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Adams v. State

Court of Appeals of Georgia, First Division

December 27, 2017

ADAMS
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         A Hall County jury found Gregory Claude Adams guilty of driving under the influence of alcohol to the extent that he was less safe to drive ("DUI"), failure to maintain lane, and following too closely. On appeal, Adams challenges the introduction of testimony and documentary evidence of a stipulation reached at an administrative civil hearing pertaining to the suspension of his driver's license and the introduction of a prior incident in which he was arrested for DUI. For the reasons discussed below, we affirm.

         "On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." (Citation and punctuation omitted.) Danley v. State, 342 Ga.App. 61, 61 (802 S.E.2d 851) (2017). So viewed, the evidence shows that on the afternoon of July 2, 2016, a trooper with the Georgia State Patrol was traveling southbound on Georgia State Route 11 when he saw an overturned pickup truck down an embankment off the shoulder of the highway. The driver had exited from the overturned truck and walked back up to the shoulder of the highway, and the trooper stopped his patrol car and approached the driver, who identified himself as Adams. The trooper asked Adams whether he was okay, and Adams indicated that he was fine. Adams told the trooper that he had been traveling southbound on the highway when the vehicle in front of him abruptly stopped and turned onto a side street. According to Adams, he had swerved to the shoulder to avoid the vehicle, lost control of his truck, and crashed down the embankment. As Adams spoke, the trooper noticed a strong odor of alcohol coming from his breath and observed that he had bloodshot eyes and slowed speech.

         After Adams was checked by emergency medical personnel who had responded to the scene, the trooper continued speaking with him. Adams denied having anything to drink and declined to take a preliminary breath test and the walk-and-turn and one-leg stand field sobriety tests. However, Adams agreed to take the horizontal gaze nystagmus ("HGN") field sobriety test and exhibited six out of six clues of impairment.

         Based on Adams' description of what had occurred on the highway, the crash scene, his physical manifestations, and his performance on the HGN test, the trooper concluded that Adams had been driving under the influence of alcohol and arrested him for DUI. The trooper read Georgia's implied consent notice for suspects over the age of 21 to Adams and requested that he take a State-administered blood test. Adams declined to take the test.

         Adams was charged by accusation with DUI less safe, failure to maintain lane, and following too closely.[1] The trooper who had arrested Adams also filed a sworn report with the Department of Driver Services to initiate the process of administratively suspending Adams's driver's license based on his refusal to take the State-administered blood test.[2] However, at the subsequent administrative license suspension ("ALS") hearing, the trooper and Adams's defense counsel agreed that Adams would enter a guilty plea to the DUI charge in the criminal case in exchange for the trooper withdrawing his sworn report and suspending the ALS proceeding.

         Consequently, the trooper and defense counsel filed a joint motion to withdraw the suspension of Adams's driver's license that memorialized the stipulation reached by the parties (the "ALS Stipulation"). The ALS Stipulation pertinently stated:

Come now the parties in the above styled case and respectfully request that the sworn report, the 1205 form, be withdrawn and in so doing respectfully show as follows; the undersigned arresting officer is the plaintiff in this case. As such the arresting officer completed a sworn report which was submitted to the Georgia Department of Driver Services pursuant to OCGA [§] 40-5-67.1[.] [I]t is now the intent of the undersigned arresting officer to withdraw this sworn report and suspend the administrative suspension. This withdrawal of this sworn report is based upon the agreement between the parties wherein the petitioner, Mr. Adams, agrees to enter a guilty plea to the underlying [DUI] charge . . . . The petitioner, Mr. Adams, further agrees that if he fails to enter a plea of guilty to the underlying [DUI] charge . . . on or before December 1, 2016, if he request any motions, preliminary hearings or any court action other than entering a guilty plea the petitioner waives his right to hearing under OCGA [§] 40-5-67.1 [(g) (1)] and authorizes the arresting officer to sign and file ex parte the affidavit below with this Court which shall immediately enter an order reinstating the administrative suspension without a hearing.

