 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Kendrick v. State10/14/1999
Tommy Lee Kendrick, Jr. pleaded guilty to violating the Georgia Controlled Substances Act (unlawful possession of amphetamine) and driving under the influence. His three-year sentence was probated, subject to the general conditions, and further subject to Kendrick's residing at the Diversion Center for 12 months, with the express proviso that " ny violation of rules and regulations of Center will be considered a violation of this probated sentence." The State subsequently petitioned to revoke Kendrick's probation, alleging he violated the terms of probation for his failure to avoid injurious and vicious habits and his failure to abide by the rules of the Griffin Diversion Center, in that he tested positive for alcohol and cocaine. At the hearing on this petition, over Kendrick's objections as to sufficient foundation and hearsay, the State introduced two disciplinary forms purporting to document Kendrick's infractions. The Superior Court admitted these exhibits as business records. Based thereon, the Superior Court concluded Kendrick had committed serious infractions of the rules regulating a Community Corrections facility and revoked Kendrick's probation for two years. Kendrick's application for discretionary appeal was granted by this Court and a timely notice of appeal was filed. Held:
The Superior Court's reasoning that the disciplinary reports were admissible as business records was in error, but because Kendrick adopted the unsworn statements contained therein by his signature pleading guilty, they constituted admissions against interest. We affirm.
1. The State's only witness was Probation Officer Mary Ann Conkle, the Disciplinary Hearing Officer for Griffin Diversion Center, who had no personal knowledge whether Kendrick tested positive for alcohol or cocaine, or whether he admitted being in violation of the Center's regulations prohibiting consumption of alcohol or cocaine by the inmates. Rather, the disciplinary reports were prepared by another probation officer, Ron Pitts, who did not testify. Although Ms. Conkle testified she is the custodian of disciplinary records at the Diversion Center; that these exhibits were the original, unaltered disciplinary reports; and they were kept in the ordinary course of the Diversion Center's business, this is an inadequate foundation to admit the documents as business records. Under OCGA § 24-3-14 (b), the proper inquiry is whether it is in the regular course of the Diversion Center's Control Officer to make an incident or disciplinary report and whether these reports were in fact made in the regular course of the Center's business.
2. Exhibit S-1 describes the cocaine violation as follows:
DESCRIPTION OF INFRACTION On 04/09/99 at 1930 hrs I Officer Ron Pitts on duty as control room officer, when resident Kendrick . . . returned to the center from work[.] A suspect urine sample was [obtained] from resident Kendrick and was tested using the ontrack testing stick[.] The urine sample tested positive for cocaine. . . .
RESIDENT NOTIFICATION A. By my signature I acknowledge that I have been advised of the above charges. I hereby admit guilt and voluntarily and without coercion waive the right to a disciplinary hearing. I understand that the hearing officer will review these charges and recommend sanctions to the superintendent. I understand that I may appeal any sanctions imposed.
On a signature line captioned "RESIDENT SIGNATURE" is what purports and appears to be Kendrick's signature.
Under the controlling authority of Hubbard v. State, 207 Ga. App. 703, 704 (429 SE2d 123), the ontrack system for drug detection is not (yet) sufficiently recognized as reliable and so is not ad
Page 1 2 Georgia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|