Harmon v. State, A96A1632
| Decision Date | 27 February 1997 |
| Docket Number | No. A96A1632,A96A1632 |
| Citation | 482 S.E.2d 730,224 Ga.App. 890 |
| Parties | , 97 FCDR 1047 HARMON v. The STATE. |
| Court | Georgia Court of Appeals |
Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, Atlanta, for Appellant.
Ralph T. Bowden, Jr., Sol., Michele T. McCutcheon, W. Cliff Howard, Asst. Solicitors, for Appellee.
Louise S. Harmon appeals her conviction of driving under the influence of alcohol. Harmon contends the trial court erred by denying her motion for mistrial after the trial court conducted an in chambers voir dire of a prospective juror who then was dismissed for cause and released out of the presence of Harmon and her counsel. Harmon further contends the trial court made several erroneous rulings regarding admission of evidence: by denying her motion for mistrial after the prosecutor asked her, in front of the jury, if she would retake the intoxilyzer test; by admitting copies of her first DUI test results and intoxilyzer certificates of inspection when the State failed to comply with OCGA § 17-16-23 by producing copies of these documents before trial; by denying Harmon's motion in limine seeking to exclude a copy of a videotape because the audio on the tape was not working; and also by allowing a witness to testify who was not listed on the State's witness list.
A police officer testified that he stopped Harmon because she was speeding and driving erratically, and testified that at the time Harmon's eyes appeared glassy, watery, and blood-shot, and the officer could detect the odor of alcohol. The officer saw a six-pack of beer on the front floorboard of the car which had some bottles removed.
When the officer conducted a field sobriety test, he noticed Harmon's speech was slurred and her words were mumbled. Based upon Harmon's performance on the field sobriety test, the officer concluded she was a less safe driver and placed Harmon under arrest for driving under the influence. Harmon was given a breath test on an Intoxilyzer 5000 and at first the results were inconclusive because of an inadequate breath sample. Harmon was again tested after she used an asthma inhaler and the results showed .120 and .112. Harmon was subsequently convicted of driving under the influence, and this appeal followed. Held:
1. The transcript shows that after a potential juror stated that he had more that one previous DUI and other DUI charges were pending against him, the trial judge requested and received, in Harmon's presence, the consent of Harmon's counsel to conduct further questioning of the potential juror in the judge's chambers. At some point, the trial judge concluded that the juror should be excused and dismissed the potential juror from further participation in the case without Harmon, her counsel, or the prosecutor being present. Later, when the parties returned to the courtroom, the trial judge advised the parties of what the court had done. Although Harmon and her counsel made no objection then, later, after the jury had been selected, Harmon made a motion for a mistrial. At this point, the trial court stated on the record what apparently transpired at an unrecorded bench conference: After the State expressed reservations about the potential juror serving and the juror also stated his concern, the trial court asked defense counsel for any comment and received none. Then, with the consent of both sides, the court discussed the matter further with the potential juror in chambers. The trial court further related that when everyone returned to court after a recess, the trial judge advised them that she had excused the potential juror and Harmon made no comment or objection.
Under our law, the defendant and the defense counsel have the right to be present at every stage of the proceedings (Ga. Const. 1983, Art. I, Sec. I, Par. XII; Wilson v. State, 212 Ga. 73, 74, 90 S.E.2d 557), including the selection of the jury. Allen v. State, 199 Ga.App. 365, 405 S.E.2d 94. This right, however, may be waived by defendant personally, or by defendant's counsel if counsel does so in defendant's presence, or with the defendant's express authority, or if the defendant later acquiesces in counsel's waiver. Wilson, supra at 77-78, 90 S.E.2d 557; Parker v. State, 220 Ga.App. 303, 311-312, 469 S.E.2d 410. Although a reversal is frequently required when a defendant is not present at every stage of the proceedings, because of Harmon's action, we do not find that result is warranted in this case.
Pretermitting whether Harmon actually consented to the procedures used by her conduct or whether the trial court was lulled into believing that Harmon had consented to the procedures used in this case (see Sullens v. State, 239 Ga. 766, 767, 238 S.E.2d 864; Martin v. State, 193 Ga.App. 581, 584, 388 S.E.2d 420), it is apparent from the record that by her conduct after learning of the trial court's actions Harmon waived any potential error. Harmon was advised when the trial court returned to the courtroom that the potential juror had been excused, yet made no objection until further voir dire was conducted and the jury was selected and sworn. Then Harmon finally moved for a mistrial.
Under these facts, any error in the procedures used by the trial court was waived. A motion for mistrial must be promptly made as soon as the party is aware of the matter giving rise to the motion. See Perkins v. State, 212 Ga.App. 225, 227, 441 S.E.2d 511; Worley v. State, 201 Ga.App. 704, 705, 411 S.E.2d 760. Rather than immediately objecting to the procedures used by the trial court when the potential juror could have been recalled, examined further by Harmon and the State, and the trial court could have considered any challenge in her presence, Harmon elected to wait until the potential juror had departed and the jury was sworn. At this point it was too late to object. See OCGA § 15-12-167; State v. Sparks, 257 Ga. 97, 98, 355 S.E.2d 658; Harris v. State, 212 Ga.App. 120, 441 S.E.2d 255. As one cannot complain of trial procedures used by the trial court which her own trial tactics or conduct procured or aided in causing (Williams v. State, 205 Ga.App. 445, 446, 422 S.E.2d 309), this enumeration of error is without merit.
2. Harmon also alleges the trial court erred by denying her motion for mistrial after the prosecutor asked her, in front of the jury, if she would retake the intoxilyzer test after she used her asthma inhaler. Harmon's argument is based on her conclusion that the prosecutor was not permitted to ask this question. We disagree. Harmon, an intensive care respiratory therapist and certified pulmonary function technologist, testified that because she had used her asthma inhaler before the second test, those results were somehow invalid. In response, the prosecutor asked her if she would be willing to demonstrate to the jury that using an inhaler would result in false positive results. Although as Harmon argues there are a variety of reasons why she might not wish to take a retest, these reasons do not prohibit the asking of the question, and the prosecutor was not prohibited from, in effect, asking Harmon whether she believed her testimony enough to submit to another test. As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga.App. 742, 743, 344 S.E.2d 536. As we find no abuse of discretion based on these facts, this enumeration of error is without merit.
3. Harmon also contends the trial court erred by admitting copies of her...
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