Lafavor v. the State

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, 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 8, 2015
In the Court of Appeals of Georgia
A15A0902. LAFAVOR v. THE STATE.
DILLARD, Judge.
Following trial, a jury convicted Daniel Lafavor on one count of speeding. On
appeal, Lafavor challenges the sufficiency of the evidence supporting his conviction
and further contends that the trial court erred in (1) admitting laser-speed-detection-
device evidence despite the State’s failure to comply with the requirements for
admission of such evidence, (2) denying his motion for a continuance, (3) admitting
exhibits that the State failed to disclose prior to trial, (4) violating his right to
confront the witnesses against him, (5) improperly instructing the jury that its verdict
could not be governed by sympathy, (6) inadequately responding to questions posed
by the jury during its deliberations, and (7) admitting impeachment evidence. For the
reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that on the night of July 31, 2011, a Covington police officer was parked alongside
Interstate 20 and was monitoring west-bound traffic on a section of the highway
where the speed limit was 65 miles per hour. At approximately 9:00 p.m., the officer
observed a red Corvette approaching in the first lane and overtaking other vehicles
“at a good rate of speed.” Believing that the Corvette was moving much too fast and
exceeding the speed limit, the officer trained a laser-speed-detection device on the
vehicle and obtained a reading that it was traveling at 108 miles per hour.
Consequently, the officer initiated a traffic stop, during which he determined that
Lafavor was the driver and owner of the vehicle and that his wife was the only other
passenger. The officer then arrested Lafavor, and another officer, whose vehicle was
equipped to transport arrestees, transported Lafavor to the county jail.
Lafavor was later charged, via accusation, with one count of speeding. At
Lafavor’s jury trial, in which he proceeded pro se, the State’s sole witness was the
arresting officer, who testified regarding the details of the traffic stop. In addition,
Lafavor and his wife testified in Lafavor’s defense, and both asserted that he was not
1
See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
2
exceeding the speed limit. Nevertheless, at the conclusion of the trial, the jury
convicted Lafavor of speeding.
Subsequently, Lafavor obtained counsel and filed a motion for new trial, which
the trial court denied after conducting a hearing on the matter. This appeal follows.
1. Lafavor first contends that the evidence was insufficient to support his
speeding conviction. We disagree.
At the outset, we note that when a criminal conviction is appealed, the evidence
must be viewed in the light most favorable to the jury’s verdict, and the appellant no
longer enjoys a presumption of innocence.2 And, of course, in evaluating the
sufficiency of the evidence, we do not weigh the evidence or determine witness
credibility, but only determine whether “a rational trier of fact could have found the
defendant guilty of the charged offenses beyond a reasonable doubt.”3 Thus, the
jury’s verdict will be upheld so long as there is “some competent evidence, even
2
See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).
3
Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012) (punctuation
omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979).
3
though contradicted, to support each fact necessary to make out the State’s case.”4
With these guiding principles in mind, we will now address Lafavor’s specific
contentions.
In order to be guilty of speeding, one need only “exceed the designated speed
limit.”5 And in prosecuting someone for speeding, the State “need not prove that a
driver was traveling at a precise rate of speed in order to obtain a conviction for
speeding.”6 In fact, greater speeds by specified increment “affect only the punishment
and are therefore not material allegations to prove the crime of speeding.”7
Furthermore, an officer’s estimate of speed is “sufficient to support a conviction on
a speeding violation[.]”8
Here, the posted speed limit on the section of I-20 where Lafavor was stopped
was 65 miles per hour, and the arresting officer testified that he had been trained to
4
Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation
omitted).
5
Frasard v. State, 322 Ga. App. 468, 468-69 (1) (a) (745 SE2d 716) (2013)
(punctuation omitted).
6
Id. at 468 (1) (a) (punctuation omitted).
7
Id. at 469 (1) (a) (punctuation omitted).
8
Id. (punctuation omitted).
