*1 Birdsоng showing actually surprised has made no that he was deprived specific of a defense due to the lack of a date the motion contempt. Accordingly, appear for “[i]t does not that the failure to allege specific materially a more date for the offense affected his ability present a defense. [thus] We find no error in the court’s Gentry failure to dismiss the [motion].” v. 671) (1998) (citation omitted). Judgment Ellington, Dillard, J., J., concurs. P. concurs affirmed. judgment only.
Decided October Boyle, appellant. & Eric C. Crawford, Crawford pro Barnett, Catherine se.
A15A0902. LAFAVORv. THE STATE. Dillard, Judge. Following jury trial, a convicted Daniel Lafavor on one count of speeding. appeal, challenges sufficiency On of the evi- supporting dence his conviction and further contends that the trial (1) admitting laser-speed-detection-device court erred in despite comply requirements the State’s failure with the (2) denying admission of such continuance, his motion for a (3) admitting prior exhibits that the State failed to disclose (4) violating right against him, to confront the witnesses im- properly instructing jury governed by that its verdict could not be sympathy, (6)inadequately responding questions posed by (7) admitting impeachment deliberations, its evidence. For infra, the reasons set forth we affirm. light jury’s
Viewed verdict,1 most favorable to the night July Covington police evidence shows that on the officer was parked alongside monitoring Interstate 20 and was highway speed west-bound traffic on a section of the where the limit per approximately p.m., was 65 miles hour. At 9:00 the officer approaching overtaking observed a red Corvette in the first lane and good speed.” Believing other vehicles “at a rate of that the Corvette moving exceeding much too limit, fast and the officer [1] See, e.g., Powell App. 144, laser-speed-detection device on the vehicle obtained a
trained a per Consequently, reading traveling it was at 108 miles hour. stop, during which he determined that officer initiated traffic that his the driver and owner of vehicle and wife was Lafavor was passenger. Lafavor, The officer then arrested other equipped transport arrestees, officer, whose vehicle was another *2 jail. transported county Lafavor the charged, accusation, one was later via count of pro jury proceeded
speeding. trial, se, in the At Lafavor’s which he arresting regarding officer, testified State’s sole witness the who stop. addition, the the In Lafavor and wife details of traffic defense, he in Lafavor’s and both was not testified asserted exceeding speed Nevertheless, trial, at the conclusion of limit. speeding. convicted Lafavor of
Subsequently, filed a Lafavor obtained counsel and motion for conducting hearing new which the trial court denied after a on appeal This matter. follows. first 1. Lafavor contends evidence was insufficient support speeding conviction. We appealed, outset,
At the we note that when criminal conviction light jury’s evidence must viewed in the most favorable enjoys appellant longer presumption verdict, and the no innoc evaluating sufficiency And, course, evidence, ence.2 in of the weigh credibility, we but do not evidence determine witness only determine whether “a rational trier of fact could have found the guilty charged beyond defendant offenses a reasonable doubt.”3 jury’s upheld long Thus, so there is verdict will be “some competent though support evidence, contradicted, even each fact guiding necessary prin to make out the State’s case.”4 these With ciples specific mind, we will address Lafavor’s now contentions. speeding, only guilty
In order to be
need
“еxceed the
one
designated speed
speeding,
prosecuting
limit.”5And in
someone for
prove
precise
traveling
“need not
driver was
at a
State
that a
rate
speed
greater
speeding.”6 fact,
In
order
obtain a conviction
speeds by specified
punishment
increment “affect
and are
2
842,
130) (2010).
English
Ga.
omitted);
App. 26, 29 (1) (
Here, limit on the section of 1-20where Lafavor stopped per hour, was 65 miles and the officer testified visually moving that he had been trained to vehicle within two miles estimate the of a per Additionally, hour. the officer recounted overtaking that when he vehicle, first observed Lafavor’s it was other speeding.” vehicles, and that he “believed” him “to be The officer speed-detection further testified that his laser device, fact, indi traveling per cated that Lafavor’s vеhicle was at a rate of 108 miles thereby confirming hour, the officer’s estimate that Lafavor was speeding. Accordingly, indeed the evidence was sufficient to sustain speeding conviction.9 admitting Lafavor next contends that the trial court erred laser-speed-detection-device arguing comply requirements failed to with the for admission of such evidence under OCGA 40-14-17. This claim lacks merit.
