Javier Ramirez v. State

[[COURTLISTENER_SUBOPINION {"id":"11141030","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
THIRD DIVISION
                                DOYLE, P. J.,
                           MARKLE and PADGETT, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules



                                                                  September 19, 2025




In the Court of Appeals of Georgia
 A25A1328. RAMIREZ v. THE STATE.

      DOYLE, Presiding Judge.

      Following a jury trial, Javier Ramirez was convicted of first degree homicide by

vehicle,1 reckless driving,2 failure to wear a seat belt,3 having an improperly altered

truck suspension,4 and having an improper muffler exhaust system.5 He now appeals

from the denial of his motion for new trial, contending that (1) the trial court erred by



      1
          OCGA § 40-6-393 (a).
      2
        OCGA § 40-6-390 (a). The reckless driving count was merged into the
vehicular homicide count.
      3
          OCGA § 40-8-76.1 (b).
      4
          OCGA § 40-8-6.
      5
          OCGA § 40-8-71.
denying his motion to suppress evidence obtained pursuant to a search warrant

application containing a falsehood; (2) the trial court erred by allowing an officer to

testify as an expert with respect to the data retrieved from an event data recorder

(“EDR”) in his vehicle; and (3) his trial counsel was ineffective for failing to object

to the admission of the EDR itself. Discerning no reversible error, we affirm.

      Construed in favor of the verdict,6 the evidence shows that at approximately

10:25 p.m., Norma Ramgopal was stopped at a red light in the left lane of a divided

highway in Gwinnett County. A black truck arrived at the light next to her, in the right

lane. Immediately behind the black truck was a white truck, driven by Ramirez, that

was “tall.” As they waited, the black truck began revving its engine, “making that

vroom, vroom” sound, according to Ramgopal. When the light turned green, the black

truck “took off at a very high speed,” with the white truck following “at a very high

speed” estimated by the witness to be approximately 80 miles per hour in the 35 mile

per hour speed zone. The white truck then moved into the left lane, and according to

Ramgopal, “they’re both going at very high speeds,” driving competitively. The black


      6
        See Short v. State,
234 Ga. App. 633, 634
(1) (
507 SE2d 514
) (1998). Ramirez
does not challenge the sufficiency of the evidence, but we summarize the relevant
events for context.
                                           2
truck cut the white truck off, “and that’s when the white truck proceed[ed] to move

to the right lane,” as they both approached a driveway entrance to an Arby’s

restaurant, where a sedan was in the process of entering the roadway. The white truck

collided violently with the sedan, ejecting an occupant. The black truck fled the area;7

the sedan occupant was transported to a hospital but later died of his injuries.

      Ramirez’s damaged vehicle was impounded. Pursuant to a search warrant,

police retrieved the EDR from his truck and obtained the data it had recorded.8 The

white truck’s EDR data reflected that it was traveling at 88 miles per hour before

colliding with the sedan.9

      Based on these events, Ramirez was charged with first degree homicide by

vehicle, reckless driving, failure to wear a seat belt, improper alteration of his



      7
        The driver of the black truck was identified later through business surveillance
cameras and admitted to committing second degree homicide by vehicle, among other
crimes.
      8
        The EDR, also called an “airbag control module,” is a device installed by the
vehicle manufacturer that records data including vehicle speed and brake and throttle
application five seconds before an airbag deploys.
      9
       This figure included a calibration by police to account for the increased
circumference of the truck’s aftermarket tires. The uncalibrated number was 80 miles
per hour.
                                           3
suspension, a spotlight violation, and having an improper muffler exhaust system.

Ramirez moved to suppress the evidence obtained from the search of his truck

pursuant to the search warrant, and he moved in limine to exclude testimony by the

officer who extracted the EDR data. Following a pretrial evidentiary hearing, the trial

court denied both motions. The jury then found Ramirez guilty on all counts, except

the spotlight violation. Ramirez now appeals.

