Keys v. State

• Decision Date: 06 September 2022
• Docket Number: A22A0852
• Citation: 365 Ga.App. 284,878 S.E.2d 133
• Parties: KEYS v. The STATE.
• Court: Georgia Court of Appeals

365 Ga.App. 284

878 S.E.2d 133

KEYS

v.The STATE.

A22A0852

Court of Appeals of Georgia.

September 6, 2022

Agbor Adolph Ebot Tabi, Acworth, for Appellant.

Jonathan Lang Adams, District Attorney, Dorothy Vinson Hull, Jessica Brooke Haygood, Assistant District Attorneys, for Appellee.

Phipps, Senior Appellate Judge.

A jury convicted Jaquan Marquell Keys¹ of two counts of fleeing or attempting to elude a police officer and various misdemeanor traffic offenses.² Keys appeals, asserting that the trial court erred in (1) running his misdemeanor traffic sentences consecutively, (2) admitting a video recording into evidence, and (3) denying his motion to suppress without a hearing. For the reasons that follow, we affirm Keys's convictions and sentences.

Viewing the record in a light most favorable to the verdict, see Thompson v. State , 358 Ga. App. 553, 553, 855 S.E.2d 756 (2021), the evidence shows that on February 17, 2019, a Lamar County officer monitoring traffic saw a car with heavily tinted windows pass his vehicle. The officer attempted to initiate a traffic stop, but the vehicle fled, and a chase ensued.

After approximately one mile, the vehicle entered Monroe County, where Monroe County and Georgia State Patrol officers joined the chase. During the pursuit, the vehicle traveled over 100 miles per hour, made unsafe lane changes, drove too closely to other vehicles, and traveled in the emergency lane. Police eventually stopped the vehicle using a special maneuver technique, and they removed from the vehicle both Keys, who was driving, and his passenger. Keys was taken into custody for fleeing or attempting to elude the police, but the passenger of the vehicle was released. Officers then determined that Keys did not have a valid driver's license.

Keys ultimately was charged with two counts of fleeing or attempting to elude a police officer and five misdemeanor traffic violations. The case was tried before a jury, which found him guilty on all counts. The trial court imposed a total sentence of five years in prison, to be followed by five years on probation, consisting of: five years on each count of fleeing or attempting to elude a police officer, to run concurrently with each other, and twelve months each, to run consecutively to each other and to the fleeing or attempting to elude counts, on the misdemeanor traffic convictions. Keys appeals from his convictions and sentences.

1. Keys first argues that the trial court erred in imposing consecutive sentences on the misdemeanor traffic offenses. According to Keys, "[t]he jury fixes the sentence within the limits prescribed by law and the judge imposes the sentence fixed by the jury as provided by law." Therefore, Keys argues, he should not have received consecutive misdemeanor sentences because the jury did not specify that the sentences should run consecutively. This argument lacks merit.

Keys's reliance on cases decided under former Code Ann. § 27-2534 — which stated that "[t]he jury shall fix a sentence within the limits prescribed by law" and that "[t]he judge shall impose the sentence fixed by the jury as provided by law" — is misplaced. See Wade v. State , 231 Ga. 131, 134 (II), 200 S.E.2d 271 (1973) ; see also Hicks v. State , 232 Ga. 393, 403-404, 207 S.E.2d 30 (1974) ; Gandy v. State , 232 Ga. 105, 106, 109, 205 S.E.2d 243 (1974). In 1974, Code Ann. § 27-2534 was repealed and former Code Ann. § 27-2502 — now codified at OCGA § 17-10-1 — "was amended so as to provide that a person convicted of a misdemeanor or felony shall have his sentence fixed by the trial judge except in cases in which life imprisonment or capital punishment is imposed." Sheffield v. State , 235 Ga. 507, 508 (6), 220 S.E.2d 265 (1975) ; see also OCGA § 17-10-1. Under the new sentencing code, "the judge and not the jury passes sentence after a determination of guilt."

Huff v. State , 135 Ga. App. 134, 135 (4), 217 S.E.2d 187 (1975) ; see also Miller v. State , 351 Ga. App. 757, 769 (2) (b), 833 S.E.2d 142 (2019) ("[C]oextensive with their ability to impose a sentence that fits the crime, trial courts have great discretion in determining whether to run sentences concurrently or consecutively.") (citation and punctuation omitted); OCGA § 17-10-1.