Initially, object we note that Lafavor failed to to the introduction laser-speed-detection-device his trial. Never January theless, may because his trial 1, 2013, occurred after we *3 purportedly improper plain review the admission of evidence for being finding plain requires said, error.10That of error “a clear or legal affirmatively by appellant obvious error or defect not waived appellant’s rights, that must have affected the i.e., substantial proceedings.”11 affected the outcome of the trial-court Reviewing regard, pro- Lafavor’s claim in this § OCGA 40-14-17 vides: speed speed
Evidence of based on a detection device using speed timing principle of laser which is of a model approved by Department Safety that has been of Public was suffiсient traveling to consider the attention of the court’ conviction on a “Georgia’s Ga. speeding violation, App. 576, [8] [9] [7] Id. Id. at 469 See id. Fraser v. See Rembert v. (punctuation faster than the 65 miles new ‘plain (“Because to sustain his conviction.” Evidence speeding violation). (1) (a) (punctuation omitted). errors (615 the officer’s an officer’s estimate of affecting Code, ”). 627) (2005) (holding testimony Ga. substantial per applies hour (punctuation omitted)); speed to cases tried after rights [defendant] speed that officer’s limit was sufficient (2), 359) (2014) (punctuation omitted). although is sufficient n.8 was such errors were not traveling January testimony In the Interest support 744) (2013) 1,2013, above the support that defendant was a conviction on a allows a court J. D. (noting defendant’s speed brought S., limit acceptable scientifically and reliable as be considered
shall be admissible for all device and shall detection proceed- judicial, any purposes court, or administrative in Department copy ings of Pub- A certified in this state. approved Safety such laser devices shall models of lic list pur- self-authenticating for all shall be admissible proceedings judicial, any poses court, or administrativе this state. copy provides statutory provision that a certified text of this
The approved Department’s . . . shall be self- models “list of authenticating” adjudicatory purposes, dictate that but does not supply “only was so evidence that the device a document can such very recently approved.”12 context, Indeed, held in this as we have testimony arising trained from the “circumstantial performed operated the machine and certified individual who authenticating procedures.”13 meet the statute’s test is sufficient to that he certified to use Here, officer testified was Department laser-speed-detection Public and that devices Covington Depart Safety approved the devices used Police had lengthy testimony regarding provided ment. The officer also specifically, familiarity calibrating and, the fact the device more night question, he calibrated the ofhis shift on the that at the start ultimately these to clock Lafavor’s vehicle. Given that he used device sufficiently complied particular circumstances, with the procedures authenticating § under OCGA 40-14-17.14 argument if for the sake of that the State But even we assumed comply 40-14-17, of this evi the admission failed to with OCGA supra, error. As we noted Division dence did not constitute necessary laser-speed-detection-device evidence was not because exceeding speed limit the officer’sestimate that Lafavor was laser-speed-detection- Thus, his conviction.15 sufficient to sustain merely the officer’s cumulative of device evidence probability affect the out did not in reasonable “and its admission the trial.”16 come of *4 12Frasard, (3) (o). at 472 13 omitted). (punctuation Id. 14 testimony training arresting as to both his id. that officer’s See devices, Department Safety’s aрproval detection, of including the of Public the use of laser 40-14-17). used, sufficiently complied particular he with OCGA §
the device supra note 9. omitted). Fraser, (punctuation denying trial court erred his
3. Lafavor contends that the sought request continuance, he the State did not for a because provide transporting him the officer’s address. out-of-state We grant outset,
At we note the of a continuance the that denial legal court, is sound of trial discretion the the “addressed ruling not be absent abuse of court’s will disturbed a clear discret 17-8-25, ion.”17 And in order a § under OCGA to obtain continuance uрon required absence, based defendant a witness’s is to demon strate
(1) (2) subpoe absent; that the witness is that he has been (3) naed; he does not more than miles from reside place (4) testimony (5) trial; material; the by permission (6) movant; the is not absent witness expects procure testimony that the able to movant to be (7) court; at the next witness term continu requested (8) purposes delay ance is not expected [;]and facts proved by to be witness absent must stated.18 Importantly, the trial court’s is not “unless discretion abused all ofthe requisites of OCGA 17-8-25 shown and trial court are still denied a continuance.”19 days prior matter, trial,
