The State v. Warren , 338 Ga. App. 849 ( 2016 )

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 12, 2016
In the Court of Appeals of Georgia
A16A0715. THE STATE v. WARREN.
PETERSON, Judge.
The State appeals the trial court’s orders granting in part a motion to suppress
filed by Charles Albert Warren and denying the State’s subsequent motion to reopen
evidence in this DUI case. The trial court ruled that the results of a preliminary breath
test performed on Warren were inadmissible because the State did not lay the proper
foundation for admission of those results. The State argues that its failure to lay the
proper foundation for admission of the test results is due to the trial court’s error in
sustaining an objection to a question of the officer who performed the breath test.
Because the State does not proffer the testimony that the officer would have given but
for the sustained objection, we affirm the trial court’s order granting in part Warren’s
suppression motion. The trial court did not abuse its discretion in declining to reopen
the evidence to allow the State to ask the objected-to question again.
1. “On appeal from a ruling on a motion to suppress, we construe the evidence
most favorably to affirming the trial court’s factual findings and judgment.” Brooks
v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007). So viewed, on June 20, 2014,
a sergeant with the Union County Sheriff’s Office observed Warren driving a
motorcycle in his direction. The sergeant saw Warren, driving at a high rate of speed,
pass a camper in a no-passing zone. The sergeant activated his blue lights and
pursued Warren. Warren turned onto a dirt road and parked behind a house, where the
sergeant found him sitting on his motorcycle.
The sergeant noticed that, after Warren dismounted from his motorcycle, he
was unsteady on his feet, his eyes were bloodshot, his speech was slurred, and he had
an odor of alcohol. Warren asked whether he was in North Carolina – the sergeant
replied that he was in Georgia – and at one point appeared to be talking to himself.
The sergeant asked a deputy who had arrived to administer a preliminary breath test
with his handheld device. Warren complied, yielding a result positive for the presence
of alcohol. Warren declined the sergeant’s request to perform some field sobriety
tests, citing a prior injury. The sergeant informed Warren that he was under arrest,
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handcuffed him, and placed him in a patrol car. The sergeant read Warren the implied
consent notice and requested that he submit to a blood test. Warren declined.
Warren was charged by accusation with DUI less safe, driving with an expired
license, speeding, and improper passing. Warren filed several motions seeking
exclusion of various evidence, including the results of the preliminary breath test. The
trial court held a suppression hearing at which both the sergeant who stopped Warren
and the deputy who administered the breath test testified.
To be considered valid for use in a DUI case, a chemical analysis of a
defendant’s breath
shall have been performed according to methods approved by the
Division of Forensic Sciences of the Georgia Bureau of Investigation on
a machine which was operated with all its electronic and operating
components prescribed by its manufacturer properly attached and in
good working order and by an individual possessing a valid permit
issued by the Division of Forensic Sciences for this purpose. The
Division of Forensic Sciences of the Georgia Bureau of Investigation
shall approve satisfactory techniques or methods to ascertain the
qualifications and competence of individuals to conduct analyses and to
issue permits, along with requirements for properly operating and
maintaining any testing instruments, and to issue certificates certifying
that instruments have met those requirements, which certificates and
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permits shall be subject to termination or revocation at the discretion of
the Division of Forensic Sciences.
OCGA § 40-6-392(a)(1)(A).
At the suppression hearing, the State attempted to show that the preliminary
breath test satisfied these requirements through the testimony of the deputy who
administered the breath test to Warren. After the deputy testified that Warren had
performed the test on his handheld Alco-Sensor, the prosecutor began to ask the
deputy, “And was that device, the handheld Alco-Sensor, authorized by the Division
of Forensic Sciences – “ Before the prosecutor could complete her question, defense
counsel objected to the question as leading. The trial court sustained the objection.
The prosecutor tried to reframe her question, but apparently did not get the answer
she was looking for:
Q. Have you used that device before?
A. Yes.
Q. And is it issued to you by your department?
A. Yes.
Q. And what approval or certification does that device have?
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A. I’m not sure how to answer that question. It was — it was handed
out from chain of command for use for those types of tests.
The prosecutor continued on later:
Q. As a law enforcement officer, who, if anyone, is responsible for
establishing protocols for preliminary breath tests, to your knowledge
and experience?
A. Normally it’s the investigating officer, the officer that first made
contact with the subject.
Q. Maybe I asked it wrong. As a law enforcement [officer], in your
knowledge and experience, who, if anyone, is responsible for
authorizing the use of certain devices for preliminary breath tests?
A. Anyone that actually was given a handheld Alco-Sensor and they
know its functions and how to use it. Not everyone in the department
has one.
Q. Right. Do you know who authorizes — in your experience as a
law enforcement officer, who, if any[one], authorizes particular devices
to be used?
A. That would be the sheriff.
Q. Who authorizes the sheriff to use certain devices?
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A. I would imagine GBI.
No further evidence regarding the permitting or certification of the breath testing
device was presented.