4
visually estimate the speed of a moving vehicle within two miles per hour.
Additionally, the officer recounted that when he first observed Lafavor’s vehicle, it
was overtaking other vehicles, and that he “believed” him “to be speeding.” The
officer further testified that his laser speed-detection device, in fact, indicated that
Lafavor’s vehicle was traveling at a rate of 108 miles per hour, thereby confirming
the officer’s estimate that Lafavor was indeed speeding. Accordingly, the evidence
was sufficient to sustain Lafavor’s speeding conviction.9
2. Lafavor next contends that the trial court erred in admitting the laser-speed-
detection-device evidence, arguing that the State failed to comply with the
requirements for admission of such evidence under OCGA § 40-14-17. This claim
lacks merit.
Initially, we note that Lafavor failed to object to the introduction of the laser-
speed-detection-device evidence during his trial. Nevertheless, because his trial
occurred after January 1, 2013, we may review the purportedly improper admission
9
See id. (“Because an officer’s estimate of speed is sufficient to support a
conviction on a speeding violation, the officer’s testimony that [defendant] was
traveling above the speed limit was sufficient to sustain his conviction.” (punctuation
omitted)); In the Interest of J. D. S., 273 Ga. App. 576, 577 (615 SE2d 627) (2005)
(holding that officer’s testimony that defendant was traveling faster than the 65 miles
per hour speed limit was sufficient to support defendant’s conviction on a speeding
violation).
5
of evidence for plain error.10 That being said, a finding of plain error requires “a clear
or obvious legal error or defect not affirmatively waived by the appellant that must
have affected the appellant’s substantial rights, i.e., it affected the outcome of the
trial-court proceedings.”11
Reviewing Lafavor’s claim in this regard, OCGA § 40-14-17 provides that
[e]vidence of speed based on a speed detection device using the speed
timing principle of laser which is of a model that has been approved by
the Department of Public Safety shall be considered scientifically
acceptable and reliable as a speed detection device and shall be
admissible for all purposes in any court, judicial, or administrative
proceedings in this state. A certified copy of the Department of Public
Safety list of approved models of such laser devices shall be self-
authenticating and shall be admissible for all purposes in any court,
judicial, or administrative proceedings in this state.
The text of this statutory provision provides that a certified copy of the Department’s
“list of approved models . . . shall be self-authenticating” for adjudicatory purposes,
10
See Rembert v. State, 324 Ga. App. 146, 152 (2) n.8 (749 SE2d 744) (2013)
(noting that “Georgia’s new Evidence Code, which applies to cases tried after January
1, 2013, allows a court to consider ‘plain errors affecting substantial rights although
such errors were not brought to the attention of the court’”).
11
Fraser v. State, 329 Ga. App. 1, 2 (763 SE2d 359) (2014) (punctuation
omitted).
6
but does not dictate that “only such a document can supply evidence that the device
was so approved.”12 Indeed, as we have recently held in this very context,
“circumstantial evidence arising from the testimony of the trained and certified
individual who operated the machine and performed the test is sufficient to meet the
statute’s authenticating procedures.”13
Here, the arresting officer testified that he was certified to use laser-speed-
detection devices and that the Department of Public Safety had approved the devices
used by the Covington Police Department. The officer also provided lengthy
testimony regarding his familiarity with calibrating the device and, more specifically,
the fact that at the start of his shift on the night in question, he calibrated the device
that he ultimately used to clock Lafavor’s vehicle. Given these particular
circumstances, the State sufficiently complied with the authenticating procedures
under OCGA § 40-14-17.14
12
Frasard, 322 Ga. App. at 472 (3) (c).
13
Id. (punctuation omitted).
14
See id. (holding that arresting officer’s testimony as to both his training in
speed detection, including the use of laser devices, and the Department of Public
Safety’s approval of the particular device he used, sufficiently complied with OCGA
§ 40-14-17).
