Lafavor v. State

334 Ga.App. 125

778 S.E.2d 377

LAFAVOR

v.The STATE.

No. A15A0902.

Court of Appeals of Georgia.

Oct. 8, 2015.

Mary Katherine Durant, Lynn H. Whatley, for Appellant.

Layla Hinton Zon, Christopher David Sperry, for Appellee.

Opinion

DILLARD, Judge.

Following trial, a jury convicted Daniel Lafavor on one count of speeding. On appeal, Lafavor challenges the sufficiency of the evidence supporting his conviction and further contends that the trial court erred in (1) admitting laser-speed-detection-device evidence despite the State's failure to comply with the requirements for admission of such evidence, (2) denying his motion for a continuance, (3) admitting exhibits that the State failed to disclose prior to trial, (4) violating his right to confront the witnesses against him, (5) improperly instructing the jury that its verdict could not be governed by sympathy, (6) inadequately responding to questions posed by the jury during its deliberations, and (7) admitting impeachment evidence. For the reasons set forth infra,we affirm.

Viewed in the light most favorable to the jury's verdict,¹the evidence shows that on the night of July 31, 2011, a Covington police officer was parked alongside Interstate 20 and was monitoring west-bound traffic on a section of the highway where the speed limit was 65 miles per hour. At approximately 9:00 p.m., the officer observed a red Corvette approaching in the first lane and overtaking other vehicles “at a good rate of speed.” Believing that the Corvette was moving much too fast and exceeding the speed limit, the officer trained a laser-speed-detection device on the vehicle and obtained a reading that it was traveling at 108 miles per hour. Consequently, the officer initiated a traffic stop, during which he determined that Lafavor was the driver and owner of the vehicle and that his wife was the only other passenger. The officer then arrested Lafavor, and another officer, whose vehicle was equipped to transport arrestees, transported Lafavor to the county jail.

Lafavor was later charged, via accusation, with one count of speeding. At Lafavor's jury trial, in which he proceeded pro se,the State's sole witness was the arresting officer, who testified regarding the details of the traffic stop. In addition, Lafavor and his wife testified in Lafavor's defense, and both asserted that he was not exceeding the speed limit. Nevertheless, at the conclusion of the trial, the jury convicted Lafavor of speeding.

Subsequently, Lafavor obtained counsel and filed a motion for new trial, which the trial court denied after conducting a hearing on the matter. This appeal follows.

1. Lafavor first contends that the evidence was insufficient to support his speeding conviction. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the jury's verdict, and the appellant no longer enjoys a presumption of innocence.²And, of course, in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine whether “a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.”³Thus, the jury's verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.”⁴With these guiding principles in mind, we will now address Lafavor's specific contentions.

In order to be guilty of speeding, one need only “exceed the designated speed limit.”⁵And in prosecuting someone for speeding, the State “need not prove that a driver was traveling at a precise rate of speed in order to obtain a conviction for speeding.”⁶In fact, greater speeds by specified increment “affect only the punishment and are therefore not material allegations to prove the crime of speeding.”⁷Furthermore, an officer's estimate of speed is “sufficient to support a conviction on a speeding violation[.]”⁸

Here, the posted speed limit on the section of I–20 where Lafavor was stopped was 65 miles per hour, and the arresting officer testified that he had been trained to visually estimate the speed of a moving vehicle within two miles per hour. Additionally, the officer recounted that when he first observed Lafavor's vehicle, it was overtaking other vehicles, and that he “believed” him “to be speeding.” The officer further testified that his laser speed-detection device, in fact, indicated that Lafavor's vehicle was traveling at a rate of 108 miles per hour, thereby confirming the officer's estimate that Lafavor was indeed speeding. Accordingly, the evidence was sufficient to sustain Lafavor's speeding conviction.⁹

2. Lafavor next contends that the trial court erred in admitting the laser-speed-detection-device evidence, arguing that the State failed to comply with the requirements for admission of such evidence under OCGA § 40–14–17. This claim lacks merit.

