Geoffrion v. State

482 S.E.2d 450, 224 Ga. App. 775, 97 Fulton County D. Rep. 927, 1997 Ga. App. LEXIS 234

• Court: Court of Appeals of Georgia
• Decided: February 21, 1997
• Docket: A96A2354
• Status: Published

Opinions

McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of driving under the influence of drugs, namely methamphetamine, to the extent it was less safe for him to drive (Count 1), driving under the influence of a controlled substance, by operating a motor vehicle while there was methamphetamine in his urine (Count 2), violation of the Georgia Controlled Substances Act by possessing methamphetamine (Count 3), violation of the Georgia Controlled Substances Act by possessing marijuana, less than one ounce (Count 4), and possession of an open container of alcoholic beverage while operating a motor vehicle (Count 5). The evidence adduced at trial revealed that at 2:00 a.m. on April 15, 1995, Harris County Reserve Deputy Sheriff Martin and Sergeant Watson were on routine patrol when they observed defendant’s “Ford Truck driving very erratic, weaving across the center line, weaving on the roadway.” The driver “crossed the center line repeatedly as [the officers] followed him.” During a traffic stop, Sergeant Watson “could smell a strong odor of alcohol on [defendant’s] person as well as his breath and he appeared to be under the influence of alcohol or something to me [Sergeant Watson] at that point.” Defendant told the officers “he was drinking down [at Kim’s Cove] and was on his way back.” In response to the question of when was the last time he had something to drink, “[h]e replied that he had a drink coming up that road after we [the officers] got behind him[, . . . but he] dumped [it] in the passenger’s side of the floorboard of the vehicle.” At this point, defendant was placed under arrest and “advised of his implied consent warnings.” Defendant also received a Miranda warning. An inventory search of the vehicle revealed “partially smoked suspected marijuana cigarettes in the ashtray. What appeared to be marijuana and several hand-rolled cigarette butts that appeared to be marijuana cigarettes. There was a six-pack of [cold] beer on the passenger’s side of the floorboard that had not been opened.” Also, “a glass [was] found inside the truck like a regular drinking glass and it was still, had, what smelled like alcohol ... in it.” After a pat-down search, “[n]o weapons were found but there was a pill bottle in [defendant’s] upper left-hand pocket of his shirt and at that time [Deputy Martin] asked [defendant] what was in the pill bottle and he replied, he did not know. [Deputy Martin] asked [defendant] again what was in the pill bottle and he [defendant] replied pot.”

Vesna Stojkovic, a forensic chemist in the Drug Identification Unit at the Georgia Bureau of Investigation’s Crime Laboratory in Columbus examined “one amber plastic container containing four hand-rolled cigarettes, three hand-rolled cigarette butts and a razor blade containing residue.” She testified that defendant’s “hand-rolled cigarettes are positive for marijuana,” less than one ounce. Michelle Basham-Foster, a forensic toxicologist with the Georgia Bureau of Investigation, testified that defendant’s “urine specimen was positive for methamphetamine[,. . . and also] positive for ethyl alcohol equal to a blood alcohol of .09 grams percent.” She also testified that Ephedrine, an over-the-counter amphetamine-type drug, “would not give a response for methamphetamine.”

Defendant was granted permission to file out-of-time motions, and this direct appeal followed. Held:

1. Defendant first contends he was denied a fair trial because the State’s attorney “argued in opening [that] defendant was accused of Driving under the Influence of Alcohol when he was indicted for Driving under the Influence of a Controlled Substance.”

The State’s attorney referred in opening statement to “the offenses that you have heard us name. Which are driving under the influence of intoxicants, two counts, violation of the Georgia Controlled Substance Act in that he possessed methamphetamine, possession of marijuana, and violation of the open container law.” After describing the expected forensic evidence of both alcohol and methamphetamine found in defendant’s urine, the State’s attorney summarized for the jury: “So he’s D.U.I. for two reasons. One because of the alcohol in his system and secondly because of the methamphetamine in his system.”

In light of the specific allegations in the special presentment, this statement was misleading and inaccurate, for defendant was never charged with any offense involving the ingestion of alcohol or intoxication therefrom. This erroneous statement amounted to a theory of guilt unauthorized by the charges as laid by the State, even though there was forensic evidence before the jury that defendant had a blood alcohol level of .09 grams percent. Defense counsel rebutted this inaccurate statement in his own opening statement by reminding the jury that the “indictment alleges that the defendant was driving under the influence of methamphetamine and that’s it. The indictment does not charge him with driving under the influence of alcohol.” But no objection to the opening statement by the State’s attorney was ever interposed for a ruling by the trial court.