At the suppression hearing, defense counsel argued that the breath test results
should be excluded for the State’s failure to lay a foundation. In response, the State
complained that it had tried to a lay a foundation but had been stymied by the defense
objection, arguing that the State may ask leading questions when laying the
foundation for scientific evidence and reports. The prosecutor added that a foundation
would be laid at trial.
The trial court denied most of Warren’s motions, but excluded the results of the
preliminary breath test. The trial court concluded that the State did not lay a
foundation that the device used for the test was approved by the Division of Forensic
Sciences of the Georgia Bureau of Investigations for use as a preliminary screening
device. “The officer just didn’t have it[,]” the trial court said at the hearing. “He
didn’t have the knowledge.” The State filed a motion to reconsider and a motion to
reopen the evidence. Both were denied after a hearing.
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The State filed an interlocutory appeal. On appeal, the State argues that the
objected-to question was not leading because it called for a “yes” or “no” answer.
Alternatively, the State argues that even if the question were leading, the deputy
should have been permitted to answer because the question was necessary to
developing his testimony. The State seeks remand so that it may ask the objected-to
question again in order to lay the proper foundation for the admission of the breath
test results.
Regardless of whether the question was leading, however, we must affirm.
“This court is not an expounder of theoretical law,” and it “corrects only such errors
as have practically wronged the complaining party.” Hall v. State, 202 Ga. 619, 620-
21 (2) (44 SE2d 234) (1947). A judgment will not be reversed on the basis that the
trial court refused to allow a witness to testify “where the record does not show what
testimony the witness was expected to give.” Williams v. Ricks, 152 Ga. App. 555,
558 (2) (263 SE2d 457) (1979). Here, the prosecutor did not tell the trial court what
the deputy’s answer to the prosecutor’s question would have been had he been
allowed to answer. Instead, in responding to the defense counsel’s argument that the
breath test results should be excluded due to the State’s failure to lay a foundation,
the State merely argued that the officer had testified that he believed the breath testing
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device “was authorized for the use by the sheriff, by the GBI,” complained that the
State’s attempts to lay a foundation had been frustrated by the defense objection, and
represented that any additional steps needed to lay a foundation would be taken at
trial. Therefore, the ruling on the defense objection to the question is not a basis for
reversal. See Hall, 202 Ga. at 620 (2) (no basis for reversal in trial court’s refusal to
allow defendant to call prosecutor to testify; given that defense counsel “failed even
so much as to intimate to the court what he expected to prove by the witness”);
Murphy v. Milo, 272 Ga. App. 200, 202 (3) (612 SE2d 56) (2005) (affirming civil
verdict despite appellant’s argument that his attorney was not permitted to ask him
leading questions, as appellant “fail[ed] to cite a proffer of any evidence that the
court’s instruction precluded him from presenting to the jury” or “even argue how the
exclusion of the unidentified evidence harmed him”); Williams, 152 Ga. App. at 558
(2) (rejecting appeal based on trial court’s refusal to allow a particular question of a
witness; appellants abandoned line of questioning and attorney did not “make an offer
as to what he thought the witness’ answer might be”).
Without knowing how the deputy might have answered the prosecutor’s
question, we do not know whether the State was harmed by any erroneous ruling on
the defense objection. We cannot assume the answer to the prosecutor’s question
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would have been “yes,” and, indeed, the State merely requests that it be given a new
chance to ask it on remand. And testimony by the deputy strongly suggests that he did
not know the answer to the question: When he finally thought of the GBI as a
potential suspect in the prosecutor’s quest for an answer as to who authorized the
preliminary screening device, he merely said he “would imagine” that agency was
responsible. Because the State did not offer a contrary proffer as to how the deputy
might have answered the objected-to question, we affirm the trial court’s ruling on
the suppression motion.
2. The State also included in its Notice of Appeal a challenge to the trial
court’s denial of its motion to reopen the evidence.
Whether to reopen the evidence is a matter which rests within the sound
discretion of the trial court. A trial court’s ruling in this regard will not
be reversed in the absence of an abuse of discretion. Whether there has
been a reversible abuse of discretion requires a consideration of the
totality of the circumstances.
Carruth v. State, 267 Ga. 221, 221-22 (476 SE2d 739) (1996) (citations omitted).
Here, the trial court ruled that it would not reopen the evidence because the
suppression hearing “was the day to get [the foundational evidence] in” and, if the
court were to grant the motion, it “would be inviting everyone to ask to open evidence
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every time [the court] ruled against them.” The State has not challenged this
reasoning on appeal, or even argued specifically in its brief that the trial court erred
in denying the motion to reopen evidence. The State on appeal merely asks that it be
given a new opportunity to ask the objected-to question because it was improperly
deemed a leading question. We cannot say the trial court abused its discretion in
denying the State’s request to reopen the evidence.
Judgment affirmed. Phipps, P. J., and Dillard, J., concur.
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