers in good faith, he has not said anything that may be impeached via contradictory evidence. Waters v. State, 210 Ga. App. 305, 436 S.E. 2d 44 (1993)(discussed infra).

Just how is door opened, and how can this be avoided? Previously suppressed evidence may be admitted any time the defendant or defense counsel raises (or often merely hints at) an issue relating to that evidence. This can occur in any number of ways. Defense counsel may open the door via inartful inquiries of a witness on either direct or cross.[2] Alternatively, the defendant, while on the stand, may make a statement raising an issue previously off limits to the State.[3]

However it happens, once the defense opens the door, seemingly all bets are off. The prosecution may engage in sifting cross-examination as to that issue. So long as the defendant’s answers do not contradict what the suppressed evidence would tend to prove, the State is stuck with the answers it gets. But where the defendant’s testimony somehow contradicts what the suppressed evidence infers, the State may admit that evidence for purposes of impeachment.

Having explained the basic premise behind impeachment, it is instructive to review a number of decisions handed down by the Georgia courts dealing with these issues in order to better understand how the defendant may be impeached and ultimately how to avoid such impeachment.

Illegally Obtained Evidence

Relying on the precedent established in the decisions of Jordan and Knisely, Georgia courts have been quick to admit illegally obtained evidence for the limited purposes of impeachment in a number of DUI proceedings.

In Gregg v. State, 216 Ga. App. 135, 453 S.E.2d 499 (1995), the defendant was arrested for DUI and administered a breath test, the results of which were .17. Defendant subsequently requested an independent blood test. While this additional test was being performed, the arresting officer requested of the administering laboratory technician, and was given, a sample of the defendant’s blood. The officer then took this sample to the State Crime Lab where it was tested and held for purposes of rebuttal evidence. The result of that blood test also showed a BAC of .17, but was suppressed pre-trial and not introduced as part of the State’s case in chief. However, the result of the State’s breath test was so admitted.

At trial, the .17 result of the breath test was largely discredited by defense counsel because of defendant’s exposure to methyl ethyl ketone just prior to being tested. Having opened the door to the reliability of the State’s test, however, the prosecution was then permitted to produce the result of its analysis of the defendant’s blood during taken his independent test. The court held that such evidence “was admissible not only to bolster directly the State’s intoximeter test results but also to undermine the credibility of any inference favorable to the defense that might have been drawn from the testimony of the defense expert . . .” Id. at 502. This unfortunate ruling arguably violates the holding of James v. Illinois, 493 US 307 (199)(supra). Here, it was a defense theory that was impeached by the suppressed evidence and not the testimony of the defendant.

As to the fact that the arresting officer took a sample of the defendant’s blood drawn by the independent testing facility, the court noted that “[n]othing in [O.C.G.A. § 40-6-392] prohibits a police officer from taking a portion of the blood legitimately drawn during an independent test requested by the person whose blood is drawn and sending the sample to the crime lab for subsequent testing, either for control purposes or for potential rebuttal evidence, or both.” 261 Ga. App. 135, 136. In Shipman v. State, 221 Ga. App. 160, 471 S.E.2d 225 (1996), the results of the defendant’s breath test were suppressed pre-trial because of an invalid implied consent warning. At trial, the defendant testified that he was not impaired at any time on the evening of his arrest and that he had only had 3 beers in the 3 hours preceding the arrest. Defendant’s testimony as to his level of intoxication opened the door to the results of a breath test, .09, along with the testimony of the arresting officer that the defendant had demonstrated outward signs of intoxication for the purposes of impeaching the defendant’s credibility.

In Charlton v. State, 217 Ga. App. 842, 459 S.E.2d 455 (1995), the results of the defendant’s breath test were suppressed because he had not received the proper implied consent warning. At trial, defendant testified that he had only consumed 4 beers on the night of the arrest. Defendant’s expert, basing his opinion on the defendant’s testimony, testified that given the amount of alcohol consumed over that period time, the defendant’s blood alcohol content could not have been more than .05. In rebuttal, the State brought its own expert who testified that if what the defendant said were true, his BAC could not have been more than .01 or .02 and not the .09 that the breathalyzer had shown when the defendant blew into it. Note that in this case, it was the defense expert whose testimony was impeached by the illegally obtained breath test. Although such evidence was brought in to impeach the testimony of the defendant’s expert and not the testimony of the defendant, that expert based his testimony on that of the defendant. When the State’s expert relied on the breath test, which contradicted the defendant’s testimony, it also contradicted the defense expert’s testimony. Thus, no James violation occurred.