In this more than ten to the start of list, State filed its witness which included the officer who arrived on transported jail. the scene after Lafavor him was arrested subpoena Later, issued a officer but State witness “private,” despite address was listed as the fact that Lafavor’s dis- covery request sought investigat- the contact information for all ing day requested continuance, officers. the first On arguing transporting been officer, that he had unable to interview the testimony. provide Specifically, who would crucial Lafavor claimed placing patrol trаnsporting vehicle, that after him in the officer arresting reading, asked the and the officer if he had shown Lafavor the laser officer that he had admitted deleted informa- response, explained transporting tion. In officer longer police department, currently was no member of that he App. 168, (2010). Brown v. App. 545, (4) (a) (746 208) (2013) (punctuation Janasik v. omitted). (punctuation (4) (a) Id. at 553 *5 him Ohio, the State did not intend to call as a lived in and that Immediately thereafter, the trial court denied Lafavor’s witness. request. argues denying appeal, in that the trial court erred On Lafavor transporting request to interview the officer. for continuance requirements in failed meet several of the delineated But Lafavor including transporting showing 17-8-25, officer § OCGA place procure ofthe oftrial and that he could resided within miles testimony term of Given these next court.20 officer’s particular circumstances, did not its the trial court abuse discretion denying request for a continuance to secure trans testimony.21 porting officer’s deny- similarly that the trial erred
4. Lafavor contends court ing request a continuance because the State violated its for discovery obligations exculpatory failed disclose and provide transporting him with out-of- it failed officer’s when wholly merit. state address. Both of these claims are without reciprocal discovery,22 July (a) opted on Lafavor into year trial, than before its initial more disclosed transporting list, witness which consisted police department’s list address officers. The indicated telephone the officers.And number as contact information both of required under information all State was to disclose this (b), provides: § 17-16-8 which OCGA
Nothing this Code shall construed section be prosecuting require attorney address, to furnish the home telephоne birth, number of who is date of or home a witness pros- Instead, cases, enforcement officer. in such a law attorney ecuting attorney shall furnish to defense officer’s current work location and work law enforcement phone number. OCGA See 17-8-25. § Bailey State, App. 656) (holding (2011) v. denial request was not for a continuance secure witness’s attendance abuse of defendant’s procure given never asserted that he would be able to witness’s discretion defendant adjournment);
testimony
v.
an
Knox
justified by
request
the denial
due to absence of witness was
continuance
by
satisfy requirements
рrocured
could
next term of
failure to
that witness
defendant’s
court); Griggs
768, 769-70
(1993) (ruling
(2) (
On the first provided that the State had not him with contact information for the transporting despite allegedly promising officer, so, to do and there pros fore, he had been unable to interview the officer. The State’s responded transporting ecutor officer had moved to Ohio and appeal, Now, that she not intеnd to call him as a witness. on right Lafavor providing that his to a fair trial was denied the State not transporting
more detailed contact information for the acting prosecution, officer. But the in its role as the has no obligation to locate defense witnesses.23 asserting discovery
Moreover, a defendant violation must *6 “show harm as well as error to merit reversal ofhis conviction.”24And pretermitting provided here, even that the State should have more detailed call, contact information for a witness did not intend to testify transporting trial court allowed Lafavor to officer arresting would have corroboratеd his claim that the officer deleted laser-speed-detection-device’s recording of the exact of his hearsay, Thus, heard, vehicle. via uncontested the evidence transporting provide. that Lafavor claimed the officer would Further regard reading more, this evidence was relevant with laser-speed-detection device, the necessary which as in 1 noted Division was not speeding Accordingly,
to sustain Lafavor’s conviction. any alleged discovery Lafavor has failed to show that violation caused him harm.25
(b) error, In the same enumeration of Lafavor аlso contends that provide the State’s failure to detailed contact information for the transporting Brady Maryland officer constituted a violation of prosecution, upon Brady It is well motion, established that the duty produce anything exculpatory impeachi has “the that is ng.”27 prevail Brady But in claim, order to on a a defendant must show that possessed
the State
defendant;
evidence favorable to the
possess
defendant did not
the evidence nor could he obtain it
(5) (674
871) (2009) (holding
Brooks v.
State
engage
list,
initially placed
ultimately
in misconduct when it
a witness on its witness
hut
against calling
provide
decided
the witness at trial and did not
the defendant with sufficient
witness).
information to locate the
(6) (b) (725
771) (2012).
Walker v.
violation,
discovery
light
See id.
that even if State committed a
of other
harmed).