7
But even if we assumed for the sake of argument that the State failed to comply
with OCGA § 40-14-17, the admission of this evidence did not constitute plain error.
As we noted in Division 1 supra, the laser-speed-detection-device evidence was not
necessary because the officer’s estimate that Lafavor was exceeding the speed limit
was sufficient to sustain his conviction.15 Thus, the laser-speed-detection-device
evidence was merely cumulative of the officer’s testimony, “and its admission did not
in reasonable probability affect the outcome of the trial.”16
3. Lafavor contends that the trial court erred in denying his request for a
continuance, which he sought because the State did not provide him with the
transporting officer’s out-of-state address. We disagree.
At the outset, we note that the grant or denial of a continuance is “addressed
to the sound legal discretion of the trial court, and the court’s ruling will not be
disturbed absent a clear abuse of discretion.”17 And under OCGA § 17-8-25, in order
to obtain a continuance based upon a witness’s absence, a defendant is required to
demonstrate that
15
See supra note 9.
16
Fraser, 329 Ga. App. at 2 (punctuation omitted).
17
Brown v. State, 304 Ga. App. 168, 172 (2) (695 SE2d 698) (2010).
8
(1) that the witness is absent; (2) that he has been subpoenaed; (3) that
he does not reside more than 100 miles from the place of trial; (4) that
his testimony is material; (5) that the witness is not absent by permission
of the movant; (6) that the movant expects to be able to procure the
testimony of the witness at the next term of court; (7) that the
continuance is not requested for purposes of delay and, (8) the facts
expected to be proved by the absent witness must be stated.18
Importantly, the trial court’s discretion is not abused “unless all of the requisites of
OCGA § 17-8-25 are shown and the trial court still denied a continuance.”19
In this matter, more than ten days prior to the start of trial, the State filed its
witness list, which included the officer who arrived on the scene after Lafavor was
arrested and transported him to jail. Later, the State issued a witness subpoena for the
officer but his address was listed as “private,” despite the fact that Lafavor’s
discovery request sought the contact information for all the investigating officers. On
the first day of trial, Lafavor requested a continuance, arguing that he had been unable
to interview the transporting officer, who would provide crucial testimony.
Specifically, Lafavor claimed that after placing him in the patrol vehicle, the
18
Janasik v. State, 323 Ga. App. 545, 552-53 (4) (a) (746 SE2d 208) (2013)
(punctuation omitted).
19
Id. at 553 (4) (a) (punctuation omitted).
9
transporting officer asked the arresting officer if he had shown Lafavor the laser
reading, and the arresting officer admitted that he had deleted the information. In
response, the State explained that the transporting officer was no longer a member of
the police department, that he currently lived in Ohio, and that the State did not intend
to call him as a witness. Immediately thereafter, the trial court denied Lafavor’s
request.
On appeal, Lafavor argues that the trial court erred in denying his request for
a continuance to interview the transporting officer. But Lafavor failed to meet several
of the requirements delineated in OCGA § 17-8-25, including showing that the
transporting officer resided within 100 miles of the place of trial and that he could
procure the officer’s testimony at the next term of court.20 Given these particular
circumstances, the trial court did not abuse its discretion in denying Lafavor’s request
for a continuance to secure the transporting officer’s testimony.21
20
See OCGA § 17-8-25.
21
See Bailey v. State, 309 Ga. App. 473, 474-75 (710 SE2d 656) (2011)
(holding that denial of defendant’s request for a continuance to secure witness’s
attendance was not abuse of discretion given that defendant never asserted that he
would be able to procure the witness’s testimony during an adjournment); Knox v.
State, 227 Ga. App. 447, 448 (489 SE2d 582) (1997) (holding that the denial of
request for continuance due to absence of witness was justified by defendant’s failure
to satisfy requirements that witness could be procured by next term of court); Griggs
10
4. Lafavor similarly contends that the trial court erred in denying his request
for a continuance because the State violated its discovery obligations and failed to
disclose exculpatory evidence when it failed to provide him with the transporting
officer’s out-of-state address. Both of these claims are wholly without merit.
