Jackson v. StateJackson v. State
- Reporters:
- , , ,
- Before:
- Eldridge
Sеventeen-year-old Ezekiel Jackson was stopped for speeding on South Cobb Drive at 11:30 p.m. on September 9, 1995. There were two other young people in the car with Jackson. The patrol officer smelled a strong odor of alcohol emanating from the vehiсle and asked Jackson to exit the car. The officer then detected a strong odor of alcohol emanating from Jackson. Field sobriety tests were performed, including an alco-sensor test. Based on the results thereof, Jackson was arrested and transportеd to the Smyrna Police Department where implied consent warnings were given, consent to a breath test was received, and a breathalyzer test was administered. Jackson registered .12 on the Intoximeter 5000.
Jackson was charged with DUI — less safe driver; DUI — .10 or above; speeding; and under-age possession of alcohol. As a part of the State’s case, a Cobb County jury heard testimony from the arresting officer, who also conducted the Intoximeter 5000 test, and viewed a videotape of the traffic stop, which included Jackson’s performancе of the field sobriety tests. The jury found Jackson guilty as charged. He appeals the conviction, and we affirm.
1. In his first enumeration of error, Jackson contends that the results of the post-arrest breath test performed on the Intoximeter 5000 should have been suppressed because he was not given warnings pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), prior to the test’s administration.
“Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court. It is well established that appellate courts may not consider objections to evidence not raised at trial.” (Citations and punctuation omitted.) Hale v. State, 220 Ga. App. 667, 670 (469 SE2d 871) (1996). In the court below, Jackson raised the issue of Miranda only as it relates to the admissibility of the field sobriety test results, because said tests allegedly occurred during the “functional equivalent of arrеst.” Miranda was not raised in relation to the admissibility of the Intoximeter 5000 breath test. Accordingly, we will not consider this enumeration of error.
2. Next, citing
Brown v. State,
268 Ga. 76 (485 SE2d 486) (1997)
(“Brown”),
Jackson alleges that the State failed to lay a proper foundation under the “business records hearsay exception,”
(a)
“ ‘This breath-testing instrument (serial no._) was thoroughly inspected, tested, and standardized by the under-signed on (date_) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.’
“When properly prepared and executed as prescribed in this subsection, the сertificate shall,
notwithstanding any other provision of law, be self authenticating, shall be admissible in any court of law,
and shall satisfy the pertinent requirements of [
Clearly, then, the statute on its face contains a “self authentication” provision which provides the procedure for the admission of the certificates. Moreover, and contrary to Jackson’s position, the Supreme Court of Georgia’s decision in Brown does not impact on such procedure. That decision addressed whether certain documents are admissible into evidence at all, and not the method by which otherwise admissible documents are tendered for admission. In law, the admissibility of evidence and the procedures for admission are two different issues.
In Brown, the Supreme Court of Georgia examined the admissibility of a certificate of inspection of a breath test machine in relation to the Confrontation Clause of the Constitution. The Supreme Court found that the constitutional infirmities addressed by the Court in its decision in Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996) (“Miller”), were not present with regard to the admissibility of such certificate of inspection. 2 This finding was due primarily to two *570 distinguishing factors.
First, the Court recognized in Brown that “in reality the witness against the defendant, the source of the crucial and incriminating evidence, is not the analyst, but the machine itself. The certificate in issue herе [unlike in Miller] addresses only the performance of the breath-testing device in calibration tests conducted to ensure its accuracy when it is subsequently used to analyze a person’s alcohol concentration level and in no manner represents or substitutes for the analysis itself.” (Citations and punctuation omitted.) Id. at 79. In that regard, “[o]rdinarily, a witness is considered to be a witness ‘against’ a defendant for purposes of the Confrontation Clause only if his testimony is part of the body of evidence that the jury may consider in assessing his guilt!’ (Emphasis supplied.) Cruz v. New York, 481 U. S. 186, 190 (107 SC 1714, 95 LE2d 162) (1987). A purely foundational witness is unable tо testify as to any element of the charged offense and thus is not considered a witness “against” a criminal defendant for purposes of traditional Confrontation Clause analysis.
