Mann v. State
| Decision Date | 12 April 2007 |
| Docket Number | No. A07A0212.,A07A0212. |
| Citation | 645 S.E.2d 573,285 Ga. App. 39 |
| Parties | MANN v. The STATE. |
| Court | Georgia Court of Appeals |
Thomas Holt Hyman, Cordele, for appellant.
Timothy Grady Vaughn, District Attorney, Russell Paradise Spivey, Assistant District Attorney, for appellee.
We granted Sean Mann's application for discretionary appeal of the trial court's order revoking the remaining 14 years of his probation. Mann contends that the trial court erred by admitting the results of a Roche "OnTrack TesTstik" without a showing that the test had reached a scientific state of verifiable certainty, which would allow admission of the test's results in the absence of expert testimony. For the reasons set forth below, we agree, vacate the trial court's order revoking the balance of Mann's probation, and remand this case with direction.
A court may revoke probation based upon alleged violations of probation conditions if "evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged." OCGA § 42-8-34.1(b). And this Court will not interfere with a revocation absent manifest abuse of discretion on the part of the trial court. Cheatwood v. State, 248 Ga.App. 617, 621(2), 548 S.E.2d 384 (2001). Accordingly, "[i]f admissible evidence is presented in support of the allegations regarding revocation of probation, this court will affirm." (Citations omitted.) Young v. State, 265 Ga. App. 425, 426, 594 S.E.2d 667 (2004).
Viewed in this light, the record shows that, on July 7, 1997, Mann was sentenced to twenty years of probation for aggravated assault and five years probation for possession of a firearm by a convicted felon, to be served concurrently. The trial court imposed general conditions of probation and special conditions requiring Mann to pay restitution to the victims and to serve 120-180 days in a detention center.
On June 7, 2006, the State petitioned the superior court to revoke Mann's probation because he possessed cocaine based on a positive urine test (Count 1), violated a curfew (Count 2), moved and failed to report his new address (Count 3); and failed to pay his court-ordered fines and victim restitution (Count 4). Mann admitted Count 4 and denied the remaining allegations against him. The State subsequently abandoned Count 2.
Evidence presented during the hearing on the petition showed that Mann was involved in a fight and taken to a hospital where he received stitches on his head. A probation officer went to the hospital and tested Mann's urine for the presence of drugs using a Roche OnTrack TesTstik. The test results were positive for cocaine.
Mann told the probation officer that hospital personnel gave him two medications in the emergency room: Scelaxin and Diclofenac. The probation officer testified that he understood that Scelaxin was a muscle relaxer and that he was not familiar with diclofenac. The probation officer admitted that he did not determine from hospital personnel whether any additional medications might have been given to Mann for pain. The probation officer admitted that he did not know whether Mann might have been given a medication that would affect his drug test results.
The probation officer testified that he was trained on how to administer the test by Roche Diagnostics, that he was certified to use it, that he had used it approximately 300-400 times, that he had previously been allowed to testify about the results of this test in Georgia Superior Courts, that based on his training, the drugs identified by Mann would not have caused a false positive test result, that based on his training, he did not know of anyone who prescribed cocaine for pain, and that he had not been told that a pain medication like Lidocaine could cause a positive test result. The probation officer acknowledged that he was not a chemist, that he did not know how the test worked, that Mann "more than likely" had been given a medication for pain, and that he did not know if the medication could have affected the test results.
Mann objected to the admission of the OnTrack TesTstik results in the absence of expert testimony laying the foundation for the accuracy of the test. The trial court took the issue under advisement to study the law, and ruled two days later that it would
admit the results of the test. I think that the test has achieved a certain level of acceptance in the state of Georgia. In this court, or at least in courts in this circuit[ ], we have, in the past, had representatives that were expert more than just administrators of the test, but other representatives. It has been accepted in this state and in this circuit, the results of the On-Track method for cocaine. I don't find that there was any other substance that could give you a cross positive or false positive for the condition that was testified about. You did not testify. But was testified about, the injury to your head. If you had been given a general pain killer, it would have been probably a morphine base or some other narcotic, not cocaine. So, I don't find that to be likely in this case. So I find that you violated your probation as alleged in all four counts.