(a) Lafavor opted into reciprocal discovery,22 and on July 10, 2012, more than
a year before trial, the State disclosed its initial witness list, which consisted of only
the arresting and transporting officers. The list indicated the police department’s
address and telephone number as contact information for both of the officers. And
this information was all the State was required to disclose under OCGA § 17-16-8 (b),
which provides that
[n]othing in this Code section shall be construed to require the
prosecuting attorney to furnish the home address, date of birth, or home
telephone number of a witness who is a law enforcement officer.
Instead, in such cases, the prosecuting attorney shall furnish to the
defense attorney the law enforcement officer’s current work location and
work phone number.
v. State, 208 Ga. App. 768, 769-70 (2) (432 SE2d 591) (1993) (ruling that trial court
did not abuse its discretion in denying continuance given that defendant could not
show that witness resided within 100 miles of the place of trial).
22
See OCGA § 17-16-1 et. seq.
11
On the first day of trial, as previously noted, Lafavor complained that the State
had not provided him with contact information for the transporting officer, despite
allegedly promising to do so, and therefore, he had been unable to interview the
officer. The State’s prosecutor responded that the transporting officer had moved to
Ohio and that she did not intend to call him as a witness. Now, on appeal, Lafavor
argues that his right to a fair trial was denied by the State not providing more detailed
contact information for the transporting officer. But the State, acting in its role as the
prosecution, has no obligation to locate defense witnesses.23
Moreover, a defendant asserting a discovery violation must “show harm as well
as error to merit reversal of his conviction.”24 And here, even pretermitting that the
State should have provided more detailed contact information for a witness it did not
intend to call, the trial court allowed Lafavor to testify that the transporting officer
would have corroborated his claim that the arresting officer deleted the laser-speed-
detection-device’s recording of the exact speed of his vehicle. Thus, the jury heard,
23
See Brooks v. State, 285 Ga. 246, 251 (5) (674 SE2d 871) (2009) (holding
that State did not engage in misconduct when it initially placed a witness on its
witness list, but ultimately decided against calling the witness at trial and did not
provide the defendant with sufficient information to locate the witness).
24
Walker v. State, 314 Ga. App. 714, 720 (6) (b) (725 SE2d 771) (2012).
12
via uncontested hearsay, the evidence that Lafavor claimed the transporting officer
would provide. Furthermore, this evidence was only relevant with regard to the
reading of the laser-speed-detection device, which as noted in Division 1 was not
necessary to sustain Lafavor’s speeding conviction. Accordingly, Lafavor has failed
to show that any alleged discovery violation caused him harm.25
(b) In the same enumeration of error, Lafavor also contends that the State’s
failure to provide detailed contact information for the transporting officer constituted
a violation of Brady v. Maryland.26
It is well established that the prosecution, upon a Brady motion, has “the duty
to produce anything that is exculpatory or impeaching.”27 But in order to prevail on
a Brady claim, a defendant must show that
the State possessed evidence favorable to the defendant; defendant did
not possess the evidence nor could he obtain it himself with any
reasonable diligence; the prosecution suppressed the favorable evidence;
and had the evidence been disclosed to the defense, a reasonable
25
See id. (holding that even if State committed a discovery violation, in light
of other evidence, defendant failed to show that he was harmed).
26
373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963).
27
Hendricks v. State, 290 Ga. 238, 240 (2) (719 SE2d 466) (2011) (punctuation
omitted).
13
probability exists that the outcome of the proceeding would have been
different.28
Here, the State did not suppress any information, but simply did not provide Lafavor
with detailed contact information for a witness that he was more than aware of and
which could have been discovered had he exercised reasonable diligence. Given these
particular circumstances, the trial court did not err in ruling that there was no Brady
violation.29
5. Lafavor also contends that the trial court erred in admitting exhibits that the
State failed to disclose prior to trial. Again, we disagree.
