Keller v. State , 271 Ga. App. 79 ( 2004 )

ELDRIDGE, Judge.

In April 1997, a Cobb County jury found Gerald Keller guilty of inter alia being a habitual violator, driving under the influence of alcohol, having improper equipment, and speeding. Keller has been before this Court numerous times with regard to this conviction.¹ He is with us again, this time arguing that several claims of error require reversal. Finding no merit to Keller’s claims, we affirm his conviction.

Viewed to support the jury’s verdict, the evidence shows that at approximately 6:00 a.m. on August 3, 1995, Georgia State Trooper Keith Hales observed Keller’s vehicle traveling on 1-575 in Cobb County at a speed that appeared to be above the posted speed limit and with its left headlight out. Hales’ radar gun registered the vehicle traveling 79 mph in a 55-mph zone.

The trooper pulled Keller over and asked him for his driver’s license and proof of insurance; Keller could produce neither. Hales noted that Keller had bloodshot, watery eyes and a strong odor of alcohol about his person. He administered several field sobriety tests, all of which indicated that Keller was under the influence of alcohol. The trooper then placed Keller under arrest. Further investigation showed that Keller’s license was suspended pursuant to his status as a habitual violator. Held:

1. Initially, Keller makes two arguments attempting to negate the admissibility of the Department of Public Safety (“DPS”) documents establishing his receipt of habitual violator notice. Keller’s arguments present no basis for reversal.

(a) Keller first claims that the DPS documents did not comply with OCGA § 40-5-58, which sets forth the definition of a habitual offender and the requirements for notifying an offender of his status. At trial, however, Keller did not object to the admission of these documents on the grounds that they did not meet the statutory requirements of OCGA § 40-5-58. As a consequence, this argument is waived.²

(b) As he did in the court below where he cited to Miller v. State,³ Keller argues that the DPS documents were introduced without an authenticating witness in violation of his Sixth Amendment confrontation rights, and thus, they constituted inadmissible hearsay. This issue has been decided adversely to Keller in Shapiro v. State.⁴

(c) The dissent urges that one of the DPS documents, State’s Exhibit 3, was uncertified and was thus hearsay. That the DPS documents were certified is a matter of fact that went completely unchallenged at trial. “Because this is a court for review and correction of error, we cannot consider objections to evidence different from those raised at trial.”⁵ So, this claim is waived as a matter of fact.

Further, the issue of certification was first raised at the motion for new trial by appellate counsel, and that issue was promptly abandoned. Indeed, Keller does not raise such issue here. Before this Court, Keller’s assertion is that the DPS documents were unauthenticated by a live DPS witness, which did not allow him to cross-examine the witness to see if the documents were “properly certified.” Nowhere does Keller claim that State’s Exhibit 3 is completely without certification and is thus hearsay, which objection — if true — could easily have been raised at trial, regardless of the presence of a live witness. Tellingly, the objection was not raised.

2. Relying on Hawkins v. State,⁶ Keller also argues that the trial court erred in refusing to suppress the field sobriety evaluations, because the arresting officer admitted that he had deviated from the standards in which he was trained. We disagree.

In reviewing a trial court’s decision on a motion to suppress, our responsibility is to ensure that there was a substantial basis for its decision.⁷ At the hearing on Keller’s motion to suppress, Trooper Hales testified that he had been trained in field evaluation standards. While he testified that he deviated from these standards in evaluating Keller, he also stated that the tests he used and the standardized evaluations are “[essentially the same thing.” Therefore, contrary to Keller’s argument, evidence of Hales’ failure to fully comply with guidelines does not destroy the probative value of the tests and render them inadmissible; instead, it affects only the weight and credibility of the behavioral observations made by the officer.⁸ And here, in conformity with Hawkins, the court expressly found that the tests administered by Hales, “even though . . . administered in a slightly different form,” appeared to substantially comply with the requirements.

