MONROE v. THE STATE.
A16A1932
Court of Appeals of Georgia
FEBRUARY 23, 2017
340 Ga. App. 373 | 797 S.E.2d 245
McFADDEN, Presiding Judge.
McMickle, Kurey & Branch, Kevin P. Branch; Fain, Major & Brennan, James W. Hardee, Sean L. Gill, for appellants. The Summerville Firm, J. Darren Summerville, Angela R. Fox, Mecka S. Anderson; Fried Rogers Goldberg, Brian D. Rogers, for appellees.
After a jury trial, Thomas Roy Monroe was convicted of driving under the influence of alcohol to the extent that he was a less safe driver, speeding, failure to maintain lane, and driving while possessing an open container of an alcoholic beverage. Monroe appeals his convictions, arguing that the evidence does not support them; that the trial court erred by admitting evidence of his prior DUI conviction; that the trial court erred by allowing the state to introduce certain demonstrative evidence; and that the trial court should have excluded testimony about an open container of what appeared to be an alcoholic beverage found in his car.
We find that the evidence was sufficient and that Monroe has not shown reversible error in the admission of his prior conviction, the demonstrative evidence, or the testimony about the open container. So we affirm Monroe‘s convictions.
1. Sufficiency of the evidence.
On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the verdict. Coleman v. State, 284 Ga. App. 811, 812 (1) (644 SE2d 910) (2007) (citation omitted). So viewed, the evidence showed that at 3:00 a.m. on May 9, 2013, a sergeant with the Gwinnett County Police Department pulled over Monroe‘s car for speeding and for failing to maintain his lane. The car was traveling at a rate of 65 to 70 miles per hour, while the speed limit was 45 miles per hour, and the sergeant had seen Monroe twice drift over his lane line. The sergeant immediately smelled an odor of alcohol coming from inside the car. The sergeant believed that Monroe was intoxicated to the point where he was an unsafe driver.
The sergeant called for another officer to take over the investigation. That officer observed six out of six clues of impairment in his horizontal gaze nystagmus evaluation of Monroe. He also smelled the odor of an alcoholic beverage coming from Monroe‘s mouth and observed that Monroe‘s speech was somewhat slurred. Monroe did
This evidence was sufficient for the jury to find beyond a reasonable doubt that Monroe was guilty of driving under the influence of alcohol to the extent that he was a less safe driver, speeding, failure to maintain lane, and driving while possessing an open container of an alcoholic beverage.
2. Prior DUI conviction.
Monroe argues that the trial court erred by admitting evidence of his prior DUI conviction. The trial court admitted the evidence both under
First, Monroe argues that
Monroe also argues that admission of this evidence violated his Fifth Amendment right not to incriminate himself. He seems to argue that if the evidence of his prior DUI conviction was admissible to prove knowledge or intent, then its admission required him to testify to explain his lack of knowledge or intent. But Monroe cites no authority to support his argument that adverse evidence must be excluded because its admission might impact a defendant‘s decision to testify. To the contrary, even if [Monroe] was forced to choose between asserting a defense based upon his own testimony or remaining silent, that is a choice that is inherent in any defendant‘s decision whether to testify or not, and that does not violate a defendant‘s constitutional rights.
Whitman v. State, 316 Ga. App. 655, 660 (729 SE2d 409) (2012) (citations and punctuation omitted).
Monroe argues that the trial court erred in admitting his prior DUI conviction under
Nor has Monroe shown that the trial court erred in admitting his prior DUI conviction under
Monroe argues that the trial court erred by allowing the state to admit certain demonstrative evidence: video clips showing three types of horizontal gaze nystagmus. The state introduced the video clips to show the jury what nystagmus looks like while the arresting officer was testifying about conducting the horizontal gaze nystagmus evaluation of Monroe. The officer testified that Monroe demonstrated all three types of nystagmus shown in the video clips.
Demonstrative evidence . . . must be relevant, see
OCGA § 24-4-401 , and it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, seeOCGA § 24-4-403 . Demonstrations are also subject to the reasonable control of the trial court. SeeOCGA § 24-6-611 .
Smith v. State, 299 Ga. 424, 434-435 (3) (b) (788 SE2d 433) (2016) (footnote omitted). The trial court has wide discretion to admit demonstrative evidence, and
[t]he burden is on the party offering [demonstrative evidence] to lay a proper foundation establishing a similarity of circumstances and conditions. Although the conditions of the demonstration need not be identical to the event at issue, they must be so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the [demonstrative evidence] is directed. Further, experimental or demonstrative evidence, like any evidence offered at trial, should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
Id. at 435 (3) (b) (citation and punctuation omitted). Here, the officer‘s testimony made clear that the video clips were not of Monroe, but that in the substantial particulars, the conditions of the video clips and his observations of Monroe were similar: both showed the same kind of nystagmus. Monroe has not shown that the trial court abused his discretion in admitting this demonstrative evidence.
4. Open container.
Monroe argues that the trial court erred by allowing the sergeant and arresting officer to testify that they observed in Monroe‘s car an open container that was full of ice cubes and a dark liquid with the
In determining whether the state‘s failure to preserve evidence which might have exonerated the defendant amounts to a constitutional violation,
a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence. To meet the standard of constitutional materiality, the evidence must possess an exculpatory value that was apparent before it was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
Miller, 287 Ga. at 754 (citation omitted). A claim based on the state‘s destruction of evidence can be successful only if [Monroe] shows that the evidence was material and that the police acted in bad faith in failing to preserve it. Doyal v. State, 287 Ga. App. 667, 671 (6) (653 SE2d 52) (2007) (citation and punctuation omitted; emphasis supplied). Pretermitting whether the open-container evidence possessed an apparent exculpatory value so as to make it constitutionally material, Monroe has not shown that the police acted in bad faith in failing to preserve it. Id. Cf. Champion v. State, 260 Ga. App. 12, 14-15 (2) (579 SE2d 35) (2003) (rejecting contention of accountant charged with manipulation of deposit records to facilitate stealing cash that lost financial records were material because they would have shown that certain expenses were paid in cash and thereby explained the missing money). So he has not shown that the trial court erred by allowing the officers to testify about this evidence.
Judgment affirmed. Miller, P. J., concurs. McMillian, J., concurs fully in Divisions 1, 2, and 3, and only in judgment only in Division 4.
DECIDED FEBRUARY 23, 2017
Andrew T. Mosley II, for appellant.
Rosanna M. Szabo, Solicitor-General, Dona M. Pagán, Assistant Solicitor-General, for appellee.