      1. Ramirez contends that the trial court erred by denying his motion to suppress

the evidence obtained pursuant to the search warrant because, he argues, the warrant

application contained a material false statement. Specifically, he argues that the

affidavit supporting the warrant application falsely stated that “a witness on the scene

completed a witness affidavit claiming the [white truck] was racing another vehicle,”

which would be a crime.10 Because a sufficient portion of this statement was true and

supported a finding of probable cause, this enumeration is without merit.

      To be valid, a warrant must be “based upon an oath or affirmation stating facts

sufficient to show probable cause that a crime is being committed or has been


      10
        See OCGA § 40-6-186 (a) (2) (prohibiting driving in a manner attempting “to
outgain, outdistance, or prevent another vehicle from passing, [or] to arrive at a given
destination ahead of another vehicle”).
                                           4
committed.”11 We review a probable cause determination “by considering the totality

of the circumstances to determine if the magistrate had a substantial basis for

concluding that probable cause existed to issue the search warrant.”12

      The basic rule at issue here pertains to alleged falsehoods in warrant

applications.

      [W]here the defendant makes a substantial preliminary showing that a
      false statement knowingly and intentionally, or with reckless disregard
      for the truth, was included by the affiant in the warrant affidavit, and if
      the allegedly false statement is necessary to the finding of probable cause,
      the Fourth Amendment requires that a hearing be held at the
      defendant’s request[, as was done here.] . . . [I]f a preponderance of the
      evidence at the hearing supports a finding of intentional or knowing falsehood
      or reckless disregard for the truth, the trial court must then view the affidavit
      with its false material set to one side, and if the affidavit’s remaining content
      is insufficient to establish probable cause, the search warrant must be voided
      and the fruits of the search excluded to the same extent as if probable
      cause was lacking on the face of the affidavit.13



      11
        (Punctuation omitted.) State v. Britton,
316 Ga. 283, 286
(1) (
888 SE2d 157
)
(2023), quoting OCGA § 17-5-21 (a).
      12
           (Punctuation omitted.) Britton,
316 Ga. at 287
(1).
      13
       (Punctuation omitted; emphasis supplied.)
Id. at 288
(2), quoting Franks v.
Delaware,
438 U. S. 154
(
98 SCt 2674
, 57 LE2d 667) (1978).
                                             5
      Here, the affidavit in the warrant application stated as follows:

               On 8/1/2022 the vehicle listed above . . . was traveling eastbound
      on [Braselton Highway.] A [sedan] was exiting a parking lot on the south
      side of the roadway. The driver of the [white truck] claimed he was in the
      right straight lane behind another vehicle, and the [sedan] entered the
      roadway in front of him. Tire marks on the roadway indicate the [white
      truck] was straddling both the right and left straight lanes when he began
      braking. A collision ensued and the driver of the [sedan] was ejected
      from his vehicle. After being transported to [the hospital], he succumbed
      to his injuries and died. A witness on scene completed a witness affidavit
      claiming the [white truck] was racing another vehicle.14


               This search warrant will serve to obtain the saved electronic
      information from the [white truck], in hopes of assisting with the
      collision reconstruction.


Thus, the allegation of racing was material to demonstrating that the white truck was

driving in an unlawful way, which would be evinced by data from the EDR.

      At the suppression hearing, the responding officer who completed the warrant

application testified that the emphasized portion above contained a partial

misstatement. He explained that the eyewitness claimed that the trucks were racing,



      14
           (Emphasis supplied.)
                                            6
but he clarified that instead of making that claim in a written affidavit, the eyewitness

had actually spoken to the officer (as recorded by his body camera and played for the

court) and personally told the officer that the trucks were racing. Thus, the officer

conceded that he had made “a clerical error” by stating that “it was written [in an

affidavit] and not [orally] stated.”