3. Keller next claims that the trial court erred with respect to two jury instructions. He first argues that the court erred in charging the jury on the improper equipment violation, because the charge was based upon OCGA § 40-8-22, which requires that headlights be maintained in proper working order, instead of OCGA § 40-8-20, which sets forth when headlights must be displayed. The charge, however, appears correct because Keller was indicted for operating a vehicle with the left headlight not functioning, not for failing to display headlights. Further, when the trial court stated that it intended to instruct the jury on OCGA § 40-8-20, Keller specifically requested the charge under OCGA § 40-8-22. “The act of requesting an instruction in the trial court constitutes a specific waiver of the right to enumerate it as error on appeal.”⁹

Keller also claims that the trial court erred and misled the jury “when it instructed the jury on the less safe standard for intoxicants rather than just the standard for less safe due to alcohol.” We disagree. While the last sentence of the disputed portion of the charge referred in general to “intoxicants,” the charge as a whole repeatedly refers to alcohol or drinking and does not refer to any other type of intoxicant. ‘We do not evaluate jury charges in isolation, but rather consider them as a whole to determine whether there is a reasonable likelihood the jury improperly applied a challenged instruction.”¹⁰ There was no error here.

4. Next, Keller contends that the trial court erred by failing to properly swear the jury pursuant to OCGA § 15-12-139. We do not agree.

Although Keller contends that the record does not reflect that the jury was sworn, “[s]uch a record, without more, would not constitute reversible error.”¹¹ In this case, the trial court conducted a hearing to determine whether the jury had, in fact, been properly sworn. A juror in the case testified that he remembered receiving an oath with the other jurors while sitting in the jury box. He also testified that the oath was given after jury selection to the jurors who actually tried the case. Based on this testimony, the court found that the appropriate oath — the same one that the court had been giving for 23 years — had in fact been given. Because the record supports the trial court’s finding, this enumeration of error lacks merit.

5. Finally, Keller argues that the trial court erred in allowing into evidence the results of the radar speed detection device. Specifically, Keller claims that the State failed to lay a proper foundation for this evidence pursuant to OCGA § 40-14-4, which sets forth license and certification requirements for speed detection devices. However, at trial, Keller objected to these results merely for lack of “foundation.” Because Keller failed to state what the proper foundation should be, this claim of error is waived.¹²

Judgment affirmed.

Andrews, P. J., Johnson, P. J., Miller and Ellington, JJ., concur. Ruffin, P. J., and Adams, J., concur in part and dissent in part.

1 Keller v. State, 261 Ga. App. 769 (583 SE2d 591) (2003); Keller v. State, 252 Ga. App. 813 (558 SE2d 5) (2001); Keller v. State, 247 Ga. App. 599 (544 SE2d 511) (2001); Keller v. State, 242 Ga. App. 150 (529 SE2d 167) (2000). See also Keller v. State, 275 Ga. 680 (571 SE2d 806) (2002).

2 See In the Interest of C.W., 227 Ga. App. 763, 767-768 (3) (490 SE2d 442) (1997).

3 Miller v. State, 266 Ga. 850, 856 (472 SE2d 74) (1996) (unconstitutional to introduce a sworn affidavit into evidence against a criminal defendant, in contravention of the defendant’s constitutional guaranty that he be confronted with the witnesses against him).

4 Shapiro v. State, 233 Ga. App. 620, 622 (3) (504 SE2d 719) (1998) (DPS records at issue “are public records which allow a court to ‘infer reliability when the hearsay falls within a firmly rooted exception to the hearsay rule, such as the public records exception.’ Price [v. State, 269 Ga. 222, 223 (498 SE2d 262) (1998)].”).

5 (Citation and punctuation omitted.) Brown v. State, 247 Ga. App. 741, 743 (2) (545 SE2d 114) (2001).

6 Hawkins v. State, 223 Ga. App. 34 (476 SE2d 803) (1996).

7 See State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995).

8 See Hawkins, supra.

9 (Citation omitted.) DeLoach v. State, 272 Ga. 890, 892 (2) (536 SE2d 153) (2000).

10 (Footnote omitted.) Salahuddin v. State, 277 Ga. 561, 564 (3) (592 SE2d 410) (2004).

11 Smith v. State, 235 Ga. 852, 853 (3) (221 SE2d 601) (1976).

12 See Nelson v. State, 255 Ga. App. 315, 319 (2) (565 SE2d 551) (2002).