“The failure to make a timely and specific objection is treated as a waiver. Herrin v. State, 230 Ga. 476 (1) (197 SE2d 734) (1973).” Seabrooks v. State, 251 Ga. 564, 566 (1), 567 (308 SE2d 160). In the case sub judice, any valid issue arising from improper opening statements “has been waived due to the absence of any [timely] objection below. [Cit.]” Smith v. State, 221 Ga. App. 428 (3) (472 SE2d 4). Moreover, since there was no charge on intoxication from alcohol, nor any verdict form or jury determination of intoxication by alcohol, it cannot be said that this opening statement, even if improper, in any reasonable probability changed the result of trial. See Bright v. State, 265 Ga. 265, 285 (19) (a) (455 SE2d 37). This enumeration is without merit.

2. Defendant contends the trial court erred in denying his motion to suppress the results of urinalysis and also his motion in limine without the benefit of a hearing.

Defendant was arraigned on September 18, 1995, and counsel was “retained the day after arraignment,” but the motion to suppress was filed on September 22, 1995, along with a waiver of formal arraignment and discovery motions. The trial court denied the motion to suppress as untimely. Defense counsel then made an oral motion in limine, contending “the implied consent rule was not properly complied with. . . .” The trial court conducted a hearing where Deputy Martin testified he gave an “implied consent” warning to defendant; that he gave defendant a urine test; and that defendant never requested “any other kind of test.” Defense counsel informed the trial court: “We’re not going to put any evidence on at this time,” whereupon his motion in limine was overruled.

(a) The trial court did not err in refusing to hold a hearing on defendant’s tardy motion to suppress. Baseler v. State, 213 Ga. App. 822 (1) (446 SE2d 250).

(b) Contrary to defendant’s contentions, the trial court clearly overruled defendant’s motion in limine, after a hearing. Accordingly, we find no merit in this enumeration. See Cobb County v. Princeton Assoc., 205 Ga. App. 72 (1) (421 SE2d 102).

3. Next, defendant contends the trial court erred in failing to exclude the results of the urinalysis.

“A motion in limine is closely related to a motion to suppress. Ga. Crim. Trial Prac. (1993 ed.), § 14-52. The same appellate rules as to factfinding and witness credibility determination apply in both types of hearings." ' " ' “Factual and credibility determinations made by a trial judge after a suppression hearing (or a motion in limine hearing to exclude evidence) are accepted by appellate courts unless clearly erroneous.” ’ ” ’ Baldwin v. State, 263 Ga. 524, 525 (1) (435 SE2d 926).” State v. Leviner, 213 Ga. App. 99 (1) (443 SE2d 688).

The implied consent warning defendant received in the case sub judice properly informed him that he was “entitled to additional chemical tests of blood, breath, urine or other bodily substance at [his] own expense and from qualified personnel of [his] own choosing.” The evidence was in conflict whether defendant ever requested a second test of his own choosing. Deputy Martin denied that defendant “told Sergeant Watson that because of the urinalysis that he [defendant] also wanted to do a blood test. . . .” The evidence thus supports the trial court’s determination that the results of the State-administered urinalysis were admissible. Consequently, the trial court did not err in overruling defendant’s motion to exclude from evidence the results of that urinalysis.

4. Over defendant’s hearsay objection, the trial court admitted into evidence the police report written by Sergeant Watson. This evidentiary ruling is enumerated as error.

"[W]here the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible. In this case the witness [Sergeant Watson] was [repeatedly] asked by the defense whether he [omitted several crucial details from his police report]. This is an attack on [Sergeant Watson’s] credibility whichjustifi.es the introduction of [his police report as a] prior consistent statement under Cuzzort[ v. State, 254 Ga. 745 (334 SE2d 661)].” Edwards v. State, 255 Ga. 149, 150 (2), 151 (335 SE2d 869). Furthermore, the admission of this police report does not mandate the giving of a jury instruction on impeachment. “Here there is no inconsistency between the testimony of [Sergeant Watson] at trial and [his] prior statements] [in the police report]. Impeachment is not involved.” Cuzzort v. State, supra at 745.

5. The fifth enumeration contends the trial court erroneously allowed the State’s attorney to “delve into [defendant’s] character.”

Our review of the transcript reveals that defendant himself first elicited reference to subsequent traffic stops, during cross-examination of Sergeant Watson.