Keys's misdemeanor traffic offenses were committed in 2019, well after the old sentencing guideline was repealed in 1974. Therefore, contrary to Keys's assertion, the jury in his case had no authority over his sentence. "[T]he discretion as to whether the sentences were served concurrently or consecutively resided entirely and solely within the breast of the trial judge, unaffected and uninfluenced by any recommendation of the jury in such respect." Huff , 135 Ga. App. at 135-136 (4), 217 S.E.2d 187 ; see also Miller , 351 Ga. App. at 769 (2) (b), 833 S.E.2d 142 ("[T]here is no limitation on [the] broad discretion that would preclude a trial court from running sentences partially concurrent and partially consecutive to one another.") (citation and punctuation omitted). The trial judge in this case therefore properly exercised his discretion to impose consecutive twelve-month sentences for the misdemeanor traffic offenses. See Huff , 135 Ga. App. at 135-136 (4), 217 S.E.2d 187 ; OCGA §§ 40-5-121 (driving without a license constitutes a misdemeanor), 40-6-1 (a) (violations of the uniform rules of the road, unless otherwise specified, constitute misdemeanors), 40-6-390 (b) (reckless driving constitutes a misdemeanor); see also OCGA § 17-10-3 (a) (the maximum term of confinement for a misdemeanor is 12 months).

2. Keys next contends that the trial court erred in allowing a video recording into evidence. According to Keys, the State introduced two dash camera video recordings into evidence, but produced only one during discovery. Pretermitting whether Keys's assertion regarding the State's pretrial production of evidence is correct, this Court is limited to plain error review because Keys did not object to the admission of either recording at trial. See Rainwater v. State , 300 Ga. 800, 802 (2) & n. 3, 797 S.E.2d 889 (2017) (explaining that appellate courts review unobjected-to evidentiary rulings for plain error). "To establish plain error, an appellant must identify an error that was not affirmatively waived, was clear and not open to reasonable dispute, likely affected the outcome of the proceeding, and seriously affected the fairness, integrity, or public reputation of judicial proceedings." Butler v. State , 363 Ga. App. 753, 759 (3), 871 S.E.2d 902 (2022) (citation and punctuation omitted); accord Adams v. State , 344 Ga. App. 159, 163 (1), 809 S.E.2d 87 (2017).

Here, Keys not only failed to object to the admission of both dash camera video recordings, but he affirmatively waived any such objection. When the video recordings were tendered at trial, Keys's attorney stated, "The defense has no objection, Your Honor." Thus, Keys cannot demonstrate the first prong of plain error review, and this enumeration of error fails. See Adams v. State , 306 Ga. 1, 3-4 (1), 829 S.E.2d 126 (2019) (on plain error review, defense counsel's affirmative statement that he had no objection to the introduction of evidence waived any claim that the trial court improperly admitted the evidence).

3. Finally, Keys asserts that the trial court erred in denying his motion to suppress. Specifically, Keys takes issue with the fact that "the trial court denied his motion after a brief inquiry that last[ed] about four minutes." We find no error.

In his motion to suppress, Keys sought suppression of "all evidence resulting from [his allegedly] illegal seizure," including (1) evidence seized from the car he was driving and testimony regarding any such evidence, (2) testing performed on any seized evidence, and (3) statements made by him. The trial transcript demonstrates that the court addressed Keys's motion to suppress prior to trial. During the trial court's inquiry, the State informed the court, "This is a felony fleeing case. There was no seizure of any contraband or anything. There is nothing to suppress." In addition, the State twice informed the trial court that "there are no statements that are being put in as part of this trial." The trial court assured Keys that if the State sought to introduce any statements made by him, they would not be allowed into evidence, and it denied Keys's motion to suppress.

Although Keys argues on appeal that the trial court's brief inquiry violated his constitutional right to due process because it did not allow him the opportunity to call witnesses, introduce evidence, or permit his counsel further argument, our review of this claim is hampered by Keys's "failure to specify which evidence he contends was wrongfully admitted and, if he...