Rowell v. State

• Decision Date: 15 November 2011
• Docket Number: No. A11A1231.,A11A1231.
• Citation: 312 Ga.App. 559,11 FCDR 3771,718 S.E.2d 890
• Parties: ROWELL v. The STATE.
• Court: Georgia Court of Appeals

11 FCDR 3771

312 Ga.App. 559

718 S.E.2d 890

ROWELL

v.The STATE.

No. A11A1231.

Court of Appeals of Georgia.

Nov. 15, 2011.

Gregory Wayne Holt, Warner Robins, for appellant.

Alan Robert Tawse, Jr., Sol.–Gen., Arthur J. Creque, Asst. Sol.–Gen., for appellee.

ADAMS, Judge.

Laura Lee Rowell appeals following her conviction on one count of driving under the influence and one count of weaving/failure to maintain lane. Rowell argues on appeal that the trial court erred in denying her motion to suppress and in overruling her objection to the introduction of the numerical results of her alco-sensor test.

We review a trial court's ruling on a motion to suppress evidence using the “any evidence” standard, “which means that we sustain all of the trial court's findings of fact that are supported by any evidence.” Thus, “we construe all evidence presented in favor of the trial court's findings and judgment”, accepting the trial court's decision unless it is clearly erroneous.

(Punctuation and footnotes omitted.) Jupiter v. State, 308 Ga.App. 386, 387(1), 707 S.E.2d 592 (2011).

So viewed, the evidence at the hearing showed that on November 15, 2007, Trooper John Hardage of the Georgia State Patrol was sitting at an intersection in Houston County when he observed Rowell's Ford van traveling at what appeared to be a speed greater than the posted speed limit. He watched the van as it approached a red light at another intersection, slammed on its brakes and skidded past the stop bar. When the van came to a stop it was mostly in the left-hand lane, but partially in the right-hand lane. At that point, Hardage made a left turn and got behind Rowell's van and followed her through the intersection when the light turned green. The trooper activated his blue lights and initiated a traffic stop based upon his concern about Rowell's reaction time at the red light. His concern arose from observing her slamming on her brakes and skidding across the stop bar “basically into the intersection” and over into the next lane. He felt that she was a less safe driver.

Hardage testified that he approached the van and asked Rowell to step out. She could not find her driver's license in response to his request, but she gave him her name and date of birth. While he was talking to Rowell, Hardage noticed an odor of alcoholic beverage. He also observed that her eyes were “somewhat red” and she was a little unsteady while she was standing between her vehicle and the police car. Her speech was “just a little slurred.” Hardage asked Rowell if she had had anything to drink, but she said that she had not. Hardage then administered several field sobriety tests. The first test he performed was the horizontal gaze nystagmus (HGN) evaluation, and he testified that he observed six out of six clues in performing that test. Hardage next asked Rowell to perform the one-leg-stand test, and he observed that she was swaying and she could not hold her foot up for more than about three seconds without having to put it down. Rowell attempted the test on three occasions and could not perform it. Hardage did not administer the walk-and-turn test due to wind and limited space, but he did administer the alco-sensor test. Rowell tested positive for alcohol. Hardage further testified, over a defense objection, that the numerical reading on the alco-sensor was 0.208.

Based upon this information, Hardage formed the opinion that Rowell was a less safe driver under the influence of alcohol. Hardage placed Rowell under arrest for DUI and failure to maintain lane, then handcuffed her and put her in the back of the patrol car. He testified that he read her the implied consent warning after he placed her under arrest.

The trial court issued a letter order denying the motion to suppress after reviewing the evidence from the hearing, the video of the traffic stop, the audio transcript of the administrative license suspension (“ALS”) hearing, counsel's argument and case law. The denial of that order was reaffirmed at trial.

1. Rowell first asserts that the trial court erred in denying her motion to suppress the state's chemical test, arguing that Hardage lacked probable cause to arrest her for DUI. In support of her argument, Rowell argues that inconsistencies exist among Hardage's testimony at the motion hearing, his trial testimony and the videotape of her traffic stop as to when he first detected the odor of alcohol, whether Rowell's speech was slurred, her red eyes, his administration of the field sobriety tests and whether Rowell was unsteady on her feet when she walked back to her car.