During Lafavor’s trial, the arresting officer testified regarding his certification
to use the laser-speed-detection device that clocked Lafavor and further testified that
the devices used by the Covington Police Department had been approved by the
Department of Public Safety. Then, in conjunction with the officer’s testimony, the
State introduced the officer’s certification, the Department of Public Safety’s
28
Blackshear v. State, 285 Ga. 619, 622 (5) (680 SE2d 850) (2009).
29
See Swindle v. State, 274 Ga. 668, 670 (4) (558 SE2d 385) (2002) (holding
that State’s failure to provide defendant with a witness’s address, which the defendant
could have discovered by exercising reasonable diligence, did not constitute a Brady
violation).
14
certification, and several other documents related to the laser-speed-detection-
device’s calibration.
Lafavor now argues that the admission of these documents constituted error
because the State failed to disclose them prior to trial. But Lafavor failed to object to
the documents’ admission during trial and, therefore, has waived this issue on
appeal.30 Furthermore, as similarly discussed in Division 2 supra, the admission of
these documents did not amount to plain error because the laser-speed-detection-
device evidence was not necessary to sustain Lafavor’s conviction. As previously
discussed, the officer’s estimate that Lafavor was exceeding the speed limit was
sufficient to support his conviction.31 Consequently, the laser-speed-detection-device
evidence in its entirety was merely cumulative of the officer’s testimony, “and its
admission did not in reasonable probability affect the outcome of the trial.”32
30
See Frasard, 322 Ga. App. at 471 (3) (b) (holding that because defendant did
not raise a proper objection to the documents and officer’s log showing that the
speed-detection device had been calibrated, he waived the issue on appeal).
31
See supra note 9.
32
Fraser, 329 Ga. App. at 2 (punctuation omitted).
15
6. Lafavor further argues that his right to confront the witnesses against him
under the Sixth Amendment to the United States Constitution was somehow violated
when the transporting officer did not testify at trial. This claim is a nonstarter.
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.”33 And in 2004, the Supreme Court of the United States clarified the
original meaning and scope of the right to confrontation of one’s accusers in
Crawford v. Washington,34 holding that “the admission of out-of-court statements that
are testimonial in nature violates the Confrontation Clause unless the declarant is
unavailable and the defendant had a prior opportunity for cross-examination.”35
Here, Lafavor seemingly argues that his Confrontation Clause rights were
violated because the transporting officer did not testify at trial. But the State made no
attempt during trial to admit any out-of-court statements the transporting officer may
33
U.S. Const. amend. VI; see also Ga. Const. art. 1, § 1, ¶ XIV (“Every person
charged with an offense against the laws of this state . . . shall be confronted with the
witnesses testifying against such person.”).
34
541 U.S. 36, 68 (V) (C) (124 SCt 1354, 158 LE2d 177) (2004).
35
Cuyuch v. State, 284 Ga. 290, 291-92 (2) (667 SE2d 85) (2008) (punctuation
omitted) (describing holding of Crawford. Washington).
16
have made. In fact, Lafavor was the only witness who testified regarding statements
allegedly made by the transporting officer at the time of his arrest. Given these
particular circumstances, the Confrontation Clause does not apply, and Lafavor’s
argument to the contrary is wholly without merit.
7. Lafavor also contends that the trial court erred in instructing the jury that its
verdict was not to be governed by sympathy or prejudice, arguing, essentially, that
such an instruction invaded the province of the jury. Again, we disagree.
During trial, Lafavor’s wife testified that her husband travels to Augusta three
to four times each week to visit his elderly mother, who suffers from dementia, and
that he was returning from such a trip on the night of his arrest for speeding. And
during his own testimony, Lafavor similarly stated that he was returning home after
visiting his elderly mother at the time of his arrest.