      Assuming without deciding that the officer’s error was a knowing falsehood or

reckless disregard for the truth, the record supports the trial court’s finding that the

remaining portion of the challenged statement — that an eyewitness told police that

the trucks were racing — was true. And such a statement to an officer by an

eyewitness would support a finding of probable cause that the trucks were racing or

driving recklessly, particularly in light of the affidavit’s other unchallenged statements

that (i) the white truck’s skid marks straddled the lane divider, and (ii) the severity of

the collision as resulted in an ejectment and fatality.15

      As a reviewing court, we owe substantial deference to a magistrate’s decision

regarding the issuance a search warrant, which “is simply to make a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit

      15
        Cf. Britton,
316 Ga. at 290-291
(3) (noting that an eyewitness’s statement to
police can support a finding of probable cause).
                                            7
before him, including the veracity and basis of knowledge of persons supplying hearsay

information, there is a fair probability that . . . evidence of a crime will be found in a

particular place.”16 Based on this common-sense standard, the difference between a

written affidavit and a statement to an officer by an eyewitness at the scene does not

deprive the warrant application of a substantial basis for finding probable cause to

believe that the white truck was involved in racing or reckless driving sufficient to

justify the search of its EDR data.17 Whether sworn or not, the statement was made by

a disinterested eyewitness on the roadside in the context of the immediate police

response to a vehicle collision shortly after the witness watched the collision. Based

on this, and the other information in the warrant application, the trial court did not err

by finding the application sufficient to support the issuance of the warrant.

      2. Ramirez next argues that the trial court erred by denying his motion in limine

to exclude an officer from providing expert testimony as to the reliability and results



      16
        (Punctuation omitted.)
Id. at 286
(1). See also State v. Palmer,
285 Ga. 75, 77
(
673 SE2d 237
) (2009), quoting DeYoung v. State,
268 Ga. 780, 786-787
(7) (
493 SE2d
157
) (1997).
      17
        See Palmer v. State,
310 Ga. 668
, 673-674 (2) (a) & (b) (
853 SE2d 650
) (2021)
(applying “common-sense” standard and concluding “that the affidavit’s remaining
content was sufficient to establish probable cause”) (punctuation omitted).
                                            8
of the EDR data, citing OCGA § 24-7-702 and Daubert v. Merrell Dow Pharmaceuticals,

Inc.18 Specifically, he argues that the officer “was allowed to present . . . raw data as

finished fact” without adequate reliability.19 We discern no basis for reversal.

      Under OCGA § 24-7-702 (b),



             A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an opinion
      or otherwise, if:


             (1) The expert’s scientific, technical, or other specialized
      knowledge will help the trier of fact to understand the evidence or to
      determine a fact in issue;


             (2) The testimony is based upon sufficient facts or data;


             (3) The testimony is the product of reliable principles and
      methods; and




      18
509 U. S. 579
(
113 SCt 2786
, 125 LE2d 469) (1993). This standard was made
applicable to criminal cases in Georgia in 2022. See Garrison v. State,
319 Ga. 711, 725
(3) (b) (
905 SE2d 629
) (2024).
      19
        Ramirez does not make a challenge on hearsay or Confrontation Clause
grounds.
                                           9
             (4) The expert has reliably applied the principles and methods to
      the facts of the case.


      In determining the admissibility of expert testimony under the Daubert
      standard, the trial court acts as a gatekeeper, assessing both the witness’
      qualifications to testify in a particular area of expertise and the relevancy
      and reliability of the proffered testimony. And the trial court examines
      reliability through a consideration of many factors, including whether a
      theory or technique can be tested, whether it has been subjected to peer
      review and publication, the known or potential rate of error for the
      theory or technique, the general degree of acceptance in the relevant
      scientific or professional community, and the expert’s range of
      experience and training. The determination of whether a witness is
      qualified to render an opinion as an expert is a legal determination for the
      trial court and will not be disturbed absent a manifest abuse of
      discretion.20


      Here, Ramirez argues that the officer “merely parroted the [EDR] data, which

masqueraded as finished fact.” But the officer did not just recite the data recorded by

the EDR. He began by explaining his qualifications to present the data, testifying that

he had specific training and experience in the methods of accident reconstruction and

retrieving EDR data. He explained what data the EDR recorded, what tools he used

      20
        (Citations and punctuation omitted.) Arnold v. State,
321 Ga. 434, 450
(3)
(
915 SE2d 576
) (2025).
                                           10
to retrieve it, and how the data was presented, including defining the terminology.

