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                               http://www.gaappeals.us/rules


                                                                    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(Oct. 6, 2015) (unpublished).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

                                          2
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.



                                   3
             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.


                                            4
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

                                            5
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)

                                           6
(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

                                          7
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)

                                            8
(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:

                                            9
             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.

                                          10
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

                                          11
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

                                          12
      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

                                           13
     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,


                                         14
      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

                                           15
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



                                              16
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).




                                          17
