The State v. Warren

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 12, 2016

In the Court of Appeals of Georgia
A16A0715. THE STATE v. WARREN.

PETERSON, Judge.

The State appeals the trial court’s orders granting in part a motion to suppress

filed by Charles Albert Warren and denying the State’s subsequent motion to reopen

evidence in this DUI case. The trial court ruled that the results of a preliminary breath

test performed on Warren were inadmissible because the State did not lay the proper

foundation for admission of those results. The State argues that its failure to lay the

proper foundation for admission of the test results is due to the trial court’s error in

sustaining an objection to a question of the officer who performed the breath test.

Because the State does not proffer the testimony that the officer would have given but

for the sustained objection, we affirm the trial court’s order granting in part Warren’s
suppression motion. The trial court did not abuse its discretion in declining to reopen

the evidence to allow the State to ask the objected-to question again.

1. “On appeal from a ruling on a motion to suppress, we construe the evidence

most favorably to affirming the trial court’s factual findings and judgment.” Brooks

v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007). So viewed, on June 20, 2014,

a sergeant with the Union County Sheriff’s Office observed Warren driving a

motorcycle in his direction. The sergeant saw Warren, driving at a high rate of speed,

pass a camper in a no-passing zone. The sergeant activated his blue lights and

pursued Warren. Warren turned onto a dirt road and parked behind a house, where the

sergeant found him sitting on his motorcycle.

The sergeant noticed that, after Warren dismounted from his motorcycle, he

was unsteady on his feet, his eyes were bloodshot, his speech was slurred, and he had

an odor of alcohol. Warren asked whether he was in North Carolina – the sergeant

replied that he was in Georgia – and at one point appeared to be talking to himself.

The sergeant asked a deputy who had arrived to administer a preliminary breath test

with his handheld device. Warren complied, yielding a result positive for the presence

of alcohol. Warren declined the sergeant’s request to perform some field sobriety

tests, citing a prior injury. The sergeant informed Warren that he was under arrest,

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handcuffed him, and placed him in a patrol car. The sergeant read Warren the implied

consent notice and requested that he submit to a blood test. Warren declined.

Warren was charged by accusation with DUI less safe, driving with an expired

license, speeding, and improper passing. Warren filed several motions seeking

exclusion of various evidence, including the results of the preliminary breath test. The

trial court held a suppression hearing at which both the sergeant who stopped Warren

and the deputy who administered the breath test testified.

To be considered valid for use in a DUI case, a chemical analysis of a

defendant’s breath

shall have been performed according to methods approved by the
Division of Forensic Sciences of the Georgia Bureau of Investigation on
a machine which was operated with all its electronic and operating
components prescribed by its manufacturer properly attached and in
good working order and by an individual possessing a valid permit
issued by the Division of Forensic Sciences for this purpose. The
Division of Forensic Sciences of the Georgia Bureau of Investigation
shall approve satisfactory techniques or methods to ascertain the
qualifications and competence of individuals to conduct analyses and to
issue permits, along with requirements for properly operating and
maintaining any testing instruments, and to issue certificates certifying
that instruments have met those requirements, which certificates and

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 permits shall be subject to termination or revocation at the discretion of
the Division of Forensic Sciences.

OCGA § 40-6-392(a)(1)(A).

At the suppression hearing, the State attempted to show that the preliminary

breath test satisfied these requirements through the testimony of the deputy who

administered the breath test to Warren. After the deputy testified that Warren had

performed the test on his handheld Alco-Sensor, the prosecutor began to ask the

deputy, “And was that device, the handheld Alco-Sensor, authorized by the Division

of Forensic Sciences – “ Before the prosecutor could complete her question, defense

counsel objected to the question as leading. The trial court sustained the objection.

The prosecutor tried to reframe her question, but apparently did not get the answer

she was looking for:

Q. Have you used that device before?

A. Yes.

Q. And is it issued to you by your department?

A. Yes.

Q. And what approval or certification does that device have?

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 A. I’m not sure how to answer that question. It was — it was handed
out from chain of command for use for those types of tests.

The prosecutor continued on later:

Q. As a law enforcement officer, who, if anyone, is responsible for
establishing protocols for preliminary breath tests, to your knowledge
and experience?

A. Normally it’s the investigating officer, the officer that first made
contact with the subject.

Q. Maybe I asked it wrong. As a law enforcement [officer], in your
knowledge and experience, who, if anyone, is responsible for
authorizing the use of certain devices for preliminary breath tests?

A. Anyone that actually was given a handheld Alco-Sensor and they
know its functions and how to use it. Not everyone in the department
has one.

Q. Right. Do you know who authorizes — in your experience as a
law enforcement officer, who, if any[one], authorizes particular devices
to be used?

A. That would be the sheriff.

Q. Who authorizes the sheriff to use certain devices?

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 A. I would imagine GBI.

No further evidence regarding the permitting or certification of the breath testing

device was presented.