Thus, as far as the officer’s training and ability to present the data, Ramirez has not

demonstrated an abuse of the trial court’s discretion in recognizing the officer’s ability

as such an expert.

      With respect to the reliability of the speed data, the officer testified that based

on his training and experience, the methods he used, including relying on the EDR

data, were reliable. He explained that in addition to relying on the EDR data, other

observations “helped [him] arrive at some of these conclusions:” he personally

examined nearby security camera footage, the roadway, the condition of the vehicles

involved, the debris field, and the skid marks and gouges in the roadway. He explained

why, based on the roadway evidence, there was no indication that a wheel or tire

malfunction had impacted the reliability of the EDR data. The officer further testified

that although he did not verify the EDR speed data through a complete “manual”

reconstruction “the old fashioned way,” he nevertheless testified that the EDR data

were “consistent with the crash scenario” overall. Finally, the officer explained that

all of his findings were peer reviewed by other trained and experienced members of

his accident investigation unit, including a senior officer.


                                            11
      In sum, beyond merely presenting the EDR data, the officer interpreted and

explained the data, applying his experience, training, and examination of the scene,

and his opinion was reviewed by his peers. This record supports the trial court’s

exercise of discretion to admit the officer’s testimony:

      Trial courts may not exclude an otherwise sufficient expert opinion
      simply because it believes that the opinion is not—in its
      view—particularly strong or persuasive. Rather, the weight to be given
      to admissible expert testimony is a matter for the jury. Ultimately, courts
      must remain cautious not to improperly use the admissibility criteria to
      supplant the sacrosanct right to a jury trial because vigorous
      cross-examination, presentation of contrary evidence, and careful
      instruction on the burden of proof are the traditional and appropriate
      means of attacking shaky but admissible evidence. When applying Rule
      702, the trial court has broad discretion to accept or reject the
      qualifications of an expert witness. . . .21


Accordingly, this enumeration is without merit.




      21
         (Citations and punctuation omitted.) Wright v. State,
374 Ga. App. 28
, 31-32
(
910 SE2d 839
) (2024) (holding that a trial court erred by excluding testimony from
a witness qualified as a pharmacology expert because the witness’s opinion was not
reliable).
                                            12
      3. Last, Ramirez contends that his trial counsel rendered ineffective assistance

to the extent that his failure to object to the admission of the physical EDR unit

amounted to a waiver of the admission of its data. We disagree.

      Under Strickland v. Washington,22 to prevail on a claim of ineffective assistance

of counsel, a defendant must prove both that his counsel’s performance was deficient

and that the deficient performance prejudiced him.23 “Deficient performance means

that no reasonable lawyer would have done what trial counsel did, while prejudice

means there is a reasonable likelihood that the outcome of the trial would have been

different but for the deficient performance.”24 If [a defendant] fails to show either

prong of the Strickland test, we need not examine the other prong.25

      Based on our holdings herein, this enumeration provides no basis for reversal

because Ramirez has not shown that an objection to admitting the EDR would have




      22
466 U. S. 668
(
104 SCt 2052
, 80 LE2d 674) (1984).
      23
Id. at 687
(III).
      24
           (Punctuation omitted.) Parker v. State,
320 Ga. 572, 579
(4) (
910 SE2d 580
)
(2024).
      25
           See Terrell v. State,
313 Ga. 120, 130
(5) (
868 SE2d 764
) (2022).
                                            13
been successful, and his trial counsel’s failure to pursue this futile course does not

constitute ineffective assistance of counsel..26

      Judgment affirmed. Markle and Padgett, JJ., concur.




      26
        See Hill v. State,
310 Ga. 180, 192-193
(8) (b) (
850 SE2d 110
) (2020) (failure
of counsel to assist in way that “would have been fruitless . . . did not constitute
deficient performance”); Matiatos v. State,
301 Ga. App. 573, 575
(2) (a) (
688 SE2d
385
) (2009) (same).
                                           14