1. In his sole enumeration of error, Mann asserts that the trial court erred by admitting the test results because the test has not yet reached "a scientific state of verifiable certainty." In Harper v. State, 249 Ga. 519, 525-526(1), 292 S.E.2d 389 (1982), the Georgia Supreme Court held that it is proper for the trial court to decide whether a scientific procedure or technique has reached a scientific state of verifiable certainty such that it may be admitted into evidence without taking specific evidence regarding the reliability of the procedure.1
The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.
(Citations omitted; emphasis supplied.) Id.
In Grinstead v. State, 269 Ga.App. 820, 605 S.E.2d 417 (2004), this court held that "[o]ne case is not enough" under this standard. Id. at 822(1), 605 S.E.2d 417. Here, the trial judge appears to have relied upon only one reported Georgia decision to support his decision. See Cheatwood supra, 248 Ga.App. at 620(1), 548 S.E.2d 384 (2001) (). Our research has revealed no other Georgia case finding that the OnTrack TesTstik is reliable based upon expert testimony.
There are, however, several reported Georgia decisions finding that the test has not yet reached a scientific state of verifiable certainty that would justify its admission in the absence of expert testimony. Grinstead, supra; Bowen v. State, 242 Ga.App. 631, 633, 531 S.E.2d 104 (2000); Kendrick v. State, 240 Ga.App. 530, 532(2), 523 S.E.2d 414 (1999) (physical precedent only); Hubbard v. State, 207 Ga.App. 703, 704, 429 S.E.2d 123 (1993). As a result, a substantial number of courts do not appear to have concluded that the test has been established with verifiable certainty.
Our analysis does not end here, however, because the trial court also relied upon expert testimony taken in other cases at the trial court level to support its conclusion that expert testimony was not needed in the case before it. While taking judicial notice of testimony in other cases before the...
To continue reading
Request your trial
-
The People Of The State Of Colo. v. Loveall
...similar rules. See, e.g., State v. Street, 28 Kan.App.2d 291, 16 P.3d 333, 335 (2000) (adopting Ojeda rule); Mann v. State, 285 Ga.App. 39, 645 S.E.2d 573, 577 (2007) (applying substantially similar Shepard v. State, 939 So.2d 311, 315 (Fla.App.2006) (same); Brundridge v. Bd. of Parole and ......
-
Disharoon v. State
... ... App. at 579(3), 574 S.E.2d 561 ... 24. Hardeman v. State, 280 Ga.App. 168, 171(4), 633 S.E.2d 595 (2006) ... 25. A court may not take judicial notice of any fact without first announcing its intention on the record and the giving the parties an opportunity to respond. See Mann ... ...
-
Brown v. State
...the State had to prove that both packages of cocaine . . . were constructively possessed by Brown"). 19. See Mann v. State, 285 Ga.App. 39, 43(2), 645 S.E.2d 573 (2007). ...
-
Gaddis v. the State.
... ... [I]f a trial court intends to take judicial notice of any fact, it must first announce its intention to do so on the record, and afford the parties an opportunity to be heard regarding whether judicial notice should be taken. (Citation and punctuation omitted.) Mann v. State, 285 Ga.App. 39, 42, 645 S.E.2d 573 (2007). Here, the trial court did just that, announcing its intention to take judicial notice of the prior court ruling in question and giving the parties an opportunity to be heard on that issue. Moreover, even though the trial court judicially noticed ... ...
-
Evidence - Marc T. Treadwell
...55 Mercer L. Rev. 249, 260 (2003) (explaining the Harper test). 141. Carlson, 280 Ga. App. at 598, 634 S.E.2d at 414. 142. See id. 143. 285 Ga. App. 39, 645 S.E.2d 573 (2007). 144. Id. at 39, 645 S.E.2d at 574. 145. Id. at 41, 645 S.E.2d at 576. 146. Id. 147. Id. (citing Grinstead v. State,......