defendant failed to show that he was
himself with pressed evidence; had the evidence been the favorable probability defense, exists a reasonable disclosed proceeding been different.28 would have the outcome simply suppress any information, did not but Here, did not the State provide information for a witness detailed contact Lafavor with had have been discovered of and which could more than aware he was particular diligence. circum these Given he exercised reasonable Brady ruling that there was no did not err stances, the trial court violation.29 admitting the trial court erred contends that
5. Lafavor also prior Again, we to trial. failed to disclose exhibits that the State regarding During officer testified laser-speed-detection that clocked device to use the his certification Covington that the devices used and further testified Department approved by Department Public had been Police conjunction Safety. Then, the officer’s Department certification, of Public Safe- introduced the officer’s ty’s certification, documents related to the laser- and several other speed-detection-device’s calibration. of these documents the admission
Lafavor now prior them the State failed to disclose constituted error because object to the documents’ admission trial. But Lafavor failed to *7 appeal.30 Furthermore, and, therefore, waived this issue on trial has similarly supra, these the admission of discussed in Division laser-speed- error because the documents did not amount necessary Lafavor’s con was not to sustain detection-device evidence previously discussed, estimate that Lafavor the officer’s viction. As support exceeding his convict the limit was sufficient was laser-speed-detection-device Consequently, the ion.31 testimony, merely entirety of the officer’s cumulative its failure to been proper discovered calibrated, Blackshear See objection See Swindle v. Frasard, provide supra by exercising to the documents and he waived note v. defendant with a witness’s reasonable the issue on at 471 did not constitute a diligence, officer’s appeal). (3) (b) (holding log showing address, that because defendant which the defendant 385) (2002) violation). Brady speed-detection did not raise a that State’s could have device had probability not in out “and its admission did reasonable affect the come of the trial.”32 right
6. Lafavor that his to confront the witnesses further against him Sixth to the under the Amendment United States transporting was somehow violated when the officer did Constitution testify at trial. claim is a not This nonstarter. provides:
The Sixth Clausе “In all Amendment’s Confrontation prosecutions, enjoy right the criminal accused shall ... against confronted with the him.”33 And in witnesses Supreme original meaning Court of United States clarified scope right of the to confrontation of one’s accusers in Crawford Washington,34 holding that “the admission of out-of-court state ments that are testimonial in nature violates Confrontation unless Clause the declarant is unavailable the defendant had a prior opportunity for cross-examination.”35 seemingly argues
Here, Lafavor that his Confrontation Clause rights transporting testify were violated because оfficer not at during any attempt But the trial. State made no trial to admit transporting may out-of-court In statements officer have made. regarding fact, Lafavor was the witness who testified statements allegedly transporting made officer the time of his arrest. particular circumstances, these Given does Confrontation Clause apply, argument contrary wholly Lafavor’s without merit. instructing
7. Lafavor also contends that the trial erred in court governed by sympathy its verdict was not to be prejudice, arguing, essentially, that such instruction an invaded province jury. Again, we
During trial, wife that her testified husband trаvels Augusta elderly mother, three to four times each week his who to visit returning trip dementia, from suffers and that he was from such on night speeding. of his And arrest own returning similarly visiting that he stated home after elderly mother at the time his arrest. 32 Fraser, (punctuation at 2 Const, Const, VI; 1, 1, (“Every person U. charged S. amend. also Ga. XIV with see art. ¶§ against testifying
an offense state . . laws of this . shall be confronted the witnesses *8 against person.”). such (V) 177) (2004). (C) (124 U. S. SCt 158 LE2d 35 Cuyuch (2) (667 85) (2008) (punctuation omitted) v. (describing holding Washington). v. Crawford requested this that trial court
Based on governed by sympathy. jury it And that should not instruct the objection, jury that the court instructed the over Lafavоr’s upon your [y]our a true based verdict should be verdict you opinion according given to of the evidence the laws sympathy charge. to You are not to show favor or one this party duty your the other. It to consider the facts or sympathy objectively favor, or without affection either party.
Contrary argument, shifted “neither to Lafavor’s this instruction proof province jury.”36Indeed, the the burden of nor invaded the ofthe jury “they disregard properly not informed the could instruction sympathy prejudice.”37Additionally, or in favor of their a charge “thoroughly review ofthe as whole shows the trial court regard appropriate correctly charged jury burden proof.”38Accordingly, by instructing did the trial court not err jury regard.39 in this Additionally, Lafavor contends the trial court erred respond jury
failing adequately question posed by the it to a after began deliberating. again, Yet we jury begun deliberations, had it
After the was instructed and its asking do sent a the trial court “what do if we cannot come note to we parties The court it unanimous decision?” informed your respond by explaining “you are asked continue delib- would jury brought courtroom, The into erations.” then you point response is, to cоntinue the court stated: “The are asked your verdict.” deliberations reach a response appeal, that the trial exceeded
On
court’s
response
initially
parties
that,
told the
its
be and
what it
would
doing
improperly implied
jury
guilty
so, had to reach
object
recharge
response
to the
verdict. But Lafavor
court’s
jury’s question. Consequently,
preserve
objec-
he
this
failed to
only
appellate
jury
review
if
tion for
and “is entitled
reversal
137, 140
see,
Dyer
(3) (695
15) (2010);
e.g.,
Heidler v.
37 Dyer,
(3).
