Wilson v. State

328 S.E.2d 418, 173 Ga. App. 805, 1985 Ga. App. LEXIS 2680

• Court: Court of Appeals of Georgia
• Decided: March 12, 1985
• Docket: 69622
• Status: Published

Opinions

Sognier, Judge.

Appellant was convicted of driving a motor vehicle under the influence of alcohol and improper driving.

1. Appellant contends the trial court erred by allowing appellant’s in-custody statement in evidence which had not been furnished to him after a timely, written request for the statement was made pursuant to the provisions of OCGA § 17-7-210 (a). Appellant contends that because he was not furnished a copy of the statement, OCGA § 17-7-210 (d) prohibits its use in evidence.

When a police officer observed appellant driving his car erratically he stopped appellant and asked for his driver’s license. The officer noticed a strong odor of alcohol and had appellant get out of the car, took him to the rear of appellant’s car, and among other things, asked appellant to recite the alphabet. Appellant was then arrested. Appellant’s attempted recitation of the alphabet is the “statement” appellant claims was erroneously admitted in evidence. We do not agree.

OCGA § 17-7-210 (a) provides that at least ten days prior to trial a defendant shall be entitled to have a copy of any statement made by him while in police custody. In Berkemer v. McCarty, 468 U. S. _ (104 SC _, 82 LE2d 317) (1984), the Supreme Court of the United States held that a motorist detained pursuant to a traffic stop is not taken into custody for the purpose of the Miranda warning. The court went on to hold that where a police officer asked the motorist a modest number of questions and requested him to perform a simple balancing test, and only a short period of time elapsed between the stop and his arrest, statements made by the motorist prior to his arrest are admissible against him. The court rejected the contention that the initial stop of respondent’s car, by itself, rendered him in custody. Applying the holding in Berkemer to the facts in the instant case, it is clear that appellant was not in custody when he was asked to recite the alphabet. Since appellant was not in custody, there was no requirement under OCGA § 17-7-210 that prior to trial the state furnish appellant a written summary of his attempted recitation of the alphabet.

2. Appellant contends the trial court improperly curtailed his right of cross-examination by not allowing him to question a police officer about notes used to refresh his memory.

The question objected to by the state did not relate to information in the officer’s notes, but to conjecture by the officer as to what he might have done under different circumstances.

Although the right to a thorough and sifting cross-examination may not be abridged, that right is not unlimited. Anderson v. State, 165 Ga. App. 885, 887 (5) (303 SE2d 57) (1983). The scope of cross-examination is within the discretion of the trial judge, to control that right within reasonable grounds, and his discretion will not be controlled by a reviewing court unless it is abused. Miller v. State, 155 Ga. App. 587 (3) (271 SE2d 719) (1980). Since the question related to speculative matters not relevant to any issue in the case, we find no abuse of discretion.

3. Appellant contends it was error to charge the jury that “a witness, in a driving under the influence case, states a fact rather than an opinion when he testifies that a defendant was under the influence of intoxicants.” Even assuming, as contended by appellant, that New v. State, 171 Ga. App. 392, 393 (5) (319 SE2d 542) (1984), disapproved such a charge, appellant made no objection to the charge at trial, and it is well settled that this court will not consider matters raised for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (2) (253 SE2d 698) (1979).

Decided March 12, 1985. Larry W. Yarbrough, for appellant. Herbert A. Rivers, Solicitor, N. Jackson Cotney, Jr., Assistant Solicitor, for appellee.

Judgment affirmed.

Deen, P. J., and McMurray, P. J., concur. Deen, P. J., also concurs specially.