*1 evidence. Harris has failed to show error on the record the court’s that the test was administered. The trial court did not denying suppress err Harris’ motion to his HGN test results. contrary contention, In addition, to Harris’ the officers still had probable driving cause to arrest Harris for under the influence of argues alcohol even without the HGN test results. Harris only remaining results, without the HGN test evidence of impairment person is the smell of alcohol on his and his admission of drinking, support probable which is insufficient to cause to arrest driving However, him for while under the influence of alcohol. rely solely deciding did officers Harris for on that evidence to arrest driving According under influence of alcohol. driving erratically, record, an officer noticed Harris both officers emanating Harris, smelled alcohol one of the officers noted that eyes watery, Harris’ were red and when asked for his license Harris pulled twice out his debit or credit card rather than his driver’s positive. “Considering license, and Harris’ alco-sensor test was impairment, [Harris’] other evidence of admission of the HGN test sobriety test, results was harmless.”9 Even the absence of the field support the evidence was sufficient to the trial court’s conclusion probable driving the officers had cause to arrest Harris for denying under the influence of alcohol.10The trial court did not err in suppress. Harris’ motion to
Judgment Phipps, Miller, J., J., C. concur. affirmed. 2009.
Decided December appellant. Miller, Suesan A. Spahos, Solicitor-General, Johnston, A.
Charles Brian M. Assis- appellee. Solicitor-General, tant THE
A09A1827. STATE v. SMILEY. Judge. MlKELL, (DUI) Sperlin Smiley driving was accused of under the influence per drive, DUI, alcohol to the extent it was less safe for him to se lane, failure to maintain and a seat belt violation. The trial court suppress the results of his state-admin- Id. at 534 See Frederick v. *2 ruling comply test, state had failed with the istered breath to previous produce requested by Smiley.The court’s order to documents appeals. affirm. We facts, in the court’s follow: as summarized stopped by [Smiley] was Gilmore of the Atlanta Officer Department January 2006[,] for a traffic Police [Smiley] subsequently arrested for DUI. con- violation [state-administered] test of his breath under the sented to Georgia Implied adequate sample An Law. breath Consent by Intoxilyzer 5000 was Officer Gilmore on obtained s/n 68-010751. Smiley suppress/motion in trial, filed an amended motion
Prior requested production “full limine, in he of information” (a) (4), including following the 40-6-392 the state under OCGA items: [(2)] [(1)] training by officer; materials utilized the all all [(3)] Supervisor;
training by materials utilized the Area all all [(4)] Operator question; training in records for the Intox [(5)] Supervisor training question; records for the Area any journal copies studies, or learned of articles other experts by upon any the state on relied called treatises the Intox 5000 or utilized or referenced training manuals [(6)] logs by operators supervisors; all utilized area question maintained] for the Intox 5000 other records [(7)] logs past years; for all the for the two maintenance [(8)] years; last all calibration records Intox 5000 the [(9)] years; the two the owner’s and test results for last operator’s for the Intox 5000 manual or instructions applicable question provided by CMI, Inc. or other manu- including facturer, all source software date, code, version on the arrest date of software software installation, this version of software was version date [Sciences] approved by [Division] of Forensic tested and [(10)] Georgia Investigation; all of Bureau of maintenance, calibration, and test results stored memory date of of the Intox 5000 as software motion. hearing granted counsel, the trial court
After Smiley produce Smiley’s “full motion and directed the requested, including not limited to the items but information” detailed above. The trial court further warned
hearing
that a would prior if
be convened state failed arguing reconsideration, order. The state filed a that it required was not information because it possession only was not require its and misdemeanor rules possession; the state to those documents sought reports” records neither are “scientific nor are included (4); prong under the “full information” of OCGA 40-6-392 Smiley’s right impacted confrontation because a breath test *3 hearsay. argued testimonial The further that the source code, schematics, and service manuals for the Intox 5000 are and, retained therefore, manufacturer of the machine are not possession. citing motion, in the state’s court denied the State,1 Cottrell v. held which we the full information re (a) quested by pursuant (4), the defendant to OCGA 40-6-392 including codes source for the Intox were not discoverable defendant failed to show their relevance.2 The subsequently granted reconsideration, the state’s motion for vacated prior parties light orders, and all its directed the to file briefs Court’s State,3 this decision Hills v. we which held that source codes the Intox 5000 were not discoverable because the defendant prima failed meet his facie burden of that the state had possession or control of the codes.4 The trial court then issued an distinguishable granting Smiley’s Hills motion to suppress/motion original limine for reasons set forth in its Shortly thereafter, order.