At the suppression hearing, defense counsel argued that the breath test results

should be excluded for the State’s failure to lay a foundation. In response, the State

complained that it had tried to a lay a foundation but had been stymied by the defense

objection, arguing that the State may ask leading questions when laying the

foundation for scientific evidence and reports. The prosecutor added that a foundation

would be laid at trial.

The trial court denied most of Warren’s motions, but excluded the results of the

preliminary breath test. The trial court concluded that the State did not lay a

foundation that the device used for the test was approved by the Division of Forensic

Sciences of the Georgia Bureau of Investigations for use as a preliminary screening

device. “The officer just didn’t have it[,]” the trial court said at the hearing. “He

didn’t have the knowledge.” The State filed a motion to reconsider and a motion to

reopen the evidence. Both were denied after a hearing.

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 The State filed an interlocutory appeal. On appeal, the State argues that the

objected-to question was not leading because it called for a “yes” or “no” answer.

Alternatively, the State argues that even if the question were leading, the deputy

should have been permitted to answer because the question was necessary to

developing his testimony. The State seeks remand so that it may ask the objected-to

question again in order to lay the proper foundation for the admission of the breath

test results.

Regardless of whether the question was leading, however, we must affirm.

“This court is not an expounder of theoretical law,” and it “corrects only such errors

as have practically wronged the complaining party.” Hall v. State, 202 Ga. 619, 620-

21 (2) (44 SE2d 234) (1947). A judgment will not be reversed on the basis that the

trial court refused to allow a witness to testify “where the record does not show what

testimony the witness was expected to give.” Williams v. Ricks, 152 Ga. App. 555,

558 (2) (263 SE2d 457) (1979). Here, the prosecutor did not tell the trial court what

the deputy’s answer to the prosecutor’s question would have been had he been

allowed to answer. Instead, in responding to the defense counsel’s argument that the

breath test results should be excluded due to the State’s failure to lay a foundation,

the State merely argued that the officer had testified that he believed the breath testing

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device “was authorized for the use by the sheriff, by the GBI,” complained that the

State’s attempts to lay a foundation had been frustrated by the defense objection, and

represented that any additional steps needed to lay a foundation would be taken at

trial. Therefore, the ruling on the defense objection to the question is not a basis for

reversal. See Hall, 202 Ga. at 620 (2) (no basis for reversal in trial court’s refusal to

allow defendant to call prosecutor to testify; given that defense counsel “failed even

so much as to intimate to the court what he expected to prove by the witness”);

Murphy v. Milo, 272 Ga. App. 200, 202 (3) (612 SE2d 56) (2005) (affirming civil

verdict despite appellant’s argument that his attorney was not permitted to ask him

leading questions, as appellant “fail[ed] to cite a proffer of any evidence that the

court’s instruction precluded him from presenting to the jury” or “even argue how the

exclusion of the unidentified evidence harmed him”); Williams, 152 Ga. App. at 558

(2) (rejecting appeal based on trial court’s refusal to allow a particular question of a

witness; appellants abandoned line of questioning and attorney did not “make an offer

as to what he thought the witness’ answer might be”).

Without knowing how the deputy might have answered the prosecutor’s

question, we do not know whether the State was harmed by any erroneous ruling on

the defense objection. We cannot assume the answer to the prosecutor’s question

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would have been “yes,” and, indeed, the State merely requests that it be given a new

chance to ask it on remand. And testimony by the deputy strongly suggests that he did

not know the answer to the question: When he finally thought of the GBI as a

potential suspect in the prosecutor’s quest for an answer as to who authorized the

preliminary screening device, he merely said he “would imagine” that agency was

responsible. Because the State did not offer a contrary proffer as to how the deputy

might have answered the objected-to question, we affirm the trial court’s ruling on

the suppression motion.

2. The State also included in its Notice of Appeal a challenge to the trial

court’s denial of its motion to reopen the evidence.

Whether to reopen the evidence is a matter which rests within the sound
discretion of the trial court. A trial court’s ruling in this regard will not
be reversed in the absence of an abuse of discretion. Whether there has
been a reversible abuse of discretion requires a consideration of the
totality of the circumstances.

Carruth v. State, 267 Ga. 221, 221-22 (476 SE2d 739) (1996) (citations omitted).

Here, the trial court ruled that it would not reopen the evidence because the

suppression hearing “was the day to get [the foundational evidence] in” and, if the

court were to grant the motion, it “would be inviting everyone to ask to open evidence

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every time [the court] ruled against them.” The State has not challenged this

reasoning on appeal, or even argued specifically in its brief that the trial court erred

in denying the motion to reopen evidence. The State on appeal merely asks that it be

given a new opportunity to ask the objected-to question because it was improperly

deemed a leading question. We cannot say the trial court abused its discretion in

denying the State’s request to reopen the evidence.

Judgment affirmed. Phipps, P. J., and Dillard, J., concur.

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