Henson v. State, 66104

Decision Date06 September 1983
Docket NumberNo. 66104,66104
PartiesHENSON v. The STATE.
CourtGeorgia Court of Appeals

David W. Griffeth, Athens, for appellant.

Ken Stula, Sol., for appellee.

POPE, Judge.

James William Henson appeals his convictions of driving under the influence, driving while his license was suspended and driving with an expired tag. Held:

1. Appellant's first argument is that the trial court erred in admitting into evidence the results of his intoximeter test. Appellant claims that the state failed to comply with OCGA § 17-7-211(b) (Code Ann. § 27-1303) which provides: "In all criminal trials, felony and misdemeanor, the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal." "[T]he term 'written scientific reports' includes, but is not limited to ... blood alcohol test results done by a law enforcement agency or a private physician ...." OCGA § 17-7-211(a) (Code Ann. § 27-1303). The record discloses that appellant's request pursuant to the statute was made on March 3, 1982; the trial was held on May 11, 1982. At trial, appellant objected to the state's introduction of the intoximeter test results, contending that he had never received a copy thereof from the state. The solicitor stated in his place that on March 25, 1982 he had mailed a copy of the test results to appellant's counsel at the correct address; appellant's counsel in turn stated in his place that he never received that mailing.

"Where a letter is properly addressed, duly stamped, and deposited in the mail, there is a presumption that it was received. [Cits.] But this presumption is rebuttable, and is entirely overcome by the uncontradicted evidence of the addressee that it was never received." Carmichael Tile Co. v. McClelland, 213 Ga. 656, 659, 100 S.E.2d 902 (1957); cf. Sturdivant v. Allstate Ins. Co., 143 Ga.App. 19(2), 237 S.E.2d 408 (1977). See generally Watkins Products v. England, 123 Ga.App. 179(1), 180 S.E.2d 265 (1971); see also Canal Ins. Co. v. Tate, 111 Ga.App. 377, 384, 141 S.E.2d 851 (1965); Lewis v. Phillips-Boyd Publishing Co., 18 Ga.App. 181(3), 89 S.E. 177 (1916). Assuming arguendo that the solicitor's actions caused the presumption of receipt to arise, said presumption was entirely overcome in this case by the uncontradicted statement of appellant's counsel that he never received the solicitor's mailing. Thus, the state failed to carry its burden of showing compliance with OCGA § 17-7-211 (Code Ann. 27-1303). See Tanner v. State, 160 Ga.App. 266(1), 287 S.E.2d 268 (1981); Garner v. State, 159 Ga.App. 244(1), 282 S.E.2d 909 (1981). However, any error in allowing evidence as to the results of the intoximeter test was obviated by the unrefuted testimony of the police officer who administered the breath analysis test to the appellant that he had provided appellant with a copy of the test results. Since the appellant had already been provided with a copy of the intoximeter test results, he could not have been harmed by the state's failure to provide the same pursuant to OCGA § 17-7-211 (Code Ann. § 27-1303). See Mackler v. State, 164 Ga.App. 874(3), 298 S.E.2d 589 (1982); see also Tyson v. State, 165 Ga.App. 22(1), 299 S.E.2d 69 (1983).

2. Appellant made a timely request according to OCGA § 17-7-210(a) (Code Ann. § 27-1302) for discovery of any statement given by him while in police custody. He now cites as error two rulings by the trial court relating to the state's failure to comply with this discovery statute by not providing him with a copy of his statement(s) at least ten days before trial as required by the statute. Firstly, he contends that the trial court erred in overruling his motion to preclude the state from asking the arresting officer on direct examination whether the officer had had any conversation with appellant regarding the status of appellant's license. The sanction provided by OCGA § 17-7-210(c) (Code Ann. § 27-1302) for the state's failure to comply with a timely request for discovery of a defendant's custodial statement(s) is the exclusion and suppression thereof from the state's use "in its case-in-chief or in rebuttal." However, assuming arguendo that the trial court erred in overruling this motion, such error was harmless because the state never pursued this line of questioning. See generally Wallin v. State, 248 Ga. 29(5), 279 S.E.2d 687 (1981).