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Prior Convictions

When evidence of prior convictions is suppressed pre-trial, it is because the trial judge found that such evidence did not comport with the mandates of O.C.G.A.

• 24-2-2: “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” Such evidence is not suppressed because it was illegally obtained. Thus, the case law defining the exclusionary doctrine is not applicable.

There are a number of Georgia cases which help establish the parameters of impeachment via prior convictions subject to pre-trial exclusion. Even if the court initially deems evidence of the defendant’s prior convictions unduly prejudicial, “[testimony may be admissible for the purpose of impeaching the veracity of a witness even if it would be impermissible if offered for the purpose of impeaching the defendant’s character.” Martin v. State, 205 Ga. App. 591, 593, 422 S.E.2d 876 (1992).

In Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988), the court held that incomplete candor may warrant impeachment under certain circumstances:

Where the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of O.C.G.A. § 24-9-20(b). Rather, he has raised an issue which may be fully explored by the State on cross examination. If, however, the defendant testifies he has committed a crime, implying that this is his only criminal record, his testimony is again subject to rebuttal by proof of other crimes he has committed. Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988).

In Warren v. State, 197 Ga. App. 23, 24, 397 S.E.2d 484 (1990), a defendant was held not to have opened the door where he “volunteered that he had two previous convictions for driving under the influence . . . [but] did not imply that this constituted the entirety of his previous criminal record . . .” Id. Further, a passing reference to the defendant’s record does not place his character in evidence. Johnson v. State, 256 Ga. 604, 351 S.E.2d 623 (1987). Another limitation to the admissibility of prior convictions in Georgia is that nolo pleas are inadmissible for purposes of impeachment. Waters v. State, 210 Ga. App. 305, 436 S.E.2d 44 (1993); Rocco v. State, 191 Ga. App. 655, 382 S.E.2d 391 (1989). Finally, “when a witness gives a non-responsive answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issue under O.C.G.A. § 24-9-20(b).” Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988).

In Sheffield v. State, 184 Ga. App. 141, 361 S.E.2d 28 (1987), defense counsel asked the defendant on direct if he had been driving in an unsafe manner on the night of the accident. To this he responded, “[n]o sir, I been driving for 25 years and I ain’t never had no wrecks or nothing . . .” Id. at 30. Focusing on the “or nothing” portion of defendant’s testimony on cross, the State successfully cornered the defendant in to acknowledging that he had two previous DUI convictions and several speeding tickets. The court found that by testifying as to his safe driving for the past 25 years, and implying that his driving record was clean, the defendant opened the door to cross examination as to that issue. Id. Had defendant not admitted to his prior convictions, the State likely would have been permitted to introduce the defendant’s prior driving record to impeach his testimony under the holding of Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988). It can be argued, however, that this testimony was merely an inadvertent statement and thus insufficient to place the defendant’s character in issue. Johnson v. State, 261 Ga. 419, 405 S.E.2d 686 (1991).

In Long v. State, 185 Ga. App. 277, 363 S.E.2d 807 (1987), the court allowed the State to go so far as to bring in evidence of 2 prior arrests for DUI in Georgia in order to impeach the defendant’s testimony that he had refused to take the breath test because he was not familiar with the terms in the implied consent warnings and that he had never heard this warning before. The court noted that the defendant opened the door to cross examination as to his familiarity with the implied consent warning by his testimony, despite the fact that the defendant also testified that he could not remember whether he was given an implied consent warning in either of his two previous DUI arrests. Arguably then, the State’s efforts to impeach were unsuccessful. Yet no instruction to disregard the evidence was given to the jury. In effect, the court endorsed the State’s attempt at impeachment despite its arguable failure. That the State was permitted to use evidence of prior arrests to impeach seemingly contradicts the holding in McCarty v. State, 139 Ga. App. 101, 227 S.E.2d 898 (1976), where the court noted that evidence of prior arrests, confinement or indictment may not be admitted into evidence for purposes of impeachment.

In Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387 (1986), the defendant testified that he always stopped drinking after 1 drink when he was going to be driving. Apparently realizing that he had opened the door, the defendant attempted to limit his previous statement to only the past year. Despite this partial retraction, the State was permitted to impeach this testimony with evidence of his prior DUI convictions. Defendant’s testimony was held to have opened the door. Note, however, in Waters v. State, 210 Ga. App. 305, 436 S.E.2d 44 (1993), the court held that the defendant had not opened the door to his previous driving record where he testified that he had been pulled over 3 or 4 times in the past, but then almost immediately retracted that statement and responded that he was not sure how many times he had been pulled over. Because he had not said anything contradictable, there was no permissible purpose for which to bring in evidence of his prior driving record or convictions. The door had not been opened. Id. at 45.

Note: In 2005, a draconian statute (HB170 ) become law. It permits prosecutors to bring into evidence the defendant’s reputation and character at trial, if he or she testifies!

Hypotheticals

Perhaps the most valuable asset in the DUI lawyer’s defense is a pre-trial motion to suppress evidence incriminatory to a client’s case. In a DUI prosecution, this evidence most frequently takes the form of either blood, breath or urine test results evincing the client’s Blood Alcohol Content (BAC) at the time of arrest, or the client’s previous DUI convictions. Because these two forms of evidence are often dispositive with a jury and therefore devastating to your client, suppression of this evidence can greatly improve your client’s chances of being acquitted. All too often, inexperienced counsel inadvertently will open the door by asking improper questions.

Because issues of impeachment invariably arise in the midst of trial, it is often necessary to think about such issues on one’s feet. To aid in this regard, the following hypotheticals are provided to foster a general knowledge of the effect of opening the door for impeaching evidence on previously excluded evidence.

1. Defense counsel has gained suppression of the state’s breath test results. In the midst of the cross-examination of the arresting officer, defense counsel inquires, “What did you do after you arrested Moe?” Officer McCrackin smiles widely and responds, “I gave him a breath test.” On redirect, the prosecutor seeks to elicit from Officer McCrackin the results of that test. Can he do so? Answer: While these determinations are always left to the discretion of the trial judge and rarely clear cut, the state will likely be permitted to ask McCrackin about the results of the breath test once the defense counsel opened the door. The best way to avoid this type of situation is not to ask open-ended questions on cross-examination.
2. Defense counsel is conducting a direct examination of a defense witness, Willy, who was with the defendant, Dan, who was arrested for DUI in Georgia. Counsel asks Willy if, in his opinion, Dan was intoxicated at the time of the arrest. Willy responds that Dan was not. Al then asks how Willy would know this. Willy responds that he saw how much Dan had to drink that night and further that he has known Dan for a long time. On cross examination, the prosecutor asks Willy if he has he ever seen Dan, in all the time that he’s known him, to drive after having too much to drink. Is this line of questioning permissible? May Willy be impeached by evidence that Dan has been convicted of DUI in Georgia before and that Willy was a witness in the previous trial as well? Answer: Because Willy opened the door to his long relationship with Dan, the prosecutor may inquire into that relationship on cross. Willy will be required to answer the question. See Wood v. State, 218 Ga. App. 563, 462 S.E.2d 625 (1995). However, because Willy is not the defendant in this case, the prosecutor will be stuck with whatever answers Willy gives and will not be permitted to impeach Willy’s testimony even if it is contradictory to the suppressed evidence. See James v. Illinois, 493 U.S. 307 (1990)
3. A prosecutor inquires of the defendant on cross-examination in a DUI proceeding: “Mrs. Robinson, are you a good driver?” Mrs. Robinson responds, “I prefer to be driven.” Has the state opened its own door? Assuming a pre-trial suppression of Ms. Robinson’s driving record, may the prosecutor seek to compromise Mrs. Robinson’s position by introducing evidence of her numerous traffic violations and two prior DUI convictions? Answer: The prosecution’s question is likely an impermissible one. The state is arguably probing an off-limits issue prior to the defense having raised it. In effect, the state is opening the door for itself. Further, under Georgia law, a defendant’s non-responsive answers on cross technically are not grounds for impeachment. See Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988) [“… when a witness gives a non-responsive answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issue under OCGA § 24-9-20 (b).”]. However, the trial judge may well insist that the witness answer the question responsively, in which case, the state may be able to impeach her testimony depending on the subsequent answer.
4. On cross-examination, the defendant states that he had no idea what his Alco-Sensor reading was at the time of the roadside test because the officer refused to tell him. May the prosecutor introduce evidence of a videotape in which the officer does in fact give the defendant the numerical result of his breath test? Answer: This would seem a proper situation in which suppressed evidence may be admitted to impeach the defendant’s credibility. See Shipman v. State, 221 Ga. App. 160, 471 S.E.2d 255 (1996).
5. On cross-examination of the arresting officer, the officer states that the alco-sensor (the exact numerical readout of which should not to be used as evidence of the amount of alcohol in a person’s system) gave a positive reading for intoxication. Defense counsel then proceeds to pose a number of inquiries bringing into question the reliability of the alco-sensor, i.e., the effect of various quantities of alcohol on alco-sensor readings. On redirect, may the prosecutor elicit from the officer the exact numerical readout given by the alco-sensor? Answer: Yes. Defense counsel’s questions have been held to open the door to evidence of the machine’s capability for quantitative measurement of blood alcohol levels. See Price v. State, 222 Ga. App. 655, 475 S.E.2d (1996).
6. During pretrial motions, the breath test result is suppressed due to an inadequate implied consent warning. At trial, the defendant takes the stand and his lawyer asks him, how many beers did you drink the night you were arrested? Response: “Four beers.” A defense expert witness testifies that, based on the defendant’s testimony, the defendant would not be a less safe driver. On cross-examination, the prosecutor attempts to use the results of the Intoxilyzer 8000. Is he permitted to do so for impeachment purposes?

