Keller v. State

• Decision Date: 28 June 2007
• Docket Number: No. A07A0754.,A07A0754.
• Citation: Keller v. State, 648 S.E.2d 714, 286 Ga. App. 292 (Ga. App. 2007)
• Parties: KELLER v. The STATE.
• Court: Georgia Court of Appeals

286 Ga. App. 292

648 S.E.2d 714

KELLER v. The STATE.

No. A07A0754.

Court of Appeals of Georgia.

June 28, 2007.

Reconsideration denied July 5, 2007.

Gerald W. Keller, pro se.

David Lee Cannon Jr., Solicitor-General, David Martin McElyea, Asst. Solicitor-General, for Appellee.

RUFFIN, Judge.

A jury found Gerald Keller guilty of driving under the influence and driving with an expired license. The trial court granted Keller's motion for an out-of-time appeal. On appeal, Keller, acting pro se, asserts eight enumerations of error. He challenges the sufficiency of the evidence and argues that the trial court erred in: denying his motion for recusal; denying motions to suppress; requiring him to proceed pro se without warning him of the risk; intimating an opinion as to his guilt; and failing to give certain jury charges. He also contends he received ineffective assistance from his trial counsel.¹ For reasons that follow, we affirm.

1. On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict.² The defendant no longer enjoys a presumption of innocence, and "we neither weigh the evidence nor assess witness credibility, but merely determine whether the evidence is sufficient to sustain the conviction."³ So viewed, the record shows that in the early morning hours of January 22, 2005, a clerk at a gas station saw a vehicle enter the lot and park next to a gas pump. The vehicle remained parked next to the pump for between an hour and two hours. The clerk saw only the driver in the vehicle, and he never exited the vehicle. The driver appeared to be "slumped over" the steering wheel and was unresponsive when the clerk repeatedly attempted to speak to him through the two-way radio at the gas pump. Another gas station employee went out to the vehicle but was unable to get a response from the driver. The clerk then called 911.

Deputy Downey of the Cherokee County Sheriff's Department responded to the call. Deputy Downey approached the vehicle to determine whether there was a medical emergency — "to check on [the driver] and make sure he's breathing, make sure he didn't have a heart attack or something like that." He found Keller, the vehicle's only occupant, "slumped over against the steering wheel." After two or three attempts, he roused Keller, who was disoriented and unable to open the window. Deputy Downey asked Keller to open the vehicle's door; when Keller complied, Deputy Downey smelled alcohol. As Keller stepped out of the vehicle, "[h]e had to use the door to catch his balance," and Deputy Downey smelled alcohol on him. Keller admitted he had been drinking, and his speech was slurred.

When Deputy Downey asked Keller for his driver's license, Keller gave him his Visa check card. He subsequently produced an expired New Mexico driver's license. Deputy Downey asked Keller to walk to the front of the patrol vehicle, and Keller stumbled as he did so. When Deputy Downey asked Keller to perform field sobriety evaluations, Keller first agreed but then refused. He seemed confused, wondering why he was being asked to perform field sobriety tests and stating that he had not been sitting at the gas station for very long.

Deputy Downey placed Keller under arrest, read him the implied consent notice, and asked him to take a breath test. Keller agreed to take the test, and Deputy Downey placed him in the back of the patrol car. After speaking to another deputy, Deputy Downey returned to the vehicle, and Keller asked him why he had stopped him. Deputy Downey said, "You don't remember me coming up and you were asleep, you were passed out?" and Keller responded that he did not. Keller subsequently refused to take the breath test.

Keller argues that the evidence was insufficient to support his convictions because: (a) the State did not prove that he "was in actual physical control of a moving vehicle while under the influence of alcohol to the extent he was a less safe driver"; and (b) the State did not prove thate he was driving without a valid driver's license. We disagree.

(a) Keller contends that the State failed to prove he actually operated his vehicle while intoxicated. He claims that "[t]he only reasonable inference that can be drawn from the record is that [Keller] pulled into the gas station parking lot and came to rest . . . more than four hours prior to contact by the investigating officers and four hours after actual physical control of a moving vehicle ended." Keller's argument thus appears to be that he became intoxicated after he parked the vehicle.

