Rielli v. State

• Decision Date: 13 March 1985
• Docket Number: No. 69223,69223
• Parties: RIELLI v. The STATE.
• Court: Georgia Court of Appeals

Page 104

330 S.E.2d 104

174 Ga.App. 220

RIELLI v. The STATE.

No. 69223.

Court of Appeals of Georgia.

March 13, 1985.

Rehearing Denied March 28, 1985.

G. Terry Jackson, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted for two counts of homicide by vehicle in the first degree, driving under the influence, operating a vehicle without insurance, operating a vehicle without a proper tag and driving too fast for conditions. Defendant entered his plea of guilty of the offenses of operating a vehicle without insurance and of operating a vehicle without a proper tag. At trial the jury returned verdicts of guilty as to the offenses of driving under the influence and driving too fast for conditions. The jury was unable to reach a verdict as to the two counts charging homicide by vehicle and a mistrial was declared as to these alleged offenses.

Defendant was sentenced on each of the counts to which there was a plea or verdict of guilty. Defendant appeals. Held:

1. Defendant contends the trial court erred in qualifying a State's witness as an expert on the effects of alcohol on the human body. The witness in question was a medical doctor. The witness testified that she had received her Doctor of Medicine degree in 1959, had done a residency in internal medicine, and had received training as to the effects of alcohol on the human body.

"Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed. Rouse v. Fussell, 106 Ga.App. 259(4), 126 S.E.2d 830. Generally nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession; and special knowledge involving a particular subject may be derived from experience as well as study and mental application. Carter v. Marble Products, Inc., 179 Ga. 122(1), 175 S.E. 480; Frazier v. State, 138 Ga.App. 640, 645, 227 S.E.2d 284." Dennis v. State, 158 Ga.App. 142, 143(3), 279 S.E.2d 275. See also Morris v. State, 159 Ga.App. 600, 601(1), 284 S.E.2d 103. We find no abuse of discretion by the trial court. This enumeration of error is without merit.

2. Defendant contends the trial court erred by restricting his voir dire questions to the jury panel concerning possible bias against the use of alcohol. The trial court refused to permit defendant to ask members of the panel: "[A]re your feelings about the use of alcohol such that you do not feel you could fairly and impartially hear this case?"

"Voir dire should allow both parties an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination. Whitlock v. State, 230 Ga. 700, 198 S.E.2d 865 (1973). However, no question should require a response from a juror which might amount to a prejudgment of the case. Jones v. Parrott, 111 Ga.App. 750(2), 143 S.E.2d 393 (1965). Since the distinction between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear, the 'control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion.' Lamb v. State, 241 Ga. 10, 12, 243 S.E.2d 59 (1978)." Waters v. State, 248 Ga. 355, 363, 283 S.E.2d 238.

We find no abuse of discretion, particularly since the trial court allowed defense counsel to inquire as to bias in an appropriate manner. Defense counsel was permitted to ask prospective jurors "[I]s there anything about the nature of the charges that this man's charged with that would make you feel like you couldn't properly, or you couldn't fairly hear this case and give a fair verdict?" This enumeration of error is without merit.

3. Defendant contends that certain blood test results should not have been admitted into evidence due to the failure of the State to comply with the provisions of Rule 570-9-.06 (11), Rules of the Department of Public Safety, as reported in the Official Compilations of the Rules and Regulations of the State of Georgia, Volume 8. Defendant quotes the present language of this regulation which requires the arresting officer to write the name of the person performing a chemical test (excluding the alcohol screening test) and the results of the test on the uniform citation form. The present language of the regulation reflects amendments of the regulation since the date in question, April 25, 1982. At that time the regulation was somewhat ambiguous, but construing the language most favorably to defendant, it directed that the arresting officer write the name of the person performing a chemical test on the uniform citation form. In the case sub judice the name of the person who performed the chemical test does not appear upon the uniform traffic citation charging defendant with driving under the influence.

Defendant argues that the admissibility of chemical test results is dependent upon the State's compliance with the rules and regulations promulgated by the Department of Public Safety. Defendant relies upon our decisions in State v. Johnston, 160 Ga.App. 71, 286 S.E.2d 47 (affirmed 249 Ga. 413, 291 S.E.2d 543); State v. Baker, 146 Ga.App. 608, 247 S.E.2d 160; and Willoughby v. State, 153 Ga.App. 434, 435(1), 265 S.E.2d 352. All of these cases involve Rule 570-9-.06(6), Rules of the Department of Public Safety, as reported in the Official Compilation of the Rules and Regulations of the State of Georgia, a rule mandated by the statutory language now contained in OCGA § 40-6-392(a)(1).

Although purportedly predicated upon Ga.L.1974, pp. 633, 672 (now OCGA § 40-6-392) (see OCGA § 50-13-5(b)) we find no authorization therein for Rule 570-9-.06(11). An administrative rule promulgated without statutory authority is invalid. Georgia Real Estate Comm. v. Accelerated Courses, Real Estate, 234 Ga. 30, 32(2), 214 S.E.2d 495. See also Crawley v. Seignious, 213 Ga. 810, 102 S.E.2d 38; O'Neal v. Ga. Real Estate Comm., 129 Ga.App. 211, 199 S.E.2d 362; Southern Co-Operative Foundry Co. v. Drummond, 76 Ga.App. 222, 45 S.E.2d 687; and State of Ga. v. Schafer, 82 Ga.App. 753, 757, 62 S.E.2d 446. Rule 570-9-. 06(11) is a mere policy statement which lacks the force and effect of law. Consequently we find no harm to defendant in any failure to adhere to this Rule. This enumeration of error is without merit.

4. During the cross-examination of defendant the following exchange occurred: "Q. Have you, Mr. Rielli, any idea that you can impart to this jury as to how Larry Dean Rielli acts when he's loaded up to point...