Based on this testimony, the State requested that the trial court instruct the jury
that it should not be governed by sympathy. And over Lafavor’s objection, the court
instructed the jury that “[y]our verdict should be a true verdict based upon your
opinion of the evidence according to the laws given you in this charge. You are not
to show favor or sympathy to one party or the other. It is your duty to consider the
facts objectively without favor, affection or sympathy for either party.”
17
Contrary to Lafavor’s argument, this instruction “neither shifted the burden of
proof nor invaded the province of the jury.”36 Indeed, the instruction properly
informed the jury that “they could not disregard evidence in favor of their sympathy
or prejudice.”37 Additionally, a review of the charge as a whole shows that the trial
court “thoroughly and correctly charged the jury with regard to the appropriate
burden of proof.”38 Accordingly, the trial court did not err by instructing the jury in
this regard.39
8. Additionally, Lafavor contends that the trial court erred by failing to
adequately respond to a question posed by the jury after it began deliberating. Yet
again, we disagree.
After the jury was instructed and had begun its deliberations, it sent a note to
the trial court asking “what do we do if we cannot come to a unanimous decision?”
The court informed the parties that it would respond by explaining “you are asked to
36
Dyer v. State, 287 Ga. 137, 140 (3) (695 SE2d 15) (2010); see, e.g., Heidler
v. State, 273 Ga. 54, 62 (12) (537 SE2d 44) (2000).
37
Dyer, 287 Ga. at 140 (3).
38
Id.
39
See id. (holding that trial court did not err in instructing the jury that its
verdict should not be governed by sympathy or prejudice).
18
continue your deliberations.” The jury was then brought into the courtroom, at which
point the court stated: “The response is, you are asked to continue your deliberations
and reach a verdict.”
On appeal, Lafavor argues that the trial court’s response exceeded what it
initially told the parties its response would be and that, in doing so, it improperly
implied that the jury had to reach a guilty verdict. But Lafavor did not object to the
court’s recharge in response to the jury’s question. Consequently, he failed to
preserve this objection for appellate review and “is entitled to reversal only if the jury
instruction constituted plain error,”40 which will only be found if “the jury instruction
was erroneous; the error was obvious; the instruction likely affected the outcome of
the proceedings; and the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”41
Turning to Lafavor’s specific claim of error, it is axiomatic that, as a general
rule, “the need, breadth, and formation of additional jury instructions are left to the
40
Blake v. State, 292 Ga. 516, 517 (2) (739 SE2d 319) (2013) (punctuation
omitted); see OCGA § 17-8-58 (b) (“Failure to object in accordance with subsection
(a) of this Code section shall preclude appellate review of such portion of the jury
charge, unless such portion of the jury charge constitutes plain error which affects
substantial rights of the parties.”).
41
Blake, 292 Ga. at 517 (2).
19
sound discretion of the trial court.”42 Thus, when the jury requests a charge or
recharge on a particular point, the court “has discretion to also give or not give
additional instructions.”43 And here, the court’s recharge was not obviously erroneous
nor did it likely affect the outcome of the trial. In fact, contrary to Lafavor’s
argument, the court’s recharge merely indicated that the jury should continue
deliberating to reach a verdict and did not imply that such a verdict had to be guilty.
Furthermore, in its initial instructions, the court instructed the jury that “[w]hatever
your verdict is, it must be unanimous that is, agreed to by all of you.” Then, shortly
thereafter, it also explained that jurors should not “surrender an honest opinion in
order to be congenial or to reach a verdict solely because of the opinions of other
jurors.” Accordingly, reviewing the trial court’s charges as a whole, we conclude that
the court’s recharge was not an abuse of discretion, much less plain error.44
42
Harrelson v. State, 312 Ga. App. 710, 719 (4) (719 SE2d 569) (2011)
(punctuation omitted).
43
Id. (punctuation omitted).
44
See Grier v. State, 276 Ga. App. 655, 660-61 (3) (624 SE2d 149) (2005)
(holding that when read as a whole, trial court’s jury charges did imply that jurors
must reach a verdict one way or the other).