Turning specific that, error, of it is to Lafavor’s claim axiomatic general jury need, breadth, rule, “the as a formation additional Thus, are to the sound instructions left discretion ofthe trial court.”42 jury requests charge recharge particular point, when the a on a give give court “has discretion to also or not additional instruct recharge оbviously here, ions.”43 And the court’s was not erroneous likely contrary did it fact, nor affect the of the In outcome trial. argument, recharge merely Lafavor’s court’s indicated that the jury imply deliberating should continue to reach a verdict and did not guilty. Furthermore, such a had that instructions, verdict to be in its initial jury “[wjhatever your the court instructed the that agreed you.” is, is, it Then, verdict must be unanimous that all of shortly explained jurors thereafter, it also that not should “surrender opinion congenial solely order an honest to be or to a reach verdict opinions jurors.” Accordingly, reviewing because other charges recharge whole, trial court’s as a we conclude that the court’s plain discretion, not was an abuse of much less error.44 Finally, Lafavor contends that the trial court erred in admit- past ting speeding impeachment conviction evidence. Once again, we
During
impossible
his
Lafavor claimed that it was
for
per
him to drive 108 miles
hour —the rate at
which
diabetes,
officer clocked him —because
has
which he
he
claimed
ability
enough
speed.
affects his
to see far
ahead
at such
to travel
Immediately
requested
thereafter, the
State
a conference outside
presence
jury, during
requested
of the
it
be allowed to
impeach
testimony
that,
he
with evidence
had been
pleaded
speeding
per
guilty.
at
cited
106 miles
hour and had
charge
or the
read as
OCGA 17-8-58
shall
Blake,
[41]
preclude appellate
other).
Blake v.
Id.
Harrelson v.
See Grier v.
constitutes
whole,
(punctuation omitted).
For Ellington, Judgment J., McFadden, J., P. concurs. affirmed. fully specially 2. 1 and and in Division concurs Divisions 3-9 Judge, concurring fully specially. and MCFADDEN, separately regarding majority 2, in I write Division laser-speed-detection-device admitting evidence concludes was my analysis plain agree conclusion, is not error. I with that but slightly different. through to admit that evidence
The state undertook OCGA copy approved by 40-14-17, under which a of the list of such devices Safety self-authenticating proof Dеpartment of of Public is their reliability acceptability and sufficient foundation for scientific and appears generated by to them. That list have admission evidence inadvertently it to from the exhibit which was have been omitted defendant’s se made at 79 LE2d specific ground.” (punctuation omitted)). subpoenas an impropriety regarding Id. See Kegler v. State, See the time the 122) (1984)). Hall v. for witnesses). responsibility, (4) evidence (quoting admissibility not McKaskle offered, 147, 148 (4) court’s, and the failure to Wiggins, (475 SE2d effectively represent 6) (2013) 593) U. S. specific do so (1996) (holding that it is (“In amounts ground order to (V) himself to a waiver objeсtion (B) (104 raise on SCt must be issuing thepro appeal of that party noticed been attached. Neither the omission consequently opportunity supply and the state had no would it. I simply hold or not it was for the to fail whether error trial court it either and or not it therefor trial notice whether was error for the question, “obviously to admit the court so” plain 706, 708 therefore not error. Barron v. 435) (2015) (appropriate inquiry error as to is whether obviously error; so; trial court’s act or “was this omission whether likely proceed and whether the error affected the outcome of the ings”). Octоber
Decided Whatley Lynn Whatley; Associates, Law, & H. Durant M. Kath- appellant. Durant, erine
Layla Christopher Attorney, Sperry, Zon, H. D. District Assistant Attorney, appellee. District
A15A1364. AGYEMANG v. THE STATE. Judge.
RAY, Forsyth County jury Agyemang A convicted Edward count one simple battery.1 appeals arguing conviction, He from that denying prior trial erred in court his motion to introduce difficulties parties between the and that there was a fatal variance between the presented accusation the evidence at trial. He also support the evidence was insufficient his conviction. For the the following Agyemang’s reasons, we vacate conviction remand *11 case to the trial court a new trial. appeal conviction,
“On from a criminal we view the evidence light verdict, most to the the [defendant] favorable is no longer presumption (Citation omitted.) entitled of innocence.” Newsome In determining sufficiency weigh of the we neither credibility witnesses, nor assess the of the but determine 1 Agyemang family battery, simple battery, simple family was accused of violence violence battery, disorderly conduct, cruelty degree. counts of in the After the and two to children third acquittal close the State’s verdict one evidence at trial court directed a count family simple disorderly acquitted battery violence as to one count of conduct. The Agyemang remaining family disorderly cruelty battery, violence conduct counts degree. children in third