Flading v. State

• Decision Date: 22 May 2014
• Docket Number: No. A14A0557.,A14A0557.
• Citation: 327 Ga.App. 346,759 S.E.2d 67
• Court: Georgia Court of Appeals
• Parties: FLADING v. The STATE.

327 Ga.App. 346

759 S.E.2d 67

FLADING

v.The STATE.

No. A14A0557.

Court of Appeals of Georgia.

May 22, 2014.

Thomas Cornelius Rowsey, Roswell, for Appellant.

R. Leon Benham, Carmen D. Smith, for Appellee.

McMILLIAN, Judge.

John Flading was convicted by a jury of one count of driving under the influence of alcohol (less safe) and one count of failure to maintain lane. Flading appeals, arguing that the trial court erred in admitting evidence of a stipulation reached at an administrative civil hearing. Finding no error, we affirm.

Viewed in the light most favorable to the jury's guilty verdict, ¹ the record reflects that on July 11, 2009, Officer Joshua Ott of the Roswell police department observed a black Lincoln Mark LT turn right onto Canton Street. He noted that the vehicle crossed halfway across the double yellow line before drifting back to the right and crossing the white line. While following the vehicle, Officer Ott observed several other instances of slow weaving before he activated his emergency lights and made a traffic stop. When Officer Ott approached the vehicle to speak with Flading, the driver of the vehicle, he immediately detected a “moderate” odor of alcohol emanating from inside the vehicle. He also observed that Flading's eyes were “ glassy and droopy.” Flading admitted that he had consumed two or three beers that evening.

Officer Ott then asked Flading to step to the rear of his vehicle to perform a field sobriety evaluation. At that time, the officer was able to confirm that the odor of alcohol was coming directly from Flading. Officer Ott, who testified at trial regarding his extensive DUI training, first performed the horizontal gaze nystagmus evaluation, and Flading exhibited four out of six clues, indicating that he was driving while under the influence of alcohol and was less safe in doing so. Because Flading told him that he had broken his ribs two weeks ago and he could not say whether it would affect his ability to walk a straight line or stand on one foot, Officer Ott elected to forego those additional field sobriety tests. He then asked Flading to recite the alphabet from the letter E to R. Flading started at E, but continued all the way to T before pausing for several seconds and then stating “R.” And finally, the officer performed a preliminary breath test which registered positive for the presence of alcohol.

Based upon his driving, physical manifestations, and the field sobriety evaluations, Officer Ott placed Flading under arrest for driving under the influence of alcohol. He then read to Flading from his copy of the Georgia Implied Consent Notice card, which was admittedinto evidence. Flading refused to consent to a state-administered chemical test of his breath. At trial, the State also admitted into evidence a copy of the officer's video that was recorded from the time he first observed Flading's vehicle until after he was arrested, which was played for the jury. The State also introduced, over objection, a document entitled “Final Decision” completed at an administrative license suspension hearing (“ALS hearing”).² Officer Ott explained that he was present at the ALS hearing and spoke with Sarah Hoffman, an attorney who represented Flading at that time and agreed that, in exchange for pleading guilty to the DUI charge, Flading would be permitted to keep his license. The Final Decision, which was signed by Officer Ott and Hoffman, was read to the jury in part, including the following:

This withdrawal is based on an agreement between the arresting officer and [Flading]. In exchange for the arresting officer's withdrawal of this sworn report, [Flading] shall enter a plea of guilty to the underlying charge of violating O.C.G.A. § 40–6–391. The parties agree that a copy of this final decision may be admitted into any subsequent legal proceeding involving the charge as an admission by [Flading] of [Flading's] guilt or nolo contendere in exchange for the rescission of the administrative license suspension. The parties further agree that if [Flading] fails to enter the required plea, this order may be voided and the sworn report refiled with the [Department of Driver Services].

The evidence presented at trial was sufficient to authorize a rational trier of fact to find Flading guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1. In his sole enumeration of error, Flading contends that the trial court erred by allowing the State to introduce the Final Decision from the ALS hearing into evidence at his criminal jury trial. Immediately prior to trial on February 5, 2013, Flading's trial counsel moved in limine to exclude the Final Decision. In explaining the nature of the stipulation to the trial court, Flading's counsel confirmed that Hoffman was an attorney Flading had hired to represent him at the ALS hearing and that she signed the Final Decision. Nonetheless, he moved to exclude the Final Decision on various grounds, most of which he has abandoned on appeal. The trial court denied the motion, noting “[t]hat's cross-examination material.”

