Opinion
A99A1344.
DECIDED: OCTOBER 22, 1999.
D.U.I., etc. Douglas Superior Court. Before Judge Howe.
Wallace C. Clayton, Amelia G. Pray, for appellant.
David McDade, District Attorney, William J. Atkins, Assistant District Attorney, for appellee.
After witnessing Melanie Driver speed, run a red light, and weave out of her lane, an officer pulled her over and observed her watery, bloodshot eyes, smelled an odor of alcohol coming from her car, heard her slur her speech and admit to drinking a couple of beers, and watched her respond sluggishly to requests. She performed poorly on three field sobriety tests and tested positive on the breath alco-sensor. After arresting her for DUI, the officer searched her purse for inventory purposes and discovered a green, leafy substance in a plastic baggie, which Driver conceded at trial was marijuana. A jury found her guilty of running a red light, possessing marijuana, and driving under the influence of alcohol to the extent that it was less safe for her to drive. Driver appeals, contending among other things that the evidence did not suffice to sustain the convictions. Because the evidence was more than sufficient, we affirm.
1. Driver argues that the State failed to establish a scientific foundation regarding the reliability of three police lab tests (Duquenois-Levine, fast blue V, and microscopic) performed on the marijuana. Claiming the court should have excluded the lab results, she contends that nothing else supported a finding of guilt on her alleged possession of marijuana and that therefore her motion for directed verdict should have been granted.
In testimony elicited by her own counsel, Driver admitted three times that the substance found in her purse was marijuana. This testimony moots her appellate arguments challenging the State's evidence that the substance was marijuana. Where a defendant at trial admits to the essential elements of a crime, alleged defects in the State's evidence on that crime become irrelevant. Because we consider all evidence introduced at trial, such admissions, even if made after the State has concluded its case-in-chief, preclude any error in denying a defendant's motion for directed verdict based on evidentiary grounds.
See Thorp v. State of Georgia, 217 Ga. App. 275, 276 (1) ( 457 S.E.2d 234) (1995) (admission in appellate brief that amount of cocaine was 7.1 grams moots challenge to the State's evidence on the amount and weight of cocaine); cf. Jackson v. State, 208 Ga. App. 391, 392 (1) ( 430 S.E.2d 781) (1993) ("[o]bviously, if defendant admits that she possessed cocaine at any time within the period alleged, she would be guilty of the crime").
See Bowen v. State, 235 Ga. App. 900 ( 510 S.E.2d 873) (1999) ("[i]n reviewing the denial of a motion for a directed verdict made at the close of the State's case, an appellate court considers not only the evidence produced in the State's case-in-chief, but also any evidence introduced subsequent to the motion by the defense") (citation and punctuation omitted).
2. Driver claims error in the court's denial of its motions that were based on the State's failure before trial to provide allegedly exculpatory material found in a police report. Specifically, she argues that the officer's notes that she recited the entire alphabet (though with slurred speech), that she told the officer she had weak ankles before failing the one-legged stand test, and that she touched the tip of her nose one out of the four times requested, were exculpatory material wrongfully withheld from her until mid-way through the officer's direct testimony, despite her pre-trial Brady motion.
Brady v. Maryland, 373 U.S. 83 ( 83 SC 1194, 10 L.E.2d 215) (1963).
Because a Brady motion calls for the production of exculpatory evidence known to the prosecution but unknown to the defense, it "does not reach the defendant's own statements made prior to trial, as they are known to the defense." Similarly, Driver, who was the subject of the sobriety tests, knew all along how she performed on the tests and so testified at trial. In preparing her defense, she could have recited her performance to her counsel or to an expert for evaluation. No Brady violation occurred.
McCarty v. State, 249 Ga. 618, 620 ( 292 S.E.2d 700) (1982) (citation omitted); see Cunningham v. State, 248 Ga. 558, 561 (6) ( 284 S.E.2d 390) (1981).
See Sanders v. State, 199 Ga. App. 671, 674 (5) ( 405 S.E.2d 727) (1991) (for Brady purposes, a defendant is deemed to know of tests that he was the subject of).
Moreover, even if she had been unaware of the allegedly exculpatory information in the police report, no Brady violation occurred where the information became available to her at trial. "Brady does not require pre-trial disclosure of the materials." Because Driver cross-examined the officer extensively about the police report information, she cannot show that the delayed disclosure deprived her of a fair trial.
See Burgeson v. State, 267 Ga. 102, 104 (2) ( 475 S.E.2d 580) (1996); Leary v. State, 260 Ga. 730, 731 (4) ( 399 S.E.2d 63) (1991); Evans v. State, 233 Ga. App. 879, 880 (2) ( 506 S.E.2d 169) (1998).
Castell v. State, 250 Ga. 776, 781 (2) (b) ( 301 S.E.2d 234) (1983) (citation and punctuation omitted; emphasis in original).
Id.; see Ahmed Al-Beti v. State, 210 Ga. App. 312, 313 (3) ( 436 S.E.2d 50) (1993).
3. Driver challenges the trial court's allowing the officer to give a professional opinion that Driver was under the influence of alcohol to the extent that she was less safe to drive. Driver urges that the officer's opinion testimony addressed the ultimate issue and thus invaded the jury's province. Setting aside whether Driver waived this issue by not objecting when the officer first gave this opinion, we hold that a court in its discretion may allow a trained and experienced officer, such as the officer here, to render such an opinion based on the officer's personal observations of the defendant.
