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Driver v. State10/22/1999
ANDREWS, P. J. RUFFIN and MILLER, JJ.
MC-068C
MILLER, Judge.
After witnessing Melanie Driver speed, run a red light, and weave out of her lane, an officer pulled her over and observed her watery, bloodshot eyes, smelled an odor of alcohol coming from her car, heard her slur her speech and admit to drinking a couple of beers, and watched her respond sluggishly to requests. She performed poorly on three field sobriety tests and tested positive on the breath alco-sensor. After arresting her for DUI, the officer searched her purse for inventory purposes and discovered a green, leafy substance in a plastic baggie, which Driver conceded at trial was marijuana. A jury found her guilty of running a red light, possessing marijuana, and driving under the influence of alcohol to the extent that it was less safe for her to drive. Driver appeals, contending among other things that the evidence did not suffice to sustain the convictions. Because the evidence was more than sufficient, we affirm.
1. Driver argues that the State failed to establish a scientific foundation regarding the reliability of three police lab tests (Duquenois-Levine, fast blue V, and microscopic) performed on the marijuana. Claiming the court should have excluded the lab results, she contends that nothing else supported a finding of guilt on her alleged possession of marijuana and that therefore her motion for directed verdict should have been granted.
In testimony elicited by her own counsel, Driver admitted three times that the substance found in her purse was marijuana. This testimony moots her appellate arguments challenging the State's evidence that the substance was marijuana. Where a defendant at trial admits to the essential elements of a crime, alleged defects in the State's evidence on that crime become irrelevant. Because we consider all evidence introduced at trial, such admissions, even if made after the State has concluded its case-in-chief, preclude any error in denying a defendant's motion for directed verdict based on evidentiary grounds.
2. Driver claims error in the court's denial of its motions that were based on the State's failure before trial to provide allegedly exculpatory material found in a police report. Specifically, she argues that the officer's notes that she recited the entire alphabet (though with slurred speech), that she told the officer she had weak ankles before failing the one-legged stand test, and that she touched the tip of her nose one out of the four times requested, were exculpatory material wrongfully withheld from her until mid-way through the officer's direct testimony, despite her pre-trial Brady motion.
Because a Brady motion calls for the production of exculpatory evidence known to the prosecution but unknown to the defense, it "does not reach the defendant's own statements made prior to trial, as they are known to the defense." Similarly, Driver, who was the subject of the sobriety tests, knew all along how she performed on the tests and so testified at trial. In preparing her defense, she could have recited her performance to her counsel or to an expert for evaluation. No Brady violation occurred.
Moreover, even if she had been unaware of the allegedly exculpatory information in the police report, no Brady violation occurred where the information became available to her at trial. "Brady does not require pre-trial disclosure of the materials." Because Driver cross-examined the officer extensively about the police report information, she cannot show that the delayed disclosure deprived her of a fair trial.
3. Driver challenges the trial court's allowing the officer to give a p
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