Initially, we note that Lafavor failed to object to the introduction of the laser-speed-detection-device evidence during his trial. Nevertheless, because his trial occurred after January 1, 2013, we may review the purportedly improper admission of evidence for plain error.¹⁰That being said, a finding of plain error requires “a clear or obvious legal error or defect not affirmatively waived by the appellant that must have affected the appellant's substantial rights, i.e.,it affected the outcome of the trial-court proceedings.”¹¹

Reviewing Lafavor's claim in this regard, OCGA § 40–14–17provides that

[e]vidence of speed based on a speed detection device using the speed timing principle of laser which is of a model that has been approved by the Department of Public Safety shall be considered scientifically acceptable and reliable as a speed detection device and shall be admissible for all purposes in any court, judicial, or administrative proceedings in this state. A certified copy of the Department of Public Safety list of approved models of such laser devices shall be self-authenticating and shall be admissible for all purposes in any court, judicial, or administrative proceedings in this state.

The text of this statutory provision provides that a certified copy of the Department's “list of approved models ... shall be self-authenticating” for adjudicatory purposes, but does not dictate that “onlysuch a document can supply evidence that the device was so approved.” ¹²

Indeed, as we have recently held in this very context, “circumstantial evidence arising from the testimony of the trained and certified individual who operated the machine and performed the test is sufficient to meet the statute's authenticating procedures.”¹³

Here, the arresting officer testified that he was certified to use laser-speed-detection devices and that the Department of Public Safety had approved the devices used by the Covington Police Department. The officer also provided lengthy testimony regarding his familiarity with calibrating the device and, more specifically, the fact that at the start of his shift on the night in question, he calibrated the device that he ultimately used to clock Lafavor's vehicle. Given these particular circumstances, the State sufficiently complied with the authenticating procedures under OCGA § 40–14–17.¹⁴

But even if we assumed for the sake of argument that the State failed to comply with OCGA § 40–14–17, the admission of this evidence did not constitute plain error. As we noted in Division 1 supra,the laser-speed-detection-device evidence was not necessary because the officer's estimate that Lafavor was exceeding the speed limit was sufficient to sustain his conviction.¹⁵Thus, the laser-speed-detection-device evidence was merely cumulative of the officer's testimony, “and its admission did not in reasonable probability affect the outcome of the trial.”¹⁶

3. Lafavor contends that the trial court erred in denying his request for a continuance, which he sought because the State did not provide him with the transporting officer's out-of-state address. We disagree.

At the outset, we note that the grant or denial of a continuance is “addressed to the sound legal discretion of the trial court, and the court's ruling will not be disturbed absent a clear abuse of discretion.”¹⁷And under OCGA § 17–8–25, in order to obtain a continuance based upon a witness's absence, a defendant is required to demonstrate that

(1) that the witness is absent; (2) that he has been subpoenaed; (3) that he does not reside more than 100 miles from the place of trial; (4) that his testimony is material; (5) that the witness is not absent by permission of the movant; (6) that the movant expects to be able to procure the testimony of the witness at the next term of court; (7) that the continuance is not requested for purposes of delay and, (8) the facts expected to be proved by the absent witness must be stated.¹⁸

Importantly, the trial court's discretion is not abused “unless all of the requisites of OCGA § 17–8–25are shown and the trial court still denied a continuance.”¹⁹

In this matter, more than ten days prior to the start of trial, the State filed its witness list, which included the officer who arrived on the scene after Lafavor was arrested and transported him to jail. Later, the State issued a witness subpoena for the officer but his address was listed as “private,” despite the fact that Lafavor's discovery request sought the contact information for all the investigating officers. On the first day of trial, Lafavor requested a continuance, arguing that he had been unable to interview the transporting officer, who would provide crucial testimony. Specifically, Lafavor claimed that after placing him in the patrol vehicle, the transporting officer asked the arresting officer if he had shown Lafavor the laser reading, and the arresting officer admitted that he had deleted the information. In response, the State explained that the transporting officer was no longer a member of the...