Epps v. StateEpps v. State
- Reporters:
- , ,
- Before:
- Shulman
This appeal is from appellant’s conviction for homicide by vehicle.
1. Epps contends that evidence of his blood alcohol level was inadmissible because the police officer who directed that a blood sample be taken did not give him the implied consent warnings required by
Appellant’s argument with regard to the implied consent warnings is controlled adversely to him by Rogers v. State, 163 Ga. App. 641, 643 (295 SE2d 140): “If a suspect is ‘dead, unconscious, or otherwise incapable of refusing the [intoxicant] test. . . the officer lawfully can extract a blood specimen under the aegis of protection of evidence’ without advising the suspect of his rights concerning intoxicant tests. [Cits.]”
Nor is Epps’ argument as to the failure to follow the procedures set forth in
In
Wilson v. State,
147 Ga. App. 560 (1) (249 SE2d 361), this court held in a situation factually similar to the instant case that failure to comply with the statutory direction that the blood sample
We nevertheless conclude that the procedure used here does not require reversal.
2. Epps contends that it was error to allow the expert testimony of George Black, the Gwinnett County traffic engineer who investigated the scene of the collision, because a complete copy of his scientific report was not made available to defense counsel upon request pursuant to
Epps’ assertion that the trial court’s order directing defense counsel to furnish the state with the written report of his expert pursuant to Sabel v. State, 248 Ga. 10, 18 (6) (282 SE2d 61), compounded the error is likewise untenable. When defense counsel refused to make this information available, filing a motion to reconsider the order, the state waived its demand and no mention of the defense’s failure to comply was made before the jury.
3. Nor do we agree that the trial court abused its discretion in allowing George Black to remain in the courtroom after the rule of sequestration was invoked. This witness was the chief investigator of the state’s case and his assistance was needed in its presentation. In order to present the case in an orderly manner and to lay the proper foundation for hypothetical questions to be posed to him, it was also necessary that this witness be excused from testifying first. It was within the trial court’s discretion to allow these exceptions, and no harmful error has been shown. Croom v. State, 165 Ga. App. 676 (2) (302 SE2d 598).
4. Epps complains of the admission of opinion testimony of Officer Howard Beers, contending he was neither qualified as an expert nor tendered as one. Officer Beers was called by the state and testified that he had been a uniformed patrolman with the Gwinnett County Police Department for five years; had investigated in excess of 200 automobile wrecks; and had attended accident investigation courses conducted by the Georgia State Patrol, the University of North Florida and the Georgia Police Academy, where he was trained in advanced traffic management. Officer Beers was the primary investigator assigned to the Epps collision. Officer Davis was the first officer on the scene and assisted Officer Beers by going to the hospital and obtaining blood samples while Officer Beers and George Black, the traffic engineer, took photographs and measurements of the site.
“To qualify as an expert [see
5. Nor do we agree that the trial court improperly refused voir dire of Officer Beers. It appears from the transcript that voir dire was not requested until this witness was testifying as to what certain photographs he had taken at the accident scene showed. Because the pictures had already been admitted, the court permitted Officer Beers to give his opinion, based on his observation at the scene, of how the collision occurred. The cross-examination which followed was curtailed only when defense counsel attempted to elicit hearsay testimony from Officer Beers as to an interview with another witness the day after the accident. The trial court correctly refused to allow that testimony. Perez v. Malhenzie, 165 Ga. App. 520 (1) (300 SE2d 226).
6. Epps argues that the trial court erred in allowing testimony of his statement to Officer Davis because he could not have knowingly and intelligently waived his right to remain silent due to the high degree of alcohol in his blood. Prior to being read the Miranda warnings, Epps had regained consciousness and had been informed of his need for x-rays, which he refused. Officer Beers testified that after he talked to the doctor he spoke with Epps, who complained of chest pains but “appeared to be conscious and alert and aware of his surroundings.” When Epps asked to use the telephone, he also appeared alert and cognizant of his surroundings. Factual determinations of voluntariness made by the trial judge must be accepted by the appellate courts unless they are clearly erroneous, and we cannot say that the determination of the trial court here was clearly erroneous. High v. State, 233 Ga. 153 (1) (210 SE2d 673); Franklin v. State, 245 Ga. 141 (4) (263 SE2d 666).
7. Appellant’s assertion, without citation of authority, that the trial court erroneously charged the jury on how they were to evaluate the testimony of experts is without merit. The instructions given were a correct statement of the law as set forth in the appellate decisions of this state. It is not the duty of the jury to make the threshold determination as to who is or is not an expert. Rather, “ [i]t is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science
Judgment affirmed.
McMurray, P. J., and Birdsong, J., concur.