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State v. McCoy9/11/2003
e state had alleged that appellant had been on probation when he committed the offenses. In denying the motion for a new panel, the trial court noted that it did not know whether appellant would waive his right to have a jury determine his probation status if he were to be convicted. The court said that, in the event he did not waive the right, it did not want there to be a problem because of a juror's acquaintance with the witness. In fact, on the second day of trial, appellant told the trial court he wanted a jury trial on the allegation that he had been on probation at the time the offenses were committed.
We note that it was not necessary for the trial court to mention the witness's place of employment to determine whether any prospective jurors were acquainted with him. An accused has a constitutional right to be tried by a fair and impartial jury. State v. Greenawalt, 128 Ariz. 150, 167, 624 P.2d 828, 845 (1981). But appellant had the burden of showing that the trial court's remarks prejudiced the jury; unless there are objective indications of prejudice, we will not presume its existence. See State v. Doerr, 193 Ariz. 56, , 969 P.2d 1168, (1998). A review of the voir dire transcript reveals nothing suggesting the panel was prejudiced by the court's remark, which cannot reasonably be considered inflammatory or a comment on appellant's guilt or innocence. We conclude that the trial court did not abuse its discretion by refusing to grant appellant's motion.
Use of HGN Test to Quantify Alcohol Concentration
At trial, Officer New testified that the six cues of impairment appellant had shown on the HGN test indicated his BAC had been "over a.08." The criminalist who had analyzed appellant's blood sample testified that appellant's BAC had been.094. Appellant claims the HGN test was improperly admitted to quantify his BAC particularly because he had only been charged with DUI and not with driving with an alcohol concentration of.10 or more.
We need not consider these contentions. The only objection appellant made to Officer New's testimony was based on foundation because his BAC was not yet in evidence. The trial court overruled the objection based on the state's representation that the criminalist would testify later, and he did. An objection to the admission of evidence on one ground does not preserve for appellate review other objections that could have been made, but were not. State v. Neal, 143 Ariz. 93, 101, 692 P.2d 272, 280 (1984). By his failure to object on this ground below, appellant has waived consideration of this issue.
Improper Sentences for Drug Offenses
Appellant contends, and the state agrees, that the trial court erred in sentencing him to prison for first-time drug convictions. As a nonviolent offender with one prior felony conviction for endangerment, his placement on probation for those offenses was mandated by the terms of A.R.S. § 13-901.01. See State v. Estrada, 201 Ariz. 247, 34 P.3d 356 (2001).
Accordingly, we affirm appellant's DUI conviction and sentence. We vacate the sentences for possession of marijuana and possession of drug paraphernalia and remand the case for resentencing on those offenses.
JOHN PELANDER, Presiding Judge
CONCURRING:
PHILIP G. ESPINOSA, Chief Judge
PETER J. ECKERSTROM, Judge
Page 1 2 Arizona DUI Attorneys
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