Driving while intoxicated may be proven by circumstantial evidence.⁴ "[T]he evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt."⁵ Here, the gas station clerk saw Keller drive his vehicle from the public roadway into the parking lot, where he was found by police. Keller does not contest that he was intoxicated when Deputy Downey found him. This evidence, coupled with the fact that Keller never left the vehicle and was "slumped over" and unresponsive for a lengthy period of time before police arrived, was sufficient for a jury to conclude that Keller was intoxicated before arriving at the gas station and thus was in control of a moving vehicle while intoxicated.⁶

(b) At trial, Deputy Downey testified that Keller gave him a New Mexico driver's license that had expired on April 3, 2002, nearly three years earlier. No other evidence on this issue was presented. Keller asserts that, because the officer refreshed his recollection during direct examination from the original Uniform Traffic Citation he issued, the testimony is hearsay and therefore insufficient to support his conviction for driving with an expired license. While we agree that the Uniform Traffic Citation cannot be used as evidence of Keller's guilt,⁷ "[a] witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper."⁸ Thus, an officer's sworn testimony after refreshing his recollection with a police report or other document is admissible as evidence.⁹ And Keller's failure to produce a valid driver's license upon demand "`gave rise to a rebuttable, reasonable inference that he did not have a valid license.'"¹⁰ Accordingly, Deputy Downey's testimony was sufficient evidence for the jury to find Keller guilty of driving without a valid driver's license.¹¹

2. Keller argues that the trial court erred in denying his motion for recusal of the trial judge. Before trial, Keller filed a motion for recusal in which he alleged the trial judge was biased against him based on Keller's previous appearances before the judge. The trial court denied the motion, finding the supporting affidavit legally insufficient. On the day the trial began, Keller's counsel argued that the motion should be granted, but the trial court declined to revisit the motion.

We review a ruling on a motion to recuse for abuse of discretion.¹² A motion to recuse must be accompanied by a supporting affidavit that "shall clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements. . . ."¹³ Here, Keller's affidavit did not set forth specific details of the basis for his claim of bias; rather, it referenced the motion to recuse and averred "[t]hat to the best of his recollection, [Keller] related the remarks by the Judge contained in the Motion to Recuse or similar remarks" and "[t]hat the trial records in each case referenced in the Motion to Recuse reveal verbatim statements by the judge."¹⁴ While "`all pleadings shall be so construed as to do substantial justice,'" Keller's affidavit stops far short of certifying that all facts in the motion to recuse are true and accurate to the best of his knowledge.¹⁵ Most of the facts alleged in the motion are outside the ambit of Keller's limited affidavit. We therefore agree that this affidavit was legally insufficient to warrant recusal. ¹⁶

We further note that recusal is warranted only when the alleged bias is the product of an "extra-judicial" source and "[t]he fact that the judge has sat on prior cases of the party or ruled on prior matters in the case before the judge is legally insufficient as a ground for recusal."¹⁷ As all of the allegations of bias in the motion to recuse arise from what Keller terms his "history" in the judge's courtroom and chambers, we conclude that it did not state facts which, if true, would have required recusal.¹⁸ Moreover, none of the instances of "bias" alleged by Keller to have occurred during the trial are such that would require recusal. Thus, to the extent that Keller argues the judge should have recused himself sua sponte at trial, we find no merit to his claim.¹⁹

3. Keller contends that all evidence from his arrest should have been suppressed because Deputy Downey had no basis for suspecting him of criminal activity, and thus his detention was not justified. "On appeal from a denial of a motion to suppress, we construe the evidence in favor of the trial court's ruling, and [that] court's application of law to undisputed facts is subject to de novo review."²⁰ There are three tiers of police-citizen encounters recognized in Georgia: police-citizen communications involving no coercion or detention; "brief seizures that must be supported by reasonable suspicion"; and "arrests that must be supported by probable cause."²¹ "In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the...