State v. Peacock , 178 Ga. App. 96 ( 1986 )

Sognier, Judge,

dissenting.

I respectfully dissent. During the suppression hearing the trial judge heard conflicting testimony from defendant and the arresting officer as to speed, the traffic light stops and the officer’s reason for stopping defendant. The trial court’s decision on questions of fact and credibility of witnesses at a suppression hearing must be accepted unless clearly erroneous. Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975); Pittman v. State, 162 Ga. App. 51, 52 (2) (289 SE2d 531) (1982).

Decided March 4, 1986. John C. Carbo III, Solicitor, Anne M. Landrum, Assistant Solicitor, for appellant. Albert B. Wallace, William R. L. Latson, Carl A. Adcock, for appellee.

The majority would reverse because it assumes the trial judge’s comment on the evidence prior to ruling on the motion to suppress indicates that he failed to consider all the evidence. However, I view the judge’s comment on the evidence as indicating he thought the officer’s testimony as to traffic light stops was not the only reason, but the strongest reason, for his stopping defendant. I do not interpret the judge’s comment as an indication that he did not consider all the evidence in arriving at his decision. It is presumed that a trial judge acts properly when acting within his legitimate sphere. OCGA § 24-4-24; Thomas v. State, 174 Ga. App. 560 (1) (330 SE2d 777) (1985). This would include a presumption that the trial judge, in his capacity of trier of fact at a suppression hearing, considered all relevant evidence prior to ruling on a motion to suppress. See, for example, Sessions v. Oliver, 204 Ga. 425 (1) (50 SE2d 54) (1948), where the court held that if an order is equivocal and susceptible of more than one interpretation, it will be construed consistently with the theory that the judge performed his duty by considering the evidence and making a finding from it, where the issue is one for such determination. In the instant case the court’s order suppressing the evidence is clear and supported by the evidence presented at the hearing. I find nothing to indicate it was clearly erroneous, and thus, the finding must be accepted by this court. Woodruff, Pittman, supra. We should not substitute our judgment for that of the trial judge in his capacity of trier of fact. Accordingly, I would affirm.

I am authorized to state that Presiding Judge Birdsong, Judge Benham and Judge Beasley join in this dissent.