20
9. Finally, Lafavor contends that the trial court erred in admitting a past
speeding conviction as impeachment evidence. Once again, we disagree.
During his testimony, Lafavor claimed that it was impossible for him to drive
108 miles per hour—the rate at which the arresting officer clocked him—because he
has diabetes, which he claimed affects his ability to see far enough ahead to travel at
such a speed. Immediately thereafter, the State requested a conference outside the
presence of the jury, during which it requested that it be allowed to impeach
Lafavor’s testimony with evidence that, in 2002, he had been cited for speeding at
106 miles per hour and had pleaded guilty. Lafavor objected that such evidence was
prejudicial because he ultimately pleaded guilty to a reduced speeding charge.
Nevertheless, the trial court ruled that the conviction was admissible, and the State
questioned Lafavor regarding the incident after the jury returned.
Lafavor now contends that the trial court erred in admitting his 2002 speeding
conviction for impeachment purposes, but in doing so, he makes a different argument
than that made at trial.45 Specifically, he claims that if the trial court had engaged in
45
See Hall v. State, 292 Ga. 701, 702 (2) (743 SE2d 6) (2013) (“In order to
raise on appeal an impropriety regarding the admissibility of evidence, the specific
ground of objection must be made at the time the evidence is offered, and the failure
to do so amounts to a waiver of that specific ground.” (punctuation omitted)).
21
further inquiry on the issue, it would have learned that he was not diagnosed with
diabetes until 2010, and thus, the earlier conviction could not impeach his trial
testimony that he currently was unable to drive at the rate of speed alleged. However,
Lafavor having elected to represent himself, it was his responsibility, not the trial
court’s, to ensure that the court was aware of his relevant medical history.46 Indeed,
contrary to what Lafavor argues on appeal, “[t]here is no constitutional requirement
that the trial court take over chores for a pro se defendant that would normally be
attended to by trained counsel as a matter of course.”47 Accordingly, Lafavor’s
contention that the trial court erred in this regard lacks merit.
For all of the foregoing reasons, we affirm Lafavor’s conviction.
Judgment affirmed. Ellington, P. J., concurs. McFadden, J., concurs specially
as to Division 2 and fully otherwise.
46
See Kegler v. State, 267 Ga. 147, 148 (4) (475 SE2d 593) (1996) (holding
that it is the pro se defendant’s responsibility, not the court’s, to effectively represent
himself by issuing subpoenas for witnesses).
47
Id. at 148-49 (4) (quoting McKaskle v. Wiggins, 465 U.S. 168, 184 (V) (B)
(104 SCt 944, 954 LE2d 122) (1984)).
22
A15A0902. LAFAVOR v. THE STATE.
MCFADDEN, Judge, concurring specially as to Division 2 and fully otherwise.
I write separately regarding Division 2, in which the majority concludes that
admitting the laser-speed-detection-device evidence was not plain error. I agree with
that conclusion, but my analysis is slightly different.
The state undertook to admit that evidence through OCGA § 40-14-17, under
which a copy of the list of such devices approved by the Department of Public Safety
is self-authenticating proof of their scientific reliability and acceptability and
sufficient foundation for admission of evidence generated by them. That list appears
to have been inadvertently omitted from the exhibit to which it was to have been
attached. Neither party noticed the omission during the trial, and the state
consequently had no opportunity to supply it. I would hold simply that whether or not
it was error for the trial court to fail to notice it either and whether or not it was
therefor error for the trial court to admit the evidence in question, it was not
“obviously so” and therefore not plain error. See Barron v. State, __ Ga. __, (2), Case
No. S15A1321, 2015 WL 5315662, at *1 (Ga. Sept. 14, 2015) (appropriate inquiry
as to plain error is whether the trial court’s act or omission “was error; whether this
was obviously so; and whether the error likely affected the outcome of the
proceedings.”).
2