Second, the Court determined in Brown that a certificate of inspection of a breath test machine does not violate the Confrontation Clause because such certificate falls within the “firmly rooted” business records exception to the hearsay rule. The Court noted that “[o]ut-of-court statements which fall within a firmly-rooted hearsay exception are deemed to satisfy the constitutional requirement of reliability usually provided by a witness’s oath-taking and subjection to cross-examination because of the judicial and legislative experience assessing the trustworthiness of that type of out-of-court statement.” (Citation and punctuation omitted.) Id. at 77; see also Livingston v. State, 268 Ga. 205, 210 (486 SE2d 845) (1997).
Cоnsequently, as it relates to the Confrontation Clause, the Court in
Brown
found that a certificate of inspection is simply a record made in the regular course of business, which includes the keeping of records of departmental compliance with
So, per Brown, a cеrtificate of inspection of a breath test instrument does not impact on the Confrontation Clause of the Constitution because the declarant is not a witness “against” a criminal defendant within traditional constitutional analysis, and because the certificate of inspection falls within a well-recognized exception to the hearsay rule.
However, in finding that a certificate of inspection is
admissible,
the Court’s decision in
Brown
did
not
address the procedures for
admission.
It was not an issue in that case. Thus, while recognizing that a “proper foundation” must be established, the Court in
Brown
did
not
hold that the foundational provisions of
(b) In the law of evidence, authentication is “the act or mode of giving authority or legal authenticity to a statute, record, or other written instrument, or a certified copy thereof, so as to render it legally admissible in evidence.” Black’s Law Dictionary, 5th ed., p. 121. In addition, “self-authentication” may be provided for by statute and refers to “certain classes of writings [which] shall be received in evidence ‘without further proof.’ ” Id. In fact, our lеgislature has provided for many instances of “self authentication” wherein the document at issue is capable of admissibility by certification alone and “without further proof.” 3
Most importantly, the “rule against hearsay” does not bar self-authentication procedures cоntained in a statute. “[T]he method of introduction of the document would not change the law regarding the *572 admissibility of its contents[.]” Dennis v. Adcock, 138 Ga. App. 425, 429 (226 SE2d 292) (1976). As addressed above, the rule against hearsay bars the admissibility of the contents of a document in the first place. Once, as here, a document fits within a recognized hearsay exception, the legislature’s method of authenticating the document, which is otherwise admissible, does not impact on the hearsay rule. Moody v. State, 244 Ga. 247, 249 (4) (260 SE2d 11) (1979); Dennis v. Adcock, supra; see also McGaha v. State, 221 Ga. App. 440, 441 (471 SE2d 533) (1996) (statutes merely pertaining to evidentiary authentication of documents do not affect hearsay considerations).
Self-authenticating language in a statute cannot be ignored, and this Court must construe such provision in order to give meaning to the legislative intent. “It is, of course, fundamental that the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose. Although the legislative intent prеvails over the literal import of words, where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its tеrms.” (Citations and punctuation omitted.) Leota Properties v. Banc One Lexington, 212 Ga. App. 508, 509 (441 SE2d 920) (1994).
In that regard,
Therefore,
In this case, a certificate of inspection for the Intoximeter 5000 uрon which Jackson’s breath test was conducted was tendered by the State. It was identified by the arresting officer, and the certificate met the foundational requirements of
3. We have examined Jackson’s two remaining enumerations of error and find them meritless. Our decision in Divisions 1 and 2 above renders Jackson’s contentions regarding a directed verdict moot. Further, pursuant to discovery, the State was not required to “disclose” to Jackson a witness that Jacksоn himself had subpoenaed as a witness for the defense.
Judgment affirmed.
McMurray, P. J., and Blackburn, J., concur.
Notes
Compare our decisions in Mullinax v. State, 231 Ga. App. 534 (499 SE2d 903) (1998); Hamilton v. State, 228 Ga. App. 285 (491 SE2d 485) (1997); and Daniel v. State, 227 Ga. App. 92 (488 SE2d 129) (1997), wherein the issue was the sufficiency of testimony which attempted to establish a business records foundation.
In Miller, the Supreme Court of Georgia struck down a provision of the Code that *570 attempted to “short cut” certain criminal drug prosecutions by authorizing the admission into evidence of a sworn certificate by the employee of the GBI crime laboratory who analyzed the drug at issue in the trial; such was determined to be a violation of a criminal defendant’s constitutional right to confront the witness against him. Id. at 851.
See, e.g.,
The legislative intent is made manifest within the caption of the 1995 amendment to Title 40 of the Official Code of Georgia, which created
Several decisions of this Court have recognized the self-authentication provision of