Ellerbee v. State

• Decision Date: 20 October 1994
• Docket Number: No. A94A1575,A94A1575
• Parties: ELLERBEE v. The STATE.
• Court: Georgia Court of Appeals

Page 874

449 S.E.2d 874

215 Ga.App. 102

ELLERBEE v. The STATE.

No. A94A1575.

Court of Appeals of Georgia.

Oct. 20, 1994.

Reconsideration Denied Nov. 2, 1994.

Certiorari Denied Feb. 17, 1995.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Zebulon, for appellant.

Louise T. Hornsby, Asst. Sol., for appellee.

McMURRAY, Presiding Judge.

Defendant was charged via accusation with two alternative counts of driving while under the influence of alcohol. The evidence presented at a jury trial showed that Officer Jamie S. Brown of the Georgia State Patrol stopped defendant near Tenth Street and Piedmont in Atlanta, Georgia, for operating a motor vehicle at a speed "above the posted speed limit." "[I]mmediately when [Officer Brown] made eye contact with the driver there was no question ... that he had been drinking[; ... and] that he was extremely intoxicated." During the administration of field sobriety tests, defendant looked at Officer Brown "and said, I've just had too much to drink, I guess." Defendant "couldn't keep his balance ... and almost fell down...." Officer Brown had "no doubt that [defendant] was a less safe driver...." Defendant was formally placed under arrest and read his implied consent warnings. Breath analysis showed his blood-alcohol level to be: "Point one eight grams."

The jury found him "guilty on both charges," and he appeals from the judgment of conviction entered by the trial court on the jury's verdicts. Held:

1. The two separate verdicts for violating OCGA § 40-6-391(a)(1) (less safe driver) (Count 1) and OCGA § 40-6-391(a)(4) (blood-alcohol level of .10 grams percent or greater) (Count 2) are based on the same conduct and were combined by the trial court at sentencing into a single sentence. In Morgan v. State, 212 Ga.App. 394(1), 395, 442 S.E.2d 257, this court held "it is ... well settled that OCGA § 40-6-391(a) establishes a single crime of driving while in a prohibited condition and that subsections (a)(1) and (a)(4) merely define different modes of committing that one crime." We treat this as a conviction based on conduct violating OCGA § 40-6-391(a)(4), as driving with a prohibited blood-alcohol level poses the more serious risk of injury to property or the public. See Lester v. State, 253 Ga. 235, 238(3), n. 5, 320 S.E.2d 142. Compare Fudge v. State, 184 Ga.App. 590, 592(6), 362 S.E.2d 147 (physical precedent only) and Page v. State, 202 Ga.App. 828, 830(4), 415 S.E.2d 487. The evidence that defendant drove an automobile while his blood-alcohol level was in excess of the legal limit was sufficient to authorize the jury's finding that defendant was guilty, beyond a reasonable doubt, as alleged in the accusation in Count 2. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Morgan v. State, 212 Ga.App. 394, 397(3), 442 S.E.2d 257, supra. Defendant's eleventh enumeration is without merit.

2. Defendant's tenth enumeration contends the trial court erred in admitting into evidence a photocopy of the results of the State-administered intoximeter test showing defendant's blood-alcohol level to be .18 grams percent, over his objection that the State failed to account adequately for the original as required by OCGA § 24-5-25. This objection is without merit. "[C]opies of duplicate originals are admissible under Code Ann. § 38-710 [now OCGA § 24-5-26], without accounting for the original." Strickland v. Foundation Life Ins. Co., 129 Ga.App. 614, 616(2), 617, 200 S.E.2d 306.

3. In his sixth enumeration, defendant contends the trial court erred in failing to quash the uniform traffic citation for being improperly drawn. In this regard, defendant argues that a uniform traffic citation cannot be amended, relying on State v. Rustin, 208 Ga.App. 431, 432(2), 434-435, 430 S.E.2d 765. However, after defendant's arrest, the solicitor preferred a two-count accusation against defendant, specifying alternative methods by which he allegedly violated OCGA § 40-6-391(a).

"[I]t is not true that a prosecution must proceed upon the uniform traffic citation form that has initially been issued [or] that the prosecuting attorney has no authority to file a subsequent formal accusation. '(T)he (S)tate is not prohibited from issuing a subsequent accusation....' Cargile v. State, 244 Ga. 871, 874(2), (262 S.E.2d 87) (1979)." State v. Doyal, 184 Ga.App. 126, 127, 361 S.E.2d 17. The subsequent issuance of a formal accusation did not amend the uniform traffic citation, as contended by defendant. Rather, such accusation superseded any uniform traffic citation as the charging instrument.