         Adams ultimately failed to enter a guilty plea, and a criminal trial ensued. During the trial, the trooper testified to his encounter with Adams on the roadside as previously summarized, and the State introduced and played for the jury an audio recording of the encounter captured on the microphone worn by the trooper. Additionally, the trooper testified about the ALS Stipulation reached with defense counsel, the ALS Stipulation was introduced into evidence and read to the jury, and the ALS Stipulation was sent out with the jury after jurors requested to see it during their deliberations. The State also introduced, through the testimony of a deputy sheriff from a different county, evidence of a prior occasion in which Adams had been arrested for DUI. After hearing all the evidence, the jury found Adams guilty of DUI less safe, failure to maintain lane, and following too closely. This appeal followed in which Adams challenges several evidentiary rulings by the trial court.[3]

         1. In related enumerations of error, Adams contends that the trial court erred in permitting the State to introduce evidence of the ALS Stipulation because it was irrelevant, unfairly prejudicial, and could not be introduced as an admission against him in his criminal trial.[4] Adams further contends on the same grounds that the trial court should have granted a mistrial in response to the trooper's testimony about the ALS Stipulation.

         Notably, however, Adams neither moved for a mistrial nor objected to the introduction of the ALS Stipulation on the grounds that it was irrelevant, unfairly prejudicial, and should not be treated as an admission. "To preserve an objection upon a specific ground for appeal, the objection on that specific ground must be made at trial, or else it is waived." (Citations and punctuation omitted.) Sneed v. State, 337 Ga.App. 782, 785 (1) (b) (788 S.E.2d 892) (2016). As we have explained, "where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court." (Citation and punctuation omitted.) Volcey v. State, 200 Ga.App. 881, 883 (2) (410 S.E.2d 36) (1991). For the same reason, an appellant is barred from raising a ground for mistrial on appeal that was never raised in the trial court. Chenoweth v. State, 281 Ga. 7, 12 (4) (b) (635 S.E.2d 730) (2006). Accordingly, Adams waived his argument raised for the first time on appeal that evidence of the ALS Stipulation was inadmissible as irrelevant and unfairly prejudicial and should not be treated as an admission against him.

         Nor has Adams demonstrated that the admission of testimony and documentary evidence of the ALS Stipulation constituted plain error. See OCGA § 24-1-103 (d).[5]

In regard to a plain-error review of a ruling on evidence, the analysis consists of four parts. First, there must be an error or defect - some sort of deviation from a legal rule - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Thus, beyond showing a clear or obvious error, plain-error analysis requires the appellant to make an affirmative showing that the error probably did affect the outcome below.

(Citation and punctuation omitted.) Wilson v. State, 301 Ga. 83, 88 (2) (799 S.E.2d 757) (2017). "Satisfying all four prongs of this standard is difficult, as it should be." (Citation and punctuation omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 S.E.2d 232) (2011).

         Adams cannot show error, much less plain error, in the admission of evidence pertaining to the ALS Stipulation. The present case is controlled adversely to Adams by Flading v. State, 327 Ga.App. 346, 348-351 (1) (759 S.E.2d 67) (2014), where this Court upheld the admission of a similar written stipulation entered in an ALS hearing that was signed by defense counsel and a law enforcement officer, where there was no evidence of fraud or mistake in reaching the stipulation and no evidence that the defendant ever repudiated his counsel's authority to make the stipulation. We concluded in Flading that the trial court did not abuse its discretion by admitting the stipulation in the defendant's criminal trial because a stipulation entered in an ALS hearing that the defendant "would plead guilty to DUI in exchange for the return of his driver's license [was] relevant to, though certainly not dispositive of, the charge that he was driving under the influence of alcohol, " and its probative value was not substantially outweighed by its prejudicial effect. Id. at 351-352 (2).[6]

         As in Flading, Adams does not claim fraud or mistake in entering the ALS Stipulation, and he never repudiated his counsel's authority to make the Stipulation.

Accordingly, [Adams], having accepted the benefit of the stipulation in the form of the reinstatement of his license and having shown no fraud or mistake, acquiesced to his counsel's stipulation to plead guilty to the DUI and to the admissibility of the [ALS ...

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