But we cannot reach this issue because the record before us is incomplete, as it contains no transcript of the ALS hearing, upon which the trial court specifically relied in denying the motion to suppress. It appears that at the motion hearing, Rowell's counsel proffered Hardage's “sworn testimony” from that ALS hearing, in some form other than a transcript, which he had marked as “D2,” but no Exhibit D2 was introduced into evidence. It further appears that Rowell's counsel attempted to introduce a copy of the transcript of the ALS hearing at trial, after marking it as Exhibit “D1,” but the trial court excluded the evidence in response to the State's objection. The trial court told Rowell's counsel that he thought he could supplement the record with that transcript, but the appellate record reflects no attempt by Rowell to do so.

Nevertheless, it is apparent that the trial court relied upon a transcript of that evidence at Rowell's request following the motion hearing. Consequently, the record on appeal does not constitute a complete record of the evidence available to the trial court in ruling on the motion to suppress. Rowell, as appellant, had the burden of ensuring that the record was complete. See Williams v. State, 287 Ga.App. 361, 362(2), 651 S.E.2d 768 (2007).

An appellant has the burden of proving trial court error by the appellate record, and must compile a complete record of what transpired in the trial court. Otherwise, there is not sufficient information for an appellate court's review and the trial court ruling enumerated as error must be upheld. When a portion of the evidence bearing upon the issues raised by the enumerations of error is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. [Cit.]

(Citation and punctuation omitted.) Crawford v. State, 288 Ga. 425, 427(2), 704 S.E.2d 772 (2011). See also State v. Stelzenmuller, 285 Ga.App. 348, 351(1), 646 S.E.2d 316 (2007) (because trial court excluded the administrative hearing transcript from evidence, this transcript cannot be used to consider trial court's credibility determination). Although on appeal Rowell relies only upon testimony and evidence appearing in the appellate record to support her arguments, this Court has an incomplete picture of the evidence available to the trial court when it decided the motion. “[B]ecause appellant has failed to compile a record that demonstrates all that transpired in the trial court with regard to his suppression motion, we must presume that the evidence before the court supported its decision to deny the motion.” Crawford, 288 Ga. at 427(2), 704 S.E.2d 772. Thus, we must assume that the trial court properly resolved any inconsistencies between Hardage's testimony at the various hearings and the videotape.

2. Nevertheless, Rowell also raises certain issues based primarily upon the videotape of the traffic stop that can be resolved based upon the existing appellate record.

(a) Rowell takes issue with Hardage's administration of the HGN and the one-leg-stand tests as shown on the videotape of the traffic stop. We find no error. With regard to the HGN test, Rowell asserts that “[t]he distance the stimuli is from the face and height above the eyes, the timing of each pass of each eye by the stimulus, clues of ‘equal tracking’ being looked for by the Officer, instead of the three recognized clues, all indicate a flawed and butchered performance not worthy of belief.” But “[a]bsent a fundamental error, such as one affecting the subject's qualification for the HGN test, evidence of the possibility of error goes only to the weight of the test results, not to their admissibility.” (Punctuation and footnote omitted.) Parker v. State, 307 Ga.App. 61, 64(2), 704 S.E.2d 438 (2010). See also Duncan v. State, 305 Ga.App. 268, 272(2)(a), 699 S.E.2d 341 (2010); State v. Tousley, 271 Ga.App. 874, 881(1)(c), 611 S.E.2d 139 (2005). Rowell's conclusory argument regarding the HGN test does not support the exclusion of the test results. She makes no attempt to show that the flaws she alleges in the administration of the HGN test go to anything other than the weight to be accorded the results. Similarly, Rowell's arguments concerning the proper administration of the one-leg-stand test when she was in high heels goes to the weight of the evidence and not to its admissibility. See Stewart v. State, 280 Ga.App. 366, 368–369(2), 634 S.E.2d 141 (2006). Thus, the trial court was entitled to consider the results of these tests in ruling upon the motion to suppress.

(b) Rowell also raises several arguments regarding the administration of the alco-sensor test, asserting that she was improperly coerced into taking the test without the benefit of a Miranda warning.

Alco-sensor and other field sobriety tests given to a person under custodial arrest are inadmissible where administration of the tests has not been preceded by a Miranda warning. Although a motorist is deprived of his freedom of action during a traffic stop, such a deprivation does not always trigger the rights set forth in Miranda. Instead, the test for determining whether a person is “in custody” at a traffic stop is if a reasonable person in the suspect's position would have thought the detention would not be temporary. Whether one is...