Secondly, he claims that the trial court erred in denying his motion for mistrial when the arresting officer testified as to a statement made to him by appellant relating to the validity of the tag on the vehicle appellant was driving when arrested. Appellant's counsel was questioning the arresting officer regarding the officer's observation of the absence of a current validation sticker on the tag attached to appellant's vehicle. "Q. Did you check with the Registrar of any county to see if a proper revalidation sticker had been issued for that tag? A. No. I did not .... It didn't appear on the tag. Q. Are you familiar with cases where those stickers are stolen off of tags? A. Yes, sir, very much so. Q. It happens all the time, doesn't it? A. Yes, sir, every day. Q. Well, why didn't you check to see if a sticker had been issued for that car? A. Because your client told me he didn't get one. Q. Told you he didn't get one. A. That's correct." The record thus discloses that the state did not use the statement here complained of in either its case-in-chief or in rebuttal. Rather, said statement entered the record as a response to a question posed to the arresting officer by appellant's counsel on cross-examination. "In Scott v. State, 57 Ga.App. 187(1) (194 SE 844) [ (1938) ] this court said: 'The ground [here] complaining of the admission of certain testimony of a witness for the State is without merit, since the ground discloses that the testimony was elicited from the witness (... on cross-examination) by counsel for the movant. Where counsel on the cross-examination of a witness takes a chance by propounding a dangerous question, he will not be heard to object to the answer, no matter how prejudicial it may be, if the answer is a direct and pertinent response to the question.' [Cits.]" Gaddy v. State, 96 Ga.App. 344, 347, 99 S.E.2d 837 (1957). Since the answer here was responsive to the question propounded by appellant's counsel, the trial court did not err in denying appellant's motion for mistrial on this ground. Cf. Stancil v. State, 157 Ga.App. 189(1), 276 S.E.2d 871 (1981); Calhoun v. State, 135 Ga.App. 609(2), 218 S.E.2d 316 (1975).

3. The crimes for which appellant was convicted occurred on January 8, 1982. The state sought to establish that appellant was driving while his license was suspended by tendering as evidence a duly certified document in the form of a computer printout from the Department of Public Safety which purported to show a history of appellant's driving record. This rather lengthy document was the only evidence offered in support of this charge and contained references to a multitude of past driving violations and license suspensions; thus, the state, with the trial court's concurrence, prepared a photocopy showing only the certification, identity of the licensee (appellant), and an excised portion of the record purportedly showing a suspension of appellant's...

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  • Thompson v. State
    • United States
    • Georgia Court of Appeals
    • 9 Julio 1985
    ...results, and it was admitted over objections. The State has the burden to show it complied with the request. Henson v. State, 168 Ga.App. 210, 211(1), 308 S.E.2d 555 (1983). If it was a "written scientific report" as contemplated by the statute, it should have been excluded and its allowanc......
  • Devane v. State
    • United States
    • Georgia Court of Appeals
    • 6 Mayo 1987
    ...or mailing it to him at his last known address ... [S]ervice by mail shall be deemed complete upon mailing." Cf. Henson v. State, 168 Ga.App. 210(1), 308 S.E.2d 555 (1983). A more serious issue exists as to filing with the clerk. See OCGA § 17-1-1(c). There is proof that the clerk had the d......
  • Snow v. State, A97A1119
    • United States
    • Georgia Court of Appeals
    • 1 Octubre 1997
    ...counsel propounded dangerous questions. Snow cannot now object to the court's ruling on one of the answers. See Henson v. State, 168 Ga.App. 210, 212(2), 308 S.E.2d 555 (1983); Helton v. State, 217 Ga.App. 691, 693-694(4), 458 S.E.2d 872 (1995). Moreover, the testimony complained of was cum......
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