On appeal from a trial court's ruling on a motion to suppress or a motion in limine, we may consider all relevant and admissible evidence of record introduced at the motion hearing or during trial. While a trial court's findings as to disputed facts will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review. Furthermore, even if the trial court's asserted ground for denying a motion to suppress or motion in limine is erroneous, we will affirm the ruling if it is right for any reason.

(Citations and punctuation omitted.) Walker v. State, 314 Ga.App. 67, 67(1), 722 S.E.2d 887 (2012).

Flading first argues that Georgia courts have a long-standing prohibition against introducing evidence from an ALS hearing, citing several cases in support: Wyatt v. State, 179 Ga.App. 327, 346 S.E.2d 387 (1986); Sheffield v. State, 184 Ga.App. 141, 361 S.E.2d 28 (1987) (physical precedent only); Hunter v. State, 191 Ga.App. 769, 382 S.E.2d 679 (1989); and Swain v. State, 251 Ga.App. 110, 552 S.E.2d 880 (2001). However, we are not persuaded that the cases on which Flading relies are relevant to our inquiry here.

Most recently, in Swain, this Court noted that in Wyatt, Sheffield, and Hunter, the ALS hearings did not result in a decision on the merits. Swain, 251 Ga.App. at 113(1), 552 S.E.2d 880.³ Thus, Swain was the first instance in which this Court was squarely presented with the question of “whether preclusive effect should be given in a criminal DUI prosecution to administrative factfinding from a previous driver's license suspension hearing.” Id. at 113, 552 S.E.2d 880. We held that there was no preclusive effect in that case and explained,

The purpose of the driver's license suspension hearing is to provide a quick, informal procedure to remove dangerous drivers from Georgia's roadways and thereby protect public safety. Accordingly, the driver must request the hearing within ten days of receiving notice of the right to a hearing, and the Department of Public Safety must hold the hearing within thirty days of the request. The scope of the hearing is confined by statute to six discrete issues, and the hearing officer must issue a decision within five days of the hearing. If the hearing officer sustains the suspension, the driver has the right to seek judicial review of the decision, but there is no procedure for the State to appeal an adverse ruling. Within the framework of this abbreviated procedure, the State has only a limited opportunity to litigate the issues, some of which may prove pivotal in a subsequent DUI trial.

(Citations and punctuation omitted.) Id. at 113–114, 552 S.E.2d 880 (“To hold otherwise would frustrate the purpose of the summary suspension hearing.”). See generally OCGA § 40–5–67.1(g) (setting out procedures for license suspension hearing). Thus, while Flading is correct that this Court has thus far declined to allow the admission of the final decision of an administrative hearing officer after a contested hearing or if the hearing is dismissed for some other reason, he has pointed to no cases involving the issue of whether a stipulation reached at an ALS hearing can be introduced in a criminal trial.⁴

We turn, therefore, to our general law regarding a party's admissions and stipulations in criminal proceedings. “Admissions by agents or attorneys are not admissible in criminal cases in the sense in which they are admissible in civil cases. They should not be treated as evidence against the accused unless shown to have been authorized by him.” (Citations and punctuation omitted.) Dryer v. State, 205 Ga.App. 671, 672(1), n. 1, 423 S.E.2d 297 (1992).

Generally, a statement by defense counsel made in the presence of the defendant relating to the defendant's conduct is considered a statement by the defendant himself if the defendant does not repudiate counsel's authority to make the statement. The general rule as to stipulations is that once made in the course of judicial proceedings an estoppel results unless the complaining party can show fraud or mistake. Such an express stipulation should generally be made in writing or in open court.

(Citations and punctuation omitted.) Dryer, 205 Ga.App. at 672–673(1), 423 S.E.2d 297 (defendant acquiesced to an oral stipulation of facts made in open court for the purpose of dispensing with proof of the agreed facts, amounting to a conclusively binding admission in judicio).

Flading did not claim fraud or mistake in reaching the stipulation at the ALS hearing. Nor did he ever repudiate counsel's authority to make the stipulation. Although on appeal Flading vaguely asserts...