Johnson v. State
| Decision Date | 20 August 1998 |
| Docket Number | No. A98A1175.,A98A1175. |
| Parties | JOHNSON v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Weaver & Weaver, George W. Weaver, Jasper, Jeffrey L. Floyd, for appellant.
Roger Queen, District Attorney, Joe W. Hendricks, Jr., Assistant District Attorney, for appellee.
A jury found Gary Johnson guilty of driving under the influence of alcohol to the extent he was a less safe driver, failing to stop at a stop sign, and possessing an open container of alcohol while operating a vehicle. Johnson appeals, and we affirm.
1. In his first enumeration of error, Johnson contends the trial court erred in commenting on the evidence. Specifically, Johnson argues that during a colloquy with counsel regarding the admissibility of the uniform traffic citation, the trial court stated in the presence of the jury that the citation, which Johnson signed, was admissible to show Johnson's knowledge of the contents of the traffic citation. The record shows that Johnson's description of the facts at issue varied greatly from the state's description of the facts at issue. Thus, his knowledge of the facts as stated in the traffic citation may have been an important issue for the jury's determination regarding the credibility of the witnesses and the weight to be given the evidence. The officer testified that he informed Johnson of what was on the ticket and Johnson signed the ticket.
During the colloquy, the trial judge stated, Johnson's counsel excepted to the admission of the traffic citation and then stated, "And I would object, Your Honor, to the Court's comments saying it shows his knowledge." To which the trial judge responded, Johnson's counsel then made another motion for mistrial "based on the comments of the Court on the evidence as to whether it shows knowledge." The trial judge replied,
Even assuming that the trial court's comments were opinions as to what had been proven in the case, the rule which prohibits an expression or intimation of opinion by the trial court as to what has or has not been proven does not extend to colloquies between the judge and counsel regarding the admissibility of evidence. OCGA § 17-8-57; Rowe v. State, 266 Ga. 136, 139(2), 464 S.E.2d 811 (1996); Aman v. State, 223 Ga.App. 309, 310(2), 477 S.E.2d 431 (1996). "[R]emarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence." (Citation and punctuation omitted.) McGinnis v. State, 258 Ga. 673, 675(4), 372 S.E.2d 804 (1988); Mathis v. State, 171 Ga.App. 620(1), 320 S.E.2d 861 (1984). The trial judge's comments in this case were correct statements of the law explaining the reason for his ruling. They did not constitute an improper expression or intimation of opinion.
Furthermore, the trial judge charged the jury that For these reasons, we believe this enumeration lacks merit.
2. Johnson next contends the trial court erred in admitting into evidence the uniform traffic citation, which contains the arresting officer's notation that Johnson refused the state-administered breath test. He maintains that evidence of his refusal to take the breath test constitutes a discovery violation and that allowing the traffic citation to go out with the jury constitutes a violation of the continuing witness rule. We disagree.
(a) According to Johnson, he requested prior to trial that the state provide him with copies of all custodial statements made by him. He argues that under OCGA § 17-16-22, providing discovery rights in misdemeanor cases, he requested a copy of the uniform traffic citation showing his refusal to submit to the state-administered breath test. Johnson contends that since the state did not provide him with a copy of the citation, it was not admissible at trial, and the admission of the citation harmed his case. This...
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