4. The trial court erred in refusing to give defendant's written request to charge the law on circumstantial evidence. " 'Virtually every case contains some circumstantial evidence and, if the charge is not given, stands in danger of being reversed.... The charge is a fundamental principle of law as to criminal guilt and there is no reason not to give it; the (s)tate is not harmed by it and has no right to have it omitted.' [Cit.]" Mims v. State, 264 Ga. 271, 272, n. 2, 443 S.E.2d 845. Nevertheless, in the case sub judice, that error is rendered harmless by the overwhelming direct evidence that defendant drove while his blood-alcohol level was .18 grams percent, in violation of OCGA § 40-6-391(a)(4). This "evidence and all reasonable deductions therefrom were completely inconsistent with a reasonable hypothesis of innocence. To reverse [this conviction] would be a perversion of justice. [Cits.]" Johnson v. State, 210 Ga.App. 99, 100(1), 101, 435 S.E.2d 458. Defendant's first enumeration is without merit.

5. In his second enumeration, defendant argues that the trial court's charge was burden-shifting.

The trial court informed the attorneys that it intended to charge the substance of OCGA § 40-6-392(b) as to the conclusions which may be drawn according to various blood-alcohol levels. At defendant's behest, the trial court agreed to alter the language of this Code section to instruct the jury in terms of inferences rather than presumptions. In the charge, the trial court stated: "If there was at that time an alcohol concentration of point zero eight grams or more, it shall be inferred that that person was under the influence of alcohol as prohibited by the statute." (Emphasis supplied.) Error is assigned to the emphasized portion of this charge.

"A permissive device is valid if it is rational. Williamson v. State, 248 Ga. 47 (281 SE2d 512) (1981). A mandatory inference or presumption concerning an element of the offense is invalid, and this is so whether it is mandatory-conclusive or mandatory-rebuttable. Sandstrom v. Montana, [442 U.S. 510 (99 SC 2450, 61 LE2d 39) ]." (Emphasis in original.) Isaacs v. State, 259 Ga. 717, 734 (35b), 735, 386 S.E.2d 316.

In the case sub judice, the trial court's mandatory instruction that the influence of alcohol "shall be inferred" (rather than the permissive "may infer" as requested by defendant) is impermissibly burden-shifting, for it "is just as mandatory as an instruction that 'the law presumes fact x from fact y.' In either event, the jury is told that a finding of fact ... legally follows from proof of [another] fact...." (Emphasis omitted.) Isaacs v. State, 259 Ga. 717, 734 (35b), 735, 386 S.E.2d 316, supra. Compare Gilbert v. State, 262 Ga. 840, 841(4), 426 S.E.2d 155. Moreover, it is the better practice to "include language reaffirming that it is within the jury's discretion whether or not it will draw such an inference...." Thompson v. State, 257 Ga. 481, 483(6), 361 S.E.2d 154. Nevertheless, "[t]his error does not require reversal of the conviction under Count 2 (violation of OCGA § 40-6-391(a)(4)), since the erroneous burden-shifting charge is not relevant to the determination of any of the elements of the crime [as] established in OCGA § 40-6-391(a)(4). See Lester v. State, [supra]; Peters v. State, 175 Ga.App. 463, 469(a) [ (333 SE2d 436), overruled on other grounds, Hogan v. State, 178 Ga.App. 534, 535 (343 SE2d 770) ]." Simon v. State, 182 Ga.App. 210, 212(4), 355 S.E.2d 120. See also Paradise v. State, 212 Ga.App. 166, 169(4), 170(4b), 441 S.E.2d 497.

6. In his third enumeration, defendant contends the trial court erred in refusing to give his written request to charge on the weight to be given the results of defendant's breath test. The request contained the following language: "No procedure is infallible. Even where a procedure in general is based upon sound scientific theory, it may have some margin for error and give an erroneous result under certain circumstances." The trial court determined the request was more properly the subject of closing "[a]rgument[.]" Defendant argues that his request "is taken virtually verbatim from the language of the Georgia Supreme Court's decision in Lattarulo v. State, 261 Ga. 124 (1991), and constitutes a correct statement of the law adjusted to the facts of this case."

"Though this language was taken from a decision by [the Georgia Supreme Court], the court properly refused to give it. It is not always proper for the court to charge the jury in language used in one of the decisions of the [appellate] court. Sometimes the language is argumentative, and sometimes it merely expresses the opinion of the judge delivering the opinion, where it is not precisely upon an issue presented in the record." Chedel v. Mooney, 158 Ga. 297, 300(11), 123 S.E. 300. In the case sub judice, the trial court did not err in refusing to give this argumentative request.

7. The failure to charge on the presumption on non-impairment contained at OCGA § 40-6-392(b)(1) was not harmful error as that provision by its terms applies only to the conduct "prohibited by paragraphs (1), (2), and (3) of subsection (a) of Code Section 40-6-391." In the case sub judice, defendant's conviction is for violating OCGA § 40-6-391(a)(4). Defendant's fourth enumeration is without merit.

8. In related enumerations, def...