Fletcher v. State, 60912
| Decision Date | 11 February 1981 |
| Docket Number | No. 60912,60912 |
| Citation | 157 Ga.App. 707,278 S.E.2d 444 |
| Parties | FLETCHER v. The STATE. |
| Court | Georgia Court of Appeals |
Judson R. Knighton, Marietta, for appellant.
Hinson McAuliffe, Sol., Deborah S. Greene, Asst. Sol., for appellee.
Appellant appeals his convictions of driving under the influence and improper lane change.
1. Appellant enumerates error in the admission, over objection, of testimony concerning the results of his breath test which showed .17 per cent alcohol in his blood. The arresting officer testified that, pursuant to Code Ann. § 68A-902.1, he advised appellant of his right to undergo additional chemical tests of the amount of alcohol in his blood. The officer administering the test testified as to his training to conduct such breath tests and his certificate, issued by the State Crime Laboratory, was properly introduced into evidence over appellant's objections. Hunter v. State, 141 Ga.App. 276(2), 233 S.E.2d 252 (1977). The officer's certificate, which was signed by the Director of the State Crime Laboratory, stated on its face that it was issued for "analyses utilizing Photo-Electric Intoximeter, Model 300 or 400." Smitherman v. State, 153 Ga.App. 322, 265 S.E.2d 119 (1980). Compare Willoughby v. State, 153 Ga.App. 434, 265 S.E.2d 352 (1980). The administering officer testified that the test was conducted by using a "Series 400 of the Photo-Electric Intoximeter" and the check list "that is used in operating the machine that we must go by to obtain the breath test" was introduced into evidence. We find no error in the admission of testimony concerning appellant's breath test for any reason urged on appeal.
2. Appellant was tried under an accusation charging that on November 23, 1978, he "did operate a motor vehicle on Roswell Road, while under the influence of alcohol, to a degree which rendered him incapable of safely driving..." We find no merit in appellant's argument that this accusation should have been quashed because it did not charge him with operating a "moving" vehicle while under the influence. "(T)he true test of the sufficiency of the indictment is not 'whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. " ' (Cit.)" State v. Black, 149 Ga.App. 389, 390, 254 S.E.2d 506 (1979). The accusation in the instant case clearly meets this test.
3. Pursuant to Code Ann. § 38-801(g), appellant filed a notice to produce the intoximeter used to test his breath, the operating manual for the machine, the machine's maintenance records, and records of the proficiency training for the officer conducting the test. Appellant assigns error to the refusal of the trial court to order compliance with the notice to produce. Code Ann. § 38-801 contemplates that the material sought to be produced be "in the possession, custody or control of another party..." The materials sought by appellant were not the types of items reasonably expected to be found in the "custody" of the solicitor preparing the case against appellant and indeed they were not. Hicks v. State, 232 Ga. 393, 394-395, 207 S.E.2d 30 (1974). Appellant may not serve a notice on the solicitor to produce items otherwise available and then take the position that the solicitor as "the titular head of the investigation" should produce them. See Booker v. State, 242 Ga. 773, 776(1), 251 S.E.2d 518 (1979). We find no error in denying the motion to produce or in denying the motion for continuance based upon the absence of the materials in the courtroom at the time of trial.
4. Certain comments made by the trial judge in a colloquy with counsel and with reference to rulings on objections were not impermissible comments within the meaning of Code Ann. § 81-1104. Herndon v. State, 45 Ga.App. 360, 361(4), 164 S.E. 478 (1932). After both sides had rested and prior to closing arguments, the trial judge gave the jury instructions concerning the arguments they were about to hear. In the course of these instructions, the trial court stated: ...
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...take the position that the [prosecutor] as 'the titular head of the investigation' should produce them. [Cit.]" Fletcher v. State, 157 Ga.App. 707, 708, 278 S.E.2d 444 (1981). In any event, the record discloses certified copies of three felony convictions of Parker tendered into evidence by......
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...as to the essential elements of the crime charged"); O'Brien v. State, 109 Ga. 51, 52, 35 S.E. 112 (1900); Fletcher v. State, 157 Ga.App. 707, 708, 278 S.E.2d 444 (1981); Capitol Distributing Co. v. State, 83 Ga.App. 303, 306, 63 S.E.2d 451 (1951).3 See Durden v. State, 152 Ga. 441, 442-443......
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