Opinion
37205.
DECIDED SEPTEMBER 8, 1981. REHEARING DENIED SEPTEMBER 23, 1981.
Certiorari to the Court of Appeals of Georgia — 156 Ga. App. 813 ( 275 S.E.2d 133).
J. Dunham McAllister, for appellant.
Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.
Writ of certiorari dismissed as improvidently granted.
Jordan, C. J., Hill, P. J., Marshall and Gregory, JJ., concur. Smith, J., dissents.
DECIDED SEPTEMBER 8, 1981 — REHEARING DENIED SEPTEMBER 23, 1981.
Appellant was indicted for 1) operating a motor vehicle after having been declared an habitual violator 2) possession of marijuana and 3) improper turn. The instant case turns upon whether appellant indeed made an improper turn, for the state's seizure of physical evidence from appellant's automobile is based thereon. See Delaware v. Prouse, 440 U.S. 648 ( 99 S.C. 1391, 59 L.Ed.2d 660) (1979). The trial court granted appellant's motion to suppress, stating: "The vehicle in question had not violated any state law. He was driving by law in the righthand lane." Aided by its own artistic rendering of the scene, the Court of Appeals reversed, holding that the turn was illegally made from the "emergency lane." See State v. Williams, 156 Ga. App. 813 ( 275 S.E.2d 133) (1980). In view of the standard of review applicable to the trial court's ruling on the motion to suppress, I consider the holding of the Court of Appeals to be seriously in error. Dismissal of the writ of certiorari only serves to perpetuate that error.
Officer Fred J. Alverson was the only witness offered by the state. Although he testified that appellant had taken a right-hand turn from an "emergency lane," he acknowledged that his view of the scene occurred "at approximately 12:35 A.M." while he was "across from the intersection entering Highway 54 southbound." Given this self-impeaching testimony, the trial court was authorized to conclude the state had failed to carry its burden of showing that appellant made an improper turn. See State v. Thomas, 150 Ga. App. 170 ( 257 S.E.2d 28) (1979).
"[T]he trial court's decision turned upon questions of fact and credibility. When such is the case, the finding of the trial court must be accepted unless clearly erroneous. [Cits.]" State v. Paulitch, 154 Ga. App. 785 ( 270 S.E.2d 51) (1980). "Not being clearly erroneous, the trial court's fact and credibility determinations on this motion must be accepted. Woodruff v. State, 233 Ga. 840, 844 ( 213 S.E.2d 689)." Strickland v. State, 153 Ga. App. 51, 52 ( 264 S.E.2d 540) (1980). The Court of Appeals erred in substituting its version of the facts for those of the trial court.