Answer: Yes. By admitting to drinking only 4 beers, the client has opened the door and the Intoxilyzer 8000 results (in conjunction with expert testimony) may be used to show that he drank more than 4 beers. This would have avoided if the client had answered that he doesn’t remember.

Where evidence such as the result of a State administered blood test is admitted for purposes of impeachment, it matters not that such evidence was suppressed because it was illegally obtained. The United States Supreme Court, in a series of decisions collectively known as the Walder-Harris doctrine, has ruled that illegally obtained evidence, not admissible in the State’s case in chief, may be admitted for the limited purpose of impeaching a witness’s testimony. Walder v. United States, 347 U.S. 62 (1954); Harris v. New York, 420 U.S. 714 (1975). Skeptical about invoking the exclusionary doctrine too liberally, the Court reasoned that the purpose of the exclusionary doctrine is to act as a deterrent to illegal/unconstitutional searches and seizures conducted by law enforcement, not as a shield behind which the defendant can freely commit perjury. In Walder, the Court noted; that the evidence was illegally obtained “is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance upon the Government’s disability to challenge his credibility.” 347 U.S. 62. Under the Walder-Harris doctrine, the State had initially been limited to impeaching only the defendant’s testimony given on direct examination. But in United States v. Havens, 446 U.S. 620 (1980), the Court eliminated the direct examination requirement, allowing the State to introduce illegally obtained evidence in order to impeach a defendant’s “answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination.” 446 U.S. 620 at 627.

See also, Oregon v. Hass, 420 U.S. 714 (95 S. Ct. 1215, 43 L. Ed. 2d 570) and Charlton v. State, 217 Ga. App. 842, 459 S.E.2d 455 (1995).

[1]While there are many forms of impeachment and many types of evidence that can be admitted to impeach the credibility of a defendant’s testimony, this article limits itself to these two, most common to the DUI trial. [2] See Wood v. State, 218 Ga. App. 563, 462 S.E.2d 625 (1995) in Hypothetical 2. [3] See Sheffield v. State, 184 Ga. App. 141, 361 S.E.2d 28 (1987), and Long v. State, 185 Ga. App. 277, 363 S.E.2d 807 (1987), infra.