suppress, finding produced had the Intox 5000 breath strip, previously test result but refused to the other items as ordered. The ruled trial court also that the [sjtate’s by Smiley has been shown be relevant and that “the possess persuasive.” that it does not the documents is appeals ruling, arguing, alia, The state inter that required by produced. Pretermitting items are not the error law to whether required by produced, items are law to be we find no grant suppress. the trial of the motion hearing suppress, judge At a on a the trial sits Georgia long as the trier of fact. And law has held that the may any part trier of fact believe or disbelieve all or testimony appellate Thus, witness. of a review Id. at 91 287 Ga. 4 Id. suppress evidence, we a motion to trial court’s order on findings second-guess the trial court’s factual never on testimonial evidence. We construe are based favorably upholding of the trial court’s evidence most findings judgment has affirm unless the court error of law.5 committed an availability assume, to us of whatever
“Further, absent hearing motion, evidence on the material the court considered while judgment and discretion the court exercised suppress.”6 a] [ruling OCGA 40-6-392 on defendant’s motion provide (4), applies testing, requires that the state alcohol [taken].” concerning Cottrell,7 In the test or tests “full information this Court noted: pro- expanded previous discovery only of written scientific
cedures which allowed *4 reports, right of is consistent with the broad cross- and Thus, as a in OCGA 24-9-64. examination embodied right subpoena general rule, a now has the defendant computer printouts, graphs, data memos, notes, other obtaining gas upon by a crime lab chemist relied state chromatography request A to the state results. directed test require production is information.8 also sufficient to is While a defendant must show that obligated not relevant, information that is the state not custody possession, Here, the trial court found within its or control.9 posses- were relevant and within the that the materials custody state, of the and ordered the sion, control with the trial
them. When trial court state failed suppress of the the results State,10 In unlike OCGA Birdsall v. we noted that breath test. penalty specifies for the no 17-16-23, noncompliance discovery: with state’s penalty defendant] agree [the with
We do necessarily printout oral be exclusion of the should 5 omitted.) (Punctuation Rowell, App. 299 238-239 and footnotes State v. Ga. 343) (2009). SE2d 6 omitted.) (Citations punctuation Rutledge 7 Supra.
8 (Punctuation omitted.) (1). Id. and footnotes at 90-91 Cottrell, Hills, supra; supra at 91
testimony results, were, based on the in turn, test printout. hand, based on the printout, other On the exclusion of the resulting testimony, and the very test results and oral might appropriate upon showing faith, a bad upon obey requiring a of a failure an order production.11 disobeyed discovery
In case, record reflects that the state hearing, order. Moreover, without a of the motion presume part court found evidence of faith on bad producing Accordingly, in not information. we are unable to conclude that the trial court abused discretion suppressing the results of the breath test. Judgment Ellington, J., Johnson, J., concurs. P. concurs affirmed.
specially. Presiding Judge, concurring specially.