Waits v. State, 232 Ga. App. 357, 358 (1) ( 501 S.E.2d 870) (1998); see Brent v. State, 270 Ga. 160, 162-163 (3) ( 510 S.E.2d 14) (1998); Lewis v. State, 214 Ga. App. 830, 832 (1) ( 449 S.E.2d 535) (1994); Fisher v. State, 177 Ga. App. 465 (1) ( 339 S.E.2d 744) (1986); see generally OCGA §§ 24-9-65; 24-9-67.
4. Driver argues that the court erred in allowing the State to introduce her two prior DUI convictions. She claims that the State did not make the three affirmative showings required by Williams v. State to introduce similar transactions. This argument is without merit.
261 Ga. 640, 642 (2) (b) ( 409 S.E.2d 649) (1991).
The first affirmative showing is that the State seeks to introduce the similar transactions for an appropriate purpose. Here the prosecution stated that it sought to show bent of mind and course of conduct, which are appropriate purposes for introducing prior DUI convictions in a pending DUI charge.
Id.
See Smith v. State, 236 Ga. App. 548, 552 (3) ( 512 S.E.2d 19) (1999); Nameth v. State, 234 Ga. App. 20 (1) ( 505 S.E.2d 778) (1998); Tam v. State, 232 Ga. App. 15 (1) ( 501 S.E.2d 51) (1998); Kirkland v. State, 206 Ga. App. 27, 28 (3) ( 424 S.E.2d 638) (1992).
The second affirmative showing is that the accused committed the prior DUI. Here the prosecution had an officer testify as to the circumstances of each prior DUI conviction and confirm that Driver was the defendant in both cases.
Williams, supra, 261 Ga. at 642 (2) (b).
The third affirmative showing is that there is sufficient similarity between the prior DUIs and the current charge. Here the prosecution cited to Kirkland v. State, which held that in a pending DUI charge a prior DUI conviction is "essentially committed under the same factual circumstances" as the DUI offense at issue, regardless of any slight variance of facts such as the type of vehicle driven or the degree or source of intoxication. Subsequent cases have confirmed that regardless of the circumstances surrounding its commission, a prior DUI offense is logically connected to a pending DUI charge, for the prior charge is relevant to establish that the perpetrator has the bent of mind to drive after consuming alcohol.
Id.
Supra, 206 Ga. App. at 28 (3).
See Smith, supra, 236 Ga. App. at 552 (3); Lucas v. State, 234 Ga. App. 534, 536 (2) ( 507 S.E.2d 253) (1998); Nameth, supra, 234 Ga. App. at 20-21 (1); Tam, supra, 232 Ga. App. at 16 (1); Druitt v. State, 225 Ga. App. 150, 152 (1) (3) ( 483 S.E.2d 117) (1997). This holding moots Driver's argument that the court erroneously charged the jury in the language of these cases.
Here the prosecution showed additional similarities between the prior and pending DUI charges, in that in each Driver was driving the same Toyota truck in the late night or early morning hours. The court did not abuse its discretion in finding the State made the Williams showings and in admitting the prior transactions.
See Harper v. State, 213 Ga. App. 564, 565 ( 445 S.E.2d 563) (1994) (driving same vehicle in both prior and pending DUI charges may show similarity); Guinn v. State, 224 Ga. App. 881, 882 (1) (a) ( 482 S.E.2d 480) (1997) (prior and pending DUI offenses may be similar in that all offenses occurred in the late night or early morning hours).
See Smith, supra, 236 Ga. App. at 552 (3) (abuse of discretion standard).
5. Driver complains that the court erred in charging the jury that police may search a driver arrested for DUI for both drugs and alcohol which could be the basis for the driver's intoxication. She does not claim that the charge was an inaccurate statement of law, but that the charge did not fit the facts of the case. She points to the officer's testimony that the only search was of Driver's purse, which search was for inventory purposes and which resulted in the discovery of the marijuana. Because this alleged error pertains to Driver's possession of marijuana, it was mooted by her voluntary admissions at trial that her purse contained marijuana.
Moreover, the charge was not reversible error. Police may search an arrestee and items in her possession for inventory purposes or for the purpose of discovering evidence of the charged crime. Because either would have been acceptable here, the jury charge referencing the "discovering evidence" purpose but not the inventory purpose was, if anything, favorable to Driver. The jury was left with the impression that police could search only to discover evidence of the charged crime, not that the police could search for inventory purposes as was the purpose police testified to here. Thus, the error was harmless as to Driver.
The officer testified this was a common practice and policy of her police department.
Sprinkles v. State, 227 Ga. App. 112, 113 (1) ( 488 S.E.2d 492) (1997); see OCGA § 17-5-1 (a) (4); Bagwell v. State, 214 Ga. App. 15, 16 ( 446 S.E.2d 739) (1994).
6. Driver's last two enumerations of error concern the sufficiency of the evidence and the denial of her motion for new trial. Regarding the DUI and running-a-red-light convictions, the officer testified that she saw Driver run a red light and that based on the officer's observations and the sobriety tests Driver was under the influence of alcohol to the extent that she was less safe to drive. Regarding the possession of marijuana conviction, Driver testified that she knew her purse contained marijuana. The evidence sufficed to sustain the convictions. As Driver has failed to demonstrate any reversible errors in the conduct of the trial, the court did not abuse its discretion in denying her motion for new trial. Judgment affirmed. Andrews, P.J., and Ruffin, J., concur.
See Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.E.2d 560) (1979).
See generally Mills v. State, 188 Ga. 616, 622-623 ( 4 S.E.2d 453) (1939) (trial court may grant or deny new trial in its discretion; appellate court can only review whether law was followed).