“It is axiomatic that the defendant alone can place his character in issue in a criminal case. [Cits.] It is difficult to imagine a more conclusive method of doing so than for his own counsel to ask direct questions regarding [other] convictions [or] criminal offenses. Once the ‘character door’ is opened, it is opened for all evidence that bears on the defendant’s character — convictions of crimes, guilty and nolo contendere pleas, juvenile offense[s], and incidents which illustrate the defendant’s character. [Cits.]” Scarver v. State, 130 Ga. App. 297 (2) (202 SE2d 850). In our view, defendant cannot complain on appeal if the State followed up on issues he himself injected. Wilkes v. State, 221 Ga. App. 390, 393 (3) (471 SE2d 332).

6. Defendant’s sixth enumeration complains that “[t]he trial court erred in admitting the urinalysis and drug report into evidence because of a failure of the chain of custody.” But defendant’s brief fails to show where he made any such an objection to chain of custody. Our review of the transcript reveals that, on direct examination, Michelle Basham-Foster related the results of urinalysis as positive for methamphetamine without objection. She repeated her findings under cross-examination.

Chain of custody is preliminary proof, in the nature of foundation evidence. Since defendant raised no contemporaneous objection, he forfeited his right to insist that the forensic analysis of his urine be excluded from evidence. Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722).

7. In his seventh and ninth enumerations, defendant urges the general grounds, as to his convictions on the “possession of methamphetamine charge, the DUI charges, and the open container charge. . . .” He does not challenge his conviction for possession of marijuana in Count 4.

The State presented sufficient circumstantial evidence to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of operating a motor vehicle while under the influence of the controlled substance methamphetamine, as alleged in Count 2. This same evidence also showed beyond a reasonable doubt that defendant unlawfully possessed the controlled substance methamphetamine, as alleged in Count 3. Green v. State, 260 Ga. 625 (1), 626 (398 SE2d 360). Proof that he weaved and crossed the centerline is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the verdict that defendant was a less safe driver due to the methamphetamine in his system, as alleged in Count 1. Grant v. State, 215 Ga. App. 10, 12 (449 SE2d 545). His admission against interest that he was drinking while driving, coupled with proof that a glass smelling of alcohol was hidden under the passenger seat and the carpet was wet where defendant had poured out his alcoholic beverage, is sufficient to authorize his conviction under OCGA § 40-6-253 (b), the open container law.

8. Defendant complains the State’s attorney used unfair and prejudicial closing argument.

(a) In all but two instances, defendant made no contemporaneous objection to the prosecutor’s closing argument. Nevertheless, he argues that the “cumulative acts of the [SJtate . . . prejudiced and inflamed the jury.”

“ ‘The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error.’ Todd v. State, 261 Ga. 766, 767 (410 SE2d 725) (1991).” Simmons v. State, 266 Ga. 223, 228 (6) (b) (466 SE2d 205). “When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial. Ford v. State, 255 Ga. 81, 90 (335 SE2d 567) (1985).” Todd v. State, 261 Ga. 766, 767 (2) (a), supra. In the case sub judice, we have considered the closing arguments which purportedly bolster the testimony of the arresting officers and argue punishment to the jury, and find them to be within the “considerable latitude . . . allotted to prosecutors in making closing argument. Philmore v. State, 263 Ga. 67, 69 (428 SE2d 329) (1993).” Crowe v. State, 265 Ga. 582, 592 (18) (c) (458 SE2d 799).

(b) In two instances, defendant did object to closing argument. In response, the trial court observed that the State’s attorney “may draw logical conclusions from the evidence.” That “is ‘tantamount to a rebuke and sufficient under the circumstances.’ [Cit.]” Allstate Ins. Co. v. Brannon, 214 Ga. App. 300, 303 (4) (447 SE2d 666).

(c) Defendant also objected to the following characterization of defense counsel: “He’s not here to see justice. He’s not here to see the right thing is done. He’s not here to see that the streets of Harris County are safe from drunk drivers crossing the center line at 2:00 o’clock coming from Columbus.”

We agree that this closing argument, in the nature of “unflattering characterizations,” is not any reasonable and permissible inference to be drawn from the evidence adduced at trial and disapprove of it. “[W]e find it unnecessary and undesirable for prosecutors to resort to such characterizations.” Simmons v. State, 266 Ga. 223, 228 (6) (b), 229, supra. Nevertheless, given the scientific evidence in the case sub judice, we find it highly probable that this unnecessary and undesirable argument did not taint the verdict. Consequently, under the test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869), we conclude the erroneous closing argument was harmless in this instance.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Blackburn, J., concur. Beasley, J., concurs specially. Johnson and Ruffin, JJ, dissent.