JOHNSON, agree majority opinion I am constrained not because ruling, I find the trial court rendered a correct but because the state provide proper failed to record enable this Court to review the ruling. trial court’s majority points out,
As the we must construe the record most favorably uphold findings judgments, the trial court’s and the applicable second-guess standard of review does not allow us to findings trial court’s factual are based on testimonial *5 especially appellant’s evidence. This is when true the assertion of requires presented error consideration of the evidence to the trial court. Here, each of the trial court’s orders recites that the trial court parties,” yet appellant alia, considered, inter “evidence the transcript hearings attempt fails to file a of various the or § proceedings (g) reconstruct the in accordance with OCGA 5-6-41 (i). transcript necessary, here, When a of the evidence is as it is appellant and the omits it the fails record or to submit a statutorily substitute, authorized we must assume that the trial judgment court evidence exercised its and discretion and that the
supported the trial court’s decision.12 being point said, That I would like to out there that were errors legal analysis. incorrectly First, the trial court 11 (Footnote omitted.) (2) Compare State, Id. at 558-559. Rosas v. (sanctions (2005), citing § OCGA 17-16-6 for failure with Criminal Discovery appropriate prejudice by Procedure Act if both and bad defendant faith shown). state are Rutledge See requested apply Smiley v. State13did not ruled that Hills (a) (4), than OCGA 40-6-392 rather under source codes under According court, to the trial OCGA 17-16-23. concerning or “full information the test tests mandates that require be made and does not the information be
shall available” custody possession This been of the state. has never the law. or correctly opinion majority holds, it is well established that As the compelled produce in its items which are not state cannot be may possession.14 “[W]hile a motion to be filed served which is not state, such a will not reach material possession.”15 of term else The use “full information” state’s compel us deviate from settled law. where in the does not Code despite Nonetheless, error, of or other the lack a compels to find the trial court must have in record us evidence proper source codes and other ascertained from evidence that the posses relevant and were in the state’s items were both custody, specifically sion, The trial noted its or control. possess it does not the documents
order: “the State’s persuasive.” ambiguous. be, It This is could statement interpreted probably proper be, of must as a the absence record source codes and other documents factual that the unlikely possession control, however were the state’s interpreted, light may of other also be be. statement could judge, legal legal a regard the learned trial as conclusions drawn required the items conclusion that state was possession control, were in the state’s less whether produce requested correctly argued required it was not the state possession. not within items were improp- appears
Second, it from the record that erly proof the state in this case. We have shifted the burden previously ordered, the defendant found that before will prima material must make facie possession, custody, Here, it control of the state.16 within required prove appears did not the state to that it that the trial court possession, custody, However, of the source codes. have or control *6 again, in the record lack or admissions once due to the contrary, presume that the trial court decided the issue. important ruling does not affect
It to note that the this case [14] [15] [13] [16] See Mathis v. See 291 Ga. Young Cornell v. 525, App. State, [528] [873] State, [146] (2) (663 Ga. [298] 165 Ga. App. SE2d 167, 168 265) (2008). App. 817, 594, (2) [819] [595] (2) SE2d (302 866) SE2d (1978); 179) (2009); Hills, supra. see also Shults v. State,
784 simply tied and Mathis. Our hands are our decisions Hills provide a record sufficient to failure to us with case due to the state’s the trial court’s decision. enable us to review 2009. Decided December Solicitor-General, Benham, Smith, Assistant R. Leon Carmen D. appellant. Solicitor-General, for appellee.
George Creal, Jr., for C. v. THE STATE. A09A2046. THORNTON (689 SE2d Judge. Presiding Blackburn, by taking1 on four counts of theft Thornton was indicted Robert (Counts 7), entering single count each of an 1, 2, 6, and and a (Count 3), damage criminal with intent to commit theft2 automobile (Count 4), making degree3 property false and in the second 5). (Count Following jury con- trial, Thornton was statements4 appeals of his from the denial counts, on all and he now
victed (1) asserts: that the trial for a new trial. Thornton discharge acquittal denying 1 Counts erred in his motion (2) speedy grounds; through 4 of the indictment on jury failing on the standard court erred convicting to instruct solely based on circumstantial a criminal defendant (3) his was insufficient to sustain evidence; the evidence (4) through indictment; that he 1 6 of the convictions on Counts (5) counsel; received ineffective assistance failing trial. Count 7 of the indictment for erred to sever Finding Thornton’s statu- failed to that the State through tory speedy indictment, as to Counts trial demand denying his motion for therefore erred and that the trial court acquittal charges, discharge reverse Thornton’s of those we Additionally, the evidence those counts. convictions as to making statements, false to sustain a conviction for was insufficient we also affirm, Count 5. We reverse Thornton’s conviction on however, Thornton’s convictions on Counts supported and that evidence also evidence the same sufficient OCGA 16-8-18. OCGA OCGA 